[Federal Register Volume 68, Number 52 (Tuesday, March 18, 2003)]
[Rules and Regulations]
[Pages 12863-12880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6132]


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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; Final Designation 
of Critical Habitat for Sidalcea keckii (Keck's checkermallow)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), 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 designated 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). This critical habitat designation 
provides additional protection 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 solicited data and comments from the public on all aspects 
of our proposal, including data on economic and other impacts of the 
designation.

DATES: This rule becomes effective on April 17, 2003.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during the normal 
business hours at the Sacramento Fish and Wildlife Office, U.S. Fish 
and Wildlife Service, 2800 Cottage Way, Suite W-2605, Sacramento, CA 
95825.

FOR FURTHER INFORMATION CONTACT: Kirsten Tarp or Susan Moore, 
Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service 
(telephone 916/414-6600; facsimile 916/414-6710; [email protected] 
or [email protected]).

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 may have 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, 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 E. 
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 (J. Stebbins, Herbarium Curator, California State 
University, pers. comm., 2002).

[[Page 12864]]

    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)) in 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). We have 
received information that the standing population at Mine Hill may have 
been extirpated by conversion of the habitat to an orange grove (J. 
Stebbins, in litt., 2002). Much of the area around the original 
population at Mine Hill remains potentially viable however, and may 
contain a seed bank or standing plants.
    Using habitat information from the Mine Hill site, botanists 
resurveyed a location in the Piedras 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; C. Peck, SFC, in litt., 2002). Associated plants at 
this site include Bromus heartaches (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). Another 
population was discovered near Piedra in 2002, but we do not yet have 
details regarding its exact location (J. Stebbins, in litt., 2002).
    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). Cattle have been observed to cause 
some damage to S. keckii by eating or trampling it, although the damage 
was barely noticeable a week later (Cypher 1998). However, unmanaged 
increases in grazing during months of flowering, seed-set, or seed 
maturation, could potentially reduce local population viability and 
thereby affect long term conservation. 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 Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), 
prepared a report on those native 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 threatened. 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 (NOR) on December 15, 1980 (45 FR 82479). 
In that NOR, 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 NORs 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 a category 1 species. In the NOR 
published February 28, 1996 (61 FR 7596), we discontinued the use of 
different categories of candidates, and defined ``candidate species'' 
as those meeting the definition of former category 1. We maintained S. 
keckii as a candidate species in that NOR, as well as in subsequent 
NORs 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 a 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 complete 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)).
    We published a proposed rule for Sidalcea keckii in the Federal 
Register June 19, 2002 (67 FR 41669). In the proposal, we determined 
that it was prudent to designate approximately 438 hectares (ha) (1,085 
acres (ac)), 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). Publication of the proposed rule 
opened a 60-day public comment period, which closed on August 19, 2002. 
On October 31, 2002, we published a notice announcing the reopening of 
the comment period on the proposal to designate critical habitat for S. 
keckii, and a notice of availability of the draft economic analysis on 
the proposed determination (67 FR 66378). This second public comment 
period closed on December 2, 2002.

Summary of Comments and Recommendations

    In the June 19, 2002, proposed critical habitat designation (67 FR 
41669), we requested all interested parties to submit comments on the 
specifics of the proposal including information related to biological 
justification, economics, proposed critical habitat boundaries, and 
proposed projects. The initial 60-day comment period closed on August 
19, 2002. The comment period was

[[Page 12865]]

reopened from October 31, 2002, to December 2, 2002 (67 FR 66378), to 
allow for additional comments on the proposed designation, and comments 
on the draft economic analysis of the proposed critical habitat.
    We contacted all appropriate Federal, State, and local agencies, 
elected officials, scientific organizations, and other interested 
parties and invited them to comment. In addition, we invited public 
comment through the publication of legal notices in the Tulare Advance 
Register and the Fresno Bee on June 27, 2002. We provided notification 
of the draft economic analysis to all interested parties. This was 
accomplished through letters and news releases faxed and/or mailed to 
affected elected officials, media outlets, local jurisdictions, and 
interest groups. We also posted the proposed rule and draft economic 
analysis and associated material on our Sacramento Fish and Wildlife 
Office internet site following their release on June 19, 2002, and 
October 31, 2002, respectively.
    We received individually written letters from two parties, 
including one peer reviewer. Both comments were neutral regarding the 
designation of critical habitat. We reviewed both comments received for 
substantive issues and new information regarding critical habitat and 
Sidalcea keckii. The comments were either incorporated directly into 
the final rule or are addressed in the following summary. We received 
no comments regarding the draft economic analysis.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited independent opinions from three 
knowledgeable individuals with expertise in one or several fields, 
including familiarity with the species, familiarity with the geographic 
region that the species occurs in, and familiarity with the principles 
of conservation biology. One of the three peer reviewers responded, and 
provided us with comments which were summarized in the following 
section and incorporated into the final rule.
    Issue 1: Critical habitat identified at the Mine Hill Unit may be 
misplaced. John Stebbins and Karen Kirkpatrick, the two individuals who 
found the population, mapped the population in slightly different 
locations, one of which was mapped much closer to the Centerville clay 
soils. In addition, John Stebbins' collection notes stated the soil 
type was Centerville clay. This commenter recommended that the 
population be visited in the spring and mapped with a Geographic 
Positioning System (GPS) unit to precisely map the occurrence. If the 
landowner will not allow access to the property, it is recommended that 
the critical habitat boundary be extended to include the adjacent 
Centerville clay soils.
    Our Response: Because we are under a settlement agreement to 
complete a final rule by March 10, 2003, we do not have the option of 
postponing the designation of critical habitat in order to determine 
the location of the Sidalcea keckii population more precisely with a 
GPS unit. We disagree with extending the critical habitat boundary to 
the adjacent Centerville clay soils because most of the adjacent 
Centerville clay soils are already in agricultural fields or orchards 
and would be unlikely to contribute to the conservation of S. keckii.
    The Mine Hill Unit we proposed incorporates both the area mapped by 
John Stebbins and the area mapped by Karen Kirkpatrick. Although it is 
true that the area mapped by Karen Kirkpatrick is closer to the 
boundary of the Centerville clay, it is still within the area mapped as 
Coarsegold Series soils.
    Issue 2: Both commenters mentioned that the population of Sidalcea 
keckii at the Mine Hill Unit may have been extirpated by citrus groves. 
One of the commenters stated that, considering the very limited range 
of the species, none of the three sites is expendable, and there is a 
good possibility that areas of natural land may remain on the 
appropriate soil types within or adjacent to the boundaries of the 
proposed critical habitat.
    Our Response: Our information about the status of the population at 
the Mine Hill site is inconclusive. The standing population at Mine 
Hill may have been extirpated by conversion of the habitat to an orange 
grove. We do not know how much habitat may have been converted. We 
believe that much of the habitat around the original population at Mine 
Hill remains potentially viable and may contain a seed bank or standing 
plants.
    Issue 3: The location of the population mapped at White River may 
be misplaced. The CNDDB gives the elevation as 427 m (1,400 ft); 
however the original description of the site gives the elevation as 380 
m (1,247 ft). Given the uncertainty of the precise location of any 
remaining seed bank, the boundary of the critical habitat proposed at 
White River should extend all the way to the edge of the Cibo soils.
    Our Response: We had originally included the referenced Cibo soil 
area as critical habitat, but a small portion of the Cibo soil area 
(less than approximately 2 ha (5 ac)) was inadvertently eliminated when 
the final proposed critical habitat boundaries were delimited using the 
Universal Transverse Mercator (UTM) grid. Under the Act and the 
Administrative Procedure Act (5 U.S.C. 553), we are required to allow 
the public an opportunity to comment on the proposed rulemaking. 
Therefore, because this new area was not included in the proposed rule, 
we are not including it in the final rule. Although this area was not 
included in the critical habitat proposal, it may be important to the 
recovery of Sidalcea keckii and could be included in recovery 
activities in the future.

Summary of Changes From the Proposed Rule

    Based on a review of the comments received on the proposed 
determination of critical habitat, we reevaluated our proposed 
designation and made minor changes to the text in the background 
section of the rule. No changes were made to the unit boundaries 
delimiting the areas determined to be essential for the conservation of 
Sidalcea keckii. The unit boundaries as depicted in this final rule 
encompass 438 ha (1,085 ac).

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.
    In our regulations at 50 CFR 402.02, we define destruction or 
adverse modification as ``a direct or indirect alteration that 
appreciably diminishes

[[Page 12866]]

the value of critical habitat for both the survival and recovery of a 
listed species. Such alterations include, but are not limited to: 
alterations adversely modifying any of those physical or biological 
features that were the basis for determining the habitat to be 
critical.'' However, in a March 15, 2001, decision of the United States 
Court of Appeals for the Fifth Circuit (Sierra Club v. U.S. Fish and 
Wildlife Service et al., 245 F.3d 434), the Court found our definition 
of destruction or adverse modification to be invalid. In response to 
this decision, we are reviewing the regulatory definition of adverse 
modification in relation to the conservation of the species.
    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, 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 system (GIS) coverages of 
documented 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 the Mine Hill 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 
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

[[Page 12867]]

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 final rule. The designated critical habitat is designed to 
provide sufficient habitat to maintain self-sustaining populations of 
S. keckii throughout its range and allow for the expansion of 
populations in order to help reach the primary goal of conservation, 
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 foothills of the 
Sierra Nevada Mountains containing open patches in which competing 
vegetation is relatively sparse; and
    (2) Serpentine soils or other soils that 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 
occurs 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 designating sufficient critical habitat at each site to 
maintain self-sustaining populations of S. keckii at each of these 
locations.
    During the development of this rule, we considered the role of 
unoccupied habitat in the conservation of Sidalcea keckii. Due to the 
historic loss of the habitat that supports this species, we believe 
that future conservation and recovery of this taxon depends not only on 
protecting it in the limited area that it currently occupies, but also 
on providing the opportunity to expand its distribution by protecting 
currently unoccupied habitat that contains the necessary primary 
constituent elements within its historic range.
    To help achieve our goal of conservation of Sidalcea keckii, we are 
including the White River site, despite the fact that S. keckii has not 
been documented there in recent years. The White River population is 
the type location where the plant was originally discovered and 
described from and still is documented to contain 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 appropriate site for a reestablishment effort. 
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 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

[[Page 12868]]

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), but instead show that the area contains Cibo clays. 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 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\1\ 
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 (R. 
Faubion, U.S. Bureau of Reclamation (BOR), pers. comm., 2002; C. Peck, 
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 UTM North American Datum of 1983 (NAD 83) coordinates which, 
when connected, provided the critical habitat unit boundaries. We 
include the legal description derived from the UTM coordinates for each 
unit in the 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, and paved 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.

Critical Habitat Designation

    Lands designated as critical habitat are under private and Federal 
jurisdiction and include one or more of the primary constituent 
elements described above. The approximate areas of critical habitat by 
land ownership are shown in Table 1.

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

    The three critical habitat units include the only two locations 
where Sidalcea keckii has been observed since the 1930s and the type 
locality. This later site may still be occupied by a seed bank, and is 
the most appropriate location to consider for reestablishment efforts. 
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) are 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.
    Recent surveys of the areas containing documented populations of 
Sidalcea keckii were conducted in 1998, 2000,

[[Page 12869]]

and 2001. 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 S. keckii growing on both 
Fancher and Cibo soils (C. Peck, in litt., 2002).
    This unit is essential to the conservation of the species because 
it is one of the two sites at which the species has been observed since 
the 1930s. 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 essential 
because it includes the most northerly location known for S. keckii, 
and is 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. However, based on information from public 
comment, the standing population at Mine Hill may have been extirpated 
by conversion of the habitat to an orange grove. We currently do not 
know how much habitat may have been converted, although we believe that 
much of the habitat around the original population remains potentially 
viable and may contain a seed bank or standing plants. The Coarsegold 
rock outcrop soils of the area are best suited to rangeland (SCS 1982), 
which is the current use of the area where not converted to orchard. 
However the site is also zoned for mobile home development (R. Brady, 
Tulare County Planning Department, pers. comm., 1997).
    This unit is essential to the conservation of the species because 
it is presumably one of the two known locations where Sidalcea keckii 
plants have been observed since the 1930s. 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 reestablishment 
effort 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(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 
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 and conclusion(s) 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

[[Page 12870]]

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. 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 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.
    Federal activities that may affect Sidalcea keckii or its critical 
habitat will require consultation under section 7 of the Act. 
Activities on private lands that require a permit from a Federal 
agency, such as a permit from the U.S. Army Corps of Engineers 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 (e.g., 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 unless the action would affect the species or 
primary constituent elements in adjacent designated critical habitat.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 of the Act 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.
    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 or underlying seed bank (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, clearing, tilling, grading, construction, 
road building, mining, 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).

Exclusions Under Section 4(b)(2)

    Subsection 4(b)(2) of the Act allows us to exclude areas from the 
critical habitat designation where the benefits of exclusion outweigh 
the benefits of designation, provided the exclusion will not result in 
extinction of the species. Following a review of available information 
from our files, public comments on the proposal, and the economic 
analysis of the proposed designation, we have determined that none of 
the lands proposed as critical habitat warranted exclusion from the 
final designation based on economic impacts or other relevant impacts 
pursuant to section 4(b)(2).

Relationship to Habitat Conservation Plans and Other Planning Efforts

    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. An incidental take permit application must be supported by 
a habitat conservation plan (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. Although take of 
listed plants is not generally prohibited by the Act on private land, 
listed plant species may also be covered in an HCP for wildlife 
species. Currently, no HCPs exist that include Sidalcea keckii as a 
covered species. However, we are currently working with PG&E on the 
development of an HCP on operations and maintenance activities. This 
HCP is intending to treat S. keckii as a covered species, and the area 
designated as critical habitat for S. keckii may overlap with the 
planning area for this HCP.
    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 habitat areas so that such activities will 
not adversely modify the primary constituent elements. The HCP 
development

[[Page 12871]]

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 
and conservation 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 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 concerned. Following the 
publication of the proposed critical habitat designation, we conducted 
a draft economic analysis to estimate the potential economic effect of 
the designation. The draft analysis was made available for review on 
October 31, 2002 (67 FR 66378). We accepted public comment on the draft 
analysis until December 2, 2002.
    Our economic analysis evaluated the potential future effects 
associated with the listing of Sidalcea keckii as an endangered species 
under the Act, as well as any potential effect of the critical habitat 
designation above and beyond those regulatory and economic impacts 
associated with listing. To quantify the proportion of total potential 
economic impacts attributable to the critical habitat designation, the 
analysis evaluated a ``without section 7'' scenario and compared it to 
a ``with section 7'' scenario. The ``without section 7'' baseline 
represented the level of protection currently afforded to the species 
under the Act if section 7 protective measures were absent, and 
includes protections afforded by other Federal, State, and local laws 
such as the California Environmental Quality Act. The ``with section 
7'' scenario identifies land-use activities likely to involve a Federal 
nexus that may affect the species or its designated critical habitat 
and which have the potential to be subject to future consultations 
under section 7 of the Act.
    Upon identifying section 7 impacts, the analysis proceeds to 
consider the subset of impacts that can be attributed exclusively to 
the critical habitat designation. The upper-bound estimate includes 
both jeopardy and critical habitat impacts (e.g., total section 7 
impacts). The subset of section 7 impacts likely to be affected solely 
by the designation of critical habitat represents the lower-bound 
estimate of the analysis. The categories of potential costs considered 
in the analysis included costs associated with: (1) Conducting section 
7 consultations associated with the listing or with the critical 
habitat, including reinitiated consultations and technical assistance; 
(2) modifications to projects, activities, or land uses resulting from 
the section 7 consultations; (3) uncertainty and public perceptions 
resulting from the designation of critical habitat; 4) potential 
indirect effects associated with the designation; and (5) potential 
offsetting beneficial costs associated with critical habitat including 
educational benefits. There may also be economic effects due to the 
reaction of the real estate market to critical habitat designation, as 
real estate values may be lowered due to a perceived increase in the 
regulatory burden.
    The analysis estimated that there will be seven future section 7 
consultations related to the proposed critical habitat designation for 
Sidalcea keckii. The seven consultations included a reinitiated 
programmatic consultation for oil pipeline maintenance, five informal 
consultations for private land acquisition using BOR funds, and one 
internal consultation by the Service to insure compliance with an HCP 
that is currently under development. The administrative cost of these 
consultations is estimated to range from $19,500 to $50,700 over a 10-
year period. No project modifications are expected to occur as a result 
of these consultations. The total consultation cost attributable solely 
to the critical habitat designation is estimated between $7,000 and 
$12,600 over a 10-year period, with the remainder attributable co-
extensively to the listing.
    Total costs resulting from technical assistance, formal and 
informal consultations, development of biological assessments, and 
project modifications due to listing and critical habitat designation 
are presented in the economic analysis, according to land use 
activities and individual critical habitat units. Costs incurred by 
third parties result from technical assistance, consultations, and 
development of a biological assessment. Costs to Federal action 
agencies include those incurred from consultations. Costs to the 
Service result from technical assistance and consultations.
    We did not receive any comments on the draft economic analysis of 
the proposed determination. Following the close of the comment period, 
the economic analysis was finalized. There were no revisions or 
additions to the draft economic analysis.
    A copy of the final economic analysis and supporting documents are 
included in our supporting record for this rulemaking and may be 
obtained by contacting the Sacramento Fish and Wildlife Office (see 
ADDRESSES section). Copies of the final economic analysis also are 
available on the Internet at http://pacific.fws.gov/news/.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, the Office of Management 
and Budget (OMB) has determined that this critical habitat designation 
is not a significant regulatory action. This rule will not have an 
annual economic effect of $100 million or more or adversely affect any 
economic sector, productivity, competition, jobs, the environment, or 
other units of government. This designation will not create 
inconsistencies with other agencies' actions or otherwise interfere 
with an action taken or planned by another agency. It will not 
materially affect entitlements, grants, user fees, loan programs, or 
the rights and obligations of their recipients. Finally, this 
designation will not raise novel legal or policy issues. Accordingly, 
OMB has not reviewed this final critical habitat designation.

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

    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

[[Page 12872]]

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 a 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. In this final rule, we are 
certifying that the critical habitat designation for Sidalcea keckii 
will not have a significant economic impact on a substantial number of 
small entities. The following discussion explains our rationale.
    Small entities include small organizations, such as independent 
nonprofit 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 (13 CFR 121.201). 
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.
    To determine if this rule would affect a substantial number of 
small entities, we consider the number of small entities affected 
within particular types of economic activities (e.g., housing 
development, grazing, oil and gas production, timber harvesting, etc.). 
We apply the ``substantial number'' test individually to determine if 
certification is appropriate. In some circumstances, especially with 
proposed critical habitat designations of very 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 consider whether their activities have any Federal involvement. 
Designation of critical habitat only has the potential to affect 
activities conducted, funded, or permitted by Federal agencies. In 
areas where the species is present, Federal agencies are already 
required to consult with us under section 7 of the Act on activities 
that they fund, permit, or implement that may affect Sidalcea keckii. 
Federal agencies must also consult with us if their activities may 
affect designated critical habitat. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation.
    As required under section 4(b)(2) of the Act, we conducted an 
analysis of the potential economic impacts of this critical habitat 
designation. In the analysis, we found that the future section 7 
consultations resulting from the listing of Sidalcea keckii and the 
proposed designation of critical habitat could potentially impose total 
economic costs for consultation and modifications to projects to range 
between approximately $19,500 to $50,700 over the next 10-year period.
    The primary land use activity within the three units is grazing. 
Additionally, Pacific Gas & Electricity also maintains two powerlines 
in Unit 1, and Southern California Gas operates and maintains oil 
pipelines within the boundaries of its Northern Service Territory, 
which include Unit 3. The analysis identified three categories of 
activities that will potentially require section 7 consultation with 
the Service in the next 10 years. These included informal consultations 
with the BOR on habitat acquisition; a reinitiation of a programmatic 
consultation with the Bureau of Land Management on oil pipeline 
operations and maintenance; and an internal section 7 consultation on 
an HCP currently under development. None of the remaining activities 
are foreseeable, have a Federal nexus, and are harmful to the plant or 
its habitat.
    In summary, we have considered whether this rule could result in 
significant economic effects on a substantial number of small entities. 
Our analysis concluded that the only economic costs likely to occur as 
a result of the critical habitat designation will be borne solely by 
Federal agencies, which do not qualify as small business entities. 
Therefore, we are certifying that the designation of critical habitat 
for Sidalcea keckii will not have a significant economic impact on a 
substantial number of small entities. Accordingly, a regulatory 
flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    OMB's Office of Information and Regulatory Affairs has determined 
that this rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. In the economic analysis, 
we determined whether designation of critical habitat would cause (a) 
any effect on the economy of $100 million or more, (b) any increases in 
costs or prices for consumers, individual industries, Federal, State, 
or local government agencies, or geographic regions, or (c) any 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of U.S.-based enterprises to 
compete with foreign-based enterprises. Refer to the final economic 
analysis for a discussion of the effects of this determination. We 
anticipate that this final rule will not place significant additional 
burdens on any entity.

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. This rule is not a 
significant regulatory action under Executive Order 12866. It is not 
expected to significantly affect energy supplies, distribution, or use. 
In our Economic Analysis, we did not identify energy production or 
distribution as being significantly affected by this designation, and 
we received no comments indicating that the proposed designation could 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action and no Statement of 
Energy Effect is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that they must ensure 
that any programs having Federal funds, permits, or other authorized 
activities must ensure that their actions will not adversely modify or 
destroy designated critical habitat.
    (b) This rule will not produce a Federal mandate on State, local, 
or Tribal governments of $100 million or greater in any year. The 
designation of

[[Page 12873]]

critical habitat imposes no obligations on State or local governments. 
Therefore, it is not a ``significant regulatory action'' under the 
Unfunded Mandates Reform Act

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 
designating approximately 438 ha (1,085 ac) of lands in Fresno and 
Tulare counties, California, as critical habitat for Sidalcea keckii. 
The takings implications assessment concludes that this final rule does 
not pose significant takings implications.

Federalism

    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 policy, we 
requested information from, and coordinated development of this 
critical habitat designation with, appropriate State resource agencies 
in California. We will continue to coordinate any future changes in the 
designation of critical habitat for Sidalcea keckii with the 
appropriate State agencies. Where the species is present, the 
designation of critical habitat imposes no additional restrictions to 
those currently in place and, therefore, has little incremental impact 
on State and local governments and their activities. The designation of 
critical habitat in unoccupied areas may require consultation under 
section 7 of the Act on non-Federal lands (where a Federal nexus 
occurs) that might otherwise not have occurred. 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 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 have designated critical 
habitat in accordance with the provisions of the Endangered Species 
Act, as amended. 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 (44 U.S.C. 3501 
et seq.). 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 that 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 Act. We published a 
notice outlining our reason for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244). This 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 federally recognized 
Tribes on a Government-to-Government basis. The designated 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 final rule is 
available upon request from the Sacramento Fish and Wildlife Office 
(see ADDRESSES section).

Author

    The primary authors of this final rule are Glen Tarr and Kirsten 
Tarp, 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, and Transportation.

Regulation Promulgation

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

PART 17--[AMENDED]

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

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


    2. In 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     Special
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         FLOWERING PLANTS
 
                                                                      * * * * * * *
Sidalcea keckii..................  Keck's checkermallow  U.S.A. (CA)........  Malvaceae--Mallow..  E                       685     17.96(a)           NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 12874]]


    3. In Sec.  17.96, amend paragraph (a) by adding an entry for 
``Family Malvaceae'' Sidalcea keckii in alphabetical order to read as 
follows:


Sec.  17.96  Critical habitat--plants.

    (a) * * *
    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 foothills of the 
Sierra Nevada Mountains containing open patches in which competing 
vegetation is relatively sparse; and
    (ii) Serpentine soils or other soils that tend to restrict 
competing vegetation.
    (3) Existing features and structures made by people, 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.
    (4) Critical Habitat Map Units
    (i) Data layers defining map units were created on a base of USGS 
7.5' quadrangles, and critical habitat units were then mapped using 
Universal Transverse Mercator (UTM) coordinates.
    (ii) Note: Index map follows:
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[[Page 12875]]

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[[Page 12876]]

    (5) 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) Note: Unit 1 map follows:

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[[Page 12877]]

[GRAPHIC] [TIFF OMITTED] TR18MR03.109

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    (6) Unit 2: Mine Hill Unit, Tulare County, California.
    (i) From USGS 1:24,000 quadrangle maps 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) Note: Unit 2 map follows:

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[[Page 12878]]

[GRAPHIC] [TIFF OMITTED] TR18MR03.110

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[[Page 12879]]

    (7) 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) Note: Unit 3 map follows:

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[[Page 12880]]

[GRAPHIC] [TIFF OMITTED] TR18MR03.111


    Dated: March 7, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-6132 Filed 3-17-03; 8:45 am]
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