Prior documents in this proceeding: Notice of Hearing issued on April 23, 2002, and published in the May 1, 2002, issue of the Federal Register (67 FR 21854); Secretary's Decision on partial amendments issued on December 4, 2003, and published in the December 12 issue of the Federal Register (68 FR 69343); and Recommended Decision and Opportunity to File Written Exceptions issued on April 21, 2004, and published in the April 28, 2004 issue of the Federal Register (69 FR 23330).

The recommended decision published on April 28, 2004, was issued pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to the as the “Act.” The deadline for the submission of written exceptions to the recommended decision was May 28, 2004.

The Department of Agriculture (USDA) has received a request to provide more time for interested persons to analyze the recommended decision and file exceptions.

Extending the period in which written exceptions may be filed will provide interested persons more time to review the recommended decision and submit written exceptions thereto. Accordingly, the period in which to file written exceptions is extended until June 30, 2004.

This notice is issued pursuant to the Act and the applicable rules of practice governing the formulation of marketing agreements and orders (7 CFR part 900).

Under the Animal Welfare Act (AWA) (7 U.S.C. 2131 et seq. ), the Secretary of Agriculture is authorized to promulgate standards and other requirements governing the humane handling, care, treatment, and transportation of certain animals by dealers, research facilities, exhibitors, operators of auction sales, and carriers and intermediate handlers. Within the U.S. Department of Agriculture (USDA), responsibility for administering the AWA has been delegated to the Administrator of the Animal and Plant Health Inspection Service (APHIS). Within APHIS, the responsibility for administering the AWA has been delegated to the Deputy Administrator for Animal Care. Regulations established under the AWA are contained in the Code of Federal Regulations (CFR) in 9 CFR parts 1, 2, and 3. Part 1 contains definitions for terms used in parts 2 and 3; part 2 provides administrative requirements and sets forth institutional responsibilities for regulated parties; and part 3 contains specifications for the humane handling, care, treatment, and transportation of animals covered by the AWA. Currently, part 3 consists of subparts A through E, which contain specific standards for dogs and cats, guinea pigs and hamsters, rabbits, nonhuman primates, and marine mammals, respectively, and subpart F, which sets forth general standards for warmblooded animals not otherwise specified in that part.

The Federal Laboratory Animal Welfare Act (Pub. L. 89-544), commonly referred to as the Animal Welfare Act, was enacted in 1966 to protect owners from pet theft, prevent use of stolen pets, and ensure the humane treatment of research animals. Under that Act, an animal was defined as live dogs, cats, monkeys (nonhuman primate mammals), guinea pigs, hamsters, or rabbits. The Animal Welfare Act of 1970 (Pub. L. 91-597) expanded the list of covered animals to include all warm-blooded animals determined by the Secretary of Agriculture as being used, or intended for use, in research, testing, experimentation, or exhibition, or as a pet, and specifically excluded horses not used for research purposes and other farm animals when used for agricultural purposes.

In 1971, USDA amended the definition of animal in § 1.1 of the regulations to incorporate the 1970 amendments to the Act and to specifically exclude birds, rats, and mice for enforcement purposes. In 1989, USDA further amended that definition by, among other things, narrowing the exclusion for rats and mice to only those rats of the genus Rattus and mice of the genus Mus bred for use in research. The AWA's definition of animal has excluded the types of rats and mice commonly bred and used in research and all birds from coverage for over 30 years. Other types of rats and mice, such as wild rats and mice, are covered by the regulations and standards in part 2 and subpart F of part 3. (The regulations can be viewed on Animal Care's Internet site at http://www.aphis.usda.gov/ac/ by selecting “Publications”; the regulations are listed under the heading Animal Welfare Act, Regulations, and Standards, subheading Animal Care Regulations. )

The Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171, signed into law on May 13, 2002), included provisions that amended the definition of animal in the AWA (7 U.S.C. 2132(g)) by specifically excluding birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research. While the definition of animal in the regulations has excluded rats of the genus Rattus and mice of the genus Mus bred for use in research, that definition has also excluded all birds ( i.e. , not just those birds bred for use in research). Therefore, in a separate document published in the Rules and Regulations section of today's Federal Register , we are amending the definition of animal in the regulations to be consistent with the definition of animal in the AWA by narrowing the scope of the exclusion for birds to only those birds bred for use in research. Our final rule is intended only to make the definition of animal in the regulations consistent with the definition of animal in AWA.

At this time, we are considering several changes to the regulations to help promote the humane handling, care, treatment, and transportation of birds, rats, and mice not specifically excluded from coverage under the AWA. Specifically, we are notifying the public that we intend to extend enforcement of the AWA to birds not bred for use in research that are sold as pets at the wholesale level, or transported in commerce, or used for exhibition, research, teaching, testing, or experimentation purposes. However, before we can begin enforcing the AWA with respect to such birds, we believe it is necessary to consider what regulations and standards are appropriate for them. Therefore, in this document, we are soliciting comments from the public to help determine how we should regulate the care and use of those animals. In addition, we are considering if we should continue to regulate the handling, care, treatment, and transportation of rats and mice covered by the AWA under the general standards in subpart F of part 3 or if we should establish specific standards for those animals. To aid in that determination, we are soliciting comments from the public concerning the regulation of rats and mice, except for rats of the genus Rattus and mice of the genus Mus bred for use in research, that are sold as pets at the wholesale level, or transported in commerce, or used for exhibition, research, teaching, testing, or experimentation purposes. Finally, we are requesting data and information from the public regarding the potential economic effects on entities that may be affected if we were to establish specific standards for all covered rats and mice and for birds other than birds specifically bred for use in research.

This advance notice of proposed rulemaking is intended to help promote the humane handling, care, treatment, and transportation of birds, rats, and mice covered by the AWA. This action follows a notice published in the Federal Register on January 28, 1999 (64 FR 4356-4367, Docket No. 98-106-1) that informed the public of our receipt of a petition for rulemaking concerning the regulation of birds, rats, and mice, and that solicited comments from the public on that petition.

Birds belong to a diverse class (Aves) of warmblooded vertebrates characterized by having a body covered with feathers and forelimbs modified as wings. There are approximately 9,000 species of birds belonging to about 30 orders. Although all birds share a common origin, birds today live in all the major biogeographic regions of the world and are highly diverse morphologically and behaviorally, exhibiting variation in, among other things, body and wing size and structure, modes of locomotion, and dietary requirements. As a result of this diversity, birds maintained in captivity often require unique husbandry and care. For this reason, we do not believe that the general standards in subpart F of part 3 would be appropriate or adequate to provide for the humane handling, care, treatment, and transportation of birds. Therefore, we are soliciting comments from the public to aid in the development of appropriate standards for birds not specifically excluded from coverage under the AWA. In addition, we are also reviewing the regulations in parts 1 and 2 to determine if any changes are necessary before we can regulate the care and use of birds not specifically bred for use in research. Therefore, we are also soliciting comment on certain provisions in part 2 as they pertain to birds.

When we determine how to regulate the handling, care, treatment, and transportation of birds other than birds bred for use in research, we will publish a proposed rule for public comment in the Federal Register . Any changes to our Animal Care program and regulations that may result from such a proposal will be addressed in that document.

In particular, we invite responses to the questions listed below. Although the following questions solicit comments concerning the regulation of all birds not specifically excluded from coverage under the AWA, we welcome responses that pertain to a specific type of bird. Please make it explicit in your response if your comment addresses a specific type of bird or if your response pertains to birds in general.

1. As mentioned above, part 3 of the regulations contains specifications for the humane handling, care, treatment, and transportation of animals covered by the AWA. Among other things, the standards in part 3 address the following considerations:

• Facilities and operations (including space, structure and construction, waste disposal, heating, ventilation, lighting, and interior surface requirements for indoor and outdoor primary enclosures and housing facilities);

• Animal health and husbandry (including requirements for sanitation and feeding, watering, and separation and classification of animals); and

• Transportation (including specifications for primary enclosures, primary conveyances, terminal facilities and the feeding, watering, care, and handling of animals in transit).

Please describe minimum standards that would be appropriate for birds other than birds bred for use in research, including requirements for facilities and operations, animal health and husbandry, and transportation. Please submit specific data to support any suggested standards.

2. We are aware of several published programs of humane care and use for birds. Should the standards we develop for birds, except for birds bred for use in research, be consistent with any published program(s) for the care and use of birds? If so, please submit a copy of any suggested programs and specific data to support those standards.

3. Sections 2.1 and 2.25 of the regulations provide licensing and registration requirements for dealers, exhibitors, operators of auction sales, and carriers and intermediate handlers. In § 2.1, paragraph (a)(3) provides exemptions from licensing requirements for certain entities, such as retail pet stores that sell non-dangerous, pet-type animals, including birds, at retail only. Should we revise or add exemptions for certain dealers, exhibitors, operators of auction sales, and carriers and intermediate handlers of birds not bred for use in research? If so, what should those exemptions be? Please provide supporting data. (For example, we are aware that there are many entities who breed small numbers of birds; if we should exempt those entities, what criteria should we use to determine which entities should be exempt?)

4. Currently, § 2.130 provides minimum age requirements for the commercial transportation of dogs and cats. Should we establish minimum age requirements for the transportation of birds other than birds bred for use in research? If so, what factors should we consider when determining those requirements? (For example, if the animals are weaned, the species of bird under consideration, etc.) Please provide specific supporting data.

5. When conducting an inspection, USDA inspectors follow a given facility's biosafety procedures or use recommended protective clothing and equipment, such as coveralls, disposable gloves, and disposable or sanitizable boots. We invite comments on what procedures, equipment, and supplies should inspectors use in order to protect birds from transmitted diseases. Should additional procedures, equipment, or supplies be employed to inspect nesting birds? Please explain.

6. Comments are also invited concerning the number and size of entities that may be affected if we were to regulate birds other than birds bred for use in research. (Such entities may include dealers, research facilities, exhibitors, operators of auction sales, and carriers and intermediate handlers of birds not specifically bred for use in research that are sold as pets at the wholesale level, transported in commerce, or used for exhibition, research, teaching, testing, or experimentation purposes.)

7. What is the number of each species of birds, except for birds bred for use in research, that are currently sold as pets at the wholesale level, transported in commerce, or used for exhibition, research, teaching, testing, or experimentation purposes?

8. Comments are invited regarding the current physical structures, equipment, staffing, licensing, and paperwork used in the handling, care, treatment, and transportation of birds other than birds bred for use in research and how those operations may be affected if we were to extend enforcement of the AWA to those animals. In addition, if you are submitting suggested standards for birds in response to questions 1 or 2, please address how those standards would affect facility operations.

9. What are the potential economic effects, in terms of time and/or money, on entities that may be affected if we were to regulate birds other than birds bred for use in research?

10. Do you have any other specific concerns or recommendations pertaining to the regulation of birds other than birds bred for use in research?

In addition to the protections afforded by the standards and regulations in parts 2 and 3 of the regulations, the vast majority of animals used in biomedical research, including birds, rats, and mice, are provided oversight by Public Health Service (PHS) of the U.S. Department of Health and Human Services, through voluntary accreditation by the Association for Assessment and Accreditation of Laboratory Animal Care International (AAALAC), or both. Most biomedical research in the United States is performed in laboratories funded at least in part by PHS. The PHS Policy on Humane Care and Use of Laboratory Animals covers live vertebrate animals that are involved in activities supported by PHS. The PHS policy requires an Animal Welfare Assurance, which is a document that commits the research institution to a program of animal care and use that is consistent with the Guide for the Care and Use of Laboratory Animals (referred to below as the Guide ), a publication produced by the National Research Council to assist institutions in caring for and using animals in ways judged to be scientifically, technically, and humanely appropriate. 1

In addition to PHS oversight, many U.S. research facilities are accredited by AAALAC. This private organization, through inspections and reviews, accredits laboratories that meet or exceed the animal care standards in the Guide . Research facilities seek AAALAC accreditation for assistance with public relations and in receiving grants.

While the AWA and the regulations address a broader range of activities than does the Guide , we believe that many of the minimum standards for the care and use of animals contained in the Guide are applicable in research and non-research environments alike. As a result, we have made, whenever possible, the standards in part 3 consistent with the Guide in order to eliminate confusion and to simplify compliance for entities that must comply with both the regulations and the Guide . In those cases where the regulations are consistent with the Guide , it is because we have reviewed the Guide and determined that its program for animal care and use is appropriate and adequate to provide for the humane handling, care, treatment, and transportation of the animals in question.

We are soliciting comments to help us determine whether we should continue to regulate rats and mice other than rats of the genus Rattus and mice of the genus Mus bred for use in research under the general standards in subpart F of part 3, or if we should adopt specific standards for those animals. While the Guide does not provide husbandry specifications for the care and use of birds, as they are not commonly used in biomedical research, it does provide specifications for the care and use of rats and mice. Therefore, we also request comment on the adequacy of the specifications in the Guide as they pertain to the humane handling, care, treatment, and transportation of rats and mice. If we determine that specific standards should be established for rats and mice covered by the AWA, we will publish a proposed rule for public comment in the Federal Register . Any changes to our Animal Care program and regulations that may result from such a proposal will be addressed in that document.

In particular, we invite responses to the questions listed below. Although the following questions solicit comments concerning the regulation of all rats and mice covered by the AWA, we welcome responses that pertain to only rats or to mice, or to a specific type of rat or mouse. Please make it explicit in your response if your comment addresses a specific type of animal or if your response pertains to rats and mice in general.

11. Should rats and/or mice other than rats of the genus Rattus and mice of the genus Mus bred for use in research continue to be regulated under the general standards in subpart F of part 3? If so, please submit any data available to support the continued regulation of those animals under that subpart.

12. As mentioned above, part 3 contains specifications for the humane handling, care, treatment, and transportation of animals covered by the AWA. Among other things, the standards in part 3 address the following considerations:

• Facilities and operations (including space, structure and construction, waste disposal, heating, ventilation, lighting, and interior surface requirements for indoor and outdoor primary enclosures and housing facilities);

• Animal health and husbandry (including requirements for sanitation and feeding, watering, and separation and classification of animals); and

• Transportation (including specifications for primary enclosures, primary conveyances, terminal facilities and the feeding, watering, care, and handling of animals in transit).

Should specific standards be developed for rats and/or mice other than rats of the genus Rattus and mice of the genus Mus bred for use in research? If so, what minimum standards would be appropriate for those animals, including requirements for facilities and operations, animal health and husbandry, and transportation? Please submit specific data to support any suggested standards.

13. As noted above, research institutions funded at least in part by the Public Health Service of the U.S. Department of Health and Human Services are required to follow a program of animal care and use that is consistent with the National Research Council's Guide for the Care and Use of Laboratory Animals . To eliminate confusion and simplify compliance for entities that must comply with the regulations and the Guide , we have, whenever possible, made the standards in part 3 of the regulations consistent with the program of animal care and use in the Guide . If specific standards should be developed for rats and mice other than rats of the genus Rattus and mice of the genus Mus bred for use in research, are the specifications for the care and use of rats and mice contained in the Guide appropriate and adequate to provide for the humane care, handling, treatment, and transportation of those animals? If so, please submit specific data to support the adoption of the Guide 's specifications for rats and mice.

14. Comments are invited concerning the number and size of entities that use rats and mice, except for rats of the genus Rattus and mice of the genus Mus bred for use in research, for purposes covered by the AWA. (Such entities may include dealers, research facilities, exhibitors, operators of auction sales, and carriers and intermediate handlers of rats and mice covered by the AWA that are sold as pets at the wholesale level, transported in commerce, used in exhibits, or used for research, teaching, testing, or experimentation purposes.)

15. What is the number of each species of rats and mice, except for rats of the genus Rattus and mice of the genus Mus bred for use in research, that are currently sold as pets at the wholesale level, transported in commerce, used in exhibits, or used for research, teaching, testing, or experimentation purposes?

16. Comments are invited concerning the current physical structures, equipment, staffing, licensing, and paperwork used in the handling, care, treatment, and transportation of rats and mice, except for rats of the genus Rattus and mice of the genus Mus bred for use in research, for purposes covered by the AWA. If you are submitting suggested standards for rats and mice in response to question 12 or believe that we should establish specific standards for covered rats and mice that are consistent with the Guide (see question 13, above), please address how those standards would affect facility operations.

17. What are the potential economic effects, in terms of time and/or money, on entities that may be affected if we were to establish specific standards for rats and mice covered by the AWA? (Such entities may include dealers, research facilities, exhibitors, operators of auction sales, and carriers and intermediate handlers of rats and mice covered by the AWA that are sold as pets at the wholesale level, transported in commerce, used in exhibits, or used for research, teaching, testing, experimentation, or exhibition purposes.)

18. Do you have any other specific concerns or recommendations pertaining to the regulation of rats and mice other than rats of the genus Rattus and mice of the genus Mus bred for use in research?

Through this rulemaking we strive to:

• Ensure the stability and quality of capital at FCS institutions by establishing safety and soundness parameters on the issuance of preferred stock;

• Place restrictions on preferred stock issued by FCS institutions that can be continually redeemed and has limited attributes of equity;

• Ensure fair and equitable treatment of all shareholders of FCS preferred stock and minimize the potential for insider abuse;

• Modify and streamline our review and clearance process for issuances of nonborrower equities; and

• Require disclosure of senior officer and director preferred stock purchases and retirements.

The agency believes additional regulatory guidance and requirements will help ensure consistent treatment for all FCS institutions seeking to issue preferred stock.

FCA recently experienced an increase in requests from FCS institutions to review new preferred stock issuances. In reviewing submissions where associations sought to offer preferred stock to borrowers, we identified a number of policy and safety and soundness issues that led to a review of our capital adequacy regulations. In the fall of 2003, we outlined our concerns in an informational memorandum to all FCS institutions, which indicated that the FCA Board planned to consider modifications to FCA regulations to address these policy and safety and soundness issues. 1

We noted that questions exist about the stability (“permanency”) and quality of preferred stock that an institution plans to redeem routinely with few limitations or without direct involvement or consideration by the institution's board of directors. In particular, we highlighted our concerns about the risk associated with the capital and earnings volatility that may result from fluctuations in purchases and retirements that may occur daily. Preferred stock programs may be an especially volatile source of capital under adverse credit or interest rate conditions when the likelihood of requests for redemption is increased.

Stock that lacks permanence and other attributes of equity may not be available to absorb unforeseen losses, support growth, meet liquidity demands, or build financial strength. Overreliance on such programs as a source of capital may result in unsafe and unsound conditions and lessen incentives to procure more stable forms of capital. Therefore, it is necessary to take appropriate action to ensure that each FCS institution's capital continues to be primarily composed of equities that are likely to be a long-term feature of the institution's capital base. For this reason, we believe additional regulatory parameters and limits on certain types of preferred stock programs are warranted.

In 1997, FCA adopted new surplus and collateral requirements in order to better measure and ensure the adequacy of FCS institution capital. 2 However, many FCS stockholders and others still regard “permanent capital” to be a meaningful measure of an FCS institution's financial stability. Therefore, including certain types of preferred stock that lack qualities of “permanence” in an institution's permanent capital ratio may give stockholders an inaccurate or misleading impression about the institution's true financial condition. FCS institutions need to ensure that stockholders receive complete information regarding the components of their institution's capital base and the long-term stability of those components. Fair, accurate, and complete disclosure about preferred stock programs in all written materials (including marketing materials, Web page advertisements, and other written information) is another critical issue of concern for FCA. Therefore, we are soliciting public input on what additional disclosures or additional regulatory guidance would be helpful to FCS institutions and benefit potential investors. We are also proposing regulatory changes to help streamline our clearance and review process for certain nonborrower equities. We believe changes can be made to expedite the processing of requests for applications that do not, for example, raise any novel or significant legal, policy or safety and soundness issues.

Lastly, we noted in the informational memorandum that certain preferred stock programs may raise the concern that an institution's board and management may not treat all preferred stockholders equitably regarding stock retirement, or that insiders could become aware of financial difficulties of the FCS institution and retire their stock before other shareholders. Thus, the agency is also proposing additional conflict of interest provisions specifically directed to preferred stock issuances.

In addition to the safety and soundness concerns outlined above, we are proposing new restrictions to address mission and policy concerns regarding preferred stock issued by FCS institutions that is continually redeemed by the institution or otherwise has limited attributes of equity.

FCS institutions have statutory authority to issue debt and equity securities (subject to FCA regulation) to fulfill their mission of serving the needs of farmers, ranchers, and rural residents. Preferred stock can be a valuable tool for FCS institutions to increase their capital and generate additional loanable funds to meet the credit needs of their borrowers. Additionally, preferred stock issued to borrowers provides FCS associations a mechanism for members to invest and participate in their cooperative beyond minimum borrower stock purchases.

However, we question whether Congress intended FCS institutions to issue equities that have many characteristics of deposit or money market instruments. FCS institutions do not have authority to accept deposits except for limited circumstances specifically authorized by statute. Preferred stock securities that are structured so that a holder can reasonably expect redemption upon request have many features in common with comparably structured demand debt instruments (such as commercial bank deposits) under normal circumstances. Because the holder of such preferred stock can expect to receive principal and interest to the date of redemption, the preferred stock is functionally similar to a deposit or money market instrument under normal circumstances.

On balance, unlike a commercial bank deposit, FCS preferred stock is an “at-risk” equity investment and a preferred stockholder ordinarily does not have an enforceable right to demand redemption. The holder of a deposit instrument, such as a demand deposit, time deposit, certificate of deposit, or a “money market” deposit has an enforceable legal right to demand payment. By contrast, the holder of preferred stock (a form of equity security) does not have an enforceable right to demand payment. Further, the deposit holder (a creditor) has priority in liquidation over the preferred stockholder (an equity holder). This important distinction makes preferred stock at risk (meaning the shareholder can lose some or all of its principal investment) and is, therefore, includable as permanent capital.

Given these competing and dual characteristics that certain types of preferred stock may possess, we have endeavored to carefully craft regulations that appropriately balance mission and policy issues relating to these instruments in addition to addressing safety and soundness concerns.

Congress broadly authorized each FCS bank and association to adopt bylaws providing for the classes and terms of stock issued by the institution. 3 Congress specifically included preferred stock within the meaning of “stock.”  4 Congress did not define “preferred stock” in the Farm Credit Act of 1971, as amended (Act). Congress defined “permanent capital” in the Act to mean:

(A) Current year retained earnings;

(B) Allocated and unallocated earnings (which, in the case of earnings allocated in any form by a System bank to any association or other recipient and retained by the bank, shall be considered, in whole or in part, permanent capital of the bank or of any such association or other recipient as provided under an agreement between the bank and each such association or other recipient);

(C) All surplus (less allowances for losses);

(D) Stock issued by a System institution, except:

(i) Stock that may be retired by the holder of the stock on repayment of the holder's loan, or otherwise at the option or request of the holder; and

(ii) Stock that is protected under section 4.9A of the Act or is otherwise not at risk; and

(E) Any other debt or equity instruments or other accounts that the FCA determines appropriate to be considered permanent capital.

When first implementing the new capitalization statutes added by the 1987 amendments to the Act, FCA stated: “No stock may be issued by Farm Credit institutions after October 5, 1988, that is not both at risk and retireable at the discretion of the board of directors provided minimum capital adequacy standards are met. These are the essential characteristics of permanent capital.”  5 Therefore, FCA may authorize System institutions to issue preferred stock so long as the stock is at risk and the institution's board retains discretion over stock retirements.

Section 4.3 of the Act  6 requires FCA to ensure that System institutions “achieve and maintain adequate capital.” Title V of the Act  7 authorizes FCA to adopt regulations to implement the Act and to take enforcement action in response to, or to prevent, an unsafe or unsound practice. Congress specifically provided that capitalization of System institutions, including the manner in which stock is issued, held, transferred, and retired, is subject to FCA regulation. 8

There is the potential that an insider with access to material confidential information may be able to use that information to make advantageous purchases of preferred stock or request retirement before negative information becomes publicly available. In particular, directors, who are insiders, as well as borrowers and investors, will inevitably possess earlier and more detailed knowledge about the affairs of the institution than other investors. Insiders will know in advance whether a floating or administered dividend rate on preferred stock will change and, if so, by how much and when. They will also know whether the association will have to stop paying dividends due to capital or earnings problems. For these reasons, we believe strong regulatory controls are appropriate.

Currently, System institution (defined to include banks, associations, and service organizations) directors are prohibited by § 612.2140 from making use of non-public information or using their position or inside information to obtain a personal benefit. Section 612.2165 requires the board of directors establish requirements and procedures “to promote public confidence in the institution and the System * * * and prevent the improper use of official * * * information.” Employees are prohibited by § 612.2150(b) and (e) from divulging or making use of “any fact, information, or document not generally available to the public that is acquired by virtue of employment with a System institution” and from using such information to obtain any personal benefit.

In addition, § 612.2160 requires each institution to ensure that its directors and employees comply with the Standards of Conduct regulations and to “act promptly to preserve the integrity of and public confidence in the institution in any matter involving a conflict of interest;” to “[t]ake appropriate measures to ensure that all directors and employees are informed of the requirements of this regulation” and the institution's related policies and procedures; and to “[a]dopt and implement policies and procedures that will preserve the integrity of and public confidence in the institution and the System * * * .” Under § 612.2170, the institution must designate a Standards of Conduct Official to advise directors, director candidates, and employees on standards of conduct regulations and policies. The Standards of Conduct Official must also report to the board and the FCA any violation that “may have an adverse impact on continued public confidence in the System or any of its institutions.”

Although the current standards of conduct regulations discussed above are comprehensive, we believe that enhancements to these regulations would strengthen our requirements, reduce the potential for conflicts of interest, and heighten the awareness of this important issue. Thus, we are proposing to add two new provisions. The purposes of these provisions are to help ensure fair and equitable treatment of all stockholders and to address the potential issue that employees and directors could use information regarding changes in dividend rates, regulatory capital ratios, the financial condition of the institution, or other material information that is not available to all investors to their advantage.

Specifically, proposed § 612.2165(b)(14) requires FCS institutions to establish policies and procedures that prohibit directors and employees from purchasing or retiring any stock in advance of the release of material non-public information concerning the institution to other stockholders. Proposed § 612.2165(b)(15) requires FCS institutions to establish policies and procedures specifying when directors and employees may purchase and retire preferred stock in the institution.

We are also proposing other corresponding controls relating to insider transactions and retirement of equities that are discussed later in this preamble.

The agency has routinely required FCS institutions that issue preferred stock that does not qualify as total surplus  9 (such as preferred stock with a planned continual redemption feature) to exclude it from their lending limit base calculation (the maximum amount an institution can extend to an individual borrower). This control has been instituted to limit significant fluctuations in an institution's lending base that may occur due to stock purchases and redemptions and to limit the ability of an institution to appreciably increase its lending base with volatile securities. This condition has also been imposed to reduce the possibility that an FCS institution would be in noncompliance with FCA regulations due to routine preferred stock redemptions that caused the institution's capital levels to decline to a level where large loans would exceed the institution's legal lending limit. Lastly, this condition is also an effective safety and soundness control to limit the level of credit risk to a single counterparty or obligor.

For these same reasons, we are now proposing to institute a similar requirement in our regulations by adding a new paragraph (a)(3) to § 614.4351 to the computation of the lending and leasing limit base. This provision will require FCS institutions to deduct from their lending limit base any amounts of preferred stock not eligible to be included in total surplus as defined in § 615.5301(i).

We believe there is a need to increase our oversight of the flow of capital between FCS institutions through investments in preferred stock. Proposed § 615.5175 provides that FCS banks, associations, and service corporations may purchase preferred stock issued by another FCS institution, including Farmer Mac, only with the written prior approval of the FCA, except pursuant to § 615.5171 (which relates to transfer of capital from banks to associations). 10 The proposal also requires that an institution's request to purchase preferred stock in another FCS institution, including Farmer Mac, explain the terms and risk characteristics of the investment and the purpose and objectives for making the investment.

It is our intent that any final action resulting from this proposal will be as accurate as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. On the basis of public comment, during the development of the final rule we may find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2), or not appropriate for exclusion, and in all of these cases, this information would be incorporated into the final designation. We particularly seek comments concerning:

(1) The reasons why any areas should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of designation will outweigh any threats to the taxon resulting from the designation;

(2) Specific information on the amount and distribution of Astragalus lentiginosus var. piscinensis and its habitat, and which habitat or habitat components are essential to its conservation and why;

(3) Land use designations and current or planned activities in or adjacent to the area proposed and their relationship to the proposed critical habitat;

(4) Current or planned water withdrawals or diversions in or adjacent to the area proposed and their relationship to the proposed critical habitat;

(5) Any foreseeable economic or other potential impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities and to the water user community;

(6) Methodologies that we might use, pursuant to section 4(b)(2) of the Act, to determine if the benefits of excluding an area from critical habitat outweigh the benefits of designating the area as critical habitat;

(7) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments;

(8) Additional information that can be used to characterize or more completely understand the regional aquifer that supports aquatic or riparian habitat in Fish Slough, or how local ground water pumping activities affect the hydrology of Fish Slough; and

(9) Information or comment on the merits of the proposed 1,000 meter wide upland area surrounding the alkaline soils, including the need or value of including all or part of this area to ensure an adequate supply of pollinators, manage for control of invasive species, and include sites that could be restored to alkaline soils and reoccupied by Astragalus lentiginosus var. piscinensis .

If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods ( see ADDRESSES section). Please submit electronic comments in ASCII file format and avoid the use of special characters and any form of encryption. Please also include Attn: “RIN 1018-AJ09” and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your internet message, contact us directly by calling our Ventura Fish and Wildlife Office at phone number (805) 644-1766. Please note that the e-mail address “ fw1fsmv_pch@r1.fws.gov '' will be closed out at the termination of the public comment period.

Our practice is to make comments, including names and home addresses of respondents, available for public review during normal business hours. Individual respondents may request that we withhold their home address from the rulemaking record and we will honor such requests to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will not, however, consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

In 30 years of implementing the Act, we have found that the designation of statutory critical habitat provides little additional protection to most listed species while consuming significant amounts of available conservation resources. Our present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. We believe that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.

While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species yet consumes large amounts of conservation resources. Sidle (1987) stated “Because the ESA can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.” Currently, only 445 species or 36 percent of the 1,244 listed species in the United States under the jurisdiction of the Service have designated critical habitat. We address the habitat needs of all 1,244 listed species through conservation mechanisms such as listing, section 7 consultations, the Section 4 recovery planning process, the Section 9 protective prohibitions of unauthorized take, the Section 6 funding to the states, and the Section 10 incidental take permit process. We believe that it is these measures that may make the difference between extinction and survival for many species.

We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected us to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves us with little ability to prioritize our activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.

The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, our own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed.

The accelerated schedules of court-ordered designations have left us with almost no ability to provide for adequate public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judicially-imposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively little additional protection to listed species.

The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act (NEPA); all are part of the cost of critical habitat designation. None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.

Astragalus lentiginosus Douglas ex Hook. var. piscinensis Barneby (Fish Slough milk-vetch), was described by Barneby (1977). The type specimen was collected from BLM Spring in the central portion of Fish Slough 8 miles (mi) (13 kilometers (km)) north of the town of Bishop, California. Spellenberg (1993) retained this variety in his treatment of Astragalus , which was published in the most recent edition of The Jepson Manual of Higher Plants of California . The genus Astragalus is in the pea family (Fabaceae).

Astragalus lentiginosus var. piscinensis is a prostrate perennial, with few-branching stems that are up to 39 inches (in) (1 meter (m)) in length and covered with stiff, appressed hairs. Leaflets, flowers, and fruits are described in the final listing rule (63 FR 53596).

The Service listed Astragalus lentiginosus var. piscinensis as threatened under the Act on October 6, 1998 (63 FR 53596). Please refer to our final listing rule for a more detailed discussion of the species' taxonomic history and description. A. l. var. piscinensis is not listed by the State of California as a rare, threatened, or endangered taxon, and is not a state candidate for listing as threatened or endangered.

The entire known range of Astragalus lentiginosus var. piscinensis is restricted to a 6 mi (9.7 km) long area of alkaline habitat that parallels Fish Slough, a wetland oasis in Inyo and Mono Counties, California. Fish Slough is located in the northern end of the Owens Valley area, along the eastern edge of the Sierra Nevada Mountains in central California. The Fish Slough area is approximately 4,200 feet (ft) (1,280 m) in elevation. Alkaline habitat at Fish Slough is characterized by soil that has a sandy or silty texture and a white appearance. This alkaline habitat forms a ring around the seasonally and permanently flooded wetland habitat in the slough itself. The alkali flat and alkali scrub habitats in the Fish Slough ecosystem were mapped in 1991 (Ferren 1991a). Approximately 540 ac (219 ha) of alkaline habitat were present in Fish Slough when this mapping effort was completed. For reasons that are not precisely known, A. l. var. piscinensis does not inhabit the entire alkaline habitat present in Fish Slough (Ferren 1991a; Odion et al. 1991).

A comparison of the distribution of alkaline habitat that exists in Fish Slough today with aerial photographs taken in 1950 suggests the geographic extent of alkaline habitat in Fish Slough has decreased over time (Anne Halford, Bureau of Land Management, pers. comm. 2004). There has not been an effort to precisely map the boundary of the alkaline areas in the photographs, but some of the areas that previously possessed alkaline soil would now be mapped as xeric uplands that would not be likely to support Astragalus lentiginosus var. piscinensis .

In 1992, staff from the Los Angeles Department of Water and Power (LADWP) and Bureau of Land Management (BLM) performed the first comprehensive survey to locate all of the Astragalus lentiginosus var. piscinensis in Fish Slough (Novak 1992). The survey documented approximately 3,200 widely-scattered individuals within a 530-ac (214-ha) area. This survey also demonstrated that multiple sites that had been occupied by A. l. var. piscinensis in the 1980s and 1991 were larger in geographic extent than previously suspected. One site where six plants were documented in the 1980s and 1991 had no plants in 1992. Another site experienced a decline in the number of observed plants from 44 in 1983 to 8 in 1992. The areas where A. l. var. piscinensis occurred in 1992 were resurveyed in 2000, and it was determined that the overall number of mature plants declined from the 3,200 individuals in 1992 to 1,543 plants in 2000 (A. Halford, pers. comm. 2004). The 2000 survey did not result in the discovery of any new, additional patches of A. l. var. piscinensis , and the overall distribution of the taxon in 2000 was similar to what was observed in 1992.

Fish Slough can be divided into northern, central, and southern areas. Sixty percent of the known Astragalus lentiginosus var. piscinensis plants occur in the northern portion of the slough on land owned by the LADWP. In 1991, LADWP staff constructed an 80-ac (32-ha) cattle exclosure in the northern portion of Fish Slough; in 1992, over 95 percent of the A. l. var. piscinensis plants documented in the northern portion of Fish Slough were within this exclosure. Approximately 35 percent of the known A. l. var. piscinensis plants occur in the central portion of the slough on lands owned and managed by the BLM or the LADWP. The remaining 5 percent of the known plants occur as scattered patches in the southern portion of the slough located north of the McNally Canal. This land is owned by the BLM or the LADWP. The area south of McNally Canal contains little habitat suitable for A. l. var. piscinensis (Novak 1992).

Staff from the LADWP and the BLM collect population trend data for Astragalus lentiginosus var. piscinensis in five monitoring plots on land owned by the LADWP. Two monitoring plots are located in the 80-ac (32-ha) cattle exclosure, where grazing has not occurred since 1991. The other three monitoring plots are subject to grazing. One grazed plot is north of the cattle exclosure, and the other two are in the central portion of Fish Slough near BLM Spring. Monitoring of the five plots occurred annually between 1991 and 2002 (Paula Hubbard, LADWP, pers. comm. 2003; A. Halford, pers. comm. 2003), except for one plot near BLM Spring in 1995, and for the plot north of the cattle exclosure in 1996. When trend data were collected, there was an effort to quantify the number of seedlings, immature plants, and mature plants in each plot.

Data collected from LADWP plots provide insight into how the abundance of Astragalus lentiginosus var. piscinensis has varied over time at specific sites. An average of 33 plants was present in ungrazed plot 1 between 1991 and 1996, but this declined by 61 percent to an average of 13 plants between 1997 and 2002. Similarly, in ungrazed plot 2, an average of 104 plants was present between 1991 and 1996; this declined by 52 percent to an average of 50 plants between 1997 and 2002. In the grazed plot north of the cattle exclosure (plot 3), an average of 41 plants was present between 1991 and 1996, while the average present between 1997 and 2002 was 48 (an increase of 17 percent). In grazed plot 4, north of BLM Spring, an average of 15 plants was present between 1991 and 1996; this number declined by 53 percent to an average of 7 plants between 1997 and 2002. In grazed plot 5, north of BLM Spring, an average of 7 plants were present in the plot between 1991 and 1996; this number declined by 86 percent to an average of 1 plant between 1997 and 2002. If data from all plots ( i.e. , grazed and ungrazed) are considered together, the average number of plants in the plots declined by approximately 41 percent between the two periods. The number of immature plants observed within a plot has exceeded the number of mature plants in that plot for only one plot (grazed plot 3) during the monitoring period, and this only occurred twice. The number of seedlings present in different plots has varied over time, with the greatest number of seedlings occurring in the northern portion of the slough in ungrazed plot 2 and grazed plot 3. The plant census data collected within and outside the cattle exclosure suggest that the decline in A. l. var. piscinensis within the monitoring plots may be caused by one or more factors that may not relate directly to grazing activities, and suggest that low numbers of cattle in an area may not necessarily have an adverse effect on A. l. var. piscinensis .

Staff from the BLM also monitor changes in the abundance of Astragalus lentiginosus var. piscinensis at five plots established in 1997 or 1998 on lands under their jurisdiction. Three of the plots are near the middle of Fish Slough. The number of A. l. var. piscinensis in two of these plots declined from 14 plants in 1997 to 3 plants in 2003, and from 47 plants in 1998 to 5 plants in 2003. At the third plot near the middle of Fish Slough, the number of plants has varied between 19 and 22 individuals during a 7-year period. At the two plots near BLM Spring, the number of A. l. var. piscinensis has remained relatively constant between 1997 and 2003, with one plot having between 39 and 46 individuals, and the other plot having between 6 and 8 plants. The only plot where a substantial number of young individuals were seen between 1997 and 2003 was located near BLM spring.

Previously identified threats to Astragalus lentiginosus var. piscinensis include the presence of roads, effects related to the use of motorized off-road vehicles, effects related to cattle grazing, and herbivory by native vertebrates and insects (USFWS 1998). A potential threat to A. l. var. piscinensis not previously identified in other documents includes competition with, or displacement by, non-native plant species (P. Hubbard, pers. comm. 2003). The modification of wetland habitats which results from ground water pumping or water diversion activities that alter the surface and underground hydrology of Fish Slough are also a threat to the taxon (USFWS 1998).

The use of motorized off-road vehicles and the presence of roads have affected habitat occupied by Astragalus lentiginosus var. piscinensis . Approximately 19 mi (30.6 km) of roads exist within 3,280 ft (1,000 m) of the alkaline habitats within Fish Slough. South of BLM Spring, on the east side of the slough, a road bisects one cluster of the listed plants, and off-road vehicle use in the central portion of the slough has been documented (Novak 1992). Soil compaction and topographic changes resulting from road presence and off-road vehicle activity can affect soil moisture regimes in Fish Slough, and potentially result in changes in seasonal inundation patterns that may adversely affect A. l. var. piscinensis .

Roads through upland areas in Fish Slough also create increased levels of human visitation that would otherwise be unlikely if roads were absent. Roads have been associated with negative impacts that alter the biotic integrity of both terrestrial and aquatic habitats (Trombulak and Frissell 2000). A growing body of published literature indicates that vehicular traffic along road networks in terrestrial habitats increases the likelihood that non-native plant seeds will be introduced into areas where they were previously absent (Wace 1977; Schmidt 1989; Lonsdale and Lane 1994). Some of the non-native plant species in Fish Slough ( e.g. , five hook bassia ( Bassia hyssopifolia )) are identified as pest plants of ecological concern (CalEPPC 1999) and have the potential to invade and degrade the quality of alkaline habitats and compete with Astragalus lentiginosus var. piscinensis .

The BLM does not permit grazing on lands they administer in Fish Slough. With the exception of the 80-ac (32-ha) cattle exclosure in the northern portion of Fish Slough, lands under LADWP management that support Fish Slough milk-vetch are grazed (P. Hubbard, pers. comm. 2003). The LADWP has not completed a management plan that provides specific prescriptions to guide grazing activities in Fish Slough. Currently, there are approximately 40 head of cattle and up to 8 horses in Fish Slough between late summer and March annually (P. Hubbard, pers. comm. 2003). The LADWP schedules grazing activities so cows are absent from the slough during the milk-vetch growing season.

We believe that moderate to intense levels of cattle grazing in Fish Slough could result in a number of adverse effects. For example, the composition of the local plant community could be altered by reducing or eliminating species that cannot tolerate trampling and increasing the abundance of plant species that are tolerant to trampling. Other taxa that were not previously part of the native plant community may be introduced as a result of grazing activities ( e.g. , introduction of seeds of non-native species from supplemental feed that is not weed seed free). The regular presence of cattle in an area could result in the creation of cattle trails that are devoid of vegetation, and therefore reduce the amount of habitat that could be occupied by Astragalus lentiginosus var. piscinensis . Trampling by livestock can also reduce the number of burrows or other nesting sites available for bee pollinators (Sugden 1985), and actions that concentrate the presence of cattle in a particular location ( e.g. , placement of salt licks) may lead to an increased likelihood that individual A. l. var. piscinensis plants could be trampled.

Native herbivores may exert a substantial effect on the reproductive output of individual Astragalus lentiginosus var. piscinensis plants. Infestations of root systems by phloem-sucking insects and high rates of rabbit herbivory have been reported for A. l. var. piscinensis individuals that were present in the central portion of Fish Slough (Mazer and Travers 1992). Ferren (1991a) observed rabbit feces adjacent to individuals that had been stripped of leaves, flowers, and seeds, and assumed these plants had been browsed or otherwise adversely affected by rabbits. Mazer and Travers (1992) found that plants in the central portion of Fish Slough experienced high herbivory levels when compared to plants in the northern portion of the slough. Some plants in the center of the slough had 80 percent of their branches grazed by rabbits or rodents, while in the northern portion of the slough fewer than 20 percent of the branches of some plants had been grazed. Herbivory of A. l. var. piscinensis by rodents and insects has also been noted during the aforementioned surveys of long-term monitoring plots (P. Hubbard, pers. comm. 2003). A large percentage of A. l. var. piscinensis seeds in Fish Slough may be perforated by holes that are created by weevils or wasps. In addition, gopher activity and ant colonies under previously live plants have been noted during monitoring activities. It is not known if herbivory of A. l. var. piscinensis plants is responsible for low recruitment levels of the listed plant taxon.

Investigations into the condition and viability of Astragalus lentiginosus var. piscinensis seeds suggest that a large fraction of its viable seeds will germinate under laboratory conditions, but that a large proportion of seeds may be parasitized. Of the 2,901 seeds collected from 35 plants in Fish Slough on September 10, 2000, 1,039 seeds (36 percent) were found to have been parasitized by one or more insect species (Wall 2001). The identity of the insects has not been determined, but may include a weevil (Joy Fatooh, BLM, in litt. 2003), or a wasp (Wall 2001). Parasitism of a seed is believed to always result in damage to the seed embryo (Joy Fatooh, BLM, in litt. 2002).

The proliferation of non-native plant species in Fish Slough has the potential to adversely affect Astragalus lentiginosus var. piscinensis . Non-native salt cedar ( Tamarix ramosissima ), five hook bassia, Russian thistle ( Salsola iberica ), and pepperweed ( Lepidium latifolium ) would compete with A. l. var. piscinensis for available space, nutrients, and water if the different species had overlapping distributions. The presence of pepperweed in Fish Slough is especially problematic since that species is able to colonize and rapidly spread into a variety of habitat types, including alkaline areas where A. l. var. piscinensis is present (P. Hubbard, pers. comm. 2003). Currently, dense concentrations of non-native plant species are not found with A. l. var. piscinensis . Recognizing that non-native competition could be a problem, LADWP, BLM, and California Department of Fish and Game (CDFG) staff systematically work to control the spread of non-native plant species in Fish Slough.

Natural changes in, or human-induced modifications of, aquatic habitat in Fish Slough may reduce the number of Astragalus lentiginosus var. piscinensis . A long-term threat to the milk-vetch may include the expansion of Fish Slough Lake. The increased size of the lake may be due to natural geologic processes ( e.g. , earthquakes), or human-caused actions ( e.g. , the construction of Red Willow Dam, a small earthen berm). Expansion of Fish Slough Lake from natural processes or human-caused actions has resulted in increased soil inundation, expansion in the distribution of emergent wetland vegetation, and loss of suitable alkaline habitat for Fish Slough milk-vetch (Ferren 1991c). Beavers ( Castor canadensis ) have been observed in Fish Slough Lake and the Northwest Springs area, and their presence sometimes results in changes in local soil moisture conditions as they construct ponds. The construction of a beaver dam near one of the aforementioned long-term monitoring plots on land owned by the LADWP (ungrazed plot 1) appears to coincide with decreases in the number of A. l. var. piscinensis plants that were counted (P. Hubbard, pers. comm. 2004).

The creation of earthen dams, fish barriers, and weirs that facilitate water flow measurements has also likely affected Astragalus lentiginosus var. piscinensis . The dams and fish barriers have been built for a variety of purposes, including habitat enhancement for waterfowl, creation of sport fish habitat, and management activities that were designed to benefit native fish. These activities have also altered the slough hydrology by increasing the size of permanently flooded habitats, modifying surface water drainage patterns, and increasing the length of time that A. l. var. piscinensis habitat is inundated or subject to elevated soil moisture conditions. Each of these effects creates conditions that are less suitable or unsuitable for A. l. var. piscinensis . No new dams have been built in Fish Slough since 1980. Staff from the BLM and CDFG have removed two dams and are analyzing the potential to remove Red Willow Dam, now the single largest water control structure remaining in Fish Slough.

Water diversion activities associated with mining operations may also affect the hydrology near the southern end of Fish Slough. The Desert Aggregate Mine is situated near the southernmost portion of Fish Slough on lands owned by the LADWP and is 0.75 mi (1.2 km) south of the southernmost known occurrence of Astragalus lentiginosus var. piscinensis . The mine was specifically developed at a site with coarse, permeable gravels and the transmissivity (a measure of the ease at which ground water can move through the aquifer) of the area around the mine is relatively high (Danskin 1998). Ground water pumping activities at pits at the mine in 1986 or 1987 adversely affected riparian vegetation to the extent that large areas of vegetation south and down-gradient of the mine and Fish Slough died as water tables declined (P. Hubbard, pers. comm. 2003; Sally Manning, County of Inyo, pers. comm. 2003). The effect of ground water pumping on alkaline habitats around the mine was not documented and so it is unknown if alkaline habitats near the mine were also adversely affected. Mining activities nearest to Fish Slough have been completed.

Three major spring areas are present in Fish Slough. Northeast Spring and Northwest Springs are located in the northern portion of the slough, and BLM Spring is present in the east-central portion of the slough. Staff from the LADWP has quantified the amount of water passing through Fish Slough for several decades. The volume of water moving through Fish Slough at one monitoring site declined from 148-152 cubic feet per second (cfs) (4,191-4,304 liters per second (lps)) in the early 1920s to 84-96 cfs (2,379-2,718 lps) in the early 1960s. This reduction in water flow is larger than the annual variability in water volume that can be accounted for by seasonal variation in evaporative losses and transpiration by local phreatophytes (Pinter and Keller 1991). The cause for the decrease in water flow through the slough between the 1920s and the 1960s has not been conclusively identified, but may be related to increased ground water pumping in the Chalfant Valley 2 mi (3.2 km) northeast of Fish Slough (Pinter and Keller 1991; MHA 2001).

Analysis of water table levels in a number of wells in Chalfant and Hammil valleys east or northeast of Fish Slough confirms that there is an incremental decrease in the potentiometric surface ( i.e. , height of the water table) between these valleys and Fish Slough. This decrease suggests that ground water is moving down gradient from Chalfant and Hammil valleys to the Fish Slough area (MHA 2001).

The Tri-Valley Groundwater Management District (District) in Mono County was established in 1989, in part, to review and approve proposals to export water from the District. The District includes Chalfant, Hammil, and Benton valleys. California landowners may extract as much ground water as they can put to beneficial use, and no permit is required to pump ground water (DWR 1996). Between 1999 and 2001, the District considered a proposal by United States Filter Water Resources, Inc. to pump and export 13,700 acre-feet (16.9 billion liters) of ground water per year (MHA 2001). If the project had been approved as initially proposed, captured water would have been conveyed in a closed pipe and diverted to a location south and down-gradient of Fish Slough. The project was ultimately abandoned, in part, because of environmental concerns for Fish Slough. The District will continue to consider applications to export water, however, as projects to do so are proposed.

Lack of recruitment is a potential threat to Astragalus lentiginosus var. piscinensis. Staff from the BLM and the LADWP has monitored this taxon from 1992 to 2002, observing that only a few young plants matured and persisted during that time (A. Halford, pers. comm. 2003; P. Hubbard, pers. comm. 2003). Two possible explanations for the lack of recruitment are high rabbit/rodent herbivory of seedlings and changes in soil hydrology or chemistry that make the habitat less suitable for seed germination and plant growth.

On October 6, 1998, the Service published a final rule in the Federal Register (63 FR 53596), which determined endangered status for three plant taxa and threatened status for two plant taxa, including Astragalus lentiginosus var. piscinensis. Please refer to the final rule listing the taxon for information on previous Federal actions prior to October 6, 1998. In the final rule listing A. l. var. piscinensis, the Service determined that endangered status for this taxon was not warranted because a significant portion of the listed plant occurrences in northern Fish Slough were protected by a cattle exclosure, thereby reducing threats from grazing and trampling. In addition, the land where the taxon occurred was receiving specific management consideration at the time the final rule was published due to its inclusion in a special management unit administered by the BLM. The Service determined that, while this taxon may not have been in immediate danger of extinction, it was likely to become endangered in the foreseeable future throughout all or a significant portion of its range, and listing as threatened was warranted.

At the time Astragalus lentiginosus var. pinscinensis was listed, we determined that designation of critical habitat was not prudent because the potential benefits were outweighed by the potential negative effects of designating critical habitat. We believed that designation of critical habitat could result in increased threats of illegal collection and vandalism and the designation would not compel or require a private or other non-Federal landowner to undertake active management for the taxon or to modify proposed project activities in the absence of a Federal nexus.

On November 15, 2001, the Center for Biological Diversity and the California Native Plant Society filed a lawsuit in the U.S. District Court for the Southern District of California challenging our determination not to designate critical habitat for eight desert plants, including Astragalus lentiginosus var. pinscinensis ( Center for Biological Diversity et al. v. Norton, No. 01 CV 2101). On July 1, 2002, the Court ordered the Service to reconsider its not prudent determination and propose critical habitat, if prudent, for A. l. var. pinscinensis on or before November 15, 2003. On September 9, 2003, the court issued a subsequent order that required the Service to publish a proposed critical habitat designation for A. l. var. pinscinensis by June 1, 2004.

We have reconsidered our evaluation of the threats posed by vandalism in the not prudent determination, and now determine that the threats to Astragalus lentiginosus var. pinscinensis from specific instances of vandalism are limited, if not speculative. Accordingly, we withdraw our previous determination that the designation of critical habitat is not prudent for A. l. var. pinscinensis and determine that the designation of critical habitat is prudent. At this time, we have sufficient information necessary to identify specific areas as essential to the conservation of this plant taxon and are therefore proposing critical habitat ( see “Methods” section below for a discussion of information used in our reevaluation).

Section 3(5)(A) of the Act defines critical habitat 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.

The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. It does not allow government or public access to private lands. Under section 7 of the Act, Federal agencies must consult with us on activities they undertake, fund, or permit that may affect critical habitat and lead to its destruction or adverse modification. However, the Act prohibits unauthorized take of listed species and requires consultation for activities that may affect them, including habitat alterations, regardless of whether critical habitat has been designated. We have found that the designation of critical habitat provides little additional protection to most listed species.

To be included in a critical habitat designation, habitat must be either a specific area within the geographic area occupied by the species on which are found those physical or biological features essential to the conservation of the species (primary constituent elements, as defined at 50 CFR 424.12(b)) and which may require special management considerations or protection, or be specific areas outside of the geographic area occupied by the species which are determined to be essential to the conservation of the species. Section 3(5)(C) of the Act states that not all areas that can be occupied by a species should be designated as critical habitat unless the Secretary determines that all such areas are essential to the conservation of the species. Our regulations (50 CFR 424.12(e)) also 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.”

Regulations at 50 CFR 424.02(j) defines special management considerations or protection to mean any methods or procedures useful in protecting the physical and biological features of the environment for the conservation of listed species. When we designate critical habitat, we may not have the information necessary to identify all areas which are essential for the conservation of the species. Nevertheless, we are required to designate those areas we consider to be essential, using the best information available to us. Accordingly, we do not designate critical habitat in areas outside the geographic area occupied by the species unless the best available scientific and commercial data demonstrate that unoccupied areas are essential for the conservation needs of the species.

Section 4(b)(2) of the Act requires that we take into consideration the economic impacts, the effect on national security, and any other relevant impact, of specifying any particular area as critical habitat. We may exclude areas from critical habitat designation when the benefits of exclusion outweigh the benefits of including the areas within critical habitat, provided the exclusion will not result in extinction of the species.

Our Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271), provides criteria, establishes procedures, and provides guidance to ensure that our decisions 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, biological assessments, or other unpublished materials and expert opinion or personal knowledge.

Section 4 of the Act requires that we designate critical habitat on the basis of what we know at the time of designation. 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, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery.

Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Federally funded or permitted 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.

As required by the section 4(b)(2) of Act and regulations at 50 CFR 424.12, we used the best scientific information available to determine areas that contain the physical and biological features that are essential for the conservation of Astragalus lentiginosus var. piscinensis, and that may require special management considerations or protection. This includes information from our own documents, including the data from the final rule listing the taxon as threatened (66 FR 27901), recent biological surveys, reports and aerial photos, documentation provided by staff from the BLM and the LADWP, and discussions with botanical and hydrologic experts. We also conducted two site visits to Fish Slough, and met with staff from the BLM, the LADWP, and CDFG to solicit their views on various management aspects involving A. l. var. piscinensis.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species and that may require special management considerations or protection. These include, but are not limited to: Space for individual and population growth, and for normal behavior; food, water, air, light, minerals or other nutritional or physiological requirements; cover or shelter; sites for reproduction, germination, or seed dispersal; and habitats that are protected from disturbance or are representative of the known historic, geographic, and ecological distributions of a species.

The proposed critical habitat unit has been delineated to provide sufficient habitat to maintain a self-sustaining population of Astragalus lentiginosus var. piscinensis in Fish Slough and includes those habitat components essential for the conservation of the taxon. These habitat components provide for: (1) Individual and population growth, including sites for germination, pollination, reproduction, pollen and seed dispersal, and seed dormancy; (2) areas that allow gene flow and provide connectivity or linkage between different locations within Fish Slough; and (3) areas that provide basic requirements for growth, such as water, light, and minerals.

The presence of water is essential to the development and maintenance of alkaline soils and habitat upon which Astragalus lentiginosus var. piscinensis depends. The alkaline soils in Fish Slough where alkali flat, alkali scrub, and meadow habitats occur are generally classified as aquic torriorthents-aquent complex with 0-2 percent slope. These alkaline soils develop as mineral-rich, shallow ground water rises under capillary action to the surface by the high evaporation rates which prevail in the Fish Slough area. As this water evaporates at the soil surface, its solute load precipitates, creating a veneer of white salts and minerals. The alkaline habitat that A. l. var. piscinensis occupies is likely to have a water table that fluctuates between 19-60 in (0.5-1.5 m) below the land surface (Odion et al. 1991). In areas where water tables are more 2 m (6.6 ft) deep, capillary action is insufficient to promote and maintain the development of alkaline soils (Odion et al. 1991).

Between May 1999 and October 2001, a variety of in situ and experimental studies were conducted to evaluate the relationship between photosynthetic rates, growth rates, fecundity, and survivorship of Astragalus lentiginosus var. piscinensis as depth to a water table varied (Murray and Sala, 2003). Data from these studies suggest that elevated water tables are likely to adversely affect these variables if local water tables are less than 35-40 cm (13.8-15.7 in) below the land surface. Therefore, water tables that rise too close to the land surface and the root zone of A. l. var. piscinensis may be detrimental to individual plants that are subjected to saturated soils for a prolonged period of time.

Fish Slough is a wetland in an otherwise arid landscape. The average annual rainfall in the town of Bishop is 5.0 in (12.7 centimeters (cm)). The average annual evapo-transpiration rates in alkaline meadows or alkaline scrub habitats in the greater Owens Valley area which are most similar to the habitat type occupied by Astragalus lentiginosus var. piscinensis range between 18.5-40.5 in (47.0-102.9 cm) and 15.2-23.6 in (38.6-59.9 cm), respectively (Danskin 1998). Because the low annual rainfall and high annual evapo-transpiration rates in the Bishop area create an arid environment, it is essential that a substantial and sustained amount of surface and ground water exists to maintain the wetland and riparian habitats that are present in Fish Slough.

The sources of the water that discharge from springs in Fish Slough have not yet been conclusively identified. Available data indicate that Fish Slough water is derived from the Casa Diablo Mountain area (BLM 1984; MHA 2001), the Tri-Valley area, or a combination of the two areas (MHA 2001). The Casa Diablo Mountain area reaches a maximum elevation of 7,913 ft (2,412 m) and is located 9.5 mi (15.3 km) northwest of Fish Slough. The area between Fish Slough and Casa Diablo Mountain is locally referred to as the Volcanic Tableland. The geology of the Volcanic Tableland predominantly consists of the Bishop Tuff, which has a welded ash and tuff surface veneer. Underneath the surface veneer, a thicker, more permeable layer is present in the Volcanic Tableland. The lower unit of the tuff is extensively fractured and faulted, and some areas are more permeable than wind-blown sand (DWR 1964). These fractures act as conduits that convey ground water from higher elevation areas with greater levels of precipitation to the lower elevation Fish Slough area where low amounts of precipitation predominate. The Tri-Valley area is bounded on the east by the White Mountains, which reach an elevation of up to 14,245 ft (4,342 m), and to the west by a ridge that separates it from Fish Slough. This ridge is less than 280 ft (85 m) higher than the valley floor. The high elevation of the White Mountains promotes the deposition of precipitation. This water then percolates into alluvial fans at the base of the mountains, and ultimately enters the coarse alluvium that is present on the floors of Benton, Hammil, and Chalfant valleys. Because the surface elevation decreases from Benton Valley in the north to Chalfant Valley in the south, and because Fish Slough is lower in elevation than all three of these valleys, ground water tends to move in a southerly or southwesterly direction toward Fish Slough or toward Chalfant Valley east of Fish Slough. A number of fault lines are present in the Fish Slough and Volcanic Tableland area (MHA 2001) and these features likely affect the presence, distribution, and volume of ground water present in the local area (Andy Zdon, MHA Environmental Consulting, Inc., pers. comm. 2004).

The alkaline flats where Astragalus lentiginosus var. piscinensis occurs are typically dominated by a Spartina—Sporobolis (cordgrass—dropseed) plant association. A. l. var. piscinensis may also occur where a sparse amount of Chrysothamnus albidus (rabbit-brush) exists in the transition zone between Spartina—Sporobolis and Chrysothamnus albidus—Distichlis (rabbit-brush—saltgrass) plant associations. Sawyer and Keeler-Wolf (1995) classify the alkaline habitats where A. l. var. piscinensis occurs as a cordgrass series or saltgrass series. Astragalus lentiginosus var. piscinensis is frequently sympatric with Ivesia kingii (alkali ivesia). The higher elevation areas where A. l. var. piscinensis is absent consist of dry shadscale scrub communities that are dominated by various species of Atriplex spp. (saltbush).

Distribution of many alkaline-tolerant plant species is largely determined by a combination of environmental factors, predominantly soil moisture and salinity. These two factors in combination may affect the physiology of adult and immature plants, seed germination, and seedling survival. Mazer and Travers (1992) suggest that seed germination and successful establishment of Astragalus lentiginosus var. piscinensis seedlings are infrequent events, and that sufficient rainfall is necessary to promote seed germination and survivorship of young plants. The suite of environmental factors that determine where Astragalus lentiginosus var. piscinensis occurs is also likely to determine the composition of the broader plant community of which A. l. var. piscinensis is a part. Changes in soil moisture and salinity are likely to influence not only the abundance and presence of A. l. var. piscinensis but also to affect the persistence and character of the Spartina—Sporobolis plant association in which A. l. var. piscinensis occurs.

Upland areas adjacent to the alkaline habitat where Astragalus lentiginosus var. piscinensis currently exists are also important because some of these areas historically possessed alkaline habitat that no longer exists. The long-term success of the conservation of Astragalus lentiginosus var. piscinensis may depend upon efforts to restore the extent and character of the alkaline habitat that historically existed. Inclusion of currently unoccupied upland habitat within the proposed critical habitat unit will therefore include the areas that are necessary to promote the conservation of the listed plant taxon. This need is identified in the recovery plan for the taxon (Owens Basin Wetland and Aquatic Species Recovery Plan Inyo and Mono Counties, California (USFWS 1998)).

Mazer and Travers (1992) examined various aspects that relate to the pollination ecology of Astragalus lentiginosus var. piscinensis . They found that A. l. var. piscinensis is dependant on insects for flower pollination and fertilization and the taxon is not capable of producing fruits in the absence of pollinators. Bumblebees ( Bombus spp.) in the family Apidae were observed to pollinate A. l. var. piscinensis flowers on three occasions. Bees in the family Megachilidae are believed to be important pollinator insects for Astragalus brauntonii (Fotheringham and Keeley 1998), and various bee taxa in this family may occur in and adjacent to Fish Slough. With other milk-vetch species such as A. cibarius and A. utahensis, large bees in the families Anthophoridae and Apidae carry large pollen loads from plant to plant, while a variety of smaller beetle and fly species carry smaller pollen loads. These smaller insects are, therefore, likely to have a smaller potential for pollinating Astragalus plants (Green and Bohart 1975). Unless a specific endemic bee species is responsible for flower pollination, it is possible that multiple bee species pollinate the flowers of A. l. var. piscinensis (Terry Griswold, Utah State University, pers. comm. 2003).

Studies to quantify the distance that bees will fly to pollinate their host plants are limited in number, but the few that exist show that some bees will routinely fly 100 to 500 m (328 to 984 ft) to pollinate plants. Studies by Steffan-Dewenter and Tscharntke (2000) have demonstrated that it is possible for bees to fly at least 1,000 m (3,280 ft) to pollinate flowers, and at least one study suggests that bumblebees may forage many kilometers from a colony (Sudgen 1985). Studies by Steffan-Dewenter and Tscharntke (2000) also indicate that if pollinator habitat within 1,000 m of some host plants is eliminated, seed set of some plant species may be decreased by as much as 50 percent. Additional studies suggest that the degradation of pollinator habitat is likely to adversely affect the abundance of pollinator species (Jennersten 1988; Rathcke and Jules 1993).

Bumblebees usually nest in abandoned rodent burrows or bird nests (Thorpe et al. 1980), and bees in the family Megachilidae also nest in underground rodent burrows or in dry woody material. The alkaline nature of the habitat occupied by Astragalus lentiginosus var. piscinensis makes it unlikely that burrowing rodents are present in such areas. We believe insect pollinators are more likely to nest in upland habitats adjacent to alkaline areas because nesting and cover sites for various species of mice, kangaroo rats, and pocket mice are more likely to be common there (T. Griswold, pers. comm. 2003).

The upland areas adjacent to occurrences of Astragalus lentiginosus var. piscinensis are likely to include cover and nest sites for a variety of insects necessary for the pollination of this taxon. Surveys have not been conducted to specifically identify which species are responsible for the fertilization of A. l. var. piscinensis flowers but, at a minimum, they likely include a variety of ground-nesting bee taxa. Studies have demonstrated that it is possible for bees to fly 1,000 m (3,280 ft) or more to pollinate flowers. The bees that have been observed on A. l. var. piscinensis include taxa that routinely nest in underground burrows. We believe that rodent burrows are less likely to be common in alkaline habitats and so we have concluded that the bee pollinators that visit A. l. var. piscinensis are more likely to use rodent burrows in upland shrub scrub plant communities within 100-1,000 m (328-3,280 ft) of the alkaline habitat occupied by the listed plant taxon.

The maintenance of natural conditions in upland areas adjacent to the alkaline habitat where Astragalus lentiginosus var. piscinensis occurs is important because the presence of roads and use of motorized vehicles have a substantial potential to introduce non-native plant species. These upland areas may act as reservoirs for invasive plant species and facilitate their invasion into the more mesic habitat occupied by Fish Slough milk-vetch. Some species such as Lepidium latifolium and Salsola iberica can survive in soils that vary in texture and moisture. Proactive management of upland habitats at Fish Slough is necessary to preclude the establishment of invasive non-native plant species that could displace A. l. var. piscinensis and that such control should not be limited to the areas immediately adjacent to alkaline habitats.

The area we are proposing to designate as critical habitat provides some or all of the habitat components and the physical and hydrologic attributes that are essential for the conservation of Astragalus lentiginosus var. piscinensis . Based on the best available information at this time, the primary constituent elements of critical habitat for A. l. var. piscinensis include, but are not limited to:

(1) Alkaline soils that occur in areas with little or no slope, and which overlay a ground water table that is 19-60 in (0.5-1.5 m) below the land surface;

(2) Plant associations dominated by Spartina—Sporobolis, or where a sparse amount of Chrysothamnus albidus occurs in the transition zone between Spartina—Sporobolis and Chrysothamnus albidus—Distichlis plant associations;

(3) Upland areas within 1,000 m (3,280 ft) of the alkaline soils described in (1), that support sites where the listed plant's pollinator populations are likely to nest or obtain cover, that require minimal disturbance and active management to limit the establishment of non-native plant taxa, and portions of which may be suitable for restoration and recolonization by Astragalus lentiginosus var. piscinensis ; and

(4) Hydrologic conditions that provide suitable periods of soil moisture and chemistry for Astragalus lentiginosus var. piscinensis germination, growth, reproduction, and dispersal.

All of the primary constituent elements outlined above do not have to occur simultaneously within the unit to constitute critical habitat for Astragalus lentiginosus var. piscinensis . We determined the primary constituent elements of critical habitat for A. l. var. piscinensis based on the best available scientific and commercial information, including professional studies and reports that pertain to its habitat and ecology and the hydrological conditions that are relevant to the quality of habitat in Fish Slough. These documents include, but are not limited to, BLM (1984); Odion et al. (1991); Ferren (1991a); Mazer and Travers (1992); Danskin (1998); and MHA (2001).

The criteria that have been used to identify the proposed critical habitat unit for Astragalus lentiginosus var. piscinensis include the known range of the taxon, the alkaline habitat where the taxon and its associated flora occurs, the upland areas within 1,000 m (3,280 ft) of the alkaline soils that are occupied by the taxon, and the hydrologic features that are essential to promote the survival and persistence of the taxon.

A number of botanical surveys have been completed in most of the alkaline habitats in the greater Owens Valley area and Astragalus lentiginosus var. piscinensis has not been found outside of Fish Slough (P. Hubbard, pers. comm. 2003). Mary DeDecker, the botanist who collected the type specimen of A. l. var. piscinensis , traveled extensively throughout the greater Owens Valley area and Inyo and Mono Counties collecting botanical specimens for her herbarium collection. Because her collection does not contain specimens of A. l. var. piscinensis collected outside of Fish Slough (Michael Denslow, Rancho Santa Ana Botanic Garden, pers. comm. 2004), it is unlikely that Fish Slough milk-vetch occurs outside of that area surrounding the Fish Slough oasis. Considering this, we conclude that the geographic range of A. l. var. piscinensis is limited to those disjunct occurrences within a 6 mi (9.7 km) stretch of alkaline habitat that borders aquatic habitat in Fish Slough in Inyo and Mono Counties, California. Because the taxon occurs within a relatively limited area and the alkaline habitat within the taxon's range forms a relatively continuous feature in the landscape, we are proposing a single critical habitat unit which is not separated into smaller, separate units. The critical habitat unit being proposed for A. l. var. piscinensis includes virtually all of the known locations of the taxon.

According to a recovery plan that includes Astragalus lentiginosus var. piscinensis (USFWS 1998), all remaining habitat of the taxon needs to be conserved. Virtually the entire geographic area which currently is and potentially can be occupied by the taxon is being proposed as critical habitat. This is being done because these areas are all considered essential to the conservation of the species, in accordance with Section 3(5)(C) of the Act. We have determined, however, that one privately-owned, 49-acre (20-ha) parcel within the historic range of A. l. var. piscinensis is not essential for its conservation. That parcel is in Township 6 South, Range 33 East, section 18 of U.S. Geological Survey quadrangle map titled Fish Slough. It is highly unlikely that this area is currently occupied by the taxon and it has little alkaline soil habitat. In addition, there is no chance that the taxon will be re-introduced on this property. Therefore, the parcel is not essential to conservation of the taxon, and is not included in the proposed critical habitat.

The critical habitat units are designed to encompass a large enough area to support existing ecological processes that may be essential to the conservation of Astragalus lentiginosus var. piscinensis . Some upland areas adjacent to the alkaline habitat where A. l. var. piscinensis occurs could potentially be restored to allow the taxon to re-occupy historically-occupied areas. Upland areas within 1,000 meters of the alkaline habitat also provide nest sites and cover for pollinators, and are important to help minimize the potential to introduce new non-native plant species that may adversely affect A. l. var. piscinensis and to control non-native plant species already present. Because these areas are essential for conservation of the taxon, we have included them in the proposed critical habitat unit in accordance with section 3(5)(A)(ii) of the Act.

Determining the geographic boundary of the critical habitat unit for Astragalus lentiginosus var. piscinensis would be relatively straightforward if the unit boundary was based only on the presence of alkaline soils, the Spartina—Sporobolis plant association where Fish Slough milk-vetch is found, and an upland zone inhabited by the plant's pollinators. We believe, however, that the long-term maintenance and recovery of A. l. var. piscinensis is ultimately dependent on the maintenance of the hydrologic system that promotes the development and persistence of the alkaline soils and plant communities that A. l. var. piscinensis is associated with. We believe that adverse changes in the hydrology of Fish Slough would reduce or eliminate those physical features essential for the conservation of the taxon.

Delineating a critical habitat unit for Astragalus lentiginosus var. piscinensis that includes the hydrologic system that supports this taxon poses significant challenges because the source(s) of the water that issues from the springs in Fish Slough is not precisely known and the location of the ground water flow paths between these sources and the spring orifices in Fish Slough have not yet been determined. Our current understanding of how pumping activities in Chalfant and Hammil valleys affects spring discharge rates or the local aquifer in Fish Slough is not sufficient to clearly illustrate these cause and effect relationships.

Because we believe the protection of the hydrologic conditions that supports the formation and maintenance of alkaline soils is essential to conserve occupied and suitable unoccupied habitat for Astragalus lentiginosus var. piscinensis , we have identified these hydrologic conditions as a primary constituent element in the “Primary Constituent Element” section of this proposed rule even though they may depend upon sources outside the proposed critical habitat unit boundary.

To delineate the critical habitat unit for Fish Slough milk-vetch, we used a computerized Geographic Information System to overlay various themes that included the known occurrences of Astragalus lentiginosus var. piscinensis and the primary constituent elements (see Primary Constituent Element section above). To map the distribution of A. l. var. piscinensis , we used information in the California Department of Fish and Game's Natural Diversity Database (CNDDB 2004) and plant distribution data from Novak (1992). These two information sources provide a comparable assessment of the locations of A. l. var. piscinensis .

The upland boundaries of alkaline soils in Fish Slough as depicted in Ferren (1991a) were then digitized. We digitized the boundaries of aquatic habitats and meadows mapped in this Ferren (1991a) and included these within the boundary of the proposed critical habitat unit. These two habitats do not provide suitable habitat for Astragalus lentiginosus var. piscinensis ; however, they are included within the proposed unit because the precise boundaries of alkaline habitat in Fish Slough vary on an annual basis, and small-scale conversions of wetland habitat to alkaline flat habitat are likely to occur from time to time. In addition, as this ecosystem is dynamic, we believe that areas of alkaline soils may convert to wetland habitat. The mapped boundary based on alkaline soils also corresponds closely with the distribution of the Spartina — Sporobolis and Chrysothamnus albidus — Distichlis plant associations which are associated with A. l. var. piscinensis . The alkaline habitat occupied by A. l. var. piscinensis is a visually obvious feature of Fish Slough. It is present at elevations above the low-lying flooded aquatic habitat in Fish Slough and below the elevated and drier areas dominated by coarse alluvial soils lacking a white alkaline appearance. The alkaline habitat occupied by the taxon is dominated by a Spartina — Sporobolis plant association (Odion et al. 1991); the taxon may also occur where a sparse amount of Chrysothamnus albidus occurs in the transition zone between Spartina — Sporobolis and Chrysothamnus albidus — Distichlis plant associations. Collectively, these plant associations form the plant community of which A. l. var. piscinensis is a part, and are therefore included in the proposed critical habitat unit in this rule. The higher elevation areas where A. l. var. piscinensis is absent consist of dry shadscale scrub communities that are dominated by various species of Atriplex spp. (saltbush).

Because we have concluded that upland area within 1,000 m (3,280 ft) of the alkaline habitats occupied by Astragalus lentiginosus var. piscinensis is essential for the taxon's conservation, we delineated a boundary that includes this distance as measured from the outer edge of the area that includes occurrences of A. l. var. piscinensis , alkaline soils, and the Spartina — Sporobolis plant association or transition zone between Spartina — Sporobolis and Chrysothamnus albidus — Distichlis plant associations. This boundary delineates the perimeter of the proposed critical habitat unit.

To provide a legal description of the critical habitat boundary, a final modification to the boundary described in the proceeding paragraphs was made. The proposed critical habitat unit boundary conforms to a Universal Transverse Mercator (UTM) North American Datum 1927 (NAD 27) coordinate system grid with a cell size of 100 m by 100 m. For the modification, those points which define the boundaries of our initial polygon were moved to an adjacent point lying on the UTM grid of 100-meter cells. Defining critical habitat boundaries to be coincident with points on a UTM grid is consistent with current practice and is intended to simplify interpretation of the coordinates while diminishing the number of coordinates necessary to define a boundary.

This proposed unit thus includes the following: Locations where pollinators are most likely to nest or obtain cover; some, but not all, of the surface and subsurface hydrologic features that are necessary to maintain the soils that are necessary for Astragalus lentiginosus var. piscinensis germination, growth, reproduction, and dispersal; an area where the successful exclusion of non-native plant species must take place in order to safeguard the status of the taxon; the plant communities that are associated with A. l. var. piscinensis ; locations where the current normal year-to-year variations in surface water are likely to create new alkaline habitat; and the locations where the taxon occurred historically and could possibly be restored with active management. The critical habitat unit proposed constitutes our best assessment of that area essential to the conservation of A. l. var. piscinensis .

Manmade features within the boundaries of the mapped unit, such as buildings, roads, parking lots, and other paved areas, do not contain any of the primary constituent elements for Astragalus lentiginosus var. piscinensis . Federal actions limited to these areas, therefore, would not trigger a section 7 consultation, unless they affect the taxon and/or its primary constituent elements in adjacent critical habitat. In proposing to designate critical habitat, we made an effort to avoid the inclusion of such features in proposed critical habitat; however, critical habitat is not mapped in sufficient detail to exclude all developed areas, or other lands unlikely to contain the primary constituent elements.

In 1982, the BLM established the Fish Slough Area of Critical Environmental Concern (ACEC) in an effort to provide protection for the federally endangered Owens pupfish ( Cyprinodon radiosus ), several rare plant taxa including Astragalus lentiginosus var. piscinensis , and the wetland and riparian habitats upon which these species depend. The listing of the Owens pupfish under the Act provides additional recognition of the need to protect the Fish Slough ecosystem and has indirectly provided some benefit to A. l. var. piscinensis by raising the level of management attention that is devoted to Fish Slough. Conversely, the creation of impoundments and other manipulations of spring systems in the slough which have been done to manage pupfish have likely affected the suitability of alkaline meadow habitat that could be occupied by A. l. var. piscinensis by increasing the length of inundation in certain areas. A management plan for the ACEC was finalized in 1984, and the plan has not been revised since it was completed. Astragalus lentiginosus var. piscinensis was not a listed taxon when the ACEC management plan was completed.

The Fish Slough ACEC has three zones (BLM 1984). Zone 1 is approximately 7,961 ac (3,221 ha) in size and is located within the southeastern portion of the ACEC. Zone 1 encompasses all but the southern-most occurrences of Astragalus lentiginosus var. piscinensis . The proposed critical habitat unit is predominantly located within Zone 1 of the ACEC, but also extends slightly beyond the boundary of this zone to the south and west. The land in this zone is owned by the BLM, CDFG, LADWP, and one private land owner. Zones 2 and 3 of the ACEC are located in the Volcanic Tableland area west or northwest of Zone 1, and collectively measure 27,964 ac (11,317 ha) in size. Zone 2 was included within the ACEC because this area includes the surface water drainage up-gradient of Fish Slough, and the area was deemed necessary to protect the quality and quantify of surface and ground water that enters Fish Slough. Zone 3 was included within the ACEC because this area is thought to include an aquifer that affects the hydrology of Fish Slough.

A joint management committee composed of representatives of the LADWP, BLM, the Service, and CDFG provides guidance on ACEC management issues. The committee meets at least once a year to discuss land management activities or new developments that have the potential to adversely affect Astragalus lentiginosus var. piscinensis or other regionally endemic species or their habitats. The annual meeting provides a forum that fosters communication, cooperation, and the coordination of activities among the different committee members.

The suite of factors that affect Astragalus lentiginosus var. piscinensis is complex. The establishment of the Fish Slough ACEC has helped provide some benefit for A. l. var. piscinensis by coordinating the activities of staff from the BLM, LADWP, and CDFG on various land management challenges which exist in the local area. Because the long, narrow configuration of the slough is bounded by upland habitat, the amount of alkaline habitat that can be occupied by A. l. var. piscinensis is limited. Ferren (1991b) summarizes threats to botanical resources at Fish Slough, noting that those related to the enhancement of fisheries (construction of ponds, impoundments, roads, and ditches) may have had the greatest effect on the Fish Slough ecosystem. In the central portion of the slough, Fish Slough Lake appears to have expanded in size between 1944 and 1981. This increase may be due to natural geologic subsidence, the construction of Red Willow Dam, or the construction of water impoundments by beavers. The increase in aquatic habitat has likely resulted in the loss of alkaline habitat for A. l. var. piscinensis as soils near the lake are now saturated for greater portions of the year (Ferren 1991c). Some earthquake events in Chalfant Valley appear to have resulted in decreases in spring discharge or changes in local water table levels (Brian Tillemans, LADWP, pers. comm. 2000), thereby making it more difficult to clearly understand the nature of the local aquifer. Conflicts that arise in the management of Fish Slough are not easily resolved, and modifications to the slough environment from changes in the local hydrology are not well understood or easily reversed. These factors, in combination with essential data gaps that include, but are not limited to, a more thorough understanding of the ecology and habitat requirements of the listed plant taxon have made it difficult for local land managers to understand and reverse the decline in the number of A. l. var. piscinensis within the ACEC over the past decade. The trend in the taxon's abundance during the past decade suggests that, despite the ongoing efforts of the relevant land management agencies, additional factors need to be addressed to reverse the decline in the status of A. l. var. piscinensis .

In 1998, the Service completed the Owens Basin Wetland and Aquatic Species Recovery Plan Inyo and Mono Counties, California (USFWS 1998). The document describes the natural history and threats that pertain to Astragalus lentiginosus var. piscinensis and describes only those general recovery actions necessary for its delisting. If implementation of the recovery tasks described in the recovery plan proceeds as scheduled, the recovery and delisting of A. l. var. piscinensis is expected to take at least 15 years.

Because Astragalus lentiginosus var. piscinensis is not listed by the state of California as a rare, threatened, or endangered taxon, and is not a candidate for state listing as threatened or endangered, the CDFG does not have an agency management plan that provides prescriptions designed to conserve or actively manage this taxon. The agency is, however, signatory to the 1984 Fish Slough ACEC management plan.

Under section 404 of the Clean Water Act (CWA), the U.S. Army Corps of Engineers (Corps) regulates the discharge of fill into waters of the United States, including navigable waters, wetlands, and other waters (33 CFR parts 320-330). The CWA requires project proponents to obtain a permit from the Corps prior to undertaking activities that would result in the filling of wetlands subject to the Corps' jurisdiction. These activities include grading, discharge of soil or other fill material, etc. Habitat for Astragalus lentiginosus var. piscinensis consists of alkaline flats adjacent to jurisdictional wetlands under the purview of section 404 of the CWA. Some protection from wetland fill activity, such as the construction of new impoundments or diversion structures, may be afforded by the Corps' regulatory process; however, unless a population of A. l. var. piscinensis is present within the footprint of the fill area or zone of construction activities, the impacts of the project on the taxon ( e.g. , changes in surface or ground water hydrology that affect the character and persistence of alkaline habitat) may not be considered.

Special management considerations or protection may be needed to maintain the physical and biological features as well as the primary constituent elements essential to the conservation of Astragalus lentiginosus var. piscinensis within the unit being proposed as critical habitat. As noted in the “Critical Habitat” section, “special management considerations or protection” is a term that originates in section 3(5)(A) of the Act under the definition of critical habitat. We believe that the proposed critical habitat unit may require special management considerations or protections due to the threats outlined below.

(1) Activities that have the potential to change the hydrology of Fish Slough and adversely affect the survivorship, seed germination, growth, or photosynthesis of Astragalus lentiginosus var. piscinensis , unless such activities are designed and have the effect of recreating the historic environmental conditions that existed in Fish Slough.

(2) Activities that have the potential to adversely affect the suitability of alkaline areas that could provide habitat for Astragalus lentiginosus var. piscinensis including, but not limited to, off-road vehicle use, levels of cattle grazing which could result in increased soil compaction, and road construction and maintenance activities.

(3) Activities that have the potential to modify the species composition, character, or persistence of the native plant associations that are associated with Astragalus lentiginosus var. piscinensis .

(4) Activities that could adversely affect the insect pollinators that inhabit the native upland desert scrub community that is adjacent to alkaline habitats in Fish Slough including, but not limited to, livestock grazing at levels which would increase soil compaction, use of heavy-wheeled vehicles or off-road vehicles (including motorcycles and all terrain vehicles), pesticide use, and incompatible recreational activities.

(5) Management activities, particularly those that involve cattle grazing and road maintenance, that have the potential to introduce new non-native plant species that may compete with or displace Astragalus lentiginosus var. piscinensis .

Section 4(b)(2) of the Act states that critical habitat shall be designated, and revised, on the basis of the best available scientific data available after taking into consideration the economic impact, the effect on national security, and any other relevant impact, of specifying any particular area as critical habitat. An area may be excluded from critical habitat if it is determined, following an analysis, that the benefits of such exclusion outweigh the benefits of specifying a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. Consequently, we may exclude an area from designated critical habitat based on economic impacts, effects on national security, or other relevant impacts such as preservation of conservation partnerships, if we determine the benefits of excluding an area from critical habitat outweigh the benefits of including the area in critical habitat, provided the action of excluding the area will not result in the extinction of the species. In this proposed rule we have not excluded any lands on the basis of economic impacts.

Further, we conducted an evaluation of other potential impacts that may result from this designation, including those to national security, partnerships with local jurisdiction in the development of habitat conservation plans, conservation agreements, and management plans, as well as Tribal nations. We determined that the lands within the designation of critical habitat for Astragalus lentiginosus var. piscinensis are not owned or managed by the Department of Defense, there are currently no habitat conservation plans or other management plans for A. l. var. piscinensis , and the designation does not include any Tribal lands or trust resources. As such, we have not excluded any lands from this proposed critical habitat designation based on potential impacts to these factors.

We propose to designate a single critical habitat unit for Astragalus lentiginosus var. piscinensis that encompasses approximately 8,490 ac (3,435 ha). Within the proposed unit, the city of Los Angeles owns four separate parcels that total 2,923 ac (1,183 ha) in area. The CDFG owns a single 166 ac (67 ha) parcel in the proposed critical habitat unit. The remaining land within the proposed unit is owned by the BLM and comprises 5,401 ac (2,185 ha). The approximate size of the different land ownership areas within the proposed critical habitat unit is shown in Table 1. Lands managed by the BLM and LADWP comprise 64 and 34 percent of the total proposed unit, respectively, with State lands comprising approximately 2 percent.

The proposed Fish Slough critical habitat unit described below constitutes our best assessment at this time of the area that is essential for the conservation of Astragalus lentiginosus var. piscinensis and includes Federal, State, and City lands. The land within the proposed critical habitat unit contains all of the known occurrences of A . l . var. piscinensis , alkaline habitat occupied by this taxon, and the upland areas that provide cover sites for insect pollinators and require special management to control non-native plant species. The land within the proposed unit also includes the Spartina—Sporobolis plant association and Chrysothamnus albidus which is present in the transition zone between the Spartina—Sporobolis and Chrysothamnus albidus—Distichlis plant associations. The unit also includes some of the hydrologic features that we believe are necessary to promote the persistence and successful recruitment of the listed plant taxon.

This unit boundary overlaps the boundary of Inyo and Mono counties in the state of California. The northern-most boundary of the proposed Fish Slough critical habitat unit is located approximately 3,444 ft (1,050 m) north of Northeast Spring in the northern portion of Fish Slough. The southern boundary of the proposed unit is approximately 510 ft (155 m) north of the Owens River near an area that is labeled “Five Bridges” on the Fish Slough U.S. Geological Survey 1:24,000 scale topographic quadrangle. The eastern and western boundaries of the proposed unit are parallel to, overlap, or are adjacent to the eastern and western boundaries of Zone 1 of the BLM's Fish Slough ACEC, respectively.

Section 7 of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat.

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, the action agency ensures 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 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.

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 Astragalus lentiginosus var. piscinensis 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 Army Corps under section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or some other Federal action, including funding ( e.g. , Federal Highway Administration or Federal Emergency Management Agency funding), 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 and private 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 destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat include those that appreciably reduce the value of critical habitat to Astragalus lentiginosus var. piscinensis. We note that such activities may also jeopardize the continued existence of the species.

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 to 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 often result in jeopardy to the species concerned when the area of the proposed action is occupied by the species concerned.

Federal agencies already consult with us on activities in areas currently occupied by the species to ensure that their actions do not jeopardize the continued existence of the species. These actions include, but are not limited to:

(1) Activities that disturb or degrade the character of alkaline soils or hydrology necessary to support wetlands in Fish Slough.

(2) Activities that have the potential to introduce new non-native plant species to Fish Slough or promote the spread of non-native plant species that are already present in the local area.

(3) Activities that alter the character of the native plant associations that co-occur with Astragalus lentiginosus var. piscinensis.

(4) Activities that adversely affect insect pollinators that facilitate viable seed production in Astragalus lentiginosus var. piscinensis.

(5) Activities on Federal lands ( e.g. , BLM) or private lands that require permits from Federal agencies ( e.g. , the U.S. Army Corps of Engineers) or use Federal funding ( e.g. , dollars provided by the Natural Resource Conservation Service).

(6) Sale or exchange of lands by a Federal agency to a non-Federal entity; and

(7) Promulgation and implementation of a land use plan by a Federal agency such as the BLM that may alter management practices for critical habitat.

If you have questions regarding whether specific activities will constitute destruction or 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 plants 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).

Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial data available and to consider the economic and other relevant impacts of designating a particular area as critical habitat. We may exclude areas from critical habitat upon a determination that the benefits of such exclusions outweigh the benefits of specifying such areas as critical habitat. We cannot exclude such areas from critical habitat when such exclusion will result in the extinction of the species.

An analysis of the economic impacts of proposing critical habitat for the Astragalus lentiginosus var. piscinensis is being prepared. We will announce the availability of the draft economic analysis as soon as it is completed, at which time we will seek public review and comment. At that time, copies of the draft economic analysis will be available for downloading from the Internet at http://ventura.fws.gov , or by contacting the Ventura Fish and Wildlife Office directly ( see ADDRESSES section).

In accordance with our policy published on July 1, 1994 (59 FR 34270), we will solicit the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure that our critical habitat designation is based on scientifically sound data, assumptions, and analyses. We will send these peer reviewers a copy of the proposed rule immediately following publication in the Federal Register . We will invite these peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed designation of critical habitat.

All comments and information received during the 60-day comment period on this proposed rule will be considered as we prepare our final rulemaking. Accordingly, the final designation may differ from this proposal.

The Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days of the date of publication of the proposal in the Federal Register . Such requests must be made in writing and be addressed to the Field Supervisor, Ventura Fish and Wildlife Office ( see ADDRESSES section). We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings in the Federal Register and local newspapers at least 15 days prior to the first hearing.

Executive Order 12866 requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following:

(1) Are the requirements in the proposed rule clearly stated?

(2) Does the proposed rule contain technical jargon that interferes with the clarity?

(3) Does the format of the proposed rule (grouping and order of the sections, use of headings, paragraphing, etc.) aid or reduce its clarity?

(4) Is the description of the notice in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the proposed rule?

(5) What else could we do to make this proposed rule easier to understand?

Send a copy of any comments on how we could make this proposed rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may e-mail your comments to this address: Exsec@ios.doi.gov.

In accordance with Executive Order 12866, this document is a significant rule in that it may raise novel legal and policy issues, but it is not anticipated to have an annual effect on the economy of $100 million or more or affect the economy in a material way. The Office of Management and Budget (OMB) has not reviewed this proposed rule, but intends to review the final rule.

We are preparing a draft economic analysis of this proposed action. We will use this analysis to meet the requirement of section 4(b)(2) of the Act to determine the economic consequences of designating the specific areas as critical habitat and excluding any area from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of specifying such areas as part of the critical habitat, unless failure to designate such area as critical habitat will lead to the extinction of the Astragalus lentiginosus var. piscinensis. This draft economic analysis will be made available for public review and comment before we finalize this designation. At that time, copies of the analysis will be available for downloading from the Ventura Fish and Wildlife Office's Internet Web site at http://ventura.fws.gov or by contacting the Ventura Fish and Wildlife Office directly ( see ADDRESSES section).

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities ( i.e. , small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act (RFA) to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

At this time, the Service lacks the available economic information necessary to provide an adequate factual basis for the required RFA finding. Therefore, the RFA finding is deferred until completion of the draft economic analysis prepared pursuant to section 4(b)(2) of the ESA and E.O. 12866. This draft economic analysis will provide the required factual basis for the RFA finding. Upon completion of the draft economic analysis, the Service will publish a notice of availability of the draft economic analysis of the proposed designation and reopen the public comment period for the proposed designation for an additional 60 days. The Service will include with the notice of availability, as appropriate, an initial regulatory flexibility analysis or a certification that the rule will not have a significant economic impact on a substantial number of small entities accompanied by the factual basis for that determination. The Service has concluded that deferring the RFA finding until completion of the draft economic analysis is necessary to meet the purposes and requirements of the RFA. Deferring the RFA finding in this manner will ensure that the Service makes a sufficiently informed determination based on adequate economic information and provides the necessary opportunity for public comment.

In the draft economic analysis, we will determine whether designation of critical habitat will 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; 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.

On May 18, 2001, the President issued an Executive Order (E.O. 13211) on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule to designate critical habitat for Astragalus lentiginosus var. piscinensis is considered a significant regulatory action under Executive Order 12866 in that it may raise novel legal and policy issues. However we do not anticipate that the proposed designation of critical habitat for this taxon will significantly affect energy supplies, distribution, or use because there are no pipelines, distribution facilities, power grid stations, etc. within the boundaries of proposed critical habitat. Therefore, we do not believe that this action is a significant energy action and no Statement of Energy Effects is required. We will further examine any potential effect in our economic analysis of this proposal.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:

(a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute or regulation that would impose an enforceable duty upon State, local, tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities who receive Federal funding, assistance, permits or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.

(b) We do not believe that this rule will significantly or uniquely affect small governments. The term “small governmental jurisdiction” means governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand (U.S.C. title 5, part I, chapter 6, section 601[5]). The lands being proposed for critical habitat designation are owned by the City of Los Angeles, the State of California, and the Federal Bureau of Land Management. None of these government entities fit the definition of “small governmental jurisdiction”. As such, a Small Government Agency Plan is not required. We will, however, further evaluate this issue as we conduct our economic analysis and as appropriate, review and revise this assessment as warranted.

In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of designating critical habitat for Astragalus lentiginosus var. piscinensis. This preliminary assessment concludes that this proposed rule does not pose significant takings implications; however, we have not yet completed the economic analysis for this proposed rule. Once the economic analysis is available, we will review and revise this preliminary assessment as warranted.

In accordance with Executive Order 13132, this rule does not have significant federalism effects. A federalism assessment is not required. In keeping with Department of the Interior policies, we requested information from and coordinated development of this proposed critical habitat designation with appropriate State resource agencies in California. The proposed designation of critical habitat in areas currently occupied by Astragalus lentiginosus var. piscinensis imposes no additional significant restrictions beyond those currently in place and, therefore, has little incremental impact on State and local governments and their activities.

The proposed designation of critical habitat may have some benefit to the State and local resource agencies in that the areas essential to the conservation of this species are more clearly defined, and the primary constituent elements of the habitat necessary to the conservation of this species are specifically identified. While this definition and identification does not alter where and what federally sponsored activities may occur, it may assist local governments in long-range planning (rather than waiting for case-by-case section 7 consultations to occur).

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 does meet the requirements of sections 3(a) and 3(b)(2) of the Order. We are proposing to designate critical habitat in accordance with the provisions of the Endangered Species Act. The rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of the Astragalus lentiginosus var. piscinensis.

This proposed rule does not contain new or revised information collection for which OMB approval is required under the Paperwork Reduction Act. Information collections associated with certain Act permits are covered by an existing OMB approval and are assigned clearance No. 1018-0094, Forms 3-200-55 and 3-200-56, with an expiration date of July 31, 2004. Detailed information for Act documentation appears at 50 CFR 17. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

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 proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, 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 essential for the conservation of Astragalus lentiginosus var. piscinensis. Therefore, designation of critical habitat for A. l. var. piscinensis has not been proposed on Tribal lands.

A complete list of all references cited in this proposed rule is available upon request from the Ventura Fish and Wildlife Office ( see ADDRESSES section).

The primary author of this notice is Douglas Threloff in the Ventura Fish and Wildlife Office staff ( see ADDRESSES section).

Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations as set forth below:

It is our intent that any final action resulting from this proposal will be as accurate as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. Maps of essential habitat not included in the proposed critical habitat are available for viewing by appointment during regular business hours at the Carlsbad Fish and Wildlife Office (see ADDRESSES section) or on the Internet at http://carlsbad.fws.gov. On the basis of public comment, during the development of the final rule we may find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2), or not appropriate for exclusion, and in all of these cases, this information would be incorporated into the final designation. We particularly seek comments concerning:

(1) The reasons why any areas should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of designation will outweigh any threats to the species resulting from the designation;

(2) Specific information on the amount and distribution of Allium munzii and its habitat, and which habitat or habitat components are essential to the conservation of this species and why;

(3) Land use designations and current or planned activities in or adjacent to the areas proposed and their possible impacts on proposed critical habitat;

(4) Any foreseeable economic or other potential impacts resulting from the proposed designation, in particular, any impacts on small entities;

(5) Most of the lands we have identified as essential for the conservation of Allium munzii are proposed for exclusion as critical habitat. Eighteen of 19 known occurrences of this species have been proposed for exclusion from this proposed designation of critical habitat because they are within approved HCPs or the draft Western Riverside MSHCP. These areas are proposed for exclusion from critical habitat because we believe the value of excluding these areas outweighs the value of including them. We specifically solicit comment on the inclusion or exclusion of such areas and: (a) Whether these areas are essential; (b) whether these areas warrant exclusion; and (c) the basis for excluding these areas as critical habitat (section 4(b)(2) of the Act); and

(6) Whether our approach to designate critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.

If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods. Please submit electronic comments in ASCII file format and avoid the use of special characters or any form of encryption. Please also include “Attn: RIN 1018-AJ10” in your e-mail subject header and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your internet message, contact us directly by calling our Carlsbad Fish and Wildlife Office at phone number 760-431-9440. Please note that the e-mail address, fw1cfwoalmu@r1.fws.gov, will be closed out at the termination of the public comment period.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

In 30 years of implementing the ESA, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of conservation resources. The Service's present system for designating critical habitat is driven by litigation rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.

While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, “Because the ESA can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.”

Currently, only 445 species, or 36 percent, of the 1,244 listed species in the U.S. under the jurisdiction of the Service have designated critical habitat. We address the habitat needs of all 1,244 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, and the section 10 incidental take permit process. The Service believes that it is these measures that may make the difference between extinction and survival for many species.

We have been inundated with lawsuits regarding critical habitat designation, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.

The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits and to comply with the growing number of adverse court orders. As a result, the Service's own to proposals to undertake conservation actions based on biological priorities are significantly delayed.

The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for additional public participation beyond those minimally required by the Administrative Procedures Act (APA), the Act, and the Service's implementing regulations, or to take additional time for review of comments and information to ensure the rule has addressed all the pertinent issues before making decisions on listing and critical habitat proposals, due to the risks associated with noncompliance with judicially imposed. This in turn fosters a second round of litigation in which those who will suffer adverse impacts from these decisions challenge them. The cycle of litigation appears endless, is very expensive, and in the final analysis provides little additional protection to listed species.

The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act (NEPA), all are part of the cost of critical habitat designation. These costs result in minimal benefits to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.

In January 1990, Allium munzii was listed as a threatened species by the State of California pursuant to the California Endangered Species Act. The Service listed A. munzii as endangered under the Act on October 13, 1998 (63 FR 54975).

Allium munzii is a member of the Liliaceae (lily family). A. munzii belongs to the A. fimbriatum complex, a group of seven species found primarily in California (McNeal 1992), and was first referred to as A. fimbriatum var. munzii by M. Ownbey (Munz and Keck 1959). McNeal (1992) elevated this taxon to species status based on unique morphological characteristics of the perianth (the outer parts of a flower, consisting of the calyx, corolla, and also enclosing the stamen and carpel) and ovarian crests.

Allium munzii is a bulb-forming perennial herb that annually produces a single leaf and a scapose inflorescence (a leafless flower stalk that grows directly from the ground) 0.5 to 1.2 feet (ft) (15 to 35 centimeters (cm)) tall. Each leaf is hollow and generally 1.5 times as long as the inflorescence and round (terete) in cross-section. The inflorescence is umbellate (a flat topped or rounded flower cluster where each flower stalk radiates from the same point), consisting of 10 to 35 flowers. The flowers have six white, or white with a red midvein, perianth segments that are 0.2 to 0.3 inches (in) (6 to 8 millimeters (mm)) long and become red with age. The ovary is crested with fine, irregularly dentate processes and the fruit is a three-lobed capsule (McNeal 1993). A. munzii can be distinguished from other members of the genus within its range by its single hollow and terete leaf, the shape of the perianth segments, flower color, and the irregularly dentate crest of the ovary.

Three to five years are required after seeds germinate for the plant to reach maturity and produce flowers (Schmidt 1980). The plants are dormant except in the spring and early summer months. Prior to flowering, a single, cylindrical leaf is produced (Munz 1974). The flowering period for this species is March to May (California Native Plant Society (CNPS) 2001). The best time to detect the species is in early May. Allium munzii shares its range and habitat with the similar-appearing A. haematochiton (red-skinned onion). Though the two species can occur within several feet of each other, the species do not interbreed (California Department of Fish and Game (CDFG) 1989). After flowering, the plant dies back to the bulb. A. munzii is well adapted to summer drought and varied amounts of rainfall from year to year and responds to environmental conditions in the aboveground emergence from year to year. McNeal (1992) observed that flowering in the A. fimbriatum complex appeared to be correlated with rains in the late fall and early winter. When rainfall is plentiful, most plants within a population bloom. When rainfall is light, most plants sprout leaves, but very few flower. There is no information regarding pollinators. No studies are available regarding seed dispersal.

Allium munzii is endemic to mesic clay soils in western Riverside County, California, throughout the foothills east of the Santa Ana Mountains extending south and east to the low hills south of Hemet (Roberts 1993; U.S. Fish and Wildlife Service 1998; CNDDB 2000; Natural Resource Consultants (NRC) 2000). Currently there are 19 occurrences of Allium munzii according to the California Natural Diversity Database (CNDDB 2004). One historical population in the CNDDB was lost to development, however, the extent of the historical distribution of this plant is unknown.

At the time of listing, the Service estimated the total population to be approximately 20,000 to 70,000 individuals. Six populations are large (around 2,000 or more individuals) and cover as much as 20 ac (8 ha). The largest populations are at Harford County Park and adjacent private lands (20,000 to 50,000 individuals altogether), Alberhill (at least 7,700 individuals), Elsinore Peak (~5,000 individuals), Dawson Canyon (~2,000 individuals), Estelle Mountain (at least 2,000 individuals), and Bachelor Mountain (over 3,000 individuals). Most populations contain fewer than 1,000 individuals, and occupy areas ranging from several square feet to less than 2.5 ac (several square meters to less than 1 ha.

As much as 80 to 90 percent of the suitable habitat for this species has been lost to agriculture, urbanization, and clay mining (California Department of Fish and Game 1989). Populations continue to be threatened by housing and business development, dry land farming activities, off-road vehicle activity, clay mining, and competition with non-native plants (Roberts 1993; U.S. Fish and Wildlife Service 1998; CNDDB 2003).

Clay pit mining has affected and continues to threaten Allium munzii populations. The largest disturbance resulting from clay mining operations have been west of Alberhill and northwest of Indian Truck Trail. At least three smaller historic clay mining areas are known from Dos Lagos (Butterfield Station) east of Temescal Wash, Estelle Mountain, and north Domenigoni Hills. Clay mining activities are ongoing in the area northwest of Alberhill and continue to threaten the large population there.

The native perennial and annual grasslands found on most clay soils in western Riverside County have been negatively affected by grazing activities and a frequent fire return interval. Even conserved areas that are protected through other rules and regulations are at risk of trampling and foraging primarily by sheep, which have been known to escape onto the Estelle Mountain areas containing the onion. Historic grazing has also led to invasion by non-native grasses and forbs over large areas. Fire and atmospheric nitrification of soil (resulting from air pollution) may each play a role in advancing the invasion of non-native grasses. Many of the native grasslands and a large portion of the sage scrub areas in western Riverside have been replaced by non-native annual grasses and forbs by repeated cycles of fire, grazing and nitrification. Competition with non-native grasses is a threat to Allium munzii because the non-native annual grasses form a dense cover that is more difficult for the A. munzii to penetrate than cover provided by the more patchily distributed native grasses or open sage scrub and chaparral communities.

Historic and recent housing and business development, road building, and road maintenance threaten Allium munzii populations. The Sycamore Creek housing development, for example, impacted a portion of the adjacent population, and development of a freeway interchange at Indian Truck Trail is known to have significantly reduced one population. Existing roads have bisected A. munzii populations or reduced population numbers significantly at Gavilan Hills, Alberhill, Di Palma, and Indian Truck Trail.

Off-road vehicle activity can trample onions and alter soil conditions. The Elsinore Peak population has been negatively affected by off-road vehicle activity. Off-road vehicle activity remains a threat to almost every remote occurrence of this species. Utility development has negatively affected Allium munzii populations at Elsinore Peak and Scott Road. Due to the large number of anthropogenic activities within occupied habitat, development and maintenance of these facilities remains a threat to the species where they intersect with suitable habitat. Right-of-way maintenance activities, such as mowing or grubbing, can result in degradation of population viability if repeatedly conducted during the spring and summer growth period.

We published the final rule to list Allium munzii as endangered in the Federal Register on October 13, 1998 (63 FR 54975). The listing was based on a variety of factors including habitat destruction and fragmentation from agricultural and urban development, clay mining, off-road vehicle activity, cattle and sheep grazing, weed abatement, fire suppression practices, and competition from alien plant species. A Recovery plan for this species has not yet been completed.

At the time of listing, we concluded that designation of critical habitat for Allium munzii was not prudent because such designation would not benefit the species. On November 15, 2001, a lawsuit was filed against the Department of the Interior (DOI) and the Service by the Center for Biological Diversity and California Native Plant Society, challenging our “not prudent” determinations for eight plants including A. munzii (No. CV-01-2101) ( CBD et al. v. USDOI ). A second lawsuit asserting the same challenge was filed against DOI and the Service by the Building Industry Legal Defense Foundation (BILD) on November 21, 2001 (No. CV-01-2145) ( BILD v. USDOI ). Both cases were consolidated on March 19, 2002, and all parties agreed to remand the critical habitat determinations to the Service for additional consideration. In an order dated July 1, 2002, the U.S. District Court for the Southern District of California directed us to reconsider our not prudent finding and publish a proposed critical habitat rule for A. munzii , if prudent, on or before May 30, 2004. This proposed rule complies with the court's ruling. We have reconsidered our not prudent finding, and now believe that critical habitat designation may provide educational information to individuals, local and State governments, and other entities engaged in long-ranging planning, since areas essential to the conservation of the species are more clearly defined and, to the extent currently feasible, the primary constituent elements of the habitat necessary to the conservation of the species are identified.

Section 3(5)(A) of the Act defines critical habitat 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.

The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. It does not allow government or public access to private lands. Under section 7 of the Act, Federal agencies must consult with the Service on activities they undertake, fund, or permit that may affect critical habitat and lead to its destruction or adverse modification. However, the Act prohibits unauthorized take of listed species and requires consultation for activities that may affect them, including habitat alterations, regardless of whether critical habitat has been designated. We have found that the designation of critical habitat provides little additional protection to most listed species.

To be included in a critical habitat designation, habitat must be either a specific area within the geographic area occupied by the species on which are found those physical or biological features essential to the conservation of the species (primary constituent elements, as defined at 50 CFR 424.12(b)) and which may require special management considerations or protection, or be specific areas outside of the geographic area occupied by the species which are determined to be essential to the conservation of the species. Section 3(5)(c) of the Act states that not all areas that can be occupied by a species should be designated as critical habitat unless the Secretary determines that all such areas are essential to the conservation of the species. Our regulations (50 CFR 424.12(e)) also 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.”

Regulations at 50 CFR 424.02(j) define special management considerations or protection to mean any methods or procedures useful in protecting the physical and biological features of the environment for the conservation of listed species. When we designate critical habitat, we may not have the information necessary to identify all areas which are essential for the conservation of the species. Nevertheless, we are required to designate those areas we consider to be essential, using the best information available to us. Accordingly, we do not designate critical habitat in areas outside the geographic area occupied by the species unless the best available scientific and commercial data demonstrate that unoccupied areas are essential for the conservation needs of the species.

Section 4(b)(2) of the Act requires that we take into consideration the economic impact, effects to national security, and any other relevant impact, of specifying any particular area as critical habitat. We may exclude areas from critical habitat designation when the benefits of exclusion outweigh the benefits of including the areas within critical habitat, provided the exclusion will not result in extinction of the species.

Our Policy on Information Standards Under the Act, published in the Federal Register on July 1, 1994 (59 FR 34271), provides criteria, establishes procedures, and provides guidance to ensure that our decisions 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 or other entities that develop HCPs, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.

Section 4 of the Act requires that we designate critical habitat on the basis of what we know at the time of designation. 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, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery.

Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Federally funded or permitted 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.

All of the areas known to support Allium munzii are considered essential habitat for this species. A. munzii is known only from a narrow geographic range and within that range is limited to clay soils. There are currently 19 occurrences of this plant known to exist. One known historical occurrence has been lost to agriculture and urban development; others have been degraded or reduced in size. Due to the limited range and distribution of this species and the degradation of known populations of this species, preservation of all the known occurrences is essential for its conservation. The majority of the known occurrences are in the Gavilan Hills, the Gavilan Plateau, and the Temescal Valley regions of Riverside County. Other populations are found near Elsinore Peak, the Domenigoni Hills, Paloma Valley, Bachelor Mountain, and Skunk Hollow. It is possible that there are populations of this species that have gone undetected in Riverside County due to the cryptic nature of this species. Plants are only obvious in April and May when in flower, and plants do not often flower in years of low rainfall.

In accordance with section 3(5)(A)(I) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species and that may require special management considerations or protection. These features include but are not limited to: Space for individual and population growth and for normal behavior; food, water, air, light, minerals or other nutritional or physiological requirements; cover or shelter; sites for germination or seed dispersal; and habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.

The specific biological and physical features, otherwise referred to as the primary constituent elements, that comprise Allium munzii habitat are based on specific components that provide for the essential biological components of the species as described below.

Allium munzii is restricted to mesic clay soils in western Riverside County, California, along the southern edge of the Perris basin. The clay soils are scattered in a band several miles wide and extending 40 miles from Gavilan Hills to west of Temescal Canyon and Lake Elsinore at the eastern foothills of the Santa Ana Mountains and along the Elsinore Fault Zone to the southwestern foothills of the San Jacinto Mountains near Lake Skinner and Vail Lake. Clay soil associations include Altamont, Auld, Bosanko, Claypit and Porterville clay soil types. At least one population (Bachelor Mountain) was reported by Bramlet in 1991 to be associated with pyroxenite outcrops instead of clay (California Natural Diversity Data Base (CNDDB) 2003). Rounded cobbles and boulders are embedded within the clay, which has a sticky, adobe consistency when wet and large cracks when dry. A. munzii is typically found on the more mesic sites within the clay deposits (Boyd 1988). The clay deposits typically support grassland vegetation within a surrounding scrub community.

Allium munzii occurs at elevations from 984 to 3,511 feet (ft) (300 to 1,070 meters (m)), and on level or slightly sloping lands.

Allium munzii is typically found in open native grasslands and, increasingly, non-native grasslands which can be either the dominant community or found in a mosaic with Riversidean sage scrub, scrub oak chaparral, chamise chaparral, coast live oak woodland, or peninsular juniper woodland and scrub (Holland 1986). Based upon the dominant species, these plant communities where A. munzii is found have been further divided into series which include, but are not limited to, California annual grassland, nodding needlegrass, purple needlegrass, foothill needlegrass, black sage, white sage, California buckwheat, California buckwheat-white sage, California sagebrush, California sagebrush-black sage, California sagebrush-California buckwheat, mixed sage, chamise, chamise-black sage, coast live oak, scrub oak, and California juniper (Sawyer and Keeler-Wolf 1994).

A characteristic “clay soil flora” is associated with the island-like clay deposits in southwestern Riverside County. This includes perennial herbs, such as Fritillaria biflora (chocolate lily), Harpagonella palmeri (Palmer's grappling hook), Chorizanthe polygonoides var. longispina (knot-weed spine flower), Sanicula bipinnatifida (purple sanicle), S. arguta (snakeroot), Lomatium utriculatum (common lomatium), L. dasycarpum (lace parsnip), Dodecatheon clevelandii (Cleveland's shooting star), Bloomeria crocea (goldenstar), Chlorogalum parviflorum (soaproot), Dudleya multicaulis (many-stemmed dudleya), Allium haematochiton (red-skinned onion) and A. munzii (Boyd 1988).

Pursuant to our regulations, we are required to identify the known physical and biological features, i.e. , primary constituent elements, essential to the conservation of Allium munzii , together with a description of any critical habitat that is proposed. In identifying the primary constituent elements, we used the best available scientific and commercial data available. The physical ranges described in the primary constituent elements may not capture all of the variability that is inherent in natural systems that support A. munzii. The primary constituent elements determined essential to the conservation of A. munzii are:

(1) Clay soil series of sedimentary origin ( e.g. , Altamont, Auld, Bosanko, Claypit, Porterville), or clay lenses of such which may be found as unmapped inclusions in other soil series, or soil series of sedimentary or igneous origin with a clay subsoil ( e.g. , Cajalco, Las Posas, Vallecitos); found on level or slightly sloping landscapes; generally between the elevations of 985 ft and 3,500 ft (300 m and 1,068 m) above mean sea level (AMSL); and as part of open native or non-native grassland plant communities and “clay soil flora” which can occur in a mosaic with Riversidean sage scrub, chamise chaparral, scrub oak chaparral, coast live oak woodland, and peninsular juniper woodland and scrub; or

(2) Alluvial soil series of sedimentary or igneous origin ( e.g. , Greenfield, Ramona, Placentia, Temescal) and terrace escarpment soils found as part of alluvial fans underlying open native or non-native grassland plant communities which can occur in a mosaic with Riversidean sage scrub generally between the elevations of 985 ft and 3,500 ft (300 m and 1,068 m) above mean sea level (AMSL); or Pyroxenite deposits of igneous origin found on Bachelor Mountain as part of non-native grassland and Riversidean sage scrub generally between the elevations of 985 ft and 3,500 ft (300 m and 1,068 m) above mean sea level (AMSL); and

(3) Clay soils or other soil substrate as described above with intact, natural surface and subsurface structure that have been minimally altered or unaltered by ground-disturbing activities ( e.g. , disked, graded, excavated, re-contoured).

All areas proposed as critical habitat for Allium munzii are within the geographic area occupied by the species and contain one or more primary constituent elements ( e.g. , soil, associated plant community) essential for its conservation.

In determining areas that are essential to conserve Allium munzii , we used the best scientific and commercial data available. These included data from research and survey observations published in peer-reviewed articles, regional Geographic Information System (GIS) vegetation, soil, and species coverages (including layers for Riverside County), and data compiled in the CNDDB. In addition, information provided in comments on the proposed critical habitat designation and draft economic analysis will be evaluated and considered in the development of the final designation for A. munzii.

After all the information about the known occurrences of Allium munzii was compiled, we created maps indicating the essential habitat associated with each of the occurrences. We used the information outlined above to aid in this task. The essential habitat was mapped using GIS and refined using topographical and aerial map coverages. These essential habitat areas were further refined by discussing each area in detail with Fish and Wildlife Service biologists familiar with each area. Areas not containing the primary constituent elements were not included in the boundaries of proposed critical habitat whenever possible.

After creating a GIS coverage of the essential areas, we created legal descriptions of the essential areas. We used a 100-meter grid to establish Universal Transverse Mercator (UTM) North American Datum 27 (NAD 27) coordinates which, when connected, provided the boundaries of the essential areas. The areas were then analyzed with respect to section 4(b)(2) of the Act, and any applicable and appropriate exclusions were made. The remaining essential areas are the proposed critical habitat. The essential areas, an elaboration on the exclusions, and the specific areas proposed for critical habitat are described below.

As we undertake the process of designating critical habitat for a species, we first evaluate lands defined by those physical and biological features essential to the conservation of the species for inclusion in the designation pursuant to section 3(5)(A) of the Act. Secondly, we then evaluate lands defined by those features to assess whether they may require special management considerations or protection. As discussed throughout this proposed rule, Allium munzii and its habitat are threatened by a multitude of factors. Threats to those features that define essential habitat (primary constituent elements) are caused by various types of development, dry-land farming activities, off-road vehicle activity, clay mining, and competition with non-native plants. Habitat loss continues to be the greatest threat to A. munzii. It is essential for the survival of this species to protect those features that define the remaining essential habitat, through purchase or special management plans, from irreversible threats and habitat conversion. We believe the area proposed for designation as critical habitat may require some level of management and/or protection to address the current and future threats to A. munzii and maintain the primary constituent elements essential to its conservation to ensure the overall recovery of the species.

Section 4(b)(2) of the Act states that critical habitat shall be designated, and revised, on the basis of the best available scientific data available after taking into consideration the economic impact, effects to national security, and any other relevant impact, of specifying any particular area as critical habitat. An area may be excluded from critical habitat if it is determined, following an analysis, that the benefits of such exclusion outweigh the benefits of specifying a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. Consequently, we may exclude an area from designated critical habitat based on economic impacts, effects to national security, or other relevant impacts such as preservation of conservation partnerships, if we determine the benefits of excluding an area from critical habitat outweigh the benefits of including the area in critical habitat, provided the action of excluding the area will not result in the extinction of the species.

In our critical habitat designations we have used the provisions outlined in section 4(b)(2) of the Act to evaluate those specific areas that are proposed for designation as critical habitat and those areas which are subsequently finalized ( i.e. , designated). We have applied the provisions of this section of the Act to lands essential to the conservation of the subject species to evaluate them and either exclude them from final critical habitat or not include them in proposed critical habitat. Lands which we have either excluded from or not included in critical habitat based on those provisions include but are not limited to those covered by: (1) Legally operative HCPs that cover the species and provide assurances that the conservation measures for the species will be implemented and effective; (2) draft HCPs that cover the species, have undergone public review and comment, and provide assurances that the conservation measures for the species will be implemented and effective ( i.e. , pending HCPs); (3) Tribal conservation plans that cover the species and provide assurances that the conservation measures for the species will be implemented and effective; (4) State conservation plans that provide assurances that the conservation measures for the species will be implemented and effective; and (5) Service National Wildlife Refuge System Comprehensive Conservation Plans that provide assurances that the conservation measures for the species will be implemented and effective. Within the essential habitat for Allium munzii there are no tribal lands or lands owned by the Department of Defense.

As described above, section 4(b)(2) of the Act requires us to consider other relevant impacts, in addition to economic and national security impacts, when designating critical habitat. Section 10(a)(1)(B) of the Act authorizes us to issue permits for the take of listed wildlife species incidental to otherwise lawful activities. Development of an HCP is a prerequisite for the issuance of an incidental take permit pursuant to section 10(a)(1)(B) of the Act. An incidental take permit application must be supported by an HCP that identifies conservation measures that the permittee agrees to implement for the species to minimize and mitigate the impacts of the permitted incidental take.

HCPs vary in size and may provide for incidental take coverage and conservation management for one or many federally listed species. Additionally, more than one applicant may participate in the development and implementation of an HCP. The areas occupied by Allium munzii include approved HCPs and the Western Riverside MSHCP that address multiple species, cover a large area, and have many participating permittees. Large regional HCPs expand upon the basic requirements set forth in section 10(a)(1)(B) of the Act because they reflect a voluntary, cooperative approach to large-scale habitat and species conservation planning. Many of the large regional HCPs in southern California have been, or are being, developed to provide for the conservation of numerous federally listed species and unlisted sensitive species and the habitat that provides for their biological needs. These HCPs address impacts in a planning area and create a preserve design within the planning area. Over time, areas in the planning area are developed according to the HCP and the area within the preserve is acquired, managed, and monitored. These HCPs are designed to implement conservation actions to address future projects that are anticipated to occur within the planning area of the HCP in order to reduce delays in the permitting process.

In the case of approved regional HCPs ( e.g. , those sponsored by cities, counties or other local jurisdictions) wherein Allium munzii is a covered species, a primary goal is to provide for the protection and management of habitat essential for the conservation of the species while directing development to non-essential areas. The regional HCP development process provides an opportunity for more intensive data collection and analysis regarding the use of particular habitat areas by A. munzii. The process also enables us to construct a habitat preserve system that provides for the biological needs and long-term conservation of the species.

Completed HCPs and their accompanying Implementing Agreements (IA) contain management measures and protections for identified preserve areas that protect, restore, and enhance the value of these lands as habitat for Allium munzii. These measures include explicit standards to minimize any impacts to the covered species and its habitat. In general, HCPs are designed to ensure that the value of the conservation lands are maintained, expanded, and improved for the species that they cover.

In approving these HCPs, the Service has provided assurances to permit holders that once the protection and management required under the plans are in place and for as long as the permit holders are fulfilling their obligations under the plans, no additional mitigation in the form of land or financial compensation will be required of the permit holders and in some cases, specified third parties. Similar assurances will be extended to future permit holders in accordance with the Service's HCP Assurance (“No Surprises”) rule codified at 50 CFR 17.22(b)(5) and (6) and 17.32(b)(5) and (6).

Portions of the proposed critical habitat within approved and legally operative HCPs or Natural Community Conservation Plan (NCCP)/HCPs in which Allium munzii is a covered species warrant exclusion from the designation of critical habitat under section 4(b)(2) of the Act. We believe that in most instances, the benefits of excluding legally operative HCPs from the proposed critical habitat designations will outweigh the benefits of including them. We have considered but not proposed critical habitat within the Rancho Bella Vista, North Peak Development Project, and Lake Matthews HCPs. All of these HCPs are for a small number of private landowners. A. munzii is a covered species in these HCPs.

The Draft Western Riverside MSHCP has been in development for several years. Participants in this HCP include 14 cities; the County of Riverside, including the Riverside County Flood Control and Water Conservation Agency, Riverside County Transportation Commission, Riverside County Parks and Open Space District, and Riverside County Waste Department; the California Department of Parks and Recreation; and the California Department of Transportation. The Western Riverside MSHCP is also being proposed as a subregional plan under the State's NCCP and is being developed in cooperation with the California Department of Fish and Game. Within the 1.26 million-acre (510,000 ha) planning area of the MSHCP, approximately 153,000 ac (62,000 ha) of diverse habitats are proposed for solely conservation uses. The proposed conservation of 153,000 ac (62,000 ha) will complement other existing natural and open space areas that are already conserved through other means ( e.g. , State Parks, Forest Service, and County Park lands).

The County of Riverside and the participating jurisdictions have signaled their sustained support for the Western Riverside MSHCP as evidenced by the November 5, 2002, passage of a local bond measure to fund the acquisition of land in support of the MSHCP. On November 14, 2002, a Notice of Availability of a Draft Environmental Impact Report (EIS/EIR) and Receipt of and Application for an Incidental Take Permit was published in the Federal Register (67 FR 69236). Public comment on these documents was accepted until January 14, 2003. Subsequently, on June 17, 2003, the County of Riverside Board of Supervisors voted unanimously to support the completion of the Western Riverside MSHCP.

Conservation actions within the Western Riverside MSHCP planning area will be implemented to promote the long-term conservation of Allium munzii. Although the MSHCP is not yet completed and implemented, significant progress has been achieved in the development of this HCP, including the preparation of the EIS/EIR, the solicitation of public review and comment, and the preparation of final documents. We are proposing to exclude from the proposed critical habitat designation the non-Federal lands covered by the draft Western Riverside MSHCP. This includes all known occurrences except one, which is on lands managed by the Forest Service. We are proposing to designate critical habitat on Federal lands within the planning area boundary of the Western Riverside MSHCP because the activities of Federal agencies are not covered under the section 10(a)(1)(B) permit. In the event that the Western Riverside MSHCP does not provide the coverage for this species, we will include these essential areas in the final designation of critical habitat.

Specific conservation objectives are provided in the Western Riverside MSHCP to ensure that suitable habitat and known populations of the Allium munzii will persist. Conservation objectives for A. munzii are: (1) Include in the MSHCP Conservation Area at least 13 localities, including the two whole and two partial populations currently outside the MSHCP Conservation Area; (2) include in the MSHCP Conservation Areas the Additional Reserve Lands (as defined in the MSHCP), public/quasi-public (PQP) lands (as defined in the MSHCP), and A. munzii habitat identified in the MSHCP. Given the presently known A. munzii localities, all of the known populations will be conserved; (3) implement management and monitoring practices within the Additional Reserve Lands including surveys for the A. munzii . Cooperative management and monitoring is anticipated on PQP Lands; (4) A. munzii is considered a Narrow Endemic Plant Species (defined in section 6 of the Riverside MSHCP; requires specific consideration in the plan). Thus, until such time as the Additional Reserve Lands are assembled and conservation objectives for this species are met, surveys will be conducted as part of the project review process for public and private projects where suitable habitat for A. munzii is present within Narrow Endemic Plant Species Survey Area (NEPSSA) 1 and 4.

Other management actions described in the draft Western Riverside MSHCP include addressing competition with non-native plant species, clay mining, off-road vehicle use, and disking activities. This management will help maintain Allium munzii populations and habitat.

The following represents our rationale for excluding the proposed critical habitat within approved HCPs and the Draft Western Riverside MSHCP.

The principal benefit of any designated critical habitat is that federally funded or authorized activities in such habitat that 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 nonexistent. Currently approved and permitted HCPs and NCCP/HCPs are designed to ensure the long-term survival of covered species within the plan area. In an approved HCP or NCCP/HCP, lands we ordinarily would define as critical habitat for covered species will normally be protected in reserves and other conservation lands by the terms of the HCP or NCCP/HCP and their IAs. These HCPs or NCCP/HCPs and IAs include management measures and protections for conservation lands designed to protect, restore, and enhance their value as habitat for covered species, and thus provide benefits well in excess of those that would result from a critical habitat designation.

The benefits of excluding lands within HCPs from critical habitat designation include carrying out the assurances provided by the Service to landowners, communities, and counties in return for their voluntary adoption of the HCP, including relieving them of the additional regulatory burden that might be imposed by critical habitat. Many HCPs, particularly large regional HCPs take many years to develop and, upon completion, become regional conservation plans that are consistent with the recovery objectives for listed species that are covered within the plan area. Additionally, many of these HCPs provide conservation benefits to unlisted, sensitive species. Imposing an additional regulatory review after an HCP is completed solely as a result of the designation of critical habitat may undermine conservation efforts and partnerships in many areas. In fact, it could result in the loss of species' benefits if participants abandon the voluntary HCP process because it may result in additional regulations requiring more of them than other parties who have not voluntarily participated in species conservation. Designation of critical habitat within the boundaries of approved HCPs could be viewed as a disincentive to those entities currently developing HCPs or contemplating them in the future.

A related benefit of excluding lands within HCPs from critical habitat designation is the unhindered, continued ability to seek new partnerships with future HCP participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement conservation actions that we would be unable to accomplish otherwise. If lands within HCP plan areas are designated as critical habitat, it would likely have a negative effect on our ability to establish new partnerships to develop HCPs, particularly large, regional HCPs that involve numerous participants and address landscape-level conservation of species and habitats. By preemptively excluding these lands, we preserve our current partnerships and encourage additional conservation actions in the future.

Furthermore, an HCP or NCCP/HCP application must itself be consulted upon. While this consultation will not look specifically at the issue of adverse modification to critical habitat, unless critical habitat has already been designated within the proposed plan area, it will determine if the HCP jeopardizes the species in the plan area. The jeopardy analysis is similar to the analysis of adverse modification to critical habitat. In addition, Federal actions that may affect listed species or any designated critical habitat would still require consultation under section 7 of the Act. HCP and NCCP/HCPs typically provide for greater conservation benefits to a covered species than section 7 consultations because HCPs and NCCP/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 accordance with the Provisions of the Act, are limited to requiring that the specific action being consulted upon not jeopardize the continued existence of the species. Thus, a consultation typically does not accord the lands it covers the extensive benefits a HCP or NCCP/HCP provides. The development and implementation of HCPs or NCCP/HCPs provide other important conservation benefits, including the development of biological information to guide the conservation efforts and assist in species conservation, and the creation of innovative solutions to conserve species while allowing for development.

The Western Riverside MSHCP seeks to accomplish the goals of protecting, restoring, monitoring, managing, and enhancing the habitat to benefit the conservation of Allium munzii through the implementation of specific conservation objectives. Excluding non-Federal lands within the MSHCP from the proposed critical habitat will provide benefits, as follows: (1) Exclusion of the lands from the final designation will allow us to continue working with the participants in a spirit of cooperation and partnership; (2) other jurisdictions, private landowners, and other entities will see the benefit of working cooperatively with us to develop HCPs, which will provide the basis for future opportunities to conserve species and their essential habitat.

We have reviewed and evaluated the HCPs currently approved and being implemented, and the draft Western Riverside MSHCP within the areas being proposed as critical habitat for Allium munzii . Based on this evaluation, we find that the benefits of exclusion outweigh the benefits of proposing the portions of essential habitat for A. munzii covered by the approved HCPs and the draft Western Riverside MSHCP as critical habitat.

The exclusion of these lands from critical habitat will help preserve the partnerships that we have developed with the local jurisdictions and project proponents in the development of HCPs and NCCP/HCPs. The educational benefits of critical habitat, including informing the public of areas that are essential for the long-term survival and conservation of the species, is still accomplished from material provided on our website and through public notice and comment procedures required to establish an HCP or NCCP/HCP. The public has also been informed through the public participation that occurs in the development of many regional HCPs or NCCP/HCPs. For these reasons, we believe that proposing critical habitat has little benefit in areas covered by HCPs, provided that the HCP or NCCP/HCP specifically and adequately covers the species for which critical habitat is being proposed. We do not believe that these exclusions will result in the extinction of the species because the combination of existing preserves and the implementation of the draft Western Riverside MSHCP provide adequate conservation of this species on lands within the plan area.

The proposed critical habitat includes Allium munzii habitat at a single location in the species' range and is located entirely within Riverside County, California. The majority of essential habitat for this species has been excluded under section 4(b)(2). As a result, only Federal lands are proposed as critical habitat. Areas proposed as critical habitat and the areas proposed for exclusion from critical habitat are summarized in Table 1.

After passage of the Marine Mammal Protection Act in 1972, we promulgated regulations at 50 CFR part 18 to implement this authority. We included in our proposed regulations a definition similar to that in section 101(b)(2) of the MMPA for “authentic native articles of handicrafts and clothing” (37 FR 25524; December 1, 1972), part of which read:

The final rule (37 FR 28173; December 21, 1972) added the requirement that these items must be “commonly produced on or before December 21, 1972” and read:

Although our MMPA implementing regulations were published on December 21, 1972, as a final rule, we invited the public to provide comments, suggestions, and objections for a 60-day period. Based on comments received, we issued a proposed rule to amend our implementing regulations (38 FR 22143; August 16, 1973), followed by a final rule (38 FR 7262; February 25, 1974). The definition for “authentic native articles of handicrafts and clothing” at 50 CFR 18.3 was amended by the following additions: (1) The articles must have been made by an Indian, Aleut, or Eskimo; (2) the articles must be significantly altered from their natural form; (3) modern techniques at a tannery registered pursuant to § 18.23(c) may be used so long as no large scale mass production industry results; and (4) the formation of traditional native groups, such as cooperatives, is permitted as long as no large scale mass production results.

The regulations were enforced and subsequently challenged in court. While initially upheld in court, the U.S. District Court for the District of Alaska called for a thorough administrative review of the section of the regulations (50 CFR 18.23) that addresses the taking of northern sea otters under the native exemptions. Following the review, the Service published a notice of proposed rulemaking on November 14, 1988, to clarify the regulations as they apply to the sea otter (53 FR 45788). Those proposed regulations would prohibit all takings of sea otters by Alaska Natives for the purpose of creating and selling handicrafts or clothing. An interim rule was subsequently published on April 20, 1990 (55 FR 14973). This 1990 rule was identical to the 1974 rule, but included an additional restriction that stated “[P]rovided that it has been determined that no items created in whole or in part from sea otter meet part (a) [that is, “were commonly produced on or before December 21, 1972”] of this definition and therefore no such items may be sold” (55 FR 14973). We further stated in the rule that, following the completion of a management plan for northern sea otter, we would replace the interim rule with a final rule, if appropriate. The interim rule became effective on May 21, 1990. Although we developed and issued a “Conservation Plan for the Sea Otter in Alaska” in June 1994, we did not revisit the regulatory definition put into place by our interim rule, and the language still exists in 50 CFR 18.3.

In 1990, a number of parties challenged our definition as violating the MMPA. On July 17, 1991, in Didrickson v. U.S. Department of the Interior, the U.S. District Court for the District of Alaska ruled in favor of the Plaintiffs. The Court wrote that we had defined “authentic,” as used in the phrase, “authentic native articles of handicrafts and clothing * * *” (in the Native exemption section of the Act), “in such a way as to broaden [the Service's] own regulatory authority over [Native] activities that the plain language of the statute would not otherwise permit.” The Court further ruled that the MMPA did not mandate restriction of its Alaska native handicraft exemption to apply only to artifacts commonly produced on or before December 21, 1972. In its conclusion, the Court stated that, while its “opinion should not be construed as authorizing a “free-for-all” killing of hundreds of sea otters,” the Service “does not have the authority to regulate the harvesting of sea otters for purposes of creating native handicrafts absent a finding of depletion.” The Court also stated that the Service has the authority to take enforcement action against any takings that are wasteful. This decision was appealed to the Ninth Circuit Court of Appeals, which, on December 28, 1992, affirmed the District Court's ruling.

Our present proposed rulemaking revises our regulations in 50 CFR part 18 to make them consistent with the court rulings described above. Specifically, this action would eliminate the requirement in 50 CFR 18.3 for “ Authentic native articles of handicrafts and clothing ” to have been commonly produced on or before December 21, 1972, and would delete the language at the end of the definition that states:

“Provided that, it has been determined that no items created in whole or in part from sea otter meet part (a) of this definition and therefore no such items may be sold.”

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule.

Our practice is to make all comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. In some circumstances, we would withhold also from the rulemaking record a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this prominently at the beginning of your comments. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

Executive Order 12866 requires each agency to write regulations/notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the proposed rule clearly stated? (2) Does the proposed rule contain unnecessary technical language or jargon that interferes with the clarity? (3) Does the format of the proposed rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the description of the proposed rule in the “Supplementary Information” section of the preamble helpful in understanding the proposed rule? (5) What else could we do to make the proposed rule easier to understand?

Send a copy of any comments that concern how we could make this proposed rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may e-mail your comments to the following address: Execsec@ios.doi.gov.

In accordance with the criteria in Executive Order 12866, this proposed rule is not a significant regulatory action. The Office of Management and Budget makes the final determination under Executive Order 12866.

a. This proposed rule will not have an annual economic impact of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. There are no compliance costs to any sector of the economy. A cost-benefit analysis is not required. We do not expect that any significant economic impacts would result from the revision of this definition. The only expenses related to this will be to the Federal government to write the rule and required Record of Compliance, and to publish the final rule in the Federal Register ; these costs should not exceed $25,000.

b. This proposed rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.

c. This proposed rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

d. This proposed rule will not raise novel legal or policy issues.

We certify that this proposed rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). An initial/final Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required.

This proposed rule is not a major rule under 5 U.S.C. 804(2). This rule:

a. Does not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ):

a. This proposed rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required.

b. This proposed rule will not produce a Federal mandate of $100 million or greater in any year. As such, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

In accordance with Executive Order 12630, this proposed rule does not have significant takings implications. We have determined that the rule has no potential takings of private property implications as defined by this Executive Order because it will remove a regulatory definition determined by a Federal Court to exceed the statutory provisions of the MMPA. A takings implication assessment is not required.

In accordance with Executive Order 13132, this proposed rule does not have significant federalism effects. A federalism assessment is not required. This proposed rule will not have substantial direct effects on the State, in the relationship between the Federal government and the State, or on the distribution of power and responsibilities among the various levels of government.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this proposed rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This proposed regulation does not contain collections of information that require approval by the Office of Management and Budget under 44 U.S.C. 3501 et seq. The proposed regulation will not impose new record keeping or reporting requirements on State or local governments, individuals, and businesses, or organizations.

We have considered this action with respect to section 102(2)(C) of the National Environmental Policy Act of 1969, and have determined that the action is categorically excluded, pursuant to U.S. Department of the Interior criteria, from the NEPA process; the preparation of an Environmental Assessment is not required as defined by USDI categorical exclusion 1.10 (516 DM, Chapter 2, Appendix 1, Departmental Categorical Exclusions). This categorical exclusion exempts “ [p]olicies, directives, regulations, and guidelines of an administrative, financial, legal, technical, or procedural nature. ” Given that this proposed rule seeks to amend a regulation to make the regulation consistent with a court ruling, the exclusion applies to this action.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175 and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized tribes on a government-to-government basis. We have evaluated possible effects on federally recognized Indian tribes. Because this rule would amend our regulations to lift regulatory restrictions consistent with a court order, we have determined that there are no negative effects.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not a significant regulatory action under Executive Order 12866 and it is not expected to have any effect on energy supplies, distribution, and use. Therefore, this action is a not a significant energy action and no Statement of Energy Effects is required.

Accordingly, we propose to amend part 18, subpart A of chapter I, title 50 of the Code of Federal Regulations, as follows: