Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations 9219

within the service area. CTSs provide

service from a fixed point, and certain

CTSs must be individually licensed as

part of a 218–219 MHz Service system.

See § 95.811.

(c) Each 218–219 MHz Service system

service area is one of the cellular system

service areas as defined by the

Commission, unless modified pursuant

to § 95.823.

3. Section 95.807 is amended by

revising paragraphs (a) introductory

text, (a)(1), and (a)(4) to read as follows:

§ 95.807 Requesting regulatory status.

(a) Authorizations for systems in the

218–219 MHz Service will be granted to

provide services on a common carrier

basis or a private (non-common carrier

and/or private internal-use) basis.

(1) Initial applications. An applicant

will specify on FCC Form 601 if it is

requesting authorizations to provide

services on a common carrier, noncommon carrier or private internal-use

basis, of a combination thereof.

* * * * *

(4) Pre-existing licenses. Licenses

granted before April 9, 2001. are

authorized to provide services on a

private (non-common carrier) basis.

Licensees may modify this initial status

pursuant to paragraph (a)(3) of this

section.

* * * * *

4. Section 95.811 is amended by

revising paragraph (b) and adding

paragraph (e) to read as follows:

§ 95.811 License requirements.

* * * * *

(b) Each CTS where the antenna does

not exceed 6.1 meters (20 feet) above

ground or an existing structure (other

than an antenna structure) and is

outside the vicinity of certain receiving

locations (see § 1.924 of this chapter) is

authorized under the 218–219 MHz

System license. All other CTS must be

individually licensed.

* * * * *

(e) Each CTS (regardless of whether it

is individually licensed) and each RTU

must be in compliance with the

Commission’s environmental rules (see

part 1, subpart I of this chapter) and the

Commission’s rules pertaining to the

construction, marking and lighting of

antenna structures (see part 17 of this

chapter).

5. Section 95.812 is amended by

revising paragraph (a) to read as follows:

§ 95.812 License term.

(a) The term of each 218–219 MHz

service system license is ten years from

the date of original grant or renewal.

* * * * *

6. § 95.816 is amended by revising the

last sentence in paragraph (b),

paragraphs (c)(3) and (c)(5) to read as

follows:

§ 95.816 Competitive bidding procedures.

* * * * *

(b) * * * The interest rate will equal

the rate for five-year U.S. Treasury

obligations at the grant date.

(C) * * *

(3) For purposes of determining

whether an entity meets either of the

definitions set forth in paragraph (c)(1)

or (c)(2) of this section, the gross

revenues of the entity, its affiliates, and

controlling interests shall be considered

on a cumulative basis and aggregated.

* * * * *

(5) A consortium of small businesses

(or a consortium of very small

businesses) is a conglomerate

organization formed as a joint venture

between or among mutually

independent business firms, each of

which individually satisfies the

definition in paragraph (c)(1) of this

section (or each of which individually

satisfies the definition in paragraph

(c)(2) of this section). Where an

applicant or licensee is a consortium of

small businesses (or very small

businesses), the gross revenues of each

small business (or very small business)

shall not be aggregated.

* * * * *

7. Section 95.819 is revised to read as

follows:

§ 95.819 License transferability.

(a) A 218–219 MHz Service system

license, together with all of its

component CTS licenses, may be

transferred, assigned, sold, or given

away only in accordance with the

provisions and procedures set forth in

§ 1.948 of this chapter. For licenses

acquired through competitive bidding

procedures (including licenses obtained

in cases of no mutual exclusivity),

designated entities must comply with

§§ 1.2110 and 1.2111 of this chapter (see

§ 1.948(a)(3) of this chapter).

(b) If the transfer, assignment, sale, or

gift of a license is approved, the new

licensee is held to the construction

requirements set forth in § 95.833.

8. Section 95.861 is amended by

revising paragraph (c) to read as follows:

§ 95.861 Interference.

* * * * *

(c) A 218–219 MHz Service licensee

must provide a copy of the plan

required by § 95.815 (a) of this part to

every TV Channel 13 station whose

Grade B predicted contour overlaps the

licensed service area for the 218–219

MHz Service system. The 218–219 MHz

Service licensee must send the plan to

the TV Channel 13 licensee(s) within 10

days from the date the 218–219 MHz

Service submits the plan to the

Commission, and the 218–219 MHz

Service licensee must send updates to

this plan to the TV Channel 13

licensee(s) within 10 days from the date

that such updates are filed with the

Commission pursuant to § 95.815.

* * * * *

[FR Doc. 01–3051 Filed 2–6–01; 8:45 am]

BILLING CODE 6712–01–U

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AG28

Endangered and Threatened Wildlife

and Plants; Final Determination of

Critical Habitat for the Zayante BandWinged Grasshopper

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), designate

critical habitat for the Zayante bandwinged grasshopper (Trimerotropis

infantilis) under the Endangered

Species Act of 1973, as amended (Act).

The designation includes an

approximately 4,224 hectare (10,560

acre) area in Santa Cruz County,

California, which includes all areas

known to be occupied by the Zayante

band-winged grasshopper. Critical

habitat identifies specific areas that are

essential to the conservation of a listed

species, and that may require special

management considerations or

protection. The primary constituent

elements for the Zayante band-winged

grasshopper are those habitat

components that are essential for the

primary physical and biological needs

of the species. These needs include

food, water, sunlight, air, minerals and

other nutritional or physiological needs;

cover or shelter; sites for breeding and

reproduction and dispersal; protection

from disturbance; and habitat that is

representative of the historic

geographical, and ecological

distribution of the Zayante band-winged

grasshopper.

Section 7 of the Act prohibits

destruction or adverse modification of

critical habitat by any activity funded,

authorized, or carried out by any

Federal agency. As required by section

9220 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations

4 of the Act, we considered economic

and other relevant impacts prior to

making a final decision on what areas to

designate as critical habitat.

DATES: This rule becomes effective on

March 9, 2001.

ADDRESSES: You may inspect the

complete file for this rule at the Ventura

Fish and Wildlife Office, U.S. Fish and

Wildlife Service, 2493 Portola Road,

Suite B, Ventura, CA 93001, by

appointment during normal business

hours.

FOR FURTHER INFORMATION CONTACT:

Diane K. Noda, Field Supervisor,

Ventura Fish and Wildlife Office, at the

above address; telephone 805/644–1766,

facsimile 805/644–3958.

SUPPLEMENTARY INFORMATION:

Background

The Zayante band-winged

grasshopper (Trimerotropis infantilis),

Order Orthoptera and Family Acrididae,

was first described from near Mount

Hermon in the Santa Cruz Mountains,

Santa Cruz County, California, in 1984

(Rentz and Weissman 1984). The body

and forewings of the Zayante bandwinged grasshopper are pale gray to

light brown with dark cross-bands on

the forewings. The basal area of the

hindwings is pale yellow with a faint

thin band. The hind tibiae (lower legs)

are blue, and the eyes have bands

around them. Males range in length

from 13.7 to 17.2 millimeters (mm) (0.54

to 0.68 inches (in.)); females are larger,

ranging in length from 19.7 to 21.6 mm

(0.78 to 0.85 in.) (Otte 1984; Rentz and

Weissman 1984). The Zayante bandwinged grasshopper is most similar in

appearance to T. occulans and T.

koebelei; neither of these species is

known from the Santa Cruz Mountains

(Otte 1984, Rentz and Weissman 1984).

Trimerotropis thalassica and T.

pallidipennis pallidipennis have been

observed in the vicinity of Zayante

band-winged grasshopper, but are

morphologically distinct from it and

appear to prefer different microhabitats

(Rentz and Weissman 1984; Arnold

1999a, b).

The flight season for adult Zayante

band-winged grasshopper extends from

late May through October with peak

activity during July and August (White,

in litt. 1993; Morgan, in litt. 1994;

Arnold 1999a, b). Specimens have been

observed as late as November 4 (Arnold

1999a). When flushed, individuals

generally fly 1 to 2 meters (m) (3 to 7

feet (ft)), producing a buzzing sound

while in flight (Rentz and Weissman

1984). Band-winged grasshoppers often

alight on bare ground, and are

conspicuous in flight because of the

color of the hind wings and the buzzing

sound made by the wings (Borror et al.

1976). No additional information on the

life cycle of this species is available.

The Zayante band-winged

grasshopper is known only from Santa

Cruz County, California. The species

was described in 1984 from specimens

collected in 1977 on sparsely vegetated

sandy soil above the Olympia Sand

Quarry. Between 1989 and 1994,

Zayante band-winged grasshoppers

were found at 10 of 39 sites sampled

during two independent surveys near

the communities of Ben Lomond,

Felton, Mount Hermon, Zayante, and

Scotts Valley, California (Hovore 1996,

USFWS 1998).

Little is known of the historical

distribution of the species. A review of

museum specimens yielded Zayante

band-winged grasshoppers from ‘‘Santa

Cruz Mountains, no date’’, ‘‘Alma,

1928’’, ‘‘Felton, 1959’’, and ‘‘Santa Cruz,

1941’’ (Rentz and Weissman 1984). No

subsequent collections have been

recorded that substantiate the existence

of a population in the vicinity of Alma.

Furthermore, the town of Alma is

currently beneath a reservoir, and the

cited specimens cannot be located in the

listed depository for verification (D.

Weissman, California Academy of

Sciences, pers. comm. 1994, 2000).

Therefore, because no specific

descriptions of location or habitat

accompanied these historic specimens,

they were not considered in our

assessment of the current range and

status of the species.

The Zayante band-winged

grasshopper occurs in association with

the Zayante soil series (USDA Soil

Conservation Service 1980). The

Zayante soils in the vicinity of the

communities of Ben Lomond, Felton,

Mount Hermon, Zayante, and Scotts

Valley are dominated by maritime coast

range Pinus ponderosa (ponderosa pine)

forest and northern maritime chaparral

(Griffin 1964, Holland 1986). The

distributions of these two plant

communities overlap to form a complex

and intergrading mosaic of communities

variously referred to as ponderosa sand

parkland, ponderosa pine sand hills,

and Arctostaphylos silvicola (silverleafed manzanita) mixed chaparral.

These communities are collectively

referred to as ‘‘Zayante sand hills

habitat’’ and harbor a diversity of rare

and endemic plant species (Thomas

1961, Griffin 1964, Morgan 1983). A

unique habitat within the Zayante sand

hills is sand parkland, characterized by

sparsely vegetated, sandstonedominated ridges, and saddles that

support scattered ponderosa pines and a

wide array of annual and perennial

herbs and grasses.

The role of landscape-level processes,

including hydrology, seed dispersal,

succession, fire, and other disturbances,

in forming Zayante sand hills habitats is

poorly understood. Historically, the

Zayante sand hills included a

continually changing pattern of habitat

patches, each with specific disturbance

histories, sizes, and species

compositions. At any one time, patches

of all possible stages of succession

would be present (Lee 1994).

Populations of the Zayante band-winged

grasshopper evolved within this

dynamic landscape and most likely are

adapted to disturbance and change.

The habitat of the Zayante bandwinged grasshopper was originally

described as ‘‘sandy substrate sparsely

covered with Lotus and grasses at the

base of pines’’ (Rentz and Weissman

1984). All of the locations where

grasshoppers were found during surveys

completed between 1989 and 1994 were

on Zayante soils. The habitat at these

sites was consistently described as a

sparsely vegetated sandy substrate or

sand parkland (White, in litt. 1993;

Morgan, in litt. 1994). In 1997, at the

time of the listing of this species, all of

its known locations occurred within 7

discrete areas of sand parkland habitat

as characterized by Lee (1994). These

areas of sand parkland totaled 78 ha

(193 ac). Recent studies indicated that

the Zayante band-winged grasshopper

occurs primarily in early successional

sand parkland with widely scattered

tree and shrub cover, extensive areas of

bare or sparsely vegetated ground, loose

sand, and relatively flat relief (Hovore

1996; Arnold 1999a, b). However,

Zayante band-winged grasshoppers have

also recently been observed in areas

with a well-developed ground cover and

in areas with sparse chaparral mixed

with patches of grasses and forbs

(Hovore 1996; Arnold 1999a, b),

indicating that Zayante band-winged

grasshoppers are not restricted solely to

sand parkland. As a result of this new

information, the amount of area that

provides potential habitat for the

species has not been quantified at this

time.

The primary threat to the Zayante

band-winged grasshopper is loss of

habitat. Historically, approximately

2,533 ha (6,265 ac) of Zayante sand hills

habitat occurred in Santa Cruz County.

Over 40 percent of the Zayante sand

hills habitat, and 60 percent of the sand

parkland within that habitat, is

estimated to have been lost or altered

due to human activities. These activities

include—sand mining, urban

development, recreational activities,

Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations 9221

and agriculture (Marangio and Morgan

1987; Lee 1994; R. Morgan, pers. comm.

1992). Approximately 200 to 240

hectares (ha) (500 to 600 acres (ac)) of

sand parkland existed historically

(Marangio and Morgan 1987). By 1986,

only 100 ha (250 ac) of sand parkland

remained intact (Marangio and Morgan

1987). By 1992, sand parkland was

reportedly reduced to only 40 ha (100

ac) (Morgan, pers. comm. 1992). A more

recent assessment revised that estimate

up to 78 ha (193 ac), largely because of

identification and inclusion of

additional, lower-quality sand parkland

(Lee 1994).

The disruption of natural landscapelevel processes may also be resulting in

shifts in plant communities, which has

reduced the extent and quality of habitat

available for the Zayante band-winged

grasshopper (USFWS 1998). For

example, active suppression of fire has

resulted in the encroachment of mixed

evergreen forest into ponderosa pine

forest (Marangio 1985). Increased

shading from the mixed evergreen forest

appears to restrict the use of areas by the

Zayante band-winged grasshopper and

results in lower population numbers

(Sculley, USFWS, pers. observation

1999). Historically, fires would have

burned in this area and resulted in areas

with more exposure to sunlight. Seed

dispersal mechanisms may be disrupted

as a result of urbanization of the

Zayante sandhills. Residential

development may disrupt wind

pollination events and isolate or

extirpate metapopulations of insect

pollinators. In addition, nonnative plant

species, including Cystisus striatus

(Portuguese broom) and Carpobrotus

chilensis (sea fig), are out-competing

native species and encroaching on sites

occupied by the Zayante band-winged

grasshopper (Rigney 1999). Pesticides

and over-collection are also recognized

as potential threats to the Zayante bandwinged grasshopper (USFWS 1998).

Previous Federal Action

On July 16, 1992, Dr. David

Weissman, of the California Academy of

Sciences, petitioned us to list the

Zayante band-winged grasshopper as an

endangered species. During our status

review of the Zayante band-winged

grasshopper, we examined the available

literature and data on the species’ life

history, ecology, locality records, and

range. Sources of information on the

status of and threats to the Zayante

band-winged grasshopper include

reports supplied by proponents of the

listing, plans supplied by reviewing

agencies for development projects, and

published and unpublished data from

scientists with expertise on the species

and its habitat needs.

On May 10, 1994, we published a

proposed rule in the Federal Register

(59 FR 24112) to list the Zayante bandwinged grasshopper and two other

insect species as endangered. The

proposed rule constituted the final

finding for the petitioned actions for the

Zayante band-winged grasshopper in

accordance with section 4(b)(3)(B)(ii) of

the Endangered Species Act (Act) of

1973, as amended (16 U.S.C. 1531 et

seq.). Publication of the proposed rule

opened a 60-day public comment period

through July 11, 1994, to allow

submission of new and additional

information on the species and written

comments from the public. We held a

public hearing on July 18, 1994, in

Santa Cruz, California, that included

presentations of oral testimony and

written comments. We published a

notice on September 1, 1994 (59 FR

45254), reopening the public comment

period through October 31, 1994, to

allow submission of additional

comments and information concerning

the proposed rule.

Using information received during the

cited public comment periods, we

published a final rule on January 24,

1997 (62 FR 3616), determining the

Zayante band-winged grasshopper and

Mount Hermon June beetle (Polyphylla

barbata), both occurring within the

Zayante sand hills habitat, to be

endangered species. At the time of

listing, we concluded that designation

of critical habitat for the Zayante bandwinged grasshopper was not prudent.

On September 30, 1997, we made a draft

recovery plan for the Zayante bandwinged grasshopper, Mount Hermon

June beetle, and three plants

(Chorizanthe pungens var. hartwegiana

(Ben Lomond spineflower), Erysimum

teretifolium (Ben Lomond wallflower),

and Chorizanthe robusta var. hartwegii

(Scotts Valley spineflower)) available for

public comment (62 FR 51126). We

published the final recovery plan in

September 1998.

At the time of listing, we concluded

that designation of critical habitat for

the Zayante band-winged grasshopper

was not prudent because such

designation would not benefit the

species since all known populations of

the species occur on non-Federal lands

where Federal involvement in land-use

activities would not generally occur.

Since this time, we have determined

that designating critical habitat can

provide educational benefits by formally

identifying those areas essential to the

conservation of the species. These areas

are also identified in the recovery plan

as the focus of our recovery efforts for

the Zayante band-winged grasshopper.

On March 4, 1999, the Southwest

Center for Biological Diversity, the

Center for Biological Diversity, and

Christians Caring for Creation filed a

lawsuit in the Northern District Court of

California against the U.S. Fish and

Wildlife Service and Bruce Babbitt,

Secretary of the Department of the

Interior, for failure to designate critical

habitat for seven species—the Alameda

whipsnake (Masticophis lateralis

euryxanthus), the Zayante band-winged

grasshopper, the Morro shoulderband

snail (Helminthoglypta walkeriana), the

arroyo southwestern toad (Bufo

microscaphus californicus), the San

Bernardino kangaroo rat (Dipodomys

merriami parvus), the spectacled eider

(Somateria fischeri), and the Steller’s

eider (Polysticta stelleri) (Southwest

Center for Biological Diversity v. U.S.

Fish and Wildlife, CIV 99–1003 MMC).

On November 5, 1999, William Alsup,

U.S. District Judge, dismissed the

plaintiffs’ lawsuit according to a

settlement agreement entered into by

the parties. Consistent with the

settlement agreement, we proposed

critical habitat for the Zayante bandwinged grasshopper (65 FR 41917) on

July 7, 2000.

The comment period for this proposal

closed on September 5, 2000. On

December 6, 2000, we published a

notice (65 FR 76207) announcing the

reopening of the comment period on the

draft proposal to designate critical

habitat for the Zayante band-winged

grasshopper and a notice of availability

of the draft economic analysis on the

proposed determination. The comment

period was opened for an additional 15

days, closing on December 21, 2000.

Critical Habitat

Critical habitat is defined in section 3

of the Act as—(i) the specific areas

within the geographic area occupied by

a species, at the time it is listed in

accordance with the Act, on which are

found those physical or biological

features (I) essential to the conservation

of the species and (II) that may require

special management considerations or

protection; and, (ii) specific areas

outside the geographic area occupied by

a species at the time it is listed, upon

a determination that such areas are

essential for the conservation of the

species. ‘‘Conservation’’ means the use

of all methods and procedures that are

necessary to bring an endangered or a

threatened species to the point at which

listing under the Act is no longer

necessary.

Critical habitat receives protection

under section 7 of the Act through the

9222 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations

prohibition against destruction or

adverse modification of critical habitat

with regard to actions carried out,

funded, or authorized by a Federal

agency. Section 7 also requires

consultation on Federal actions that are

likely to result in the destruction or

adverse modification of critical habitat.

In our regulations at 50 CFR 402.02, we

define destruction or adverse

modification as ‘‘* * * the direct or

indirect alteration that appreciably

diminishes the value of critical habitat

for both the survival and recovery of a

listed species. Such alterations include,

but are not limited to, alterations

adversely modifying any of those

physical or biological features that were

the basis for determining the habitat to

be critical.’’ Aside from the added

protection that may be provided under

section 7, the Act does not provide other

forms of protection to lands designated

as critical habitat. Because consultation

under section 7 of the Act does not

apply to activities on private or other

non-Federal lands that do not involve a

Federal nexus, critical habitat

designation would not afford any

additional protections under the Act

against such activities.

To be included in a critical habitat

designation, the habitat must first be

‘‘essential to the conservation of the

species.’’ Critical habitat designations

identify, to the extent known using the

best scientific and commercial data

available, habitat areas that provide

essential life cycle needs of the species

(i.e., areas on which are found the

primary constituent elements, as

defined at 50 CFR 424.12(b)).

Section 4 requires that we designate

critical habitat at the time of listing and

based on what we know at the time of

the designation. When we designate

critical habitat at the time of listing or

under short court-ordered deadlines, we

will often not have sufficient

information to identify all areas of

critical habitat. We are required,

nevertheless, to make a decision and

thus must base our designations on

what, at the time of designation, we

know to be critical habitat.

Within the geographic area occupied

by the species, we will designate only

areas currently known to be essential.

Essential areas should already have the

features and habitat characteristics that

are necessary to sustain the species. We

will not speculate about what areas

might be found to be essential if better

information became available, or what

areas may become essential over time. If

the information available at the time of

designation does not show that an area

provides essential life cycle needs of the

species, then the area should not be

included in the critical habitat

designation. Within the geographic area

occupied by the species, we will not

designate areas that do not now have the

primary constituent elements, as

defined at 50 CFR 424.12(b), that

provide essential life cycle needs of the

species.

Our regulations state that, ‘‘The

Secretary shall designate as critical

habitat areas outside the geographic area

presently occupied by the species only

when a designation limited to its

present range would be inadequate to

ensure the conservation of the species.’’

(50 CFR 424.12(e)). Accordingly, when

the best available scientific and

commercial data do not demonstrate

that the conservation needs of the

species require designation of critical

habitat outside of occupied areas, we

will not designate critical habitat in

areas outside the geographic area

occupied by the species.

Our Policy on Information Standards

Under the Endangered Species Act,

published in the Federal Register on

July 1, 1994 (Vol. 59, p. 34271),

provides criteria, establishes

procedures, and provides guidance to

ensure that decisions made by the

Service represent the best scientific and

commercial data available. It requires

our biologists, to the extent consistent

with the Act and with the use of the best

scientific and commercial data

available, to use primary and original

sources of information as the basis for

recommendations to designate critical

habitat. When determining which areas

are critical habitat, a primary source of

information should be the listing

package for the species. Additional

information may be obtained from a

recovery plan, articles in peer-reviewed

journals, conservation plans developed

by states and counties, scientific status

surveys and studies, and biological

assessments, unpublished materials

(i.e., gray literature), and expert opinion

or personal knowledge.

Habitat is often dynamic, and species

may move from one area to another over

time. Furthermore, we recognize that

designation of critical habitat may not

include all of the habitat areas that may

eventually be determined to be

necessary for the recovery of the

species. For these reasons, all should

understand that critical habitat

designations do not signal that habitat

outside the designation is unimportant

or may not be required for recovery.

Areas outside the critical habitat

designation will continue to be subject

to conservation actions that may be

implemented under section 7(a)(1) and

to the regulatory protections afforded by

the section 7(a)(2) jeopardy standard

and the section 9 take prohibition, as

determined on the basis of the best

available information at the time of the

action. We specifically anticipate that

federally funded or assisted projects

affecting listed species outside their

designated critical habitat areas may

still result in jeopardy findings in some

cases. Similarly, critical habitat

designations made on the basis of the

best available information at the time of

designation will not control the

direction and substance of future

recovery plans, habitat conservation

plans, or other species conservation

planning efforts if new information

available to these planning efforts calls

for a different outcome.

Methods

In determining areas that are essential

to conserve the Zayante band-winged

grasshopper, we included data from

research and surveys published in peerreviewed articles and unpublished

reports, data submitted by biologists

holding section 10(a)(1)(A) recovery

permits, data from monitoring reports

required for incidental take permits

under section 10(a)(1)(B) of the Act, soil

maps, and the recovery criteria outlined

in the recovery plan (USFWS 1998). The

area we are designating as critical

habitat currently provides those habitat

components essential for the primary

biological needs of the Zayante bandwinged grasshopper, as defined by the

primary constituent elements, and

maintains ecosystem functions on

which the grasshopper depends.

Primary Constituent Elements

In accordance with section 3(5)(A)(i)

of the Act, and regulations at 50 CFR

424.12, in determining which areas to

designate as critical habitat, we are

required to base critical habitat

determinations on the best scientific

and commercial data available and to

consider those physical and biological

features (primary constituent elements)

that are essential to the conservation of

the species. These include, but are not

limited to, space for individual and

population growth and for normal

behavior; food, water, air, light,

minerals, and other nutritional or

physiological requirements; cover or

shelter; sites for breeding, reproduction,

rearing (or development) of offspring;

protection from disturbance; and

habitats that are representative of the

historic geographical and ecological

distributions of a species.

The primary constituent elements for

the Zayante band-winged grasshopper

are those physical and biological

features that provide conditions that are

essential for the primary biological

Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations 9223

needs of thermoregulation, foraging,

sheltering, reproduction, and dispersal.

The primary constituent elements are—

(a) the presence of Zayante soils, (b) the

occurrence of Zayante sand hills habitat

and the associated plant species, and (c)

certain microhabitat conditions,

including areas that receive large

amounts of sunlight, widely scattered

tree and shrub cover, bare or sparsely

vegetated ground, and loose sand

(Arnold 1999a,b). Zayante sand hills

habitat is often characterized by plant

species associated with ponderosa pine

sand parkland and/or silverleaf

manzanita mixed chaparral as described

by Marangio (1985) and Lee (1994).

Plant species that may occur within the

boundaries include, but are not limited

to—Pinus ponderosa (ponderosa pine),

Arctostaphylos silvicola (silver-leafed

manzanita), Ceonothus sp. (California

lilac), Adenostoma sp., Eriodictyon sp.

(yerba santa), Minuartia sp. (sandwort),

Calyptridium umbellatum (pussypaws),

Mimulus rattanii (monkeyflower),

Lupinis bicolor (miniature lupine), Gilia

tenuiflora (gilia), Lessingia filaginifolia

(California aster), Eriogonum nudum

ssp. decurrens (Ben Lomond

buckwheat), Erysimum teretifolium (Ben

Lomond wallflower), and Chorizanthe

pungens var. hartwegiana (Ben Lomond

spineflower) (Lee 1984, USFWS 1998,

McGraw in litt. 1999). Of these plant

species, Erysimum teretifolium (Ben

Lomond wallflower) and Chorizanthe

pungens var. hartwegiana (Ben Lomond

spineflower) are also federally listed as

endangered and are addressed within

the same recovery plan as the Zayante

band-winged grasshopper and the

Mount Hermon June beetle.

Areas where surveys for Zayante

band-winged grasshopper have not been

conducted, but are adjacent or

contiguous with known occupied

habitat, are also essential to the species.

Not only is it likely that these areas

contain grasshoppers, the areas are

necessary because they—(1) provide and

maintain the ecosystem functions,

including, but not limited to, hydrologic

processes, succession, seed dispersal,

and natural disturbance regimes,

necessary to support populations of the

Zayante band-winged grasshopper; (2)

provide a means of connecting occupied

areas so that the deleterious effects of

isolation are minimized; and (3)

increase the area available to the species

in case of localized, random

catastrophic events, thus decreasing the

potential for extirpation of populations.

Criteria Used To Identify Critical

Habitat

In an effort to identify areas essential

for the conservation of the species, we

evaluated information on Zayante soils,

plant communities associated with

these soils, and the distribution, life

history, and habitat requirements of the

Zayante band-winged grasshopper.

Using a geographic information system

(GIS), maps of the Zayante soil series

were generated. We determined that

published maps of the Zayante soil

series were imprecise for our needs and

did not always account for gradients

between soil types. Therefore, a 60-m

(200-ft) zone was mapped around the

soils to account for possible

inaccuracies in the current maps. We

arrived at a 60-m zone based on

recommendations by the Natural

Resources Conservation Service (NRCS),

the agency familiar with the techniques

used to map soils and the distribution

of Zayante soils (R. Casale, NRCS,

USDA, pers comm. 2000).

Next, the known locations of the

Zayante band-winged grasshopper were

overlaid on the map of Zayante soil

series. Areas included within the

boundaries of critical habitat are those

Zayante soils determined to be occupied

by the grasshopper in past surveys and

Zayante soils that are contiguous and

adjacent to these occupied areas. These

contiguous or adjacent areas were

included because they are unsurveyed

and are likely to contain grasshoppers,

they create patches large enough in size

to maintain ecosystem functions, and

they connect habitat patches into a

larger area so that populations do not

become isolated and localized random

or catastrophic events do not cause

smaller populations to be extirpated.

Over time, as succession occurs and

vegetation encroaches on areas currently

inhabited by the Zayante band-winged

grasshopper, populations may disperse

into these adjacent patches of habitat.

We considered sites identified in the

recovery plan as important for the

recovery of the Zayante band-winged

grasshopper. While recovery units were

not specifically described, the recovery

plan recommends protecting the 7

discrete areas of sand parkland (Lee

1994), containing the 10 sites then

known to be occupied by the species, as

one criterion for down-listing to

threatened status. These seven areas

were included within the boundaries of

the designated critical habitat.

Additional areas were also included that

have the constituent elements for the

species, because new information about

the range, distribution, and habitat

requirements of the Zayante bandwinged grasshopper indicates that the

species occupies areas that are outside

of these seven discrete areas and that are

not considered sand parkland.

Furthermore, sand hills habitat adjacent

and contiguous with these seven areas

is essential to maintain landscape level

processes, including succession and fire

regimes as described in the Background

section of this rule.

We determined that approximately

3,620 ha (8,700 ac) of Zayante soils are

scattered throughout Santa Cruz County.

The soils occur from west of the

community of Bonny Doon east to

Corralitos, and from the northern

portion of Wilder Ranch State Park

north to the communities of Boulder

Creek, Lompico, and Zayante. Several

patches are also located near and within

the City of Scotts Valley. The largest

cluster of these soils occurs between

Highways 9 and 17, surrounding the

communities of Scotts Valley, Zayante,

Lompico, Ben Lomond, Felton, and

Mount Hermon. Surveyors of the

Zayante band-winged grasshopper have

focused their efforts in this region, and,

at present, all of the known locations of

this species are from this region.

Zayante soils located in the eastern

portion of Santa Cruz County in the

vicinity of Corralitos do not support

vegetation characteristic of the Zayante

sand hills habitat.

We excluded from the designated

critical habitat areas that have not been

surveyed for the Zayante band-winged

grasshopper and that are not part of a

continuous corridor of Zayante soils

that include known localities of the

grasshopper. Although these areas have

been excluded, we recognize that they

may still include habitat presently or

historically occupied by the Zayante

band-winged grasshopper. In addition,

these unsurveyed areas may include

habitat appropriate for introduction of

Zayante band-winged grasshoppers in

the future. If we determine that areas

outside of the boundaries of the

designated critical habitat are important

for the conservation of this species, we

may propose these additional areas as

critical habitat in the future.

We defined the boundaries for the

designated critical habitat using

township, range, and section numbers

from the public land survey. Our

minimum mapping unit was 1⁄4-section

equating to 65 ha (160 ac). We overlayed

the public land survey on the Zayante

soils to be designated as critical habitat

as defined above. If a 1⁄4-section of the

public land survey included any of

these Zayante soils, it was included

within the boundaries of critical habitat.

We designate approximately 4,230 ha

(10,560 ac) of land as critical habitat for

the Zayante band-winged grasshopper.

Of this area, 1,600 ha (3,950 ac) are

lands with Zayante soils. The remaining

2,630 ha (6,610 ac) of critical habitat are

areas that were included due to

9224 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations

insufficient mapping detail (as

described below).

The Zayante soils occur in a mosaic

of island-like and finger-like

assemblages interspersed with nonZayante soils. The nature of these

assemblages combined with our

minimum mapping unit of 65 ha

resulted in having to include 2,630 ha

of non-Zayante soils within the

boundaries of critical habitat. We have

displayed the Zayante soils and

boundaries of the critical habitat on the

map at the end of this rule. We did not

map critical habitat in sufficient detail

to exclude all developed areas such as

towns, housing developments, and other

similar lands. Furthermore, we

recognize that areas with non-Zayante

soils do not contain the primary

constituent elements. Federal actions

limited to areas within the unit

boundaries, that do not contain one or

more of the primary constituent

elements and do not support the

processes necessary to maintain the

required ecosystem functions would not

trigger a section 7 consultation, unless

they affect the species and/or the

primary constituent elements in

adjacent critical habitat.

Critical Habitat Designation

The approximate area included in the

critical habitat designation within Santa

Cruz County by land ownership is

shown in Table 1. Land designated as

critical habitat is under private, local

government, and State ownership, and

is described within one unit. A brief

description of this unit is presented

below in Table 1.

TABLE 1.—APPROXIMATE AREA WITHIN SANTA CRUZ COUNTY ENCOMPASSING CRITICAL HABITAT IN HECTARES (HA)

(ACRES (AC)) BY LAND OWNERSHIP

County Federal land Local/state land Private land Total*

Santa Cruz ................................................ N/A ................... 250 ha (610 ac) ......... 3,980 ha (9,950 ac) ......... 4,230 ha (10,560 ac)

* Area estimates reflect critical habitat unit boundaries, not the extent of the primary constituent elements within the unit.

Designated Critical Habitat Unit

The Critical Habitat Unit (Unit) that is

designated encompasses approximately

4,230 ha (10,560 ac) between Highways

9 and 17. Most of the lands designated

as critical occur from the southeastern

portion of Henry Cowell Redwoods

State Park west to the City of Scotts

Valley and north to the communities of

Ben Lomond, Lompico, and Zayante. A

small area designated as critical habitat

is located east of Zayante in the vicinity

of Weston Road.

Public lands that occur in this Unit

include approximately 130 ha (310 ac)

in Henry Cowell Redwoods State Park,

owned and managed by the California

Department of Parks and Recreation,

and all of Quail Hollow Park (120 ha

(300 ac)), jointly owned and managed by

the County of Santa Cruz and the

California Department of Fish and

Game. Areas covered in the Revised

Habitat Conservation Plan for Quail

Hollow Quarry (Graniterock 1998) and

the Habitat Conservation Plan for

Hanson Aggregates’ Felton Plant

(Hanson Aggregates 1999) have been

excluded from designation as critical

habitat. See section ‘‘Relationship to

Habitat Conservation Plans’’ for further

discussion of these plans.

This unit is essential to the recovery

of the species because it supports all of

the populations that are currently

known and all of the known suitable

habitat for the Zayante band-winged

grasshopper throughout its range. Given

the habitat based threats to this species

summarized above, we believe the area

designated requires special management

considerations or protection.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires

Federal agencies, including the Service,

to ensure that actions they fund,

authorize, or carry out do not destroy or

adversely modify critical habitat to the

extent that the action appreciably

diminishes the value of the critical

habitat for the survival and recovery of

the species. Individuals, organizations,

states, local governments, and other

non-Federal entities are affected by the

designation of critical habitat only if

their actions occur on Federal lands,

require a Federal permit, license, or

other authorization, or involve Federal

funding.

Section 7(a) of the Act requires

Federal agencies, including the Service,

to evaluate their actions with respect to

any species that is proposed or listed as

endangered or threatened and with

respect to its critical habitat, if any is

proposed or designated. Regulations

implementing this interagency

cooperation provision of the Act are

codified at 50 CFR part 402. Section

7(a)(4) of the Act, requires Federal

agencies to confer with us on any action

that is likely to jeopardize the continued

existence of a proposed species or result

in destruction or adverse modification

of proposed critical habitat. Conference

reports provide conservation

recommendations to assist the agency in

eliminating conflicts that may be caused

by the proposed action. The

conservation recommendations in a

conference report are advisory. If a

species is listed or critical habitat is

designated, section 7(a)(2) requires

Federal agencies to ensure that activities

they authorize, fund, or carry out are not

likely to jeopardize the continued

existence of such a species or to destroy

or adversely modify its critical habitat.

If a Federal action may affect a listed

species or its critical habitat, the

responsible Federal agency (action

agency) must enter into consultation

with us. Through this consultation, we

would ensure that the permitted actions

do not destroy or adversely modify

critical habitat.

When we issue a biological opinion

concluding that a project is likely to

result in the destruction or adverse

modification of critical habitat, we also

provide reasonable and prudent

alternatives to the project, if any are

identifiable. ‘‘Reasonable and prudent

alternatives’’ are defined at 50 CFR

402.02 as alternative actions identified

during consultation that can be

implemented in a manner consistent

with the intended purpose of the action,

that are consistent with the scope of the

Federal agency’s legal authority and

jurisdiction, that are economically and

technologically feasible, and that the

Director believes would avoid

destruction or adverse modification of

critical habitat. Reasonable and prudent

alternatives can vary from slight project

modifications to extensive redesign or

relocation of the project. Costs

associated with implementing a

reasonable and prudent alternative are

similarly variable.

Regulations at 50 CFR 402.16 require

Federal agencies to reinitiate

consultation on previously reviewed

actions in instances where critical

habitat is subsequently designated and

the Federal agency has retained

discretionary involvement or control

over the action or such discretionary

involvement or control is authorized by

Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations 9225

law. Consequently, some Federal

agencies may request reinitiation of

consultation or conference with us on

actions for which formal consultation

has been completed, if those actions

may affect designated critical habitat or

adversely modify or destroy proposed

critical habitat. Conference reports assist

the agency in eliminating conflicts that

may be caused by the proposed action,

and may include recommendations on

actions to eliminate conflicts with or

adverse modifications to proposed

critical habitat. The conservation

recommendations in a conference report

are advisory.

We may issue a formal conference

report if requested by a Federal agency.

Formal conference reports on proposed

critical habitat contain an opinion that

is prepared according to 50 CFR 402.14,

as if critical habitat were designated. We

may adopt the formal conference report

as the biological opinion when the

critical habitat is designated, if no

substantial new information or changes

in the action alter the content of the

opinion (see 50 CFR 402.10(d)).

Activities on Federal lands that may

affect the Zayante band-winged

grasshopper or its critical habitat will

require section 7 consultation. Activities

on private or State lands requiring a

permit from a Federal agency, such as

a permit from the U.S. Army Corps of

Engineers (Corps) under section 404 of

the Clean Water Act, or some other

Federal action, including funding (e.g.,

Federal Highway Administration,

Federal Aviation Administration, or

Federal Emergency Management

Agency) will also continue to be subject

to the section 7 consultation process.

Federal actions not affecting listed

species or critical habitat and actions on

non-Federal lands that are not federally

funded, authorized, or permitted do not

require section 7 consultation.

Section 4(b)(8) of the Act requires us

to briefly evaluate and describe in any

proposed or final regulation that

designates critical habitat those

activities involving a Federal action that

may adversely modify such habitat, or

that may be affected by such

designation. Activities that may destroy

or adversely modify critical habitat

include those that alter the primary

constituent elements to an extent that

the value of critical habitat for both the

survival and recovery of the Zayante

band-winged grasshopper is appreciably

reduced. We note that such activities

may also jeopardize the continued

existence of the species. Activities that,

when carried out, funded, or authorized

by a Federal agency, may destroy or

adversely modify critical habitat

include, but are not limited to:

(1) Excavating, compacting, grading,

or discing of soil, and vegetation

removal;

(2) Grading, mining, or construction;

(3) Recreational activities that crush

and remove vegetation or compact soils,

including off-trail hiking, horse riding,

and off-road motorized and nonmotorized vehicular use;

(4) Activities that could lead to the

introduction of exotic species into

critical habitat; and

(5) Activities that cause erosion of

soils.

Adverse modification or destruction

of critical habitat could occur if these

activities occur within the boundaries of

critical habitat or outside the boundaries

in a manner that indirectly affects

critical habitat.

To properly portray the effects of

critical habitat designation, we must

first compare the section 7 requirements

for actions that may affect critical

habitat with the requirements for

actions that may affect a listed species.

Section 7 prohibits actions funded,

authorized, or carried out by Federal

agencies from jeopardizing the

continued existence of a listed species

or destroying or adversely modifying the

listed species’ critical habitat. Actions

likely to ‘‘jeopardize the continued

existence’’ of a species are those that

would appreciably reduce the

likelihood of the species’ survival and

recovery. Actions likely to ‘‘destroy or

adversely modify’’ critical habitat are

those that would appreciably reduce the

value of critical habitat for the survival

and recovery of the listed species.

Common to both definitions is an

appreciable detrimental effect on both

survival and recovery of a listed species.

Given the similarity of these definitions,

actions likely to destroy or adversely

modify critical habitat would almost

always result in jeopardy to the species

concerned, particularly when the area of

the proposed action is occupied by the

species. In those cases, it is highly

unlikely that additional modification to

the action would be required as a result

of designating critical habitat. However,

critical habitat may provide benefits

toward recovery when designated in

areas currently unoccupied by the

species. Designation of critical habitat

for the Zayante band-winged

grasshopper is not likely to result in a

regulatory burden above that already in

place due to the presence of the listed

species. We believe that designation of

critical habitat would have little effect

on Federal agencies because no critical

habitat occurs on Federal lands.

Furthermore, the final economic

analysis for the designation of critical

habitat concludes that few if any

federally funded or federally permitted

actions are anticipated to take place in

critical habitat.

This section serves in part as a general

guide to clarify activities that may affect

or destroy or adversely modify critical

habitat. However, specific Federal

actions will still need to be reviewed by

the action agency. If the agency

determines the activity may affect

critical habitat, they will consult with

us under section 7 of the Act. If it is

determined that the activity is likely to

adversely modify critical habitat, we

will work with the agency to modify the

activity to minimize negative impacts to

critical habitat. We will work with the

agencies and affected public early in the

consultation process to avoid or

minimize potential conflicts and,

whenever possible, find a solution that

protects listed species and their habitat

while allowing the action to go forward

in a manner consistent with its intended

purpose.

If you have questions regarding

whether specific activities will

constitute adverse modification of

critical habitat, contact the Field

Supervisor, Ventura Fish and Wildlife

Office (see ADDRESSES section). Requests

for copies of the regulations on listed

wildlife and inquiries about

prohibitions and permits may be

addressed to the U.S. Fish and Wildlife

Service, Branch of Endangered Species,

911 N.E. 11th Ave, Portland, OR 97232

(telephone 503–231–2063, facsimile

503–231–6243).

Exclusions Under Section 4(b)(2)

Subsection 4(b)(2) of the Act allows

us to exclude areas from critical habitat

designation where the benefits of

exclusion outweigh the benefits of

designation, provided the exclusion will

not result in the extinction of the

species. For the following reasons, we

believe that in most instances the

benefits of excluding HCPs from critical

habitat designations will outweigh the

benefits of including them.

(1) Benefits of Inclusion

The benefits of including HCP lands

in critical habitat are normally small.

The principal benefit of any designated

critical habitat is that activities in such

habitat that may affect it require

consultation under section 7 of the Act.

Such consultation would ensure that

adequate protection is provided to avoid

adverse modification of critical habitat.

Where HCPs are in place, our

experience indicates that this benefit is

small or non-existent. Currently

approved and permitted HCPs are

already designed to ensure the longterm survival of covered species within

9226 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations

the plan area. Where we have an

approved HCP, lands that we ordinarily

would define as critical habitat for the

covered species will normally be

protected in reserves and other

conservation lands by the terms of the

HCPs and their implementation

agreements. These HCPs and

implementation agreements include

management measures and protections

for conservation lands that are crafted to

protect, restore, and enhance their value

as habitat for covered species.

In addition, an HCP application must

itself be consulted upon. While this

consultation will not look specifically at

the issue of adverse modification of

critical habitat, it will look at the very

similar concept of jeopardy to the listed

species in the plan area. Because HCPs,

particularly large regional HCPs,

address land use within the plan

boundaries, habitat issues within the

plan boundaries will have been

thoroughly addressed in the HCP and

the consultation on the HCP. Our

experience is also that, under most

circumstances, consultations under the

jeopardy standard will reach the same

result as consultations under the

adverse modification standard.

Implementing regulations (50 CFR Part

402) define ‘‘jeopardize the continued

existence of’’ and ‘‘destruction or

adverse modification of’’ in virtually

identical terms. Jeopardize the

continued existence of means to engage

in an action ‘‘that reasonably would be

expected to reduce appreciably the

likelihood of both the survival and

recovery of a listed species.’’

Destruction or adverse modification

means an ‘‘alteration that appreciably

diminishes the value of critical habitat

for both the survival and recovery of a

listed species.’’ Common to both

definitions is an appreciable detrimental

effect on both survival and recovery of

a listed species, in the case of critical

habitat by reducing the value of the

habitat so designated. Thus, actions

satisfying the standard for adverse

modification are nearly always found to

also jeopardize the species concerned,

and the existence of a critical habitat

designation does not materially affect

the outcome of consultation. Additional

measures to protect the habitat from

adverse modification are not likely to be

required.

Further, HCPs typically provide for

greater conservation benefits to a

covered species than section 7

consultations because HCPs assure the

long term protection and management of

a covered species and its habitat, and

funding for such management through

the standards found in the 5-Point

Policy for HCPs (64 FR 35242) and the

HCP No Surprises regulation (63 FR

8859). Such assurances are typically not

provided by section 7 consultations

which, in contrast to HCPs, often do not

commit the project proponent to long

term special management or protections.

Thus, a consultation typically does not

accord the lands it covers the extensive

benefits an HCP provides.

The development and implementation

of HCPs provide other important

conservation benefits, including the

development of biological information

to guide conservation efforts and assist

in species recovery and the creation of

innovative solutions to conserve species

while allowing for development. The

educational benefits of critical habitat,

including informing the public of areas

that are important for the long-term

survival and conservation of the species,

are essentially the same as those that

would occur from the public notice and

comment procedures required to

establish an HCP, as well as the public

participation that occurs in the

development of many regional HCPs.

For these reasons, then, we believe that

designation of critical habitat has little

benefit in areas covered by HCPs.

(2) Benefits of Exclusion

The benefits of excluding HCPs from

being designated as critical habitat may

be more significant. During two public

comment periods on our critical habitat

policy, we received several comments

about the additional regulatory and

economic burden of designating critical

habitat. These include the need for

additional consultation with the Service

and the need for additional surveys and

information gathering to complete these

consultations. HCP applicants have also

stated that they are concerned that third

parties may challenge HCPs on the basis

that they result in adverse modification

or destruction of critical habitat, should

critical habitat be designated within the

HCP boundaries.

The benefits of excluding HCPs

include relieving landowners,

communities and counties of any

additional minor regulatory review that

might be imposed by critical habitat.

Many HCPs, particularly large regional

HCPs, take many years to develop and,

upon completion, may become regional

conservation plans that are consistent

with the recovery of covered species.

Many of these plans benefit many

species, both listed and unlisted.

Imposing an additional regulatory

review after HCP completion may

jeopardize conservation efforts and

partnerships in many areas and could be

viewed as a disincentive to those

developing HCPs. Excluding HCPs

provides us with an opportunity to

streamline regulatory compliance and

confirms regulatory assurances for HCP

participants.

A related benefit of excluding HCPs is

that it would encourage the continued

development of partnerships with HCP

participants, including states, local

governments, conservation

organizations, and private landowners,

that together can implement

conservation actions we would be

unable to accomplish alone. By

excluding areas covered by HCPs from

critical habitat designation, we preserve

these partnerships, and, we believe, set

the stage for more effective conservation

actions in the future.

In general, then, we believe the

benefits of critical habitat designation to

be small in areas covered by approved

HCPs. We also believe that the benefits

of excluding HCPs from designation are

significant. Weighing the small benefits

of inclusion against the benefits of

exclusion, including the benefits of

relieving property owners of an

additional layer of approvals and

regulation, together with the

encouragement of conservation

partnerships, would generally result in

HCPs being excluded from critical

habitat designation under Section

4(b)(2) of the Act.

Not all HCPs are alike with regard to

species coverage and design. Within this

general analytical framework, we need

to evaluate completed and legally

operative HCPs in the range of the

Zayante band-winged grasshopper on a

case-by-case basis to determine whether

the benefits of excluding these

particular areas outweigh the benefits of

including them.

Relationship to Habitat Conservation

Plans

Section 4(b)(2) of the Act allows us

broad discretion to exclude from critical

habitat designation areas where the

benefits of exclusion outweigh the

benefits of designation, provided the

exclusion will not result in the

extinction of the species. We expect that

critical habitat may be used as a tool to

identify those areas essential for the

conservation of the species, and we will

encourage development of Habitat

Conservation Plans (HCPs) for such

areas on non-Federal lands.

Two HCPs have been completed

within the range of the Zayante bandwinged grasshopper. Both HCPs are for

sand mining operations and both

provide take authorization for the

Zayante band-winged grasshopper. The

Revised Habitat Conservation Plan for

the Quail Hollow Quarry owned and

operated by Granite Rock Company

provides for the permanent protection

Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations 9227

and management of three conservation

areas known to be occupied by the

Zayante band-winged grasshopper and

that total 26.3 ha (65.8 ac) in area

(Graniterock 1998). The Habitat

Conservation Plan for the Felton Plant

owned and operated by Hanson

Aggregates provides for the permanent

protection and management of two

habitat set-asides known to be occupied

by the Zayante band-winged

grasshopper and that total 8.5 ha (21.3

ac) in area (Hanson Aggregates 1999). In

addition, both HCPs provide

minimization measures to reduce the

potential impacts of the sand-mining

operations on the Zayante band-winged

grasshopper.

All habitat for the Zayante bandwinged grasshopper that is essential to

the conservation of the species and is

within the HCP planning areas is

permanently protected in conservation

areas and habitat set-asides. Habitat that

is preserved in the HCP planning areas

is already managed for the benefit of the

grasshopper and other covered species

under the terms of the plans and

associated section 10(a)(1)(B) permits.

The assurances afforded the Zayante

band-winged grasshopper through the

special management and protections in

the implementation agreements of

approved HCPs are believed to be

sufficient to provide for the

conservation of the grasshopper. Any

additional benefit provided the

grasshopper by designating these lands

as critical habitat would be minimal at

best. Therefore, we have determined

that no additional private lands within

the HCP planning areas warrant

designation as critical habitat.

In contrast, the benefits of excluding

lands covered by these HCPs would be

significant in preserving positive

relationships with our conservation

partners, lessening potential additional

regulatory review and potential

economic burdens, reinforcing the

regulatory assurances provided for in

the implementation agreements for the

approved HCPs, and providing for more

established and cooperative

partnerships for future conservation

efforts.

In summary, the benefits of including

HCPs in critical habitat for the Zayante

band-winged grasshopper include

minor, if any, additional protection for

the Zayante band-winged grasshopper.

The benefits of excluding HCPs from

being designated as critical habitat for

the Zayante band-winged grasshopper

include the preservation of partnerships

that may lead to future conservation,

and the avoidance of the minor

regulatory and economic burdens

associated with the designation of

critical habitat. We find that the benefits

of excluding these areas from critical

habitat designation outweigh the

benefits of including these areas.

Furthermore, we have determined that

these exclusions will not result in the

extinction of the species. We have

already completed section 7

consultation on the impacts of these

HCPs on the species. We have

determined that they will not jeopardize

the continued existence of the species,

which means that they will not

appreciably reduce likelihood of the

survival and recovery of the species.

In the event that future HCPs covering

the Zayante band-winged grasshopper

are developed within the boundaries of

designated critical habitat, we will work

with applicants to ensure that the HCPs

provide for protection and management

of habitat areas essential for the

conservation of the species by either

directing development and habitat

modification to nonessential areas or

appropriately modifying activities

within essential habitat areas so that

such activities will not adversely

modify the primary constituent

elements. The HCP development

process provides an opportunity for

more intensive data collection and

analysis regarding the use of particular

habitat areas by the Zayante bandwinged grasshopper. The process also

enables us to conduct detailed

evaluations of the importance of such

lands to the long term survival of the

species in the context of constructing a

biologically configured system of

interlinked habitat blocks.

We will provide technical assistance

and work closely with applicants

throughout the development of future

HCPs to identify lands essential for the

long-term conservation of the Zayante

band-winged grasshopper and

appropriate management for those

lands. The minimization and mitigation

measures provided under these HCPs

are expected to protect the essential

habitat lands designated as critical

habitat in this rule. If, an HCP that

addresses the Zayante band-winged

grasshopper as a covered species is

ultimately approved, the Service will

reassess the critical habitat boundaries

in light of the HCP. The Service will

seek to undertake this review when the

HCP is approved, but funding

constraints may influence the timing of

such a review.

Summary of Comments and

Recommendations

In the proposed rule dated July 7,

2000 (65 FR 41917), we requested

interested parties to submit factual

reports or information that might

contribute to development of a final

rule. We contacted appropriate Federal

and State agencies, county and city

governments, scientific organizations,

and other interested parties. We

published a legal notice of the proposed

rule in the Santa Cruz Sentinel on July

16, 2000, that invited general public

comment. The 60-day comment period

closed on September 5, 2000. On

December 6, 2000, we published a

notice (65 FR 76207) announcing the

reopening of the comment period and

the availability of the draft economic

analysis on the proposed designation of

critical habitat. Again, we contacted all

interested parties and posted the draft

economic analysis on our internet site.

The comment period was opened for an

additional 15 days, closing on December

21, 2000.

We requested that three entomologists

(biologists who study insects) familiar

with the species to peer review the

proposed critical habitat designation.

However, only two of the peer reviewers

responded by the close of the comment

periods. Both reviewers provided

information about the biology of the

species and commented on the areas

proposed as critical habitat. Their

comments are addressed in this section,

and relevant information provided by

the reviewers have been incorporated

into the section titled ‘‘Background.’’

We received a total of 14 written

comments during the public comment

periods. Of those written comments, 3

supported critical habitat designation, 8

opposed the designation, and 1 was

neutral. Two commenters wrote to

request additional information, but

provided no opinion or information

regarding the proposed designation.

Eleven of the written comments were

received from private individuals; one

was from an individual representing a

local government. All comments

received were reviewed for substantive

issues and new data regarding the

proposed critical habitat, the biology of

the species, and the range and threats to

the Zayante band-winged grasshopper.

We address all comments received

during the comment periods under the

headings of specific issues. The

summarized comments and our

responses are as follows:

Issue 1: One commenter questioned

how we could determine the number of

insects living in the areas proposed for

critical habitat without trespassing on

private property.

Our Response: In determining areas

that are essential to conserve the

Zayante band-winged grasshopper, we

included data from research and surveys

published in peer-reviewed articles and

unpublished reports, data submitted by

9228 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations

biologists holding section 10(a)(1)(A)

recovery permits, data from monitoring

reports required for incidental take

permits under section 10(a)(1)(B) of the

Act, soil maps, and the recovery criteria

outlined in the recovery plan (USFWS

1998). To the best of our knowledge, the

site-specific data used from these

sources were collected with the

permission of landowners.

Issue 2: One commenter identified

topics with regards to the food plant

requirements and dispersal capabilities

of the Zayante band-winged grasshopper

that need to be researched. The

commenter recommended that the

designation of critical habitat for the

Zayante band-winged grasshopper

proceed without this additional

information, but noted that the

adequacy and success of the designation

could not be forecasted without this

additional research being conducted.

Our Response: We recognize that

important research questions need to be

answered with regards to the life history

of the Zayante band-winged

grasshopper. We hope to secure funds to

conduct such research in the future.

However, section 3(5)(A)(i) of the Act

and regulations at 50 CFR 424.12

require that we base critical habitat

determinations on the best scientific

and commercial data available. We used

all existing information on the biology,

life history, habitat requirements,

dispersal capabilities, and distribution

of the Zayante band-winged grasshopper

and other closely related species that

were available at this time to designate

critical habitat for this species.

Issue 3: One commenter noted that

GIS technology is useful to compile

distributional data; to determine

boundaries of critical habitat; to update

the designation of critical habitat in the

future; and to use as an analytical tool

to identify suitable habitat, buffers

zones, and areas of connectivity.

Our Response: We recognize that GIS

is a useful tool for conserving species,

including the Zayante band-winged

grasshopper, for the reasons identified

by the commenter. We used GIS to

identify areas that we are designating as

critical habitat. We expect to rely on GIS

in the future to assist us with

conservation planning for the Zayante

band-winged grasshopper.

Issue 4: One commenter asserted that

an environmental impact statement on

the proposed designation of critical

habitat is required under the National

Environmental Policy Act.

Our Response: An environmental

assessment and/or an environmental

impact statement as defined by the

National Environmental Policy Act of

1969 need not be prepared in

connection with regulations adopted

pursuant to section 4(a) of the Act. We

published a notice in the Federal

Register outlining our reasons for this

determination on October 25, 1983 (48

FR 49244). This rule does not constitute

a major Federal action significantly

affecting the quality of the human

environment.

Issue 5: Several commenters

expressed concern that proposed

designation of critical habitat will limit

development and impose economic

hardship on private landowners and

businesses.

Our Response: We are sensitive to the

concerns of individuals concerning their

property rights. The designation of

critical habitat has no effect on nonFederal actions occurring on private

land, even if the private land is within

the boundaries of the designated critical

habitat. However, the listing of the

Zayante band-winged grasshopper as

endangered does provide the species the

protection afforded by the Act on both

public and private lands. Critical habitat

may affect activities by private

landowners only if the activity involves

Federal funding, a Federal permit, or

other Federal actions. If such a Federal

nexus exists, we will work with the

landowner and appropriate Federal

agency to attempt to develop a project

that can be completed without

jeopardizing the continued existence of

the Zayante band-winged grasshopper

or adversely modifying its critical

habitat.

Issue 6: One commenter expressed

concern that the City of Scotts Valley is

located within the critical habitat area

for the grasshopper and may face

significant additional costs associated

with section 7 consultations

necessitated by the habitat designation.

More specifically, the commenter stated

that local governments, including the

City of Scotts Valley, would be placed

at a disadvantage in competing for

Federal grant monies to fund

redevelopment projects and road

improvements to be used inside the

critical habitat area because of the

additional administrative burden this

designation would place on the Federal

agency involved.

Our Response: As stated in the

economic analysis, we do not believe

that designation of critical habitat for

the Zayante band-winged grasshopper

will lead to additional economic

hardship on residents and businesses

within the proposed critical habitat.

Previously developed areas within the

designated critical habitat are exempted

from section 7 consultation

requirements. As stated previously in

this rule, areas of existing features and

structures within the unit boundaries,

such as buildings, roads, aqueducts,

railroads, airports, and paved areas do

not contain one or more of the primary

constituent elements and so do not

support the functions necessary to

maintain the required ecosystem

functions. Federal actions limited to

these areas, therefore, are exempted

from a section 7 consultations, unless

they affect the species and/or the

primary constituent elements in

adjacent critical habitat. Furthermore,

most Federal agencies are very

experienced with the requirements of

the Act. If Federal agencies are funding

activities in the designated critical

habitat area, they would already be

involved in communication with the

Service regarding the significant number

of other listed species in the area and

the potential effects of their activities on

these species. The existence of critical

habitat for the Zayante band-winged

grasshopper in the same area would

probably not increase significantly

either the cost or complexity of any

needed interaction with the Service.

Issue 7: One commenter stated that

the Service should refine the boundaries

of critical habitat by identifying areas of

known habitat for the Zayante bandwinged grasshopper. Without refining

these areas, the commenter was

concerned that the proposed

designation is too broad and may

negatively impact property values and

private property rights within urban

areas.

Our Response: Due to time constraints

resulting from short deadlines that were

court-mandated, we were unable to map

critical habitat in sufficient detail in the

proposed and final rules to exclude all

developed areas such as towns, housing

developments, and other lands unlikely

to contain habitat for the grasshopper.

As previously stated, areas of existing

features and structures within the unit

boundaries, such as buildings, roads,

aqueducts, railroads, airports, and

paved areas do not contain one or more

of the primary constituent elements and

so do not support the functions

necessary to maintain the required

ecosystem functions. Federal actions

limited to these areas, therefore, are

exempted from a section 7

consultations, unless they affect the

species and/or the primary constituent

elements in adjacent critical habitat. We

will provide technical assistance to

Federal agencies to determine if the

actions they permit, fund or carry out

may affect the Zayante band-winged

grasshopper or the primary constituent

elements within areas designated as

critical habitat.

Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations 9229

Summary of Changes from Proposed

Designation

This final rule to designate critical

habitat for the Zayante band-winged

grasshopper does not differ substantially

from the previously published proposed

rule.

Economic Analysis

Section 4(b)(2) of the Act requires us

to designate critical habitat on the basis

of the best scientific and commercial

information available and to consider

the economic and other relevant

impacts of designating a particular area

as critical habitat. We completed a draft

economic analysis and made it available

to the public for comment (65 FR

76207). We also completed a final

economic analysis that incorporated

public comment and information

gathered since the draft analysis. The

analysis found that few incremental

costs due to the critical habitat

designation are expected to occur above

and beyond those associated with the

listing of the Zayante band-winged

grasshopper. We have determined that

these economic impacts are minimal

and do not warrant excluding any areas

from the designation. The final

economic analysis is available to the

public at the Ventura Fish and Wildlife

Office (see ADDRESSES section).

Required Determinations

1. Regulatory Planning and Review

This document has been reviewed by

the Office of Management and Budget

(OMB), in accordance with Executive

Order 12866. OMB makes the final

determination under Executive Order

12866.

(a) This rule will not have an annual

economic effect of $100 million or

adversely affect an economic sector,

productivity, jobs, the environment, or

other units of government. A costbenefit and economic analysis is not

required. The Zayante band-winged

grasshopper was listed as an endangered

species in 1997.

Under the Act, critical habitat may

not be adversely modified by a Federal

agency action; critical habitat does not

impose any restrictions on non-Federal

persons unless they are conducting

activities funded or otherwise

sponsored, authorized, or permitted by

a Federal agency (see Table 2 below).

TABLE 2.—IMPACTS OF ZAYANTE BAND-WINGED GRASSHOPPER LISTING AND CRITICAL HABITAT DESIGNATION

Categories of activities Activities potentially affected by species listing only 1

Additional activities potentially affected by critical

habitat designation 1

Federal Activities Potentially Affected 2.None (there is no Federal land within the range of the species) ................................. None.

Private or other non-Federal Activities Potentially

Affected 3.

Activities that require a Federal action (permit, authorization, or funding) and may remove or destroy Zayante band-winged grasshopper habitat by mechanical, chemical, or other means (e.g., grading, overgrazing, construction, road building, herbicide application, recreateional use) or appreciably decrease habitat value or quality through indirect effects (e.g., edge effects, invasion of exotic plants or animals,

fragmentation of habitat).

None.

1These columns represent activities potentially affected by the critical habitat designation in addition to those activities potentially affected by

listing the species. 2Activities initiated by a Federal agency.

3Activities initiated by a private or other non-Federal entity that may need Federal authorization or funding.

Section 7 requires Federal agencies to

ensure that they do not jeopardize the

continued existence of the species.

Based upon our experience with the

species and its needs, we conclude that

any Federal action or authorized action

that could potentially cause adverse

modification of designated critical

habitat would currently be considered

as ‘‘jeopardy’’ under the Act.

Accordingly, the designation of areas

within the geographic range occupied

by the Zayante band-winged

grasshopper does not have any

incremental impacts on what actions

may or may not be conducted by

Federal agencies or non-Federal persons

that receive Federal authorization or

funding. The designation of areas

outside the geographic range occupied

by the species may have incremental

impacts on what activities may or may

not be conducted by Federal agencies or

non-Federal persons that receive

Federal authorization or funding.

However, our analysis did not identify

any significant incremental effects. NonFederal persons that do not have a

Federal ‘‘sponsorship’’ of their actions

are not restricted by the designation of

critical habitat, although they continue

to be bound by the provisions of the Act

concerning ‘‘take’’ of the species.

(b) This rule will not create

inconsistencies with other agencies’

actions. As discussed above, Federal

agencies have been required to ensure

that their actions do not jeopardize the

continued existence of the Zayante

band-winged grasshopper since the

listing in 1997. The prohibition against

adverse modification of critical habitat

is not expected to have a significant

economic impact. Because of the

potential for impacts on other Federal

agency activities, we will continue to

review this action for any

inconsistencies with other Federal

agency actions.

(c) This rule will not materially affect

entitlements, grants, user fees, loan

programs, or the rights and obligations

of their recipients. Federal agencies are

currently required to ensure that their

activities do not jeopardize the

continued existence of the species, and

as discussed above we do not anticipate

that the adverse modification

prohibition (resulting from critical

habitat designation) will have any

significant incremental effects.

(d) This rule will not raise novel legal

or policy issues. This final

determination follows the requirements

for determining critical habitat

contained in the Endangered Species

Act.

2. Regulatory Flexibility Act (5 U.S.C.

601 et seq.)

In the economic analysis, we

determined that designation of critical

habitat will not have a significant effect

on a substantial number of small

entities. As discussed under Regulatory

Planning and Review above and in this

final determination, this designation of

critical habitat for the Zayante bandwinged grasshopper is not expected to

have a significant economic impact. As

indicated on Table 1 (see Critical

Habitat Designation section), we have

designated property owned by State and

local governments, and private property.

Within these areas, the types of

Federal actions, Federally funded or

9230 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations

authorized activities that we have

identified as potential concerns are:

(1) Excavating, compacting, grading,

or discing of soil, and vegetation

removal;

(2) grading, mining, or construction;

(3) recreational activities that crush

and remove vegetation or compact soils,

including off-trail hiking, horse riding,

and off-road motorized and nonmotorized vehicular use;

(4) activities that could lead to the

introduction of exotic species into

critical habitat; and

(5) activities that cause erosion of

soils.

Some of these activities sponsored by

Federal agencies within critical habitat

areas are carried out by small entities (as

defined by the Regulatory Flexibility

Act) through contract, grant, permit, or

other Federal authorization. As

discussed above, these actions are

largely required to comply with the

protections of the Act, and the

designation of critical habitat is not

anticipated to have significant

additional effects on these activities.

For actions on non-Federal property

that do not have a Federal connection

(such as funding or authorization), the

current restrictions concerning take of

the species remain in effect, and this

final determination will have no

additional restrictions.

3. Small Business Regulatory

Enforcement Fairness Act (5 U.S.C.

804(2))

In the economic analysis, we

determined whether designation of

critical habitat would cause (a) any

effect on the economy of $100 million

or more, (b) any increases in costs or

prices for consumers, individual

industries, Federal, State, or local

government agencies, or geographic

regions in the economic analysis, or (c)

any significant adverse effects on

competition, employment, investment,

productivity, innovation, or the ability

of U.S. based enterprises to compete

with foreign-based enterprises. Refer to

the final economic analysis for a

discussion of the effects of this

determination.

4. Unfunded Mandates Reform Act (2

U.S.C. 1501 et seq.)

In accordance with the Unfunded

Mandates Reform Act (2 U.S.C. 1501 et

seq.):

(a) We believe this rule will not

‘‘significantly or uniquely’’ affect small

governments. A Small Government

Agency Plan is not required. Small

governments will be affected only to the

extent that any programs having Federal

funds, permits, or other authorized

activities must ensure that their actions

will not adversely affect the critical

habitat. However, as discussed above,

these actions are currently subject to

equivalent restrictions through the

listing protections of the species, and no

further restrictions are anticipated.

(b) This rule will not produce a

Federal mandate of $100 million or

greater in any year, that is, it is not a

‘‘significant regulatory action’’ under

the Unfunded Mandates Reform Act.

The designation of critical habitat

imposes no obligations on State or local

governments.

5. Takings

In accordance with Executive Order

12630, this rule does not have

significant takings implications, and a

takings implication assessment is not

required. As discussed above, the

designation of critical habitat affects

only Federal agency actions. This

designation will not ‘‘take’’ private

property and will not alter the value of

private property. Additionally, critical

habitat designation does not preclude

development of HCPs and issuance of

incidental take permits. Owners of areas

that are included in the designated

critical habitat will continue to have

opportunity to utilize their property in

ways consistent with the survival of the

Zayante band-winged grasshopper.

6. Federalism

In accordance with Executive Order

13132, the rule does not have significant

Federalism effects. A Federalism

assessment is not required. This

designation of critical habitat imposes

no additional restrictions to those

currently in place, and therefore has

little incremental impact on State and

local governments and their activities.

The designation may have some benefit

to these governments in that the areas

essential to the conservation of the

species are more clearly defined, and

the primary constituent elements of the

habitat necessary to the survival of the

species are specifically identified. While

this definition and identification does

not alter where and what federally

sponsored activities may occur, it may

assist these local governments in longrange planning (rather than waiting for

case-by-case section 7 consultations to

occur).

7. Civil Justice Reform

In accordance with Executive Order

12988, the Department of the Interior’s

Office of the Solicitor has determined

that this rule does not unduly burden

the judicial system and meets the

requirements of sections 3(a) and 3(b)(2)

of the Order. We have made every effort

to ensure that this final determination

contains no drafting errors, provides

clear standards, simplifies procedures,

reduces burden, and is clearly written

such that litigation risk is minimized.

8. Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.)

This rule does not contain any

information collection requirements for

which Office of Management and

Budget approval under the Paperwork

Reduction Act is required.

9. National Environmental Policy Act

We have determined that an

Environmental Assessment and/or an

Environmental Impact Statement as

defined by the National Environmental

Policy Act of 1969 need not be prepared

in connection with regulations adopted

pursuant to section 4(a) of the

Endangered Species Act as amended. A

notice outlining our reason for this

determination was published in the

Federal Register on October 25, 1983

(48 FR 49244). This final determination

does not constitute a major Federal

action significantly affecting the quality

of the human environment.

10. Government-to-Government

Relationship With Tribes

In accordance with the President’s

memorandum of April 29, 1994,

‘‘Government-to-Government Relations

with Native American Tribal

Governments’’ (59 FR 22951) and 512

DM 2 and Executive Order 13175, we

readily acknowledge our responsibility

to communicate meaningfully with

recognized Federal Tribes on a

government-to-government basis. We

have determined that there are no Tribal

lands that are essential for the

conservation of the Zayante bandwinged grasshopper because they do not

support populations or suitable habitat.

Therefore, we are not designating

critical habitat for the Zayante bandwinged grasshopper on Tribal lands.

References Cited

A complete list of all references cited

in this final rule is available upon

request from the Ventura Fish and

Wildlife Office (see ADDRESSES section).

Author

The primary author of this notice is

Colleen Sculley, Ventura Fish and

Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations 9231

Regulation Promulgation

Accordingly, we amend part 17,

subchapter B of chapter I, title 50 of the

Code of Federal Regulations as set forth

below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted.

2. In § 17.11(h), revise the entry for

‘‘grasshopper, Zayante band-winged’’

under ‘‘INSECTS’’ to read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

*******

INSECTS

*******

Grasshopper,

Zayante Bandwinged.

Trimerotropis

infantilis.

U.S.A. (CA), ............ NA ........................... E 605 17.95(i) NA

*******

3. Amend § 17.95(i) by adding critical

habitat for the Zayante band-winged

grasshopper (Trimerotropis infantilis),

in the same alphabetical order as the

species occurs in § 17.11(h).

§ 17.95 Critical habitat—fish and wildlife.

* * * * *

(i) * * *

* * * * *

ZAYANTE BAND-WINGED

GRASSHOPPER (Trimerotropis infantilis)

1. The unit of critical habitat is

depicted for Santa Cruz County,

California, on the map below.

BILLING CODE 4310–55–P

9232 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations

BILLING CODE 4310–55–C

Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations 9233

2. Within this area, the primary

constituent elements for the Zayante

band-winged grasshopper are those

physical and biological elements that

provide conditions that are essential for

the primary biological needs of

thermoregulation, foraging, sheltering,

reproduction, and dispersal. The

primary constituent elements are—(a)

the presence of Zayante soils, (b) the

occurrence of Zayante sand hills habitat

and the associated plant species, and (c)

certain microhabitat conditions,

including areas that receive large

amounts of sunlight, widely scattered

tree and shrub cover, bare or sparsely

vegetated ground, and loose sand.

Zayante sand hills habitat is

characterized by plant species

associated with ponderosa pine sand

parkland and/or silverleaf manzanita

mixed chaparral. Plant species that may

occur within the boundaries include,

but are not limited to—ponderosa pine

(Pinus ponderosa), silver-leafed

manzanita (Arctostaphylos silvicola),

California lilac (Ceonothus sp.),

Adenostoma sp., yerba santa (Eriodictyon

sp.), sandwort (Minuartia sp.),

pussypaws (Calyptridium umbellatum),

Ben Lomond spineflower (Erysimum

teretifolium), monkeyflower (Mimulus

rattanii), miniature lupine (Lupinis

bicolor), gilia (Gilia tenuiflora),

California aster (Lessingia filaginifolia),

Ben Lomond buckwheat (Eriogonum

nudum ssp. decurrens), and Ben

Lomond spineflower (Chorizanthe

pungens var. hartwegiana).

3. Critical habitat does not include

existing developed sites consisting of

buildings, roads, aquaducts, railroads,

airports, paved areas, and similar

features and structures.

Santa Cruz County, California.

Boundaries are based upon the Public

Land Survey System. Within the

historical boundaries of the Land Grants

of Zayanta, San Augustin, La Carbonera,

and Canada Del Rincon En El Rio San

Lorenzo De Santa Cruz, boundaries are

based upon section lines that are

extensions to the Public Land Survey

System developed by the California

Department of Forestry and obtained by

the Service from the State of California’s

Stephen P. Teale Data Center. Township

and Range numbering is derived from

the Mount Diablo Base and Meridian.

The following lands located within

Santa Cruz County are being proposed

for critical habitat: T.9 S., R.1 W., SE1⁄4

sec. 31; T.9 S., R.2 W., SE1⁄4 sec. 33, E1⁄2

sec. 34, SW1⁄4 sec. 35, S1⁄2 sec. 3; T.10

S., R1 W., W1⁄2 sec. 6; T.10 S., R.2 W.,

sec. 1, S1⁄2 NW1⁄4 sec. 2, sec. 3, W1⁄2 sec.

4, W1⁄2 sec. 9, sec. 10, sec. 11, sec. 13,

sec. 14, N1⁄2 SE1⁄4 sec. 15, NE1⁄4 sec. 22,

secs. 23–26, N1⁄2 sec. 35, sec. 36,

excluding all lands covered under the

Revised Habitat Conservation Plan for

the Quail Hollow Quarry and the

Habitat Conservation Plan for the

Hanson Aggregates’ Felton Plant.

* * * * *

Dated: February 1, 2001.

Joseph E. Doddridge,

Acting Assistant Secretary for Fish and

Wildlife and Parks.

[FR Doc. 01–3129 Filed 2–6–01; 8:45 am]

BILLING CODE 4310–55–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AG27

Endangered and Threatened Wildlife

and Plants; Final Determination of

Critical Habitat for the Morro

Shoulderband Snail (Helminthoglypta

walkeriana)

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), designate

critical habitat for the Morro

shoulderband snail (Helminthoglypta

walkeriana) pursuant to the Endangered

Species Act of 1973, as amended (Act).

The Morro shoulderband snail is listed

as endangered under the Act. A total of

approximately 1,039 hectares (2,566

acres) fall within the boundaries of

designated critical habitat. Critical

habitat for the Morro shoulderband snail

is located in San Luis Obispo County,

California.

Section 7 of the Act requires Federal

agencies to ensure that actions they

authorize, fund, or carry out are not

likely to destroy or adversely modify

designated critical habitat. As required

by section 4 of the Act, we considered

economic and other relevant impacts

prior to making a final decision on what

areas to designate as critical habitat.

DATES: This final rule is effective March

9, 2001.

ADDRESSES: The complete

administrative record for this rule is on

file at the U.S. Fish and Wildlife

Service, Ventura Fish and Wildlife

Office, 2493 Portola Road, Suite B,

California 93003. The complete file for

this rule is available for public

inspection, by appointment, during

normal business hours at the above

address.

FOR FURTHER INFORMATION CONTACT:

Diane Noda, Ventura Fish and Wildlife

Office, at the above address (telephone

805/644–1766; facsimile 805/644–3958).

SUPPLEMENTARY INFORMATION:

Background

The Morro shoulderband snail was

first described as Helix walkeriana by

Hemphill (1911) based on collections

made ‘‘near Morro, California.’’ He also

described a subspecies, based on

sculptural features of the shell, Helix

walkeriana, Helix var. morroensis, that

was collected ‘‘near San Luis Obispo

City’’ (1985). The Morro shoulderband

snail is also commonly known as the

banded dune snail and belongs to the

class Gastropoda and family

Helminthoglyptidae.

The shell of the Morro shoulderband

snail has 5–6 whorls. Its dimensions are

18 to 29 millimeters (mm) (0.7 to 1.1

inches (in.)) in diameter and 14 to 25

mm (0.6 to 1.0 in.) in height. The Morro

shoulderband snail can be distinguished

from the Big Sur shoulderband snail

(Helminthoglypta umbilicata), another

native snail in the same area, by its

more globose (globe-shaped) shell shape

and presence of incised (deeply cut)

spiral grooves (Roth 1985). The Morro

shoulderband snail has spiral striae

(longitudinal ridges) as well as

transverse striae giving it a

‘‘checkerboard’’ appearance. Further,

there are raised papillae (bumps) at the

intersections of some of the striae. The

shell of the Big Sur shoulderband snail

tends to be flatter and shinier, and

rarely has spiral striae. It also has

malleations (dents) and tends to be

darker in color. The Morro

shoulderband’s spire is low-domed, and

half or more of the umbilicus (the cavity

in the center of the base of a spiral shell

that is surrounded by the whorls) is

covered by the apertural (small opening)

lip (Roth 1985). The brown garden snail

(Helix aspersa) also occurs in Los Osos

with the Morro shoulderband snail and

has a marbled pattern on its shell,

whereas the Morro shoulderband snail

has one narrow dark brown spiral band

on the shoulder.

The Morro shoulderband snail is

found only in western San Luis Obispo

County. At the time of its addition to the

List of Endangered and Threatened

Wildlife on December 15, 1994 (59 FR

64613), the Morro shoulderband snail

was known to be distributed near Morro

Bay. Its currently known range includes

areas south of Morro Bay, west of Los

Osos Creek and north of Hazard Canyon.

Historically, the species has also been

reported near the city of San Luis

Obispo (type locality for ‘‘morroensis’’)

and south of Cayucos (Roth 1985).

The Morro shoulderband snail occurs

in coastal dune and scrub communities