[Federal Register Volume 67, Number 118 (Wednesday, June 19, 2002)]
[Proposed Rules]
[Pages 41669-41683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15430]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG93


Endangered and Threatened Wildlife and Plants; Critical Habitat 
Designation for Sidalcea keckii (Keck's checkermallow)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat pursuant to the Endangered Species Act of 
1973 as amended (Act), for Sidalcea keckii (Keck's checkermallow). 
Approximately 438 hectares (ha) (1,085 acres (ac)) are proposed in 
California, consisting of three separate units: one unit in Fresno 
County, 206 ha (510 ac), and two units in Tulare County, one of 86 ha 
(213 ac) and one of 146 ha (362 ac).
    Critical habitat receives protection from destruction or adverse 
modification through required consultation under section 7 of the Act 
with regard to actions carried out, funded, or authorized by a Federal 
agency. Section 4 of the Act requires us to consider economic and other 
relevant impacts when specifying any particular area as critical 
habitat.
    We solicit data and comments from the public on all aspects of this 
proposal, including data on economic and other impacts of the 
designation, and our approaches for handling any future habitat 
conservation plans. We may revise this proposal prior to final 
designation to incorporate or address new information received during 
the comment period.

DATES: We will accept comments until August 19, 2002. Public hearing 
requests must be received by August 5, 2002.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    You may submit written comments and information or hand-deliver 
comments to the Field Supervisor, Sacramento Fish and Wildlife Office, 
U.S. Fish and Wildlife Service, 2800 Cottage Way, Suite W-2605, 
Sacramento, CA 95825.
    You may also send comments by electronic mail (e-mail) to 
[email protected]. See the Public Comments Solicited 
section below for file format and other information about electronic 
filing.
    Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Glen Tarr or Susan Moore, U.S. Fish 
and Wildlife Service (telephone 916/414-6600; facsimile 916/414-6710).

SUPPLEMENTARY INFORMATION:

Background

    Sidalcea keckii (Keck's checkermallow) is an annual herb of the 
mallow family (Malvaceae). The species grows 15 to 33 centimeters (cm) 
(6 to 13 inches (in)) tall, with slender, erect stems that are hairy 
along their entire length. Leaves towards the base of the plant have a 
roughly circular outline, and seven to nine shallow lobes arranged 
somewhat like the fingers of a hand (palmate). Leaves farther up the 
plant have fewer lobes which are more deeply divided. Both types of 
leaves also have irregular serrations at their margins forming 
``teeth.'' The plant flowers in April and early May, producing five 
petalled flowers that are either solid pink or pink with a maroon 
center. Petals are 1 to 2 cm (0.4 to 0.8 in) long, and are often 
shallowly notched at their outermost margins. Below the petals is a 
smaller calyx (cuplike structure) formed by five narrow green sepals 
(modified leaves). Each sepal is 8 to 11 millimeters (mm) (0.3 to 0.4 
in) long, and has a maroon line running down its center. Below the 
calyx are bracts (modified leaflike structures), which are much shorter 
than the sepals and are either undivided or divided into two threadlike 
lobes. Sidalcea keckii is distinguished from other members of its genus 
by the maroon lines on its sepals, its much shorter bracts, and by 
stems which are hairy along their entire length (Kirkpatrick 1992; 
Shevock 1992; Hill 1993).
    Sidalcea keckii fruit consist of four to five wedge-shaped sections 
arranged in a disk. The sections measure 3 to 4 mm (0.1 to 0.2 in) 
across, and each contains a single seed (Abrams 1951; Hill 1993; Cypher 
1998). Sections mature and separate in May, but their methods of 
dispersal, other than gravity, are currently unknown (Cypher 1998). 
Also unknown are the seeds' requirements for germination (sprouting) in 
the wild,

[[Page 41670]]

their typical germination dates, and how long the seeds remain viable 
in the soil. Based on other Malvaceae species, and on recent 
observations of extreme yearly fluctuations in numbers of above-ground 
plants, it is likely that S. keckii seeds remain viable for several 
years and form a persistent soil seed bank (W. Moise as in Ellen 
Cypher, Endangered Species Recovery Program, California State 
University, in litt., 1999; S. Hill, Illinois Natural History Survey, 
pers. comm., 2002 ). Persistent seed banks consist of all the viable 
seeds left ungerminated in the soil longer than a single growing 
season, and typically extend over a much greater area than the 
observable above-ground plants (Given 1994). The number and location of 
standing plants in a population with a persistent seed bank may vary 
annually due to a number of factors, including the amount and timing of 
rainfall, temperature, soil conditions, and the extent and nature of 
the seed bank. As the depository from which each new generation of 
plants must grow, such seed banks are extremely important for an annual 
species' long-term survival in an area, and may maintain a population 
through years in which few or no above-ground plants can grow or 
survive (Baskin and Baskin 1978).
    The primary pollinators of Sidalcea keckii are unknown, but two 
related California species of Sidalcea (S.oregana ssp. spicata and S. 
malviflora ssp. malviflora) are pollinated primarily by various species 
and families of solitary bees, bumble bees, and bee flies (Ashman and 
Stanton 1991; Graff 1999). Many bees of the solitary bee genus Diadasia 
specialize in collecting pollen solely from members of the Malvaceae 
family (Service 1998).
    Sidalcea keckii is endemic to California and grows in relatively 
open areas on grassy slopes of the Sierra foothills in Fresno and 
Tulare counties. It is associated with serpentine soils (Kirkpatrick 
1992; Cypher 1998), which are unusually low in nutrients and high in 
heavy metals. These soil properties tend to restrict the growth of many 
competing plants (Brooks 1987). As with many serpentine species, S. 
keckii appears to compete poorly with densely growing non-native annual 
grasses (Stebbins 1992; Weiss 1999).
    The primary reason so much remains unknown about Sidalcea keckii is 
that after botanists first collected samples from a site near White 
River, Tulare County in 1935, 1938, and 1939 (Wiggins 1940; California 
Natural Diversity Database (CNDDB) 2001), it was not collected or 
observed by botanists again for over 50 years. A possible reason for 
this includes the somewhat vague description of the White River site 
(Wiggins 1940). Searches at the site may also simply have been 
conducted during poor years when few above-ground plants had germinated 
from the seed bank (S. Hill, in litt., 1997). Now that botanists have a 
better understanding of what constitutes appropriate habitat for the 
species, based on the discovery of additional sites (see below), it is 
possible that future surveys may relocate S. keckii at the White River 
site. Initial visits to the site have already identified areas of 
likely habitat (John Stebbins, Herbarium Curator, California State 
University, pers. comm., 2002).
    Sidalcea keckii was presumed extinct until it was rediscovered in 
1992 at a site near Mine Hill in Tulare County (Stebbins 1992). The 
Mine Hill population contained about 60 plants growing on private land 
around a serpentine rock outcrop on 20 to 40 percent slopes at about 
229 meters (m) (750 feet (ft)) elevation. Associated plants included 
Achyrachaena mollis (blow-wives), Bromus madritensis ssp. rubens (red 
brome), Lepidium nitidum (shining peppergrass), Senecio vulgaris 
(common groundsel), Plantago erecta (California plantain), and Silene 
gallica (windmill pink) (Kirkpatrick 1992; Cypher 1998). This 
population has not been resurveyed since 1992 due to the withdrawal of 
permission by the landowner (E. Cypher, pers. comm., 2001).
    Using habitat information from the Mine Hill site, botanists 
resurveyed a location in the Piedra area of Fresno County where 
Sidalcea keckii had been documented in 1939, and rediscovered the 
population in 1998 (Service 1997; CNDDB 2001). This population spans a 
mix of private and Federal land, much of which has since been purchased 
by Sierra Foothill Conservancy (SFC) to provide a reserve for the plant 
(SFC 2001). Although initially only 217 plants were found at the site 
(Service 2000), subsequent surveys have found 500 to 1,000 plants in 8 
separate patches ranging in elevation from 183 to 305 m (600 to 1,000 
ft) (Cypher 1998; Chuck Peck, SFC, in litt., 2002). Associated plants 
at this site include Bromus hordeaceus (soft chess), Dichelostemma 
capitatum (blue dicks), Gilia tricolor (bird's eye gilia), Trileleia 
ixioides (pretty face), Trileleia laxa (Ithuriel's spear), Asclepias 
sp. (milkweed), and Madia sp. (tarweed) (Cypher 1998).
    Sidalcea keckii is threatened by urban development, competition 
from non-native grasses, agricultural land conversion, and random 
events (S. Hill, pers. comm., 2002; C. Peck, in litt., 2002; Service 
2000). Cattle grazing at the current level does not appear to be 
detrimental, and may reduce encroachment by non-native grasses (C. 
Peck, in litt., 2002; Weiss 1999), however, cattle damage S. keckii 
directly by eating and trampling it, and unmanaged increases in grazing 
during months of flowering or seed maturation could pose a threat 
(Cypher 1998). The plant's low population numbers, particularly at Mine 
Hill, leave it vulnerable to random environmental events such as 
extreme weather, disease, or insect infestations (Shaffer 1981, 1987; 
Menges 1991). The isolation of S. keckii populations exacerbates these 
vulnerabilities by reducing the likelihood of recolonization of 
extirpated populations. Inbreeding depression and loss of genetic 
variability may also be causes for concern in such small isolated 
populations (Ellstrand and Elam 1993).

Previous Federal Action

    Federal action on Sidalcea keckii began when the Secretary of the 
Smithsonian Institution, as directed by section 12 of the Act, prepared 
a report on those native U.S. plants considered to be endangered, 
threatened, or extinct in the United States. This report (House Doc. 
No. 94-51) was presented to Congress on January 9, 1975, and included 
S. keckii as a threatened species. On July 1, 1975, we published a 
notice in the Federal Register (40 FR 27823) accepting the report as a 
petition within the context of section 4(c)(2) (now section 4(b)(3)) of 
the Act and of our intention to review the status of the plant taxa 
named in the report. On June 16, 1976, we published a proposed rule in 
the Federal Register (41 FR 24523) determining approximately 1,700 
vascular plant species to be endangered pursuant to section 4 of the 
Act. Sidalcea keckii was not included on this initial list.
    We addressed the remaining plants from the Smithsonian report in a 
subsequent Notice of Review (Notice) on December 15, 1980 (45 FR 
82479). In that Notice, we determined Sidalcea keckii to be a category 
1 candidate species, which we defined as a species for which we had 
enough information on biological vulnerability and threats to support 
preparation of a listing proposal. We published updates of the plant 
candidate lists in Notices of Review dated September 27, 1985 (50 FR 
39526), February 21, 1990 (55 FR 6184), and September 30, 1993 (58 FR 
51144), each time maintaining S. keckii as category 1 species. In the 
Notice of Review published February 28, 1996 (61 FR 7596), we 
discontinued the use of different categories of candidates, and

[[Page 41671]]

defined ``candidate species'' as those meeting the definition of former 
category 1. We maintained S. keckii as a candidate species in that 
Notice, as well as in subsequent Notices published September 19, 1997 
(62 FR 49398), and October 25, 1999 (64 FR 57533).
    On July 28, 1997, we published a proposed rule to list Sidalcea 
keckii as an endangered species under the Act (62 FR 40325). On June 
17, 1999, our failure to issue a final rule and to make a critical 
habitat determination for S. keckii was challenged in Southwest Center 
for Biological Diversity, et al., v. U.S. Fish and Wildlife Service, et 
al. (N.D. Cal) (Case No. C99-2992 CRB). On February 16, 2000, we 
published a final rule listing S. keckii as an endangered species (65 
FR 7757). A May 22, 2000, court order, based on a joint stipulation 
with the plaintiffs, required us to complete the proposed critical 
habitat designation by September 30, 2001. The court extended the 
deadline to propose critical habitat for this species, based on a 
further settlement agreement reached by the parties. In a consent 
decree issued October 2, 2001, the court required us to publish a 
proposed critical habitat designation for S. keckii and certain other 
species by June 10, 2002, and to issue a final critical habitat 
designation for the species by March 10, 2003 (Center for Biological 
Diversity, et al., v. Gale Norton, et al. (D.D.C.) (Case. No. Civ. 01-
2063)).

Critical Habitat

    Section 3 of the Act defines critical habitat as--(i) the specific 
areas within the geographical area occupied by a species, at the time 
it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences on 
Federal actions that are likely to result in the destruction or adverse 
modification of proposed critical habitat. Aside from the added 
protection that may be provided under section 7, the Act does not 
provide other forms of protection to lands designated as critical 
habitat. Because consultation under section 7 of the Act does not apply 
to activities on private or other non-Federal lands that do not involve 
a Federal nexus, critical habitat designation would not afford any 
additional regulatory protections under the Act.
    Critical habitat also provides non-regulatory benefits to the 
species by informing the public and private sectors of areas that are 
important for species recovery and where conservation actions would be 
most effective. Designation of critical habitat can help focus 
conservation activities for a listed species by identifying areas that 
contain the physical and biological features essential for the 
conservation of that species, and can alert the public as well as land-
managing agencies to the importance of those areas. Critical habitat 
also identifies areas that may require special management 
considerations or protection, and may help provide protection to areas 
where significant threats to the species have been identified, by 
helping people to avoid causing accidental damage to such areas.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known and using 
the best scientific and commercial data available, habitat areas that 
provide at least one of the physical or biological features essential 
to the conservation of the species (primary constituent elements, as 
defined at 50 CFR 424.12(b)). 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.''
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic impact, 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 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 that our biologists, to the extent consistent with the Act 
and with the use of the best scientific and commercial data available, 
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 rule for the species. Additional information may be 
obtained from a recovery plan, articles in peer-reviewed journals, 
conservation plans developed by States and counties, scientific status 
surveys and studies, and biological assessments or other unpublished 
materials.
    Section 4 of the Act requires that we designate critical habitat 
based on 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 newly discovered populations in the future, 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 and the section 9 prohibitions, as determined on the basis of 
the best available information at the time of the action. Federally 
funded or assisted projects affecting listed species outside their 
designated critical habitat areas may still result in jeopardy findings 
in some cases. Similarly, critical habitat designations made on the 
basis of the best available information at the time of designation will 
not control the direction and substance of future recovery plans, 
habitat conservation plans, or other species conservation planning 
efforts if new information available to these planning efforts calls 
for a different outcome.

Methods

    As required by section 4(b)(2) of the Act and regulations at 50 CFR 
424.12,

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we used the best scientific information available to determine areas 
that contain the physical and biological features that are essential 
for the conservation of Sidalcea keckii. This included information from 
our own documents on S. keckii and related species; the CNDDB (2001); 
peer-reviewed journal articles and book excerpts regarding S. keckii 
and related species, or regarding more generalized issues of 
conservation biology; unpublished biological documents regarding S. 
keckii or related species; site visits, and discussions with botanical 
experts.
    We compared geological and ecological characteristics of the 
various locations of the plant by using information from the above 
sources as well as geographic information systems (GIS) coverages of 
Sidalcea keckii population locations (CNDDB 2001); soil survey maps 
(U.S. Soil Conservation Service (SCS) 1971, 1982; U.S. Department of 
Agriculture, Natural Resource Conservation Service (NRCS) 2001); aerial 
photographs (CNES/SPOT Image Corporation (SPOT) 2001); topological 
features (United States Geological Survey (USGS) 1990); features of 
underlying rock (California Department of Conservation (CDC) 2000) and 
vegetation cover (USGS 1990). We also examined geological maps not 
available on GIS (California Division of Mines and Geology (CDMG) 1991, 
1992).
    The Piedra and Mine Hill proposed critical habitat units are 
occupied by both above-ground plants and seed banks, depending on the 
time of year (i.e., plants are not observable above-ground all year). 
Although above-ground plants have not been observed on the White River 
unit since the 1930s, a complete survey has not been done due to the 
lack of access to lands in private ownership. ``Occupied'' is defined 
here as an any area with above-ground Sidalcea keckii plants or a S. 
keckii seed bank of indefinite boundary. Current surveys need not have 
identified above-ground individuals for the area to be considered 
occupied because plants may still exist at the site as part of the seed 
bank (Given 1994). All occupied sites contain some or all of the 
primary constituent elements and are essential to the conservation of 
the species, as described below.
    Each of the critical habitat units likely includes areas that are 
unoccupied by Sidalcea keckii. ``Unoccupied'' is defined here as an 
area that contains no above-ground S. keckii plants and that is 
unlikely to contain a viable seed bank. Determining the specific areas 
that this taxon occupies is difficult because, depending on the climate 
and the natural variations in habitat conditions, the extent of the 
distributions may either shrink and disappear, or if there is a 
residual seed bank present, enlarge and cover a more extensive area. 
Because it is logistically difficult to determine how extensive the 
seed bank is at any particular site and because above-ground plants may 
or may not be present in all patches within a site every year, we 
cannot quantify in any meaningful way what proportion of each critical 
habitat unit may actually be occupied by S. keckii. Therefore, patches 
of unoccupied habitat are probably interspersed with patches of 
occupied habitat in each unit. The inclusion of unoccupied habitat in 
our critical habitat units reflects the dynamic nature of the habitat 
and the life history characteristics of this taxon. Unoccupied areas 
provide areas into which populations might expand, provide connectivity 
or linkage between colonies within a unit, and support populations of 
pollinators and seed dispersal organisms. Both occupied and unoccupied 
areas that are proposed as critical habitat are essential to the 
conservation of the species.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to 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 germination or seed dispersal; and habitats that are 
protected from disturbance or are representative of the historic 
geographical and ecological distributions of a species.
    Much of what is known about the specific physical and biological 
requirements of Sidalcea keckii is described in the Background section 
of this proposed rule. The proposed critical habitat is designed to 
provide sufficient habitat to maintain self-sustaining populations of 
S. keckii throughout its range and to provide those habitat components 
essential for the conservation of the species. 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 within larger populations; (3) areas that provide basic 
requirements for growth, such as water, light, and minerals; and (4) 
areas that support populations of pollinators and seed dispersal 
organisms.
    We believe the long-term conservation of Sidalcea keckii is 
dependent upon the protection of existing population sites and the 
maintenance of ecological functions within these sites, including 
connectivity between colonies (i.e., groups of plants within sites) 
within close geographic proximity to facilitate pollinator activity and 
seed dispersal. The areas we are designating as critical habitat 
provide some or all of the habitat components essential for the 
conservation of S. keckii. Based on the best available information at 
this time, the primary constituent elements of critical habitat for S. 
keckii are:
    (1) Minimally shaded annual grasslands in the Sierra foothills 
containing open patches in which competing vegetation is relatively 
sparse; and
    (2) Serpentine soils, or other soils which tend to restrict 
competing vegetation.

Criteria Used to Identify Critical Habitat

    We identified critical habitat areas essential to the conservation 
of Sidalcea keckii in the three primary locations where it currently 
occcurs or has been known to occur: the Piedra area of Fresno County, 
the Mine Hill area of Tulare County, and near White River in Tulare 
County. We are proposing to designate sufficient critical habitat at 
each site to maintain self-sustaining populations of S. keckii at each 
of these locations.
    We are including the White River site in our proposal, despite the 
fact that Sidalcea keckii has not been documented there in recent 
years. The White River population is the type location where the plant 
was originally discovered and contains the primary constituent elements 
that would support the species. It is one of the extremely few 
locations where S. keckii has ever been observed and may be occupied by 
a seed bank. We have evidence from the Piedra site, where S. keckii was 
undocumented from 1939 until its rediscovery in 1998 (Cypher 1998; 
CNDDB 2001), that such rediscoveries are possible for S. keckii. The 
Piedra site supports the largest known S. keckii population, with 500 
to 1,000 plants when last surveyed (Cypher 1998). Even if the species 
is not rediscovered at the White River site, we still believe the site 
is essential to the conservation of the species because it is the most

[[Page 41673]]

appropriate site for a reintroduction to occur. The combination of 
limited range, few populations, and restricted habitat makes S. keckii 
susceptible to extinction or extirpation due to random events, such as 
fire, disease, or other occurrences (Shaffer 1981, 1987; Primack 1993, 
Meffe and Carroll 1994). Such events are a concern when the number of 
populations or geographic distribution of a species are severely 
limited, as is the case with S. keckii. Establishment of a third 
location for S. keckii is likely to prove important in reducing the 
risk of extinction due to such catastrophic events.
    Despite the association of Sidalcea keckii with serpentine soils 
(Kirkpatrick 1992; Cypher 1998), only a portion of S. keckii plants at 
the Piedra site grow on soil identified by SCS maps as being serpentine 
derived (the soil: Fancher extremely stony loam) (SCS 1971; NRCS 2001). 
Other patches at Piedra, as well as the type locality White River 
population, grow on what SCS maps indicate are Cibo clays, while the 
Mine Hill population of S. keckii grows in an area mapped as Coarsegold 
rock outcrop complex (NRCS 2001). Neither of these latter two soil 
types normally derive from serpentine rock (SCS 1971, 1982), although 
the underlying geology may contain it. Geologic maps, for example, show 
the Cibo soils of the Piedra population straddling an arm of underlying 
serpentine rock (CDMG 1991; CDC 2000). The soils may, therefore, in 
fact be derived from such rock or include pockets of soil derived from 
such rock, or the amount of serpentine rock may be too small to be 
mapped (E. Russell, NRCS, pers. comm., 2002). Available geologic maps 
fail to show any serpentine rock in the vicinity of the type locality 
White River population (CDMG 1992; Jennings 1977; CDC 2000). However, 
Cibo soils have an intrinsic tendency to dry out, harden, and form deep 
cracks during the summer which can discourage the growth of some plants 
(E. Russell, pers. comm., 2002). Hence, these soils would limit 
vegetation competition in favor of S. keckii.
    Based on available soils and geologic maps, the Coarsegold soils of 
the Mine Hill population do not overlie serpentine rock, nor are they 
intrinsically restrictive to plant growth (CDMG 1991; Jennings 1977; 
SCS 1982; CDC 2000; E. Russell, pers. comm., 2002). The botanists who 
discovered the population, however, characterized the site as a 
``serpentine rock outcrop'' (Kirkpatrick 1992). Although geologic maps 
do not list serpentine rock at the site itself, they do show it within 
a mile to the northeast and southwest (CDMG 1991; Jennings 1977; CDC 
2000). The site itself sits over ``precenazoic metasedimentary and 
metavolcanic rocks of great variety'' (Jennings 1977). Hence, it 
appears likely that the site consists of a pocket habitat of serpentine 
soil which was too small to be mapped (E. Russell, pers. comm., 2002). 
SCS soil maps tend to list only the dominant soil type in an area. 
Other such pocket habitats may exist within the same combination of 
soil and underlying rock.

Mapping

    We delineated the proposed critical habitat units by creating data 
layers in a GIS format. First, we identified the locations of the 
Sidalcea keckii populations using information from the CNDDB (2001), 
and published and unpublished documents from those who located the 
known populations (Kirkpatrick 1992; Stebbins 1992). In the case of the 
Piedra population, where S. keckii grew in more than one patch, we 
identified the locations and approximate dimensions of the various 
patches as well, based on information provided by SFC (C. Peck, in 
litt., 2002). We mapped populations or patch locations from all sites 
on USGS 7.5' quadrangle topological maps (USGS 1990) to obtain 
information on elevation, slope, and recognizable surface features. We 
then used soil survey maps (NRCS 2001) to restrict potential critical 
habitat to the boundaries of the basic soil types on which the 
populations grow. In areas where the presence of S. keckii could not be 
explained by the properties of the mapped soil type alone (such as the 
Coarsegold soils at the Mine Hill location), we mapped critical habitat 
boundaries to the same underlying rock type as at the population site 
(CDC 2000). We then used recent aerial photos (SPOT 2001), topological 
maps (USGS 1990), and discussions with experts familiar with the areas 
(Rosalie Faubion, U.S. Bureau of Reclamation (BOR), pers. comm., 2002; 
Chuck Peck, Sierra Foothill Conservancy, pers. comm., 2002) to 
eliminate large contiguous areas which were noticeably more overgrown 
or which were not grassland and, therefore, not suitable habitat for 
the species.
    In order to provide determinable legal descriptions of the critical 
habitat boundaries, we then used an overlayed 100 meter grid to 
establish Universal Transverse Mercator (UTM) North American Datum of 
1983 (NAD 83) coordinates which, when connected, provided the critical 
habitat unit boundaries. We include the legal description for each unit 
in the Proposed Regulation Promulgation section, below.
    In designating critical habitat, we made an effort to avoid 
developed areas, such as housing developments and agricultural fields, 
that are unlikely to contribute to the conservation of Sidalcea keckii. 
However, we did not map critical habitat in sufficient detail to 
exclude all developed areas, or other lands unlikely to contain the 
primary constituent elements essential for the conservation of S. 
keckii. Areas within the boundaries of the mapped units, such as 
buildings, roads, parking lots, railroads, airport runways and other 
paved areas, lawns, and other urban landscaped areas will not contain 
one or more of the primary constituent elements. Federal actions 
limited to these areas, therefore, would not trigger a section 7 of the 
Act consultation, unless they affect the species or primary constituent 
elements in adjacent critical habitat.

Proposed Critical Habitat Designation

    Lands proposed for critical habitat designation are under private 
and Federal jurisdiction. The approximate areas of proposed critical 
habitat by land ownership are shown in Table 1.

             Table 1.--Approximate Areas in Hectares (ha) and Acres (ac) of Proposed Critical Habitat for Sidalcea keckii by Land Ownership.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                 Unit                             Federal                State                   Private                             Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Piedra.............................  3 ha (7ac)                               0  203 ha (503 ac)                    206 ha (510 ac)
2. Mine Hill..........................  0                                        0  86 ha (213 ac)                     86 ha (213 ac)
3. White River........................  0                                        0  146 ha (362 ac)                    146 ha (362 ac)
                                       -----------------------------------------------------------------------------------------------------------------
    Totals............................  3 ha (7ac)                               0  435 ha (1,078 ac)                  438 ha (1,085 ac)
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 41674]]

    The proposed critical habitat areas constitute our best assessment 
at this time of the areas that are essential for the conservation of 
Sidalcea keckii. The three critical habitat units include the only two 
locations where S. keckii has been observed since the 1930's and the 
type locality, which may be occupied by a seed bank, and is the most 
appropriate location to consider for reintroduction. A brief 
description of each critical habitat unit is given below:

Unit 1: Piedra

    Unit 1 is on the western slopes of Tivy Mountain in the Piedra area 
of southern Fresno County. It contains 206 ha (510 ac), of which 203 ha 
(503 ac) are privately owned and 3 ha (7 ac) managed by the BOR (R. 
Faubion, pers. comm., 2002). Of the privately owned land, 77 ha (189 
ac) of proposed critical habitat is on the Tivy Mountain Reserve which 
is owned by SFC and established for the conservation of Sidalcea keckii 
and other rare plants. SFC uses managed grazing as a tool to reduce 
competing non-native grasses from S. keckii sites, and monitors the 
plant as well (SFC 2001). Another 6.5 ha (16 ac) of this unit occurs on 
a conservation easement held by SFC on privately owned land adjacent to 
the reserve.
    In 1998, surveys coordinated by the BOR found 500 to 1,000 plants 
in the area (Cypher 1998). Surveys conducted in 2000 and 2001 by the 
SFC found eight separate patches of Sidalcea keckii growing on both 
Fancher and Cibo soils (C. Peck, in litt., 2002). Fancher soils are 
generally serpentine derived, while Cibo soils generally are not (SCS 
1971). An arm of ultramafic (serpentine) rock underlies almost the 
entire area (CDC 2000), although not all of the known S. keckii patches 
are located within the known extent of the serpentine substrate.
    This unit is important to the conservation of the species because 
it is one of the two sites at which the species has been observed since 
the 1930's. When the number of populations or geographic distribution 
of a species are severely limited, as is the case when plants have only 
been observed recently at two locations, possible extinction or 
extirpation due to random events become a concern. Examples of random 
events that are a concern include fire and disease (Shaffer 1981, 1987; 
Primack 1993, Meffe and Carroll 1994). This unit is also important 
because it includes the most northerly location known for S. keckii and 
the only location where above-ground plants with maroon-centered 
flowers have been documented (Cypher 1998).

Unit 2: Mine Hill

    Unit 2 is about 3 km (2 mi) south of Success Dam and 5 km (3 mi) 
east of Porterville in Tulare County and contains 86 ha (213 ac), all 
of which are on privately owned land. Unit 2 encompasses a single known 
patch of Sidalcea keckii, which contained approximately 60 plants when 
last surveyed in 1992. At the request of the landowner, it has not been 
surveyed since that time. Although the Coarsegold rock outcrop soils of 
the area are best suited to rangeland (SCS 1982), which is the current 
use of the area, the site is zoned for mobile home development (Roberto 
Brady, Tulare County Planning Department, pers. comm., 1997).
    This unit is important to the conservation of the species because 
it is one of the two known locations where Sidalcea keckii plants have 
been observed since the 1930's. As is the case with Unit 1, when the 
number of populations or geographic distribution of a species are 
severely limited, possible extinction or extirpation due to random 
events become a concern. Examples of random events that are a concern 
include fire and disease (Shaffer 1981, 1987; Primack 1993, Meffe and 
Carroll 1994).

Unit 3: White River

    Unit 3 is located near the town of White River in southern Tulare 
County. It contains 146 ha (362 ac), all of which is private land. Unit 
3 contains the ``type'' location, specimens from which were used to 
first describe the species in 1940 (Wiggins 1940). This site is the 
only one not closely associated with serpentine rock, but contains the 
primary constituent elements that would support the species. This may 
be due to the presence of currently unknown and unmapped serpentine 
areas, or it may be due to an increased ability to compete on non-
serpentine Cibo soils.
    As noted above, the White River site is one of the extremely few 
locations where Sidalcea keckii has ever been observed and may be 
occupied by a seed bank. Sidalcea keckii plants may still occur here, 
but none have been documented recently. Even if the species is not 
rediscovered at the White River site, we believe the site is essential 
to the conservation of the species. Because S. keckii has been observed 
at the site, it is the most appropriate site at which a reintroduction 
might be attempted. The combination of small range, few populations, 
and restricted habitat makes S. keckii susceptible to extinction or 
extirpation from a significant portion of its range due to random 
events, such as fire, disease, or other occurrences (Shaffer 1981, 
1987; Primack 1993, Meffe and Carroll 1994). Such events are a concern 
when the number of populations or geographic distribution of a species 
are severely limited, as is the case with S. keckii. Establishment of a 
third location for S. keckii is likely to be an important component in 
reducing the risk of extinction due to such catastrophic events. This 
location also represents the southernmost extent of the known 
historical range of the species.

Effects of Critical Habitat Designation

Section 7  Consultation

    Section 7(a) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, permit, or carry 
out do not destroy or adversely modify critical habitat. Destruction or 
adverse modification of critical habitat occurs when a Federal action 
directly or indirectly alters critical habitat to the extent it 
appreciably diminishes the value of critical habitat for the 
conservation of the species. Individuals, organizations, States, local 
governments, and other non-Federal entities are affected by the 
designation of critical habitat only if their actions occur on Federal 
lands, require a Federal permit, license, or other authorization, or 
involve Federal funding.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened, and with respect to its 
critical habitat, if any is designated or proposed. 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 species proposed for listing, 
or result in destruction or adverse modification of proposed critical 
habitat. Conference reports provide conservation recommendations to 
assist the action agency in eliminating conflicts that may be caused by 
the proposed action. The conservation measures in a conference report 
are advisory.
    We may issue a formal conference report, if requested by the 
Federal action agency. Formal conference reports include an opinion 
that is prepared according to 50 CFR 402.14, as if the species was 
listed or critical habitat designated. We may adopt the formal

[[Page 41675]]

conference report as the biological opinion when the species is listed 
or critical habitat designated, if no substantial new information or 
changes in the action alter the content of the opinion (50 CFR 
402.10(d)).
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act 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 
Federal action agency would ensure that the permitted actions do not 
destroy or adversely modify critical habitat.
    If 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 the likelihood of jeopardizing the continued 
existence of listed species, or resulting in the destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modification to extensive redesign or 
relocation of the project.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions under certain 
circumstances, including instances where critical habitat is 
subsequently designated and the Federal agency has retained 
discretionary involvement, or control has been retained, or is 
authorized by law. Consequently, some Federal agencies may request 
reinitiation of consultation or conference with us on actions for which 
formal consultations has been completed, if those actions may affect 
designated critical habitat or adversely modify or destroy proposed 
critical habitat.
    Activities that may affect Sidalcea keckii or its critical habitat 
will require section 7 of the Act consultation. Activities on private 
lands that require a permit from a Federal agency, such as a permit 
from the U.S. Army Corps of Engineers (Corps) under section 404 of the 
Clean Water Act (33 U.S.C. 1344 et seq.), a section 10(a)(1)(B) of the 
Act permit from the Service, or any other activity requiring Federal 
action (i.e., funding or authorization from the Federal Highways 
Administration or Federal Emergency Management Agency) will also 
continue to be subject to the section 7 consultation process. Federal 
actions not affecting listed species or critical habitat, and actions 
on non-Federal lands that are not federally funded, authorized, or 
permitted do not require section 7 consultation. Not all of the areas 
within these units are capable of supporting S. keckii or its primary 
constituent elements, and such areas would not be subject to section 7 
consultation.
    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 ensures that actions funded, 
authorized, or carried out by Federal agencies are not likely to 
jeopardize the continued existence of a listed species, or destroy or 
adversely modify the listed species' critical habitat. Actions likely 
to jeopardize the continued existence of a species are those that would 
appreciably reduce the likelihood of the species' survival and 
recovery. Actions likely to ``destroy or adversely modify'' critical 
habitat are those that would appreciably reduce the value of critical 
habitat for the recovery of the listed species.
    Common to both definitions is an appreciable detrimental effect on 
the recovery of a listed species. Given the similarity of these 
definitions, actions likely to destroy or adversely modify critical 
habitat would almost always result in jeopardy to the species 
concerned, particularly when the species is present in the area of the 
proposed action. When the species is present in an area, designation of 
critical habitat for Sidalcea keckii is not likely to result in 
regulatory requirements above those already in place due to the 
presence of the listed species. When the species is not present in an 
area, designation of critical habitat for S. keckii may result in an 
additional regulatory burden when a Federal nexus exists.
    Section 4(b)(8) of the Act requires us to evaluate briefly and 
describe, in any proposed or final regulation that designates critical 
habitat, those activities involving a Federal action that may adversely 
modify such habitat or that may be affected by such designation. 
Activities that may destroy or adversely modify critical habitat would 
be those that alter the primary constituent elements to the extent that 
the value of critical habitat for the conservation of Sidalcea keckii 
is appreciably reduced. We note that such activities may also 
jeopardize the continued existence of the species.
    Activities that, when carried out, funded, or authorized by a 
Federal agency may directly or indirectly destroy or adversely modify 
critical habitat for Sidalcea keckii include, but are not limited to:
    (1) Ground disturbances which destroy or degrade primary 
constituent elements of the plant (e.g., clearing, tilling, grading, 
construction, road building, mining, etc);
    (2) Activities that directly or indirectly affect Sidalcea keckii 
plants (e.g., herbicide application and off-road vehicle use that could 
degrade the habitat on which the species depends, incompatible 
introductions of non-native herbivores, incompatible grazing management 
during times when S. keckii is producing flowers or seeds, etc.);
    (3) Encouraging the growth of Sidalcea keckii competitors (e.g., 
widespread fertilizer application); and
    (4) Activities which significantly degrade or destroy Sidalcea 
keckii pollinator populations (e.g., pesticide applications).
    If you have questions regarding whether specific activities will 
constitute destruction or adverse modification of critical habitat, 
contact the Field Supervisor, Sacramento Fish and Wildlife Office (see 
FOR FURTHER INFORMATION CONTACT section). Requests for copies of the 
regulations on listed wildlife, and inquiries about prohibitions and 
permits may be addressed to the U.S. Fish and Wildlife Service, Branch 
of Endangered Species, 911 NE. 11th Ave., Portland, OR 97232 (telephone 
503/231-2063; facsimile 503/231-6243).

Relationship to Habitat Conservation Plans and Other Planning 
Efforts

    Currently, no habitat conservation plans (HCPs) exist that include 
Sidalcea keckii as a covered species. In the event that future HCPs 
covering S. keckii are developed within the boundaries of designated 
critical habitat, we will work with applicants to ensure that the HCPs 
provide for protection and management of habitat areas essential for 
the conservation of this species. This will be accomplished by either 
directing development and habitat modification to nonessential areas, 
or appropriately modifying activities within essential

[[Page 41676]]

habitat areas so that such activities will not adversely modify the 
primary constituent elements. The HCP development process would provide 
an opportunity for more intensive data collection and analysis 
regarding the use of particular habitat areas by S. keckii. The process 
would also enable us to conduct detailed evaluations of the importance 
of such lands to the long-term survival of the species in the context 
of constructing a system of interlinked habitat blocks configured to 
promote the conservation of the species through application of the 
principles of conservation biology.
    We will provide technical assistance and work closely with 
applicants throughout the development of any future HCPs to identify 
lands essential for the long-term conservation of S. keckii and 
appropriate management for those lands. Furthermore, we will complete 
intra-Service consultation on our issuance of section 10(a)(1)(B) 
permits for these HCPs to ensure permit issuance will not destroy or 
adversely modify critical habitat.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We 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.
    We will conduct an analysis of the economic impacts of designating 
these proposed areas as critical habitat prior to a final 
determination. When completed, we will announce the availability of the 
draft economic analysis with a notice in the Federal Register, and we 
will open a public comment period on the draft economic analysis and 
the proposed rule at that time.

Public Comments Solicited

    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. We particularly seek comments 
concerning:
    (1) The reasons why any habitat 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 due to designation;
    (2) Specific information on the amount and distribution of Sidalcea 
keckii and its habitat, and which habitat is essential to the 
conservation of this species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families;
    (5) Economic and other values associated with designating critical 
habitat for Sidalcea keckii such as those derived from non-consumptive 
uses (e.g., hiking, camping, bird-watching, enhanced watershed 
protection, improved air quality, increased soil retention, ``existence 
values,'' and reductions in administrative costs); and
    (6) 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 concern and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods: (1) You may 
submit written comments and information to the Field Supervisor at the 
address provided in the ADDRESSES section above; (2) You may also 
comment via the electronic mail (e-mail) to 
[email protected]. Please submit e-mail comments as an 
ASCII file avoiding the use of special characters and any form of 
encryption. Please also include ``Attn: [1018-AG93] and your name and 
return address in your e-mail message.'' If you do not receive a 
confirmation from the system that we have received your e-mail message, 
contact us directly by calling our Sacramento Fish and Wildlife Office 
at phone number 916-414-6600. Please note that the Internet address 
``[email protected]'' will be closed out at the 
termination of the public comment period; and (3) You may hand-deliver 
comments to our Sacramento office (see ADDRESSES section above).
    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 address from the rulemaking record, which we will honor to 
the extent allowable by law. In some circumstances, 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. To the extent consistent with 
applicable law, 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.

Peer Review

    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 listing decisions are based on 
scientifically sound data, assumptions, and analyses. We will send 
these peer reviewers copies of this 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.
    We will consider all comments and information received during the 
60-day comment period on this proposed rule during preparation of a 
final rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearing

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings must be made at least 15 
days prior to the close of the public comment period. 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.

Clarity of the Rule

    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

[[Page 41677]]

the following: (1) Are the requirements in the proposed rule clearly 
stated? (2) Does the proposed rule contain 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 notice 
in the SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the proposed rule? (5) What else could we do to make the 
notice easier to understand?
    Send a copy of any comments that concern how we could make this 
notice 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: 
[email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule and was reviewed by the Office of Management and 
Budget (OMB). The Service is preparing a draft economic analysis of 
this proposed action. The Service will use this analysis to meet the 
requirement of section 4(b)(2) of the ESA 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 Sidalcea 
keckii. This analysis will be available for public comment before 
finalizing this designation. The availability of the draft economic 
analysis will be announced in the Federal Register.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    This discussion is based upon the information regarding potential 
economic impact that is available to the Service at this time. This 
assessment of economic effect may be modified prior to final rulemaking 
based upon development and review of the economic analysis being 
prepared pursuant to section 4(b)(2) of the ESA and E.O. 12866. This 
analysis is for the purposes of compliance with the Regulatory 
Flexibility Act and does not reflect the position of the Service on the 
type of economic analysis required by New Mexico Cattle Growers Assn. 
v. U.S. Fish & Wildlife Service 248 F.3d 1277 (10th Cir. 2001).
    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement 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. 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 effect on a substantial number of small 
entities. SBREFA also amended the RFA to require a certification 
statement. We are hereby certifying that this proposed rule will not 
have a significant effect on a substantial number of small entities. 
The following discussion explains our rationale for making this 
assertion.
    According to the Small Business Administration (http://www.sba.gov/size/), small entities include small organizations, such as independent 
non-profit organizations, and small governmental jurisdictions, 
including school boards and city and town governments that serve fewer 
than 50,000 residents, as well as small businesses. Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we consider the types 
of activities that might trigger regulatory impacts under this rule as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    In determining whether this rule could ``significantly affect a 
substantial number of small entities'', the economic analysis first 
determined whether critical habitat could potentially affect a 
``substantial number'' of small entities in counties supporting 
critical habitat areas. While SBREFA does not explicitly define 
``substantial number,'' the Small Business Administration, as well as 
other Federal agencies, have interpreted this to represent an impact on 
20 percent or greater of the number of small entities in any industry. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement. 
Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies, non-Federal activities are 
not affected by the designation if they lack a Federal nexus. In areas 
occupied by Sidalcea keckii, Federal agencies funding, permitting, or 
implementing activities are already required, through consultation with 
us under section 7 of the Act, to avoid jeopardizing the continued 
existence of S. keckii. If this critical habitat designation is 
finalized, Federal agencies also must ensure, also through consultation 
with us, that their activities do not destroy or adversely modify 
designated critical habitat. However, for the reasons discussed above, 
we do not believe this will result in any additional regulatory burden 
on Federal agencies or their applicants.
    In unoccupied areas, or areas of uncertain occupancy, designation 
of critical habitat could trigger additional review of Federal 
activities under section 7 of the Act, and may result in additional 
requirements on Federal activities to avoid destroying or adversely 
modifying critical habitat. However, outside the existing developed 
areas, land use on the majority of the proposed critical habitat is 
agricultural, such as livestock grazing and farming. Should a federally 
funded, permitted, or implemented project be proposed that may affect 
designated critical habitat, we will work with the Federal action 
agency and any applicant, through section 7 consultation, to identify 
ways to implement the proposed project while minimizing or avoiding any 
adverse effect to the species or critical habitat. In our experience, 
the vast majority of such projects can be successfully implemented with 
at most minor

[[Page 41678]]

changes that avoid significant economic impacts to project proponents.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements for one small 
business, on average, that may be required to consult with us each year 
regarding their project's impact on Sidalcea keckii and its habitat. 
First, if we conclude, in a biological opinion, that a proposed action 
is likely to jeopardize the continued existence of a species or 
adversely modify its critical habitat, we can offer ``reasonable and 
prudent alternatives.'' Reasonable and prudent alternatives are 
alternative actions that can be implemented in a manner consistent with 
the scope of the Federal agency's legal authority and jurisdiction, 
that are economically and technologically feasible, and that would 
avoid jeopardizing the continued existence of listed species or 
resulting in adverse modification of critical habitat. A Federal agency 
and an applicant may elect to implement a reasonable and prudent 
alternative associated with a biological opinion that has found 
jeopardy or adverse modification of critical habitat. An agency or 
applicant could alternatively choose to seek an exemption from the 
requirements of the Act or proceed without implementing the reasonable 
and prudent alternative. However, unless an exemption were obtained, 
the Federal agency or applicant would be at risk of violating section 
7(a)(2) of the Act if it chose to proceed without implementing the 
reasonable and prudent alternatives.
    Secondly, if we find that a proposed action is not likely to 
jeopardize the continued existence of a listed animal species, we may 
identify reasonable and prudent measures designed to minimize the 
amount or extent of take and require the Federal agency or applicant to 
implement such measures through non-discretionary terms and conditions. 
We may also identify discretionary conservation recommendations 
designed to minimize or avoid the adverse effects of a proposed action 
on listed species or critical habitat, help implement recovery plans, 
or to develop information that could contribute to the recovery of the 
species.
    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 consultations-can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures, by definition, must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation. As we have a very limited 
consultation history for Sidalcea keckii, we can only describe the 
general kinds of actions that may be identified in future reasonable 
and prudent alternatives. The kinds of actions that may be included if 
future reasonable and prudent alternatives become necessary, include 
conservation set-asides, management of competing non-native species, 
restoration of degraded habitat, construction of protective fencing, 
and regular monitoring. These are based on our understanding of the 
needs of the species and the threats it faces, as described in the 
final listing rule and this proposed critical habitat designation.
    It is likely that a developer could modify a project or take 
measures to protect Sidalcea keckii. Based on the types of 
modifications and measures that have been implemented in the past for 
plant species, a developer may take such steps as installing fencing or 
re-aligning the project to avoid sensitive areas. The cost for 
implementing these measures for one project is expected to be of the 
same order of magnitude as the total cost of the consultation process, 
i.e., approximately $10,000. It should be noted that developers likely 
would already be required to undertake such measures due to regulations 
under the California Environmental Quality Act. These measures are not 
likely to result in a significant economic impact to project 
proponents.
    In summary, we have considered whether this rule would result in a 
significant economic effect on a substantial number of small entities. 
We have determined, for the above reasons, that it will not affect a 
substantial number of small entities. Furthermore, we believe that the 
potential compliance costs for the remaining number of small entities 
that may be affected by this rule will not be significant. Therefore, 
we are certifying that the proposed designation of critical habitat for 
Sidalcea keckii is not expected to have a significant adverse impact on 
a substantial number of small entities. Thus, an initial flexibility 
analysis is not required.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order 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. Although this proposed 
rule is a significant regulatory action under Executive Order 12866, it 
is not expected to significantly affect energy supplies, distribution, 
or use. Therefore, this action is not a significant energy action and 
no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    The Service will use the economic analysis to evaluate consistency 
with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.).

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing to designate approximately 438 ha (1,085 ac) of lands in 
Fresno and Tulare counties, California as critical habitat for Sidalcea 
keckii in a takings implication assessment. 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.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior policy, we 
requested information from, and coordinated development of this 
proposed critical habitat designation with, appropriate State resource 
agencies in California. The designation of critical habitat in areas 
currently occupied by Sidalcea keckii imposes no additional 
restrictions to those currently in place and, therefore, has little 
incremental impact on State and local governments and their activities. 
The designation of critical habitat in unoccupied areas may require 
section 7 of the Act consultation on non-Federal lands (where a Federal 
nexus occurs) that might otherwise not have occurred. However, there 
will be little additional impact on State and local governments and 
their activities because all but one of the proposed critical habitat 
areas are occupied. The designation may have some benefit to these 
governments in that the areas essential to the conservation of the 
species are more clearly defined, and the primary constituent elements 
of the habitat necessary to the survival of the species are identified. 
While this definition and identification does not alter where and what 
federally sponsored activities may

[[Page 41679]]

occur, it may assist these local governments in long-range planning, 
rather than waiting for case-by-case section 7 consultations to occur.

Civil Justice Reform

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

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require OMB approval under the Paperwork Reduction Act. This rule will 
not impose new record-keeping 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.

National Environmental Policy Act

    We have determined we do not need to prepare an Environmental 
Assessment and/or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 in connection with 
regulations adopted pursuant to section 4(a) of the Endangered Species 
Act, as amended. We published a notice outlining our reason for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This proposed determination does not constitute a major Federal 
action significantly affecting the quality of the human environment.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), 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. The proposed critical 
habitat for Sidalcea keckii does not contain any Tribal lands or lands 
that we have identified as impacting Tribal trust resources.

References Cited

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

Author

    The primary author of this notice is Glen Tarr, Sacramento Fish and 
Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec. 17.12(h) revise the entry for ``Sidalcea keckii,'' under 
``FLOWERING PLANTS,'' to read as follows:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species
------------------------------------------------------   Historic range          Family            Status     When listed  Critical habitat    Special
         Scientific name              Common name                                                                                               rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Flowering Plants
 
                                              *         *         *         *         *         *         *
Sidalcea keckii.................  Keck's               U.S.A. (CA).......  Malvaceae--Mallow.  E                      685  17.96(b)                   NA
                                   checkermallow.
 
                                              *         *         *         *         *         *         *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec. 17.96, as proposed to be amended at 65 FR 66865, 
November 7, 2000, amend paragraph (b) by adding an entry for Sidalcea 
keckii in alphabetical order under Family Malvaceae to read as follows:


Sec. 17.96  Critical habitat--plants.

* * * * *
    (b) * * *

Family Malvaceae: Sidalcea keckii (Keck's checkermallow)
    (1) Critical habitat units are depicted for Fresno and Tulare 
counties, California, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Sidalcea keckii are the habitat components that provide:
    (i) Minimally shaded annual grasslands in the Sierra foothills 
containing open patches in which competing vegetation is relatively 
sparse; and
    (ii) Serpentine soils, or other soils which tend to restrict 
competing vegetation.
    (iii) Existing man-made features and structures, such as buildings, 
roads, railroads, airports, other paved areas, lawns, and other urban 
landscaped areas, do not contain one or more of the primary constituent 
elements. Federal actions limited to those areas, therefore, would not 
trigger a consultation under section 7 of the Act unless they may 
affect the species and/or primary constituent elements in adjacent 
critical habitat.
    (3) Critical Habitat Map Units.
    (i) Data layers defining map units were created on a base of USGS 
7.5' quadrangles, and proposed critical habitat units were then mapped 
using Universal Transverse Mercator (UTM) coordinates.
    (ii) Critical Habitat Map Units--Index Map Follows:
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[[Page 41680]]

[GRAPHIC] [TIFF OMITTED] TP19JN02.002

(4) Map Unit 1: Piedra Unit, Fresno County, California
    (i) From USGS 1:24,000 quadrangle maps Piedra, and Pine Flat Dam, 
California; land bounded by the following UTM11 NAD83 coordinates 
(E,N): 288300, 4074700; 288200, 4074700; 287700, 4074900; 287000, 
4075600; 287400, 4076100; 287500, 4076300; 287500, 4076700; 287800, 
4077000; 288000, 4077100; 288400, 4076900; 288400, 4076600; 288500, 
4076300; 288300, 4075800; 288200, 4075700; 288300, 4075300; 288200, 
4075100; 288100, 4075100; 288000, 4075000; 288300, 4075000; 288300, 
4074700.
    (ii) Map Unit 1 Map Follows:

[[Page 41681]]

[GRAPHIC] [TIFF OMITTED] TP19JN02.003

(5) Map Unit 2: Mine Hill Unit, Tulare County, California
    (i) From USGS 1:24,000 quadrangle Success Dam, California; land 
bounded by the following UTM11 NAD83 coordinates (E,N): 326600, 
3988600; 326500, 3988600; 326200, 3988900; 326100, 3989100; 326200, 
3989200; 326200, 3989300; 326300, 3989400; 326500, 3989400; 326500, 
3989500; 326700, 3989600; 327300, 3989600; 327400, 3989500; 327400, 
3989300; 327200, 3989000; 327100, 3988900; 326700, 3988700; 326600, 
3988600.
    (ii) Map Unit 2 Map Follows:

[[Page 41682]]

[GRAPHIC] [TIFF OMITTED] TP19JN02.004

(6) Map Unit 3: White River Unit, Tulare County, California
    (i) From USGS 1:24,000 quadrangle maps White River, California; 
land bounded by the following UTM11 NAD83 coordinates (E,N): 334800, 
3963600; 334100, 3963800; 333900, 3964100; 333900, 3964200; 333800, 
3964500; 333800, 3964700; 334000, 3964800; 334400, 3964500; 334500, 
3964500; 334700, 3964600; 334900, 3964800; 335100, 3964800; 335300, 
3964900; 335400, 3964700; 335300, 3964600; 335300, 3964500; 335400, 
3964400; 335500, 3964400; 335500, 3964100; 335200, 3963800; 334800, 
3963600.
    (ii) Map Unit 3 Map Follows:

[[Page 41683]]

[GRAPHIC] [TIFF OMITTED] TP19JN02.005

* * * * *

    Dated: June 13, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-15430 Filed 6-18-02; 8:45 am]
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