[Federal Register Volume 70, Number 67 (Friday, April 8, 2005)]
[Rules and Regulations]
[Pages 18220-18241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6920]



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Part V





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Astragalus jaegerianus (Lane Mountain milk-vetch); Final 
Rule

  Federal Register / Vol. 70, No. 67 / Friday, April 8, 2005 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI78


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Astragalus jaegerianus (Lane Mountain milk-vetch)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating no critical habitat pursuant to the Endangered Species Act 
of 1973, as amended (Act), for Astragalus jaegerianus (Lane Mountain 
milk-vetch). In our April 6, 2004 proposed rule, we identified 29,522 
acres (ac) (11,947 hectares (ha)) of habitat essential for the 
conservation of A. jaegerianus located in the Mojave Desert in San 
Bernardino County, California. However, as a result of our evaluation 
of the relationship of essential habitat to sections 3(5)(A), 4(a)(3), 
and 4(b)(2) of the Act, we designate a total of zero acres (0 ac) (zero 
hectares (0 ha)).

DATES: This rule becomes effective on June 7, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in preparation of this final rule are available for 
public inspection, by appointment, during normal business hours at the 
Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 
Portola Road, Suite B, Ventura, CA 93003. The final rule, economic 
analysis, and map of proposed critical habitat are also available via 
the Internet at http://ventura.fws.gov.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Ventura Fish and 
Wildlife Office (telephone 805/644-1766; facsimile 805/644-3958).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to Species

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

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 470 species, or 38 percent 
of the 1,253 listed species in the U.S. under the jurisdiction of the 
Service, have designated critical habitat.
    We address the habitat needs of all 1,253 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
Section 4 recovery planning process, the Section 9 protective 
prohibitions of unauthorized take, Section 6 funding to the States, and 
the Section 10 incidental take permit process. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    We note, however, that a recent 9th Circuit judicial opinion, 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 
has invalidated the Service's regulation defining destruction or 
adverse modification of critical habitat. We are currently reviewing 
the decision to determine what effect it may have on the outcome of 
consultations pursuant to Section 7 of the Act.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). None of these costs results 
in any benefit to the species that is not already afforded by the 
protections of the Act enumerated earlier, and they directly reduce the 
funds available for direct and tangible conservation actions.

Background

    For background information on the biology of Astragalus 
jaegerianus, and a description of previous Federal actions, including 
our determination that designating critical habitat for this species is 
prudent, please see our April 6, 2004, proposed rule (69 FR 18018). On 
November 15, 2001, our decision not to designate critical habitat for 
A. jaegerianus and seven other plant and wildlife species was 
challenged in Southwest Center for Biological Diversity and California 
Native Plant Society v. Norton (Case No. 01-CV-2101-IEG (S.D.Cal.)). On 
July 1, 2002, the court ordered the Service to reconsider its not 
prudent

[[Page 18221]]

determination and if prudent, to propose critical habitat for the 
species by September 15, 2003, and, if prudent, to issue a final 
critical habitat designation no later than September 15, 2004. However, 
prior to completing the proposed rule, the Service exhausted the 
funding appropriated by Congress for work on critical habitat 
designations in 2003. On September 8, 2003, the court issued an order 
extending the publication date of the proposed critical habitat 
designation for A. jaegerianus to April 1, 2004, and the final 
designation to April 1, 2005. In light of Natural Resources Defense 
Council v. U.S. Department of the Interior, 113 F.3d 1121 (9th Cir. 
1997), and the diminished threat of overcollection, the Service 
reconsidered its decision and determined that it was prudent to 
designate critical habitat for the species. On April 6, 2004, we 
published a proposed critical habitat designation (69 FR 18018) that 
included 29,522 ac (11,947 ha). On December 8, 2004, we published a 
notice of availability of the draft economic analysis for the 
designation of critical habitat and reopened the comment period for the 
proposed rule and draft economic analysis. This second comment period 
closed on January 7, 2005.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for Astragalus jaegerianus in the 
proposed rule published on April 6, 2004 (69 FR 18018). We also 
contacted appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed rule. During the comment period that opened on April 6, 
2004, and closed on May 21, 2004, we received 11 comment letters 
directly addressing the proposed critical habitat designation: 2 from 
peer reviewers, 4 from Federal agencies, 1 from a local agency, and 4 
from organizations or individuals. During the comment period that 
opened on December 8, 2004, and closed on January 7, 2005, we received 
three comment letters addressing the proposed critical habitat 
designation and the draft economic analysis. Of these latter comments, 
two were from Federal agencies, and one was from an organization. Four 
of the six total comment letters from Federal agencies were from the 
Department of Defense (DOD). Three commenters supported the designation 
of critical habitat for Astragalus jaegerianus, three were neutral, and 
four opposed the designation. Two letters included comments or 
information, but did not express support or opposition to the proposed 
critical habitat designation. Comments received were grouped by source 
(peer review, Federal agency, local agency, and public comments) and 
are addressed in the following summary and incorporated into the final 
rule as appropriate. We received one request for a public hearing, but 
this request was later retracted by the requestor.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from Sustainable Ecosystems 
Institute and three other knowledgeable individuals with scientific 
expertise that included familiarity with the species, the geographic 
region in which the species occurs, or conservation biology principles. 
We received responses from two of the four peer reviewers. The peer 
reviewers generally concurred with our methods and conclusions and 
provided additional information, clarifications, and suggestions to 
improve the final critical habitat rule. Peer reviewer comments are 
addressed in the following summary and incorporated into the final rule 
as appropriate.

Peer Review Comments

    Comment 1: One peer reviewer appreciated our efforts to capture 
realistic functional habitats through the inclusion of appropriate 
buffers in the critical habitat designation, but was concerned that 
there may not be sufficient connectivity between the three units to 
allow for genetic exchange, and suggested that the intervening areas 
should be evaluated on a regular basis to ensure the populations do not 
become isolated.
    Our response: Three critical habitat units were proposed for the 
four known populations of Astragalus jaegerianus (69 FR 18018). The 
Goldstone and Montana Mine-Brinkman Wash populations were proposed as 
one critical habitat unit, preserving existing genetic connectivity 
between those two populations. We believe we had sufficient reason to 
propose contiguous critical habitat between the Goldstone and Montana 
Mine-Brinkman Wash populations because the 0.5-mile (mi) (0.8 
kilometers (km)) distance between them could easily be traversed by 
pollinators and seed dispersers (the two mechanisms for effecting 
genetic exchange between populations). However, because of the greater 
distance between the Brinkman Wash-Montana Mine population and the 
Paradise population (over 1.0 mi (1.6 km.)), and the Paradise 
population and Coolgardie population (3.0 mi (5 km)), we have no 
reasonable cause to believe that genetic exchange occurs between these 
populations on a regular basis. The intervening habitat between the 
Brinkman Wash-Montana Mine, Paradise, and Coolgardie populations does 
not contain the requisite primary constituent elements (PCEs, see 
Primary Constituent Elements section), nor is it suitable for the 
survival of A. jaegerianus. We believe that these populations of A. 
jaegerianus most likely are reproductively isolated. In addition, the 
distances between populations are greater than would be reasonably 
likely to support genetic exchange. All of these factors led us to 
believe these areas between units or populations are not essential to 
the conservation of the species and therefore we did not through the 
critical habitat process attempt to establish connectivity between 
these other populations.
    Comment 2: One peer reviewer commented that stigmatic fouling (a 
form of contamination that occurs to flowers, and which could decrease 
the ability to produce viable seed) by dust generated from vehicle 
traffic has been observed at a Nevada test site. At this site, dust 
traveled considerable distances to rare plant population sites. The 
peer reviewer recommended that dust generated from the DOD's training 
activities could impact the reproduction of Astragalus jaegerianus, and 
that, where necessary, buffers should be expanded on the windward sides 
of the critical habitat units to reduce this impact.
    Our response: We have contracted with the Biological Resources 
Division of the United States Geologic Survey (USGS) to study the 
potential effects of dust on the growth (as measured by leaf length) 
and rate of photosynthesis of Astragalus jaegerianus. Preliminary 
results indicate that applications of dust did not affect leaf growth, 
and photosynthesis increased; however, shoot length decreased 
(Wijayratne et al. 2004). Researchers hypothesize that heavily dusted 
plants compensate by putting more effort into new leaves and reducing 
the availability of resources for shoot growth. The potential effects 
of dust on stigmatic fouling have not been studied for this species nor 
do we have specific information concerning other dust effects on A. 
jaegerianus or its pollinators. Under the ESA, we base our critical 
habitat determinations on the best available science. The proposed 
units reflected the best available information on the effects of dust. 
Due to the lack of information supporting the

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need for increased buffers on the windward side, we did not expand the 
critical habitat units.
    Comment 3: The Service has not used the basic tenets of 
conservation biology in relation to minimizing fragmentation and 
maximizing connectivity between the proposed critical habitat units. 
Connectivity among occurrences, minimization or avoidance of 
fragmentation, and maximization of reserve size are all fundamental 
principles of basic reserve design that should be applied to 
delineating critical habitat boundaries. The Goldstone-Brinkman unit 
and the Coolgardie unit are particularly problematic because of their 
increased edge-to-area ratios, including the``donut hole'' (i.e., the 
nonessential area encompassed wholly within the Coolgardie unit) in the 
Coolgardie unit. Maintaining corridors to connect critical habitat 
units is particularly important to provide opportunities for dispersal 
of seed and for pollinators.
    Our response: We agree that maintaining connectivity between 
Astragalus jaegerianus populations is important when there is some 
reason to believe that genetic exchange is occurring through seed 
dispersal and cross-pollination. We intentionally connected the 
Goldstone and Montana-Brinkman populations because a number of 
biologically based criteria (including pollinator flight distances, 
seed disperser travel distances, and the presence of primary 
constituent elements (PCEs)) were met, indicating that the likelihood 
of genetic exchange between these two populations was high. Based on 
available information, however, we do not believe that genetic exchange 
is occurring between the Montana-Brinkman and Paradise populations, or 
the Paradise and Coolgardie populations, with any frequency. The 
distance between the former two populations is 1.4 mi (2.3 km), and the 
distance between the latter two populations is 3 mi (5 km); this 
distance is greater than that which can be traversed by the most likely 
seed-dispersing animals and by pollinators of A. jaegerianus. Moreover, 
unlike the corridor we included between the Goldstone and Montana-
Brinkman populations, the intervening habitat between these other two 
sets of populations contains topographic features, elevations, and 
vegetation types that do not contain the PCEs for A. jaegerianus (See 
Primary Constituent Elements section). As discussed above in response 
to comment 1, the Service does not consider this intervening habitat to 
be essential to the conservation of the species.
    We agree that maintaining a low edge-to-area ratio is generally an 
important criterion in reserve design; however, the designation of 
critical habitat does not establish a preserve or other conservation 
area. Ideally, those responsible for planning a reserve (e.g., the land 
manager) would take into consideration critical habitat as well as 
other criteria (such as edge-to-area ratio and land uses adjacent to 
the proposed reserve) in their planning process. In the specific case 
of the Coolgardie unit, although the ``donut hole'' technically 
increases the edge-to-area ratio considerably, the current and future 
uses of lands in the donut hole most likely would not have substantial 
edge effects on those lands within adjacent critical habitat. This is 
because these lands are primarily Bureau of Land Management (Bureau) 
lands that are managed under the ``limited'' and ``moderate'' use 
categories; among other restrictions, vehicle travel is restricted to 
approved routes of travel. Mining claims used for recreational purposes 
occur within the donut hole as well as within the proposed critical 
habitat boundaries on the Coolgardie unit. Although we do not believe 
them to be substantial, we recommend that the Bureau undertake an 
assessment of potential impacts of recreational mining on Astragalus 
jaegerianus regardless of critical habitat designation.
    Comment 4: Since the purpose of critical habitat designation is to 
facilitate recovery of the species, not merely to ensure the survival 
of individuals or populations (as per recent court cases) designating 
critical habitat between the proposed critical habitat units would not 
only reduce fragmentation but also create areas for recovery.
    Our response: The Goldstone-Brinkman unit encompasses both the 
Goldstone and Montana-Brinkman populations and the intervening habitat 
between these two populations. These two populations and the 
intervening habitat were proposed to be designated as one unit because 
the habitat includes PCEs, is suitable for Astragalus jaegerianus, and 
likely supports genetic exchange and serves as a dispersal corridor. 
This area was considered essential for conservation.
    The best information available to us at this time indicates that 
the rest of the habitat between the proposed critical habitat units is 
not suitable for A. jaegerianus nor is it essential to its 
conservation. These areas did not contain any PCEs and were not 
proposed to be designated as critical habitat. For additional 
discussion, please refer to comment 1 above.
    Comment 5: Proposed critical habitat on Fort Irwin should not be 
excluded on the basis of the DOD completing an Integrated Natural 
Resources Management Plan (INRMP). The failure to recognize (as the 
result of an exclusion) that a large portion of the habitat essential 
to maintaining Astragalus jaegerianus occurs on Fort Irwin would likely 
result in the long-term extinction of the species.
    Our response: Because Fort Irwin's INRMP is still in draft form, 
the statutory exemption for DOD lands covered by an approved INRMP is 
not applicable to Fort Irwin lands. Section 4(a)(3)(B) can not be 
applied at this time. However, in this final rule, all DOD lands at 
Fort Irwin are being excluded under Section 4(b)(2) for national 
security. Furthermore, Fort Irwin has undergone a Section 7 
consultation in association with its expansion. Among the commitments 
analyzed in the Biological Opinion are the preservation of two milk-
vetch populations in conservation areas set aside for milk-vetch 
preservation, and limiting military training activities in other areas 
to preserve milk-vetch plants and habitat. The Service's Biological 
Opinion concluded that activities associated with base expansion will 
not jeopardize the continued existence of Astragalus jaegerianus 
(Service 2004). For more information see comment 6 and the analysis 
underlying this exclusion in Application of Critical Habitat Under 
Section 3(5)(A), 4(a)(3)(B), and 4(b)(2) of the Act.

Federal Agency Comments

    Comment 6: The DOD has requested that its lands at Fort Irwin be 
excluded from final critical habitat designation based on an exclusion 
under section 4(a)(3)(B) of the Endangered Species Act (Act), as 
amended. Section 4 of the Act was amended through the National Defense 
Authorization Act for 2004 (Pub. L. 108-136). Section 4(a)(3)(B) of the 
Act states the Secretary shall not designate as critical habitat any 
lands controlled by DOD that are subject to an INRMP, if the Secretary 
determines that such a plan provides a benefit to the species for which 
critical habitat is proposed. DOD states that Fort Irwin's INRMP and 
attendant Endangered Species Management Plan (ESMP) meet the three 
criteria that the Service uses to evaluate such plans (see Application 
of Critical Habitat Under Section 3(5)(A), 4(a)(3)(B), and 4(b)(2) of 
the Act). First, the INRMP provides a conservation benefit to the 
species because over 8,000 ac (3,237 ha) will be placed under 
conservation status with training and access restriction. Second, 
funding is

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assured for conservation-related projects in the INRMP because they are 
given a ``must-fund'' priority within their program requirements 
(Hoefert, in litt. 2004). Third, the INRMP provides assurances that the 
conservation strategies will be effective by providing for periodic 
monitoring and revisions to management (adaptive management) as 
necessary. Additionally, the INRMP will be reviewed annually with the 
Service and other signatory parties to ensure the implementation and 
effectiveness of the conservation actions taken.
    Our response: Section 4(a)(3) of the Act prohibits the Service from 
designating as critical habitat any lands or other geographical areas 
owned or controlled by the DOD, or designated for its use, that are 
subject to an INRMP if the Secretary of the Interior determines in 
writing that such plan provides a benefit to the species for which 
critical habitat is being proposed. The current draft INRMP provides 
conservation measures and monitoring, which allows for an adaptive 
management strategy to be implemented. Because Fort Irwin's INRMP is 
still in draft form, however, Section 4(a)(3)(B) can not be applied at 
this time. However, in this final rule, all DOD lands at Fort Irwin are 
being excluded under 4(b)(2) based on potential impacts to national 
security and military readiness within the training area. For more 
information, see Application of Critical Habitat Under Section 3(5)(A), 
4(a)(3)(B), and 4(b)(2) of the Act.
    The Service has been working with the DOD on the development of the 
INRMP, particularly that portion which addresses Astragalus 
jaegerianus. We reviewed an initial draft in 2002; in late 2004 we 
reviewed several versions of the draft INRMP. Progress on the INRMP is 
continuing in early 2005; however, due to the lengthy process to secure 
review and approval from various entities (in addition to the Service, 
the INRMP is required to have review and approval from the California 
Department of Fish and Game (CDFG)), final approvals of the INRMP will 
likely not be in place by the time of this final rule. Once the entire 
INRMP is completed, the Service will review it pursuant to our 
guidelines for Sikes Act documents and consult with the DOD pursuant to 
section 7(a)(2) of the Act prior to final approval and signature.
    The service previously consulted with DOD with respect to its 
proposal to expand Fort Irwin (Service 2004). In this earlier 
consultation, we analyzed the effects of the DOD's proposed additional 
training activities and proposed conservation measures on Astragalus 
jaegerianus. Of the 11,378 ac (4,605 ha) of occupied A. jaegerianus 
habitat on Fort Irwin, approximately 4,600 ac (1,862 ha), or 40 percent 
of this habitat will be subject to high and medium intensity levels of 
use for military training; approximately 5,000 ac (2023 ha), or 43 
percent, will be placed in the two conservation areas and approximately 
1,870 ac (757 ha), or 17 percent, will be placed in the ``no-dig'' 
zone. DOD has proposed to establish the Goldstone Conservation Area 
(2,470 ac (1,000 ha)) and the East Paradise Valley Conservation Area 
(4,302 ac (1741 ha)). No mechanized training or ground-disturbing 
activities will be permitted within these areas; vehicle use will be 
restricted to existing roads, and the boundaries of the areas will be 
marked. In addition, a ``no-dig'' zone, a portion of which 
(approximately 2,000 ac (809 ha)) supports A. jaegerianus, will be 
restricted to certain uses. Digging and the establishment of tactical 
assembly areas and brigade support areas would be prohibited. We 
anticipate that, with the possible exception of road and communication 
site development, most of this area will remain undisturbed. 
Consequently, with few exceptions, we expect the Lane Mountain milk-
vetch in the ``no-dig'' zone to persist with little disturbance. DOD is 
also proposing to assist the Bureau with the acquisition of private 
lands within the proposed Coolgardie Area of Critical Environmental 
Concern (ACEC) that is also being established for the conservation of 
A. jaegerianus, and to implement an education program for military 
personnel concerning the importance of minimizing disturbance to A. 
jaegerianus and its habitat. These conservation measures, as assessed 
in our biological opinion, have been carried into Fort Irwin's INRMP in 
total.
    The military training activities will ultimately result in the loss 
of up to 4,600 ac; this amount comprises approximately 21.5 percent of 
the total known habitat for this species. Some areas supporting A. 
jaegerianus within the training areas are inaccessible to vehicles and 
thus may not be used in a way that impacts the plants. However, due to 
the large extent of the expansion area and the lack of more detailed 
information concerning the location of A. jaegerianus plants, 
topographic features such as rock outcrops throughout this area, and 
the precise intensity and type of use by the Army, we were unable to 
analyze effects at that level that would allow us to identify and 
quantify the lands where A. jaegerianus may not be affected by 
training. We note that, to ensure we would not overestimate the 
contribution of the A. jaegerianus in these areas to the conservation 
of the species, our analysis was based on the assumption of all of the 
plants in these areas being lost. With the proposed conservation 
measures, 78.5 percent of the total known habitat for the species will 
be placed under some form of conservation management--either in the two 
conservation areas or the ``no-dig'' zone on Fort Irwin lands, or in 
the proposed ACEC on Bureau lands. Based on the information available 
at this time, although there would be loss of A. jaegerianus plants and 
habitat due to military training activities, the remaining portions of 
the occurrences support dense aggregations of plants and are of 
sufficient size for the ecosystems that A. jaegerianus depends on to 
persist (Service 2004).
    Comment 7: The DOD requested that its lands at Fort Irwin be 
excluded from final critical habitat designation based on an exclusion 
under section 4(b)(2) of the Endangered Species Act (Act), as amended. 
This section of the Act states that the Secretary may exclude any area 
from critical habitat if she determines that the benefits of such 
exclusion outweigh the benefits of specifying such areas as part of the 
critical habitat, unless she determines, based on the best scientific 
and commercial data available, that the failure to designate such areas 
as critical habitat will result in the extinction of the species 
concerned. DOD cites that ``[w]e may exclude an area from designated 
critical habitat based on economic impacts, the effect on national 
security, or other relevant impacts.'' (Hoefert, in litt. 2004) The DOD 
stated that the National Training Center (NTC) at Fort Irwin is 
essential to national security in that it provides the only military 
installation suited for live maneuver training of heavy brigade and 
battalion task forces. Should restrictions to maneuver training result 
from the designation of critical habitat, such as reducing flexibility 
in use of training lands, closing of areas, or training delays to allow 
for reinitiation of consultation for critical habitat, it will have a 
direct impact on the Army's training cycle, unit readiness, and 
national security.
    Our response: In this final rule, we are excluding all DOD lands at 
Fort Irwin under section 4(b)(2) due to national security (see 
Application of Critical Habitat Under Section 3(5)(A), 4(a)(3)(B), and 
4(b)(2) of the Act). Section 4(b)(2) of the Act states that critical 
habitat shall be designated and revised on the basis of the best 
scientific data available after taking into consideration the economic 
impact, the impact on national security, and any

[[Page 18224]]

other relevant impact of specifying any particular area as critical 
habitat. An area may be excluded from critical habitat if we determine, 
following an analysis, that the benefits of such exclusion outweigh the 
benefits of specifying a particular area as critical habitat, unless 
the failure to designate such area as critical habitat will result in 
the extinction of the species. Consequently, we may exclude an area 
from designated critical habitat based on economic impacts, or other 
relevant impacts such as preservation of conservation partnerships and 
national security. In this case, as discussed more fully below, we have 
determined in the 4(b)(2) analysis that the DOD lands on Fort Irwin may 
be excluded from the critical habitat designation.
    Comment 8: DOD commented that the only potential benefit of 
designation of critical habitat on Fort Irwin lands would be the 
prohibition of destruction or adverse modification of critical habitat 
under section 7 of the Act. However, since all proposed lands are 
occupied, DOD states that any proposed action that would result in 
destruction or adverse modification would also result in jeopardy. DOD 
commented that since they have already consulted on the land expansion 
and received a nonjeopardy determination, the proposed training 
activities should not result in the extinction of the species.
    Our response: We have evaluated the benefits of designation in our 
4(b)(2) analysis within this document.
    Comment 9: The creation of artificially large buffer areas around 
the Astragalus jaegerianus populations and their inclusion as critical 
habitat has no scientific basis. The logic of including every known 
plant and the associated 100-to-200-meter (m) (328-to-656-feet (ft)) 
buffer is questionable, especially in light of the fact that the 
current known amount of A. jaegerianus is over 20 times larger than the 
amount that was believed to exist when it was listed as endangered.
    Our response: The numbers of individuals and the range of 
Astragalus jaegerianus are now known to be larger than they were at the 
time the species was listed (October 6, 1998, 63 FR 53596). However, we 
also know more now about the life history of the species and about the 
extent of the threat its habitat faces from proposed military 
activities. Rundel et al. (2004) tracked over 200 A. jaegerianus at 5 
locations between 1999 and 2004 and found that less than 15 percent of 
them had survived over the 5-year time period. This research indicates 
that successful recruitment (addition of individuals to a population by 
reproduction) is correlated with, among other factors, annual 
precipitation of at least 15 centimeters (cm) (5.9 inches (in)). Annual 
precipitation between 12 cm (4.7 in) and 15 cm (5.9 in) may represent 
years when established individuals continue to persist; annual 
precipitation between 7 (2.8 in) and 12 cm (4.7 in) may be years when 
some individuals die due to water stress; and annual precipitation of 
less than 7 cm (2.8 in) may be years when many individuals die due to 
water stress or remain dormant. The level of annual precipitation 
needed for recruitment (more than 15 cm (5.9 in)) has not occurred 
since 1998 and it appears that the numbers of individuals of A. 
jaegerianus have been in decline since that time. If the length of time 
between years favorable for recruitment is longer than the average 
lifespan of individuals, then the species will be dependent on the 
seedbank to re-establish above-ground populations. Therefore, it is 
important to acknowledge that the numbers of individuals of A. 
jaegerianus fluctuate over time, not only from year to year, but from 
one decade to the next, depending on long-term climatic trends, and 
that maintaining habitat of suitable quality is important to maximize 
the reproductive potential of the species during climatically favorable 
years.
    We did not include ``artificially large buffer areas'' around the 
Astragalus jaegerianus populations in our proposed designation, and in 
fact we did not include buffer areas. As explained in our proposed rule 
in the Methods section, any lands additional to those occupied by 
plants include the granitic soils and plant communities (primary 
constituent elements) that support A. jaegerianus and are well within 
the distance that can be traversed by pollinators and seed dispersers. 
We expect these areas have seed banks. Moreover, additional lands were 
not included if the topography was too steep or the elevation was too 
high to support additional A. jaegerianus individuals. We therefore 
believe our approach for including these additional lands in the 
proposed designation was scientifically sound.
    Comment 10: The National Aeronautics and Space Administration 
(NASA) commented that the Astragalus jaegerianus individuals on lands 
they lease from the DOD in what is known as the Venus Research and 
Development site do not significantly contribute to the overall milk-
vetch population, and therefore should not be considered in the 
critical habitat designation.
    Our response: Because this NASA area is a lease holding within 
DOD's Ft. Irwin, we are excluding this area under 4(b)(2) for national 
security. NASA has indicated that this area is vital to their future 
space exploration efforts and that critical habitat in this area will 
severely limit their ability to develop cutting edge space 
communications vital to extended missions to the Moon and planet Mars. 
Furthermore, about 600 of 996 acres (403 ha) of DOD lands DOD leased to 
NASA, are covered under DOD's Goldstone Conservation Area. The 
Goldstone population of the milk-vetch supports approximately 500 
plants. As discussed in comment 6, these areas are managed by DOD for 
the conservation of the plant (where there will be no mechanized 
training or ground-disturbing activities permitted within these areas), 
further supporting our exclusion under section 4(b)(2) of the Act.
    We have no information suggesting that these individuals contribute 
any less to the population than other individuals, and we believe we 
have biological basis for considering them to be essential. However, we 
have excluded this area for other reasons (see Application of Critical 
Habitat Under Section 3(5)(A), 4(a)(3)(B), and 4(b)(2) of the Act).
    Comment 11: NASA comments that its research and development 
projects are critical to future space exploration efforts and the 
additional regulatory constraints imposed by critical habitat in the 
Venus site will severely limit their ability to develop cutting edge 
space communications vital to extended missions to the moon and the 
planet Mars.
    Our response: Because the amount of habitat and number of 
individuals of A. jaegerianus that occur on NASA-leased lands is less 
that one percent of the total extent of the species, we do not believe 
that critical habitat would result in regulatory constraints to the 
extent that it would severely limit their ability to carry out their 
research and development programs. However, we have excluded this area 
for other reasons (see Application of Critical Habitat Under Section 
3(5)(A), 4(a)(3)(B), and Section 4(b)(2) of the Act). See comment 10 
for additional information.
    Comment 12: The Bureau of Land Management requested that we 
reconsider whether designation of critical habitat on Bureau-
administered lands in the Paradise and Coolgardie areas is necessary or 
appropriate. The Bureau stated that we are authorized by the Act 
[sections 4(b)(2) and 3(5)(A)] to exclude areas covered by adequate 
management plans or agreements (including HCPs), and that provide for

[[Page 18225]]

adequate protection of the primary constituent elements of such 
habitat. The final Environmental Impact Statement (EIS) of the West 
Mojave Plan (WMP) was published on April 1, 2005 and includes an 
amendment to the Bureau's California Desert Conservation Area Plan and 
makes reference to future development of an HCP; the companion HCP for 
non-Federal lands within the planning area is currently under 
development. The WMP includes provisions for establishing two new 
conservation areas for Astragalus jaegerianus (Coolgardie Mesa and West 
Paradise ACECs) and a set of management actions that are applicable to 
these areas that will contribute to the conservation of A. jaegerianus.
    Our response: The Service has been working with the Bureau and 
other participating agencies in the development of the WMP over the 
last decade. Although the final EIS for the WMP has been published, the 
WMP is not final because the Record of Decision (ROD) has not yet been 
signed; we expect the ROD to be signed in the near future. We have 
provided comments to the Bureau on its proposed measures to conserve 
Astragalus jaegerianus on early versions of the draft plan and believe 
that these measures will provide a conservation benefit to the species. 
We have applied the three criteria by which we evaluate the 
effectiveness of conservation measures included in management plans 
(see Application of Critical Habitat Under Section 3(5)(A), 4(a)(3)(B), 
and Section 4(b)(2) of the Act) and have made a finding that 
conservation measures contained in the WMP for A. jaegerianus will 
provide for adequate protection of the species and its habitat; 
therefore, special management and protections would not be required. 
However, to the extent that these specific areas meet the definition of 
critical habitat pursuant to section 3(5)(A)(i)(II) of the Act, we are 
excluding under section 4(b)(2) the entire Coolgardie unit and the 
portion of the Paradise unit that is on Bureau lands from final 
critical habitat designation. For our justification, please see, 
Relationship of Critical Habitat to Lands Managed by the Bureau of Land 
Management.

Local Agency Comments

    Comment 13: The County of San Bernardino questions whether 
additional populations of Astragalus jaegerianus might be located in 
the future since the DOD-sponsored surveys focused on Fort Irwin lands. 
If additional populations are found in the future, the County is 
concerned as to whether these lands would also be included in critical 
habitat.
    Our response: The DOD-sponsored surveys included a reconnaissance 
phase in which additional sites up to 30 miles away from known 
Astragalus jaegerianus populations that had suitable substrate, 
elevation, and plant communities were also checked (Charis Corporation 
2001). Although it is possible that other populations may be located in 
the future, the reconnaissance surveys lead us to believe that this is 
unlikely. We are required to use the best information available at the 
time a critical habitat designation is proposed; if other populations 
are located in the future on nondesignated lands, those lands could be 
designated as critical habitat only through another regulatory process. 
However, if other lands are found that support A. jaegerianus 
populations but critical habitat is not designated on these lands, this 
lack of designation does not signify that these lands are any less 
important to the conservation and recovery of the species.
    Comment 14: Critical habitat should not be used to cancel or impede 
the determination the Service has already made in its biological 
opinion that the expansion of training at Fort Irwin will not cause 
jeopardy to the species.
    Our response: We have excluded all DOD lands at Fort Irwin on the 
basis of 4(b)(2) of the Act. If we had designated critical habitat for 
Astragalus jaegerianus on Fort Irwin lands, any re-initiation of formal 
consultation on its critical habitat would be conducted under section 
7(a)(2) of the Act.
    Comment 15: What kind of assessment has there been of the effects 
that the potentially impacting activities discussed under the Effects 
of Critical Habitat Designation in the proposed rule (such as grazing, 
fire management, vehicle disturbance, and mining activities) have 
actually had on the population size and distribution of the species? 
What effects have historic mining activities had on the species beyond 
the boundary of actual operations?
    Our response: Quantitative monitoring to correlate the nature and 
extent of impacts with population parameters has not yet been 
initiated; DOD has proposed to initiate such monitoring as a part of 
its INRMP and ESMP. Nevertheless, there is an abundance of literature 
that discusses impacts of various activities (such as grazing, fire 
management, vehicle disturbance, and mining) on desert habitats which, 
in general, are less resilient to such impacts and take longer to 
recover than more mesic habitats (see Webb and Wishire 1983; Latting 
and Rowlands 1995; U.S. Geologic Survey, 2004 and DOD Integrated 
Training Area Management (ITAM) workshop proceedings (http://srp.army.mil.public/workshop)). Impacts that affect the plant community 
within which Astragalus jaegerianus occurs will also impact A. 
jaegerianus.
    The commenter notes that ``much of the area has undergone historic 
mining exploration and activity'' and questions whether this really had 
an effect on the species. Although mining historically occurred over 
much of the area included in the proposed Coolgardie critical habitat 
unit, the activity typically consisted of digging small test pits. 
While the number of pits dug may be numerous, they typically were so 
small that collectively they affected a very small percentage of the 
land within the proposed critical habitat unit. A proliferation of dirt 
roads associated with this mining activity resulted in a loss of 
habitat and an increase in habitat fragmentation in the Coolgardie 
area. While an assessment of historical impacts due to mining activity 
may be difficult to do, we have suggested to the Bureau that they 
undertake an assessment of impacts due to current mining activity on 
their lands.
    Comment 16: The description of the proposed critical habitat 
designation by Universal Transverse Mercator (UTM) coordinates is not 
acceptable, as the effects of the designation cannot correctly be tied 
to properties on the ground, especially for private landowners.
    Our response: Our regulations (50 CFR 17.94(b) and 50 CFR 
424.12(c)) set forth the requirements for describing areas included in 
a critical habitat designation. We are required to provide legal 
definitions of the boundaries. For this purpose, the boundaries for 
critical habitat provided as UTM North American Datum coordinates are 
used to describe the critical habitat boundaries. Since no critical 
habitat is being designated, there are no maps or descriptions in this 
rule.

Public comments

    Comment 17: One commenter said that procedures as per 16 U.S.C. 
1533(a)(3)(A) for the designation of critical habitat were not 
followed; specifically, best scientific data are unavailable to 
interested parties and therefore they presume that the available data 
are both insufficient and inaccurate. The commenter requested the 
``best scientific data available'' that the proposed designation was 
based on as well as any comments made by the

[[Page 18226]]

State of California or the County of San Bernardino.
    Our response: We sent the commenter the list of references cited in 
the rule and offered to send any particular references in which he was 
interested. We also forwarded comments we received from the County of 
San Bernardino.
    Comment 18: An economic analysis is required to be provided ``not 
less than 90 days before the effective date of the regulation'' 
designating critical habitat.
    Our response: A notice (69 FR 70971) announcing the availability of 
the draft economic analysis and reopening the comment period on the 
proposed critical habitat designation was published in the Federal 
Register on December 8, 2004. The public had an opportunity to comment 
on the economic analysis, and that opportunity was provided not less 
than 90 days before the effective date of the regulation. The comment 
period closed on January 7, 2005.
    Comment 19: Exclusion of DOD and Bureau lands from critical habitat 
based on section 3(5)(A) of the Act would be unlawful because public 
funds and public lands (e.g., Bureau lands) cannot be used to mitigate 
the taking of threatened and endangered species by private applicants 
and for private purposes, such as is being proposed in the West Mojave 
Plan (WMP) and the Fort Irwin Expansion Plan. The commenter cites 
U.S.C. 1539(a)(2)(A)(ii) [identical to section 10(a)(2)(A)] and 43 
U.S.C. 869.
    Our response: The conservation measures proposed by the DOD as part 
of its proposal to use additional training lands at Fort Irwin include 
the acquisition of private lands and the restoration of disturbed areas 
on public lands to offset the loss of habitat that will result from 
training activities. The DOD is a Federal agency and is undertaking 
these activities as part of its federally mandated mission. Therefore, 
the DOD's activities do not mitigate any effects of a project of any 
private party.
    The cited section, 16 U.S.C. 1539(a)(2)(A)(ii) requires that an 
applicant (not a Federal agency) for an incidental take permit specify 
the funding that will be available to minimize and mitigate impacts to 
the species. If the Service issues an incidental take permit to local 
governments as part of the West Mojave Plan, funds may be generated by 
development proposed by both private parties and State and local 
agencies as a means of mitigating the impacts of the loss of habitat on 
species covered by the plan. These funds may be used to acquire private 
lands and to restore disturbed areas on public lands to promote the 
conservation of the covered species. Section 10(a)(1)(B) of the Act, 
its implementing regulations, and our policies do not prohibit the use 
of monies generated as a result of the permitting process in the 
funding of restoration activities on public lands; public lands, in and 
of themselves, cannot be used to mitigate for the impacts of private 
activities (Service 1996).
    Finally, one component of the West Mojave Plan is a formal 
amendment, by the Bureau of Land Management, of the California Desert 
Conservation Area Plan. This amendment will apply only to the Bureau's 
(i.e., public) lands. Consequently, no component of this amendment 
would involve the use of public funds or lands to mitigate the impacts 
of private activities.
    Comment 20: The Service is proposing to close public lands to 
recreational activities that were previously dedicated to this purpose. 
Cities and counties that use these public lands for recreation would 
then be in violation of the Quimby Act (California State Code 66477). 
Furthermore, the economic impact of making these lands unavailable for 
dedication to recreational purposes under the Quimby Act would exceed 
100 million dollars.
    Our response: The Service is not closing any lands as a result of 
designating critical habitat. The designation of critical habitat does 
not affect land ownership or establish a refuge, wilderness, reserve, 
preserve, or other conservation area. Federal lands managed by the 
Bureau are managed to provide for balanced stewardship of the lands and 
resources for all people. The Federal Lands Policy and Management Act 
of 1976 (FLPMA) provided for the establishment of the California Desert 
Conservation Area (CDCA) and required development of a management plan 
for this area. Different parts of the CDCA are managed for different 
purposes, depending on the sensitivity of the resources, public uses, 
and other factors such as health and safety. The Bureau lands in the 
area of Coolgardie Mesa that were proposed as critical habitat were 
previously designated through the CDCA plan as class L (limited) and M 
(moderate) use lands, indicating that certain uses were appropriate and 
others were not. With respect to recreation, because these lands are 
already classed as limited or moderate use, vehicle use is already 
restricted to approved routes of travel.
    The Quimby Act does not apply to any of the lands within the 
proposed Coolgardie Unit. The purpose of the Quimby Act was to provide 
for parkland and open space for recreational purposes to help mitigate 
the impacts of property development. The lands on Coolgardie Mesa are 
remote from any cities or urban areas; therefore, Coolgardie Mesa would 
not be an appropriate location for any city or urban area that may need 
to set aside lands within its boundaries for recreation. However, for 
unrelated reasons, we have excluded this area from the critical habitat 
designation (see Application of Critical Habitat Under Section 3(5)(A), 
4(a)(3)(B), and 4(b)(2) of the Act).
    Comment 21: There are numerous small businesses that will be 
affected by the proposed critical designation because they will have to 
pay a fee for recreation facilities in accordance with the Quimby Act. 
The Service needs to comply with the Regulatory Flexibility Act by 
taking into consideration these costs.
    Our response: We disagree that numerous small businesses will be 
affected, based on the economic analysis that was made available on 
December 8, 2004, which addresses the economic impacts to several 
sectors, including recreational miners and OHV users. The economic 
analysis concluded that few, if any, impacts will affect these two user 
groups.
    Comment 22: This proposal requires that an environmental impact 
statement be prepared because the proposal would devastate the urban 
outdoor recreation facilities that were previously designated under the 
Outdoor Recreation Act of 1963. The commenter also cites a number of 
State regulations, such as the Off-Highway Motor Vehicle Recreation Act 
of 1988, the California Outdoor Recreation Resources Plan Act of 1967, 
the California Recreation Trails Act of 1974, and the Federal Outdoor 
Recreation Act of 1963, to make the point that critical habitat 
designation in the Coolgardie unit would severely impact the supply of 
outdoor recreation resources and facilities in the State.
    Our response: We disagree that a critical habitat designation in 
the Coolgardie Unit would severely impact outdoor recreation. The 
Bureau has been responsible for the management of the lands in this 
area since 1946 when the agency was formed. The Bureau has not 
designated any recreation areas or facilities within the proposed 
Coolgardie unit. This area is almost entirely within lands classed for 
limited and moderate use, which restricts vehicle use to approved 
routes of travel.
    Furthermore, the Service is not required to conduct an 
environmental impact statement or environmental assessment per the 
National

[[Page 18227]]

Environmental Policy Act (NEPA) for the proposed critical habitat 
designation. We published a notice in the Federal Register on October 
25, 1983 (48 FR 49244), outlining the reasons for our determination 
that an environmental analysis as defined by the NEPA is not required 
when designating critical habitat under the Endangered Species Act of 
1973, as amended. This position has been approved by the Ninth Circuit 
Court of Appeals (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 
Ore. 1995), cert. denied 116 S. Ct. 698 (1996)).
    Comment 23: One commenter asked why the Service would consider 
providing critical habitat for this ``loco weed,'' if, as we have 
stated, [``the Service has found that the designation of statutory 
critical habitat provides little additional protection to most listed 
species, while consuming significant amounts of available conservation 
resources.''
    Our response: Section 4(b)(2) of the Act directs us to consider the 
designation of critical habitat at the time the species is listed. On 
November 15, 2001, our failure to follow these regulations in 
designating critical habitat for Astragalus jaegerianus and seven other 
plant and wildlife species was challenged in Southwest Center for 
Biological Diversity and California Native Plant Society v. Norton 
(Case No. 01-CV-2101-IEG (S.D.Cal.)). Our court settlement obligated us 
to pursue the designation of critical habitat within certain 
timeframes.
    ``Locoweed'' is a term given to certain species of Astragalus, that 
accumulate selenium in alkaline soils, which when eaten by livestock is 
toxic. This term does not apply to Astragalus jaegerianus because it is 
not a selenium accumulator.
    Comment 24: One commenter was not convinced that this species needs 
protection; the commenter thinks that species are being counted as 
subspecies and populations, and believes that the data do not always 
show a direct correlation between human activities and species decline.
    Our response: Astragalus jaegerianus is not being counted as a 
subspecies or populations (however, please note that the Endangered 
Species Act directs us to treat subspecies and varieties of plants as 
full species for purposes of the Act). In his monograph on the genus 
Astragalus, Barneby (1964) placed this species in its own monotypic 
section of the genus, indicating its distinctness from other species of 
milk-vetch. Current taxonomic treatments of the genus uphold the 
distinctness of this taxon (Spellenberg 1993).
    We frequently use data gathered on other species or their habitats 
and how they respond to various types of disturbance to infer that 
similar processes are occurring for the species of interest. We have 
performed this type of analysis for Astragalus jaegerianus. Human 
impacts on desert ecosystems have been studied, and therefore we have a 
body of literature to reference. For instance, we know the soils and 
plant communities of desert ecosystems are less resilient than other 
ecosystems in recovering from the effects of vehicular traffic (e.g., 
see Latting and Rowlands 1995; Webb and Wilshire 1983; Prose and 
Metzger 1985). Because we know the structure and composition of desert 
plant communities is altered by vehicular traffic, and because we know 
that A. jaegerianus depends on particular shrub communities, we infer 
that if those shrub communities are destroyed or eliminated by 
vehicular traffic, then A. jaegerianus will also be destroyed or 
eliminated.
    Comment 25: Critical habitat cannot close the Coolgardie area to 
mineral prospecting; this can only be done through a process of 
withdrawal of areas from mineral entry as specified in FLPMA.
    Our response: We concur that the designation of critical habitat 
would not close the Coolgardie area to mineral entry. We note that the 
Bureau has proposed to withdraw the Coolgardie area from mineral entry 
in the WMP; however, a withdrawal request has not been prepared at this 
time. We also note that, even if a withdrawal from mineral entry were 
enacted, it would only preclude the possibility of new claims being 
filed; valid existing claims would not be affected, and claims found to 
be invalid would be vacated.
    Comment 26: One commenter had concerns about the potential 
exclusion of critical habitat from military lands based on an updated 
INRMP. With over half of the proposed critical habitat occurring on 
Fort Irwin, the commenter claims that the ultimate result of such 
exclusion could be extinction of the species. The DOD's current 
proposal would eliminate 21.5 percent of Astragalus jaegerianus 
habitat, including 66 percent of the Montana-Brinkman population and 20 
percent of the Paradise Valley population. If the INRMP is to be used 
as an exclusion, it would have to recognize that critical habitat is 
the minimum standard for conservation and should not be subjected to 
training.
    Our response: Since Fort Irwin's INRMP is still in draft form, 
Section 4(a)(3)(B) can not be applied at this time. Because the DOD has 
stated that Fort Irwin is essential to national security, we have 
excluded this area from critical habitat under section 4(b)(2) of the 
Act.
    In 2004, we completed a biological opinion on the Army's proposed 
expansion of military training at Fort Irwin in which we determined 
that, even though individuals and habitat of Astragalus jaegerianus 
would be lost due to training, the DOD's proposed activity would not 
cause jeopardy to the species. In connection with that consultation, 
DOD proposed conservation measures, such as imposing restrictions on 
certain portions of the habitat and implementing an education program 
for the species (see comment 6), that the Service believes will provide 
conservation benefits to the species. The draft INRMP contains these 
same measures. We believe that the measures that the Army has proposed 
to conserve A. jaegerianus in the draft INRMP, which are identical to 
those that we consulted with DOD on, would be sufficient to provide for 
the survival of the species.
    Comment 27: The Service should not use the proposed designation to 
undermine the utility of the important and legally mandated 
conservation tool. In cases such as Forest Guardians v. Babbit (1998) 
and Arizona Cattlegrowers v. FWS (2001), courts have agreed that there 
are benefits to designation, such as providing information that would 
assist in prioritizing conservation planning and management efforts, 
and avoiding the piecemeal conservation approach when species 
management is fragmented into smaller planning entities. Furthermore, 
critical habitat was intended to require a recovery standard, which 
incorporates consideration of cumulative impacts beyond the piecemeal 
jeopardy standard.
    Our response: The process of proposing critical habitat has 
provided informational benefits for planning the conservation and 
management of Astragalus jaegerianus. Unlike other species that may 
range over a larger number of jurisdictions and land management 
agencies, as of 2004 when the proposed critical habitat designation was 
prepared, 85 percent of the range of A. jaegerianus occurred primarily 
under the jurisdiction of two Federal agencies--the Department of the 
Army and the Bureau of Land Management; this has facilitated 
conservation planning for this species (as of February 2005, 92 percent 
of the range of the species occurs on Federal lands). Even prior to the 
listing of the species in 1998, we coordinated with these two

[[Page 18228]]

agencies to ensure that they were including measures to conserve and 
manage habitat for A. jaegerianus appropriately during the course of 
their proposed activities. Aside from the lands that are proposed for 
active military training by DOD on Fort Irwin, all other federal lands 
on Fort Irwin, including most of the NASA-leased lands, and all lands 
managed by the Bureau that are habitat for A. jaegerianus are being 
managed primarily for the conservation of the species. Although some 
private lands are interspersed with Bureau lands within the proposed 
critical habitat boundaries, critical habitat for plant species carries 
no additional requirements for private landowners unless there is a 
Federal nexus. In the case of the private lands where A. jaegerianus 
occurs, most of these will be purchased by the Army and managed by the 
Bureau as parts of the Paradise Valley ACEC and Coolgardie ACEC; as of 
February 2005, over 50 percent of the private lands have already been 
purchased. The designation of critical habitat for plant species on 
private lands confers no regulatory authority unless there is a Federal 
nexus. The County of San Bernardino, the agency that has jurisdiction 
over private lands in this area, has been alerted through the critical 
habitat designation process of the value of these lands to the 
conservation of A. jaegerianus, and should take this into consideration 
during its permitting processes.
    Section 7 requires that federal agencies ensure that activities 
they undertake not jeopardize the continued existence of a listed 
species or adversely modify or destroy its designated critical habitat. 
The processes for determining whether jeopardy and adverse modification 
are likely to occur involve analyzing the same types of information 
from the same time frames (i.e., the current rangewide condition of the 
species and its critical habitat, the current condition of the species 
and its critical habitat in the action area, the effects of the action 
under review on the species and its critical habitat, and the effects 
of any future non-Federal action that is reasonably certain to occur 
within the action area). The courts have invalidated the Service's 
definition of adverse modification of critical habitat. The Service is 
currently reviewing the decision to determine what effect it may have 
on the outcome of section 7 consultations. We believe that the actions 
to be undertaken by the Bureau through the WMP, and by DOD through the 
INRMP, provide conservation benefits which exceed those that would 
arise from the designation of critical habitat, because the WMP and 
INRMP provide positive conservation measures, such as monitoring and 
fencing of certain portions of the habitat, rather than just avoiding 
adverse modification.

Economic Issues

    Comment 28: The Service should devote as much time, energy, and 
language to the estimation of economic benefits and costs in relation 
to the proposed critical habitat. The commenter provided us with a list 
of potential economic impacts that should be included in the analysis.
    Our Response: Section 4(b)(2) of the Act requires the Secretary to 
designate critical habitat based on the best scientific data available 
after taking into consideration the economic impact, and any other 
relevant impact, of specifying any particular area as critical habitat. 
Our approach for estimating economic impacts includes both economic 
efficiency and distributional effects. The measurement of economic 
efficiency is based on the concept of opportunity costs, which reflect 
the value of goods and services foregone in order to comply with the 
effects of the designation (e.g., lost economic opportunity associated 
with restrictions on land use). Where data are available, our analyses 
do attempt to measure the net economic impact. For example, if the 
fencing of Astragalus jaegerianus habitat to restrict motor vehicles 
results in an increase in the number of individuals visiting the site 
for wildlife viewing, then our analysis would attempt to net out the 
positive, offsetting economic impacts associated with their visits 
(e.g., impacts that would be associated with an increase in tourism 
spending). However, while this scenario remains a possibility, we found 
no data that would allow us to measure such an impact, nor was such 
information submitted to us during the public comment period.
    Most of the other benefit categories submitted by the commenter 
reflect broader social values, which are not the same as economic 
impacts. While the Secretary must consider economic and other relevant 
impacts as part of the final decision-making process under section 
4(b)(2) of the Act, the Act explicitly states that it is the 
government's policy to conserve all threatened and endangered species 
and the ecosystems upon which they depend. Thus we believe that 
explicit consideration of broader social values for the species and its 
habitat, beyond the more traditionally defined economic impacts, is not 
necessary, because Congress has already clarified the social importance 
of the species and its habitat. As a practical matter, we note the 
difficulty in being able to develop credible estimates of such values 
as they are not readily observed through typical market transactions. 
In sum, we believe that society places the utmost value on conserving 
any and all threatened and endangered species and the habitats upon 
which they depend and thus we need only to consider whether the 
economic impacts (both positive and negative) are significant enough to 
merit exclusion of any particular area without causing the species to 
go extinct.
    Comment 29: One commenter suggested revising the statement made in 
the draft economic analysis (DEA) that in its earlier biological 
opinion (BO), the Service concluded that the addition of training lands 
at Fort Irwin is not likely to jeopardize the continued existence of 
Astragalus jaegerianus. The comment notes that this BO did not consider 
adverse modification with regard to species recovery and advises that 
the statement in the DEA should be revised to reflect current case law 
invalidating the Service's definition of adverse modification.
    Our Response: The DEA states that the past formal consultation 
regarding the proposed addition of training lands at Fort Irwin 
resulted in a Service BO concluding that the proposed action was not 
likely to jeopardize the continued existence of Astragalus jaegerianus. 
This statement correctly characterizes this past consultation which 
occurred prior to designation of critical habitat and thus did not 
consider whether the proposed activity would adversely modify or 
destroy critical habitat, and the associated costs of this consultation 
are appropriately included as pre-designation impacts of species 
conservation. The DEA acknowledges (in footnote 16), however, that a 
recent Ninth Circuit judicial opinion (Gifford Pinchot Task Force v. 
United States Fish and Wildlife Service) has invalidated the Service's 
regulation defining destruction or adverse modification of critical 
habitat, and notes that the Service is currently reviewing the decision 
to determine what effect it may have on the outcome of section 7 
consultations.
    Comment 30: One commenter stated that the DEA should clearly state 
that critical habitat designation for plants would not have any legal 
impact on private lands unless there were a Federal nexus, and 
therefore the economic impact to private landowners from this 
designation should be zero.
    Our response: As detailed in the DEA, no impacts are anticipated to 
private landowners associated with Astragalus

[[Page 18229]]

jaegerianus conservation efforts. The DEA discusses the potential for 
changes to private property values associated with public attitudes 
about the limits and costs of critical habitat. However, this effect 
should be minimized since we anticipate most of the private property 
will be transferred to Federal ownership within the next few years.
    Comment 31: A commenter stated that the range of administrative 
consultation costs applied in the DEA is too broad and offers that 
Federal agencies likely keep better track of consultation costs and may 
provide a more realistic range of costs.
    Our response: The economic analysis employs a consultation cost 
model to represent the likely range of administrative costs of informal 
and formal section 7 consultations. The broad range takes into 
consideration that consultations involve varied levels of effort. The 
cost model is based on anticipated administrative effort from a survey 
of a number of Federal agencies and Service Field Offices across the 
country. The administrative effort is typically defined in number of 
hours spent, and then translated into a dollar value by applying the 
appropriate average government salary rates. In interviewing the 
agencies relevant to this DEA, the representatives were asked if the 
estimated administrative costs seemed reasonable. In the case that the 
agency anticipated a different range of costs for its particular 
activities within the proposed designation, that cost range was applied 
to the relevant consultations in place of the generic cost model 
estimates. That is, where specific information was available regarding 
the level of effort for a particular consultation, the unique cost 
estimates were applied.
    Comment 32: One commenter said that, because many of the 
conservation efforts benefit multiple species, including informal and 
formal consultations, it is not appropriate to allocate all costs to 
Astragalus jaegerianus conservation. This comment suggested that costs 
be prorated by species that benefit from the critical habitat 
designation and other conservation actions. As an example, the comment 
states that consultation costs are overestimated, as most consultations 
involve multiple species.
    Our response: To the extent possible, the DEA distinguished costs 
related specifically to Astragalus jaegerianus conservation where 
multiple species are subject to a single conservation effort or section 
7 consultation. In the case that another species clearly drives a 
project modification or conservation effort, the associated costs are 
appropriately not attributed to A. jaegerianus. For each consultation 
and conservation effort, the DEA attempts to identify costs 
specifically related to A. jaegerianus. In the case of administrative 
consultation costs, the DEA applies a standard cost model used to 
estimate a range of administrative costs of consultation. These costs 
are considered representative of the potential range of costs typically 
experienced for a consultation regarding a single species. The cost 
model assumes that consultations involving more than one species 
typically involve higher administrative costs. Accordingly, although 
consultations described in the DEA may involve multiple species, the 
administrative costs as estimated by applying this cost model are 
considered to be predictive of those costs due specifically to the 
inclusion of A. jaegerianus in the consultation.
    Comment 33: According to one comment provided, conservation efforts 
associated with the Fort Irwin expansion predesignation consultations 
are overstated because many of these consultations involved multiple 
species. The comment stated that DOD monitoring and maintenance costs 
do not appear to be prorated to include the other sensitive species 
that occur on DOD lands.
    Our response: As mentioned previously, the DEA attempts to identify 
costs specifically related to Astragalus jaegerianus conservation. 
Administrative costs as estimated in the DEA (e.g., associated with 
development of the Key Elements Report, preliminary review of expansion 
lands proposal and INRMP, etc.) are those specifically attributable to 
consideration of A. jaegerianus and habitat. The costs of surveys, 
monitoring, and fencing in the DEA represent only A. jaegerianus-
specific efforts, and not similar efforts for other species.
    Comment 34: A comment letter regarding the DEA stated that the WMP 
costs should be divided among species considered in the plan. This 
comment offered that costs of Astragalus jaegerianus conservation may 
be determined by applying the ratio of proposed critical habitat 
acreage to the entire WMP acreage or as a percentage of the total 
number of species covered in the WMP.
    Our response: It is not appropriate to simply divide the acreage of 
the proposed critical habitat designation that overlaps the proposed 
WMP area by the total acres covered in the WMP to establish the 
percentage of total WMP costs relevant to Astragalus jaegerianus. It is 
likely that particular regions require more active management than 
others. The lands within the WMP that contain proposed critical habitat 
designation for A. jaegerianus, for example, may require particular 
attention and management, as they are known to contain sensitive 
species. The DEA also acknowledges that the WMP considers multiple 
sensitive species and does not include all costs of WMP conservation 
efforts for all species, but isolates those related specifically to A. 
jaegerianus. That is, the full costs of development and implementation 
of the WMP are not attributed to A. jaegerianus conservation efforts in 
the DEA. The DEA isolates conservation efforts specifically included in 
the proposed WMP for A. jaegerianus, including increasing law 
enforcement (of OHV restrictions) in the proposed A. jaegerianus 
conservation areas, route maintenance and rehabilitation, and 
maintenance of signage and route maps.
    Comment 35: One commenter noted that, as the WMP is in 
developmental stages and no final environmental impact statement has 
been completed, the analysis of the WMP and its conservation efforts 
for Astragalus jaegerianus are speculative and should be represented as 
such or deleted from the DEA. Following that, the commenter states 
specifically that the costs of an annual report on the progress of the 
WMP should be deleted because the WMP is still only a draft, and 
further, under the WMP, annual monitoring is not required.
    Our response: The DEA acknowledges that the WMP is not yet 
complete. Significant time and effort, however, have been already 
devoted to its development (the BLM estimates more than $5 million has 
been spent on the Plan) and the Notice of Availability for the final 
EIS is expected to be published in the Federal Register soon (letter 
from BLM to USFWS, January 6, 2005). As such, the DEA considers the 
implementation of the WMP to be a reasonable forecast of future land 
management in the region. Regarding the costs of annual monitoring of 
conservation measures implemented, the West Mojave Management Team 
(developers of the WMP) anticipates preparing a report summarizing 
progress specifically on Astragalus jaegerianus conservation measures 
and the status of A. jaegerianus on WMP lands.
    Comment 36: According to one comment letter, the costs of 
developing the WMP included in the DEA seem underestimated.
    Our response: According to BLM (William Haigh, personal comm. May 
18, 2004), the primary agency involved in the multijurisdictional WMP, 
the costs of developing of the WMP were

[[Page 18230]]

approximately $5 million. Importantly, this estimate is provided for 
context and is not a cost component of the DEA. The WMP covers a large 
area and considers many species; the DEA evaluates only the portion of 
those costs relevant to Astragalus jaegerianus.
    Comment 37: With respect to the WMP, one comment stated that costs 
of route designation appear highly inflated. The comment reasons that 
if $700,000 was spent surveying routes in the WMP's 9.4 million acres, 
$20,000 to $30,000 seems high for the 25 miles of routes in Astragalus 
jaegerianus proposed critical habitat. Further, the estimate of 5 to 25 
percent of the route maintenance seems high, as proposed critical 
habitat makes up less than 0.2% of the WMP area.
    Our response: First, according to the BLM (William Haigh, personal 
comm. May 18, 2004), the $700,000 was spent surveying 1.5 million acres 
within the WMP area, not 9.4 million acres. Second, it is not 
necessarily appropriate to assume that there is a linear relationship 
between miles surveyed and survey cost. Rather than develop a ``rule of 
thumb,'' the DEA employs specific information provided by the BLM 
regarding estimated BLM total expenditures on the surveys ($700,000) 
and the portion of that cost relevant to surveys within Astragalus 
jaegerianus conservation areas as outlined by the proposed WMP ($20,000 
to $30,000). As the BLM conducted these efforts, this is considered to 
be the best information available regarding these costs. Further, 
communications with the BLM (May 18, 2004, and September 13, 2004) have 
supported the DEA estimate that up to 25 percent of route maintenance 
costs of the WMP are related to A. jaegerianus conservation. The BLM 
notes and the DEA reflects, however, that this is a high-end estimate 
and that the actual range of potential costs related to A. jaegerianus 
conservation is between 5 and 25 percent of the total costs. Although 
the proposed critical habitat designation is relatively small compared 
to the entire WMP area, this range of costs is reasonable considering 
that sensitive species (i.e., A. jaegerianus) are known within the 
proposed critical habitat designation area: therefore, more effort may 
be spent in maintenance of A. jaegerianus-occupied acres as compared to 
other, less sensitive lands.
    Comment 38: One comment stated that while a minerals withdrawal 
from the WMP lands proposed for critical habitat is preferable, there 
is no guarantee this would happen and so associated costs are not 
certain.
    Our response: The DEA does not anticipate impacts to casual use 
mining participants or private individuals holding mining claims in the 
region. This is because most of the digging and panning occurs in 
pockets of deeper, gold-bearing soil rather than the shallow soiled 
areas where Astragalus jaegerianus occurs. The costs associated with 
mining in the DEA are for BLM to: (a) Conduct validity exams at 
existing mining claims to determine whether a valuable mineral deposit 
exists; and (b) assess whether claimant's mining activity may result in 
significant ground disturbance. The Bureau has yet to determine whether 
current mining activity has any impact on A. jaegerianus.
    Comment 39: A comment provided from the DOD states that the 
economic analysis is adequate but that it did not estimate costs of 
acquiring better information on the distribution of the species and 
conducting research on the impacts of training (e.g., the effects of 
dust or obscurants) on endangered species. Although these efforts are 
recommended by the Service, conducting such research and experiments 
can be cost prohibitive.
    Our response: While the DEA does include past costs of species 
survey and research efforts, future costs of similar efforts are not 
included. Future costs of species conservation efforts on Fort Irwin in 
the DEA include maintenance of Astragalus jaegerianus conservation 
areas, acquisition of private lands for A. jaegerianus conservation 
outside of Fort Irwin, and implementation of the ongoing education 
program regarding A. jaegerianus. The DOD expects to spend 
approximately $100,000 per year for the next 5 years to conduct 
research on seed germination and banking and management of experimental 
populations. DOD further anticipates spending approximately $50,000 per 
year for 5 years to study the cumulative effects of dust obscurants on 
A. jaegerianus. This new information is included in the revised 
economic analysis of the proposed critical habitat designation.
    Comment 40: A comment provided on the DEA noted that Fort Irwin 
must acquire all lands within the boundaries of the expansion and that 
including purchase of these lands as a cost of Astragalus jaegerianus 
conservation overestimates the costs attributable to A. jaegerianus. 
The comment further stated that Fort Irwin must purchase additional 
acres outside the boundaries of the expansion area to mitigate land 
impact regardless of critical habitat designation and that it is 
likewise not appropriate to attribute these costs to the A. jaegerianus 
critical habitat designation.
    Our response: The DEA does not include costs of purchase of private 
lands within the boundaries of the Fort Irwin expansion area as a cost 
related to Astragalus jaegerianus conservation, and only includes 
purchase of those private lands outside of Fort Irwin that overlap with 
the proposed critical habitat designation for A. jaegerianus. The 
purpose of DOD purchase of A. jaegerianus habitat lands to be managed 
by the Bureau as conservation areas is to mitigate potential impact to 
A. jaegerianus from training on habitat within Fort Irwin lands. 
Purchase of these lands outside of Fort Irwin and within the proposed 
critical habitat designation is therefore appropriately considered 
related to A. jaegerianus conservation in the DEA.
    Comment 41: One commenter stated that as the Key Elements Report 
primarily considered the desert tortoise, costs of the review of this 
plan ($20,000-$85,000) related to the Astragalus jaegerianus seem very 
high.
    Our response: The Service estimates that the Key Elements report 
involved roughly double the effort of a typical consultation due to its 
coverage of complex issues regarding military training and species 
conservation. It is unclear whether this estimate considers only the 
administrative effort of A. jaegerianus-related issues, or all species 
considered within the Key Elements report. In the case that this cost 
includes efforts considering, for example, the desert tortoise, 
administrative costs of consultation related to A. jaegerianus are 
overestimated.
    Comment 42: According to one comment, the 2001-2003 DOD surveys for 
Astragalus jaegerianus included lands outside of the proposed critical 
habitat designation and these costs should therefore not be included in 
the DEA.
    Our response: The DOD conducted Astragalus jaegerianus surveys to 
obtain better information regarding the distribution of the species. 
The cost of these A. jaegerianus surveys are therefore considered 
conservation efforts related to A. jaegerianus and are included in the 
pre-designation costs within the DEA.
    Comment 43: While the DOD has committed $75 million for 
conservation, one commenter highlighted that these monies will be used 
for a variety of mitigation efforts, not just for Astragalus 
jaegerianus.
    Our response: The DEA acknowledges that the $75 million will be 
applied to myriad efforts considering multiple species. This estimate 
is provided for context in the DEA and is not included

[[Page 18231]]

in full as a component of the costs of conservation for Astragalus 
jaegerianus.
    Comment 44: One comment stated that an Integrated Natural Resources 
Management Plan (INRMP), such as that for Fort Irwin, would need to be 
updated whenever a new federally listed species is discovered on the 
base or when a species is listed. The cost of updating the INRMP should 
therefore not be considered a result of the critical habitat 
designation.
    Our response: The INRMP did not previously include a discussion of 
Astragalus jaegerianus management and is therefore being updated to 
address issues and management related to A. jaegerianus. The costs of 
updating the INRMP are therefore appropriately included in the DEA as a 
conservation effort related to A. jaegerianus.
    Comment 45: One comment asserted that the annual monitoring and 
reporting costs on NASA lands are inflated. This comment further 
questioned why NASA species survey costs are included, as the DOD 
already surveyed NASA-leased lands and further surveying would be 
redundant.
    Our response: Written communication from NASA (March 4, 2004, and 
July 14, 2004) provided the costs of annual monitoring and reporting on 
Astragalus jaegerianus. The DEA estimates costs of approximately 
$500,000 in the first year (reflecting NASA's stated intention to 
resurvey all of the areas previously surveyed by DOD to independently 
verify the species' distribution on NASA lands leased from DOD) and 
$30,000 per year in subsequent years to monitor and report on the 
status of the species. Communication with NASA following the 
publication of the DEA clarifies that these cost estimates include 
costs for surveys and monitoring of not only A. jaegerianus, but also 
the desert cymopterus (Cymopterus deserticola) and the Mojave ground 
squirrel. NASA estimates that three-fifths of the costs of these 
conservation efforts are specifically due to consideration of A. 
jaegerianus. The revised economic analysis therefore revises impacts to 
NASA of A. jaegerianus conservation efforts to $300,000 in the first 
year and $18,000 per year in subsequent years for monitoring and 
reporting on the status of A. jaegerianus on its lands leased from DOD.
    Comment 46: According to one comment on the DEA, off-highway 
vehicle (OHV) enthusiasts rarely purchase motorcycles/equipment for a 
single event. The costs to participate in a dual sport event are 
therefore overstated.
    Our response: The DEA does not forecast any impacts to OHV users as 
a result of species conservation efforts. Information on the prevalence 
of OHV use and dual sport events in the area is provided in the DEA as 
context for the analysis. First, the Bureau does not issue formal 
permits for OHV use within the proposed lands. All OHV users must 
remain on open routes within the proposed critical habitat and are 
therefore not anticipated to adversely impact Astragalus jaegerianus or 
its habitat. Second, dual sport events may require a Bureau-issued 
Special Recreation Permit and may pass through routes within the 
proposed critical habitat. These events, however, are also required to 
adhere to the open routes. While dust resulting from these events may 
be a concern for A. jaegerianus, multiple route options are available 
for these events, and participants are typically flexible regarding 
rerouting around particular areas.

Comments From the State

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for [her] failure to adopt 
regulations consistent with the agency's comments or petition.'' We 
contacted the CDFG concerning the proposed critical habitat 
designation; however, it chose not to submit comments on the proposed 
critical habitat designation for Astragalus jaegerianus. The State 
notified us that submitting comments on the proposed critical habitat 
designation was a low priority for them because they are participants 
in the WMP planning process, and have previously commented on the 
conservation measures that were proposed for Astragalus jaegerianus in 
the draft WMP (CDFG, in litt. 2003). Furthermore, many of the private 
parcels that would be subject to State environmental regulations have 
been or are being purchased by DOD and transferred to the Bureau for 
inclusion in the Coolgardie and Paradise ACECs. Because of this action, 
the State's concern with private lands issues has been greatly 
diminished.

Summary of Changes From the Proposed Rule

    In the development of our final designation of critical habitat for 
Astragalus jaegerianus, we reviewed comments received on the proposed 
designation of critical habitat and the draft economic analysis. In 
addition to incorporating these comments in this final rule and revised 
economic analysis, where appropriate, we made the following changes to 
the proposed designation:
    (1) We excluded from critical habitat portions of the Montana-
Brinkman and Paradise units that occur on DOD lands at Fort Irwin, 
including those proposed for military training and those proposed for 
conservation of Astragalus jaegerianus under section 4(b)(2) of the 
Act.
    (2) We excluded from critical habitat under sections 4(b)(2) and 
3(5)(A) of the Act the portion of the Paradise unit and all of the 
Coolgardie unit that occur on Bureau lands where an Area of Critical 
Environmental Concern in the WMP has been proposed to be established.
    (3) We no longer consider the Astragalus jaegerianus habitat on 
lands leased to NASA from the DOD at what is known as the Venus 
Research and Development site to be essential to the conservation of 
the species and have therefore removed this area from the final 
critical habitat designation. See response to Comment 10.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) The 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species must first have features that 
are ``essential to the conservation of the species.'' Critical habitat 
designations identify, to the extent known and using the best

[[Page 18232]]

scientific and commercial data available, habitat areas that provide 
essential life cycle needs of the species (i.e., areas on which are 
found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Occupied habitat may be included in critical habitat only if the 
essential features thereon may require special management or 
protection. Thus, we do not include areas where existing management is 
sufficient to conserve the species. (As discussed below, such areas may 
also be excluded from critical habitat pursuant to section 4(b)(2).)
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographical area presently occupied 
by a species only when a designation limited to its present range would 
be inadequate to ensure the conservation of the species'' (50 CFR 
424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species require designation, we will not designate critical habitat in 
areas outside the geographic area occupied by the species.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service, provide criteria, establish procedures, and provide guidance 
to ensure that decisions made by the Service represent the best 
scientific and commercial data available. They require Service 
biologists to the extent consistent with the Act and with the use of 
the best scientific and commercial data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat. When determining which areas are critical 
habitat, a primary source of information is generally the listing 
package for the species. Additional information sources include the 
recovery plan for the species, articles in peer-reviewed journals, 
conservation plans developed by States and counties, scientific status 
surveys and studies, biological assessments, or other unpublished 
materials and expert opinion or personal knowledge. All information is 
used in accordance with the provisions of Section 515 of the Treasury 
and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658) and the associated Information Quality Guidelines 
issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of what we know at the time of designation. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the conservation 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 conservation.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available in determining areas that are 
essential to the conservation of Astragalus jaegerianus. We have also 
reviewed available information that pertains to the habitat 
requirements of this species. This information included data from our 
files that we used for listing the species; geologic maps (California 
Geologic Survey 1953), recent biological survey, and reports, 
particularly from the Army surveys of 2001 (Charis 2002); additional 
information provided by the Army, the Bureau of Land Management, those 
engaged in research on A. jaegerianus, and other interested parties; 
and discussions with botanical experts. We also conducted multiple site 
visits to all three of the units that were proposed for critical 
habitat designation.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to designate as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features (primary constituent elements) that 
are essential to the conservation of the species 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.
    All areas proposed for critical habitat for Astragalus jaegerianus 
are within the species' historical range and contain one or more of the 
biological and physical features (primary constituent elements) 
identified as essential for the conservation of the species. The Act 
defines critical habitat as areas containing physical and biological 
characteristics essential to the conservation of the species. 
Conservation is in turn defined as the point at which the Act's 
protections are no longer necessary. Accordingly, to identify critical 
habitat for Astragalus jaegerianus, we must first determine at what 
point the species may be considered ``conserved''. Although the Service 
has not completed preparation of a recovery plan for this species, 
recovery criteria most likely will include/be based on the persistence 
of stable populations over time in the four areas where the species is 
currently known to occur. To achieve this will likely require (1) 
monitoring of key life history attributes, including reproduction and 
recruitment rates; (2) maintaining habitat that is required for the 
species to carry out these essential functions; and (3) avoiding and 
minimizing threats that alter the primary constituent elements within 
the habitat or the ability of the species to complete its life cycle. 
The primary constituent elements essential to the conservation of A. 
jaegerianus habitat are based on specific components that are described 
below.

Space for Individual and Population Growth, Including Sites for 
Germination, Pollination, Reproduction, Seed Dispersal, and Seed Bank

    The distribution of Astragalus jaegerianus is restricted to four 
geographically distinct areas that occur north of the city of Barstow 
in the west

[[Page 18233]]

Mojave Desert, San Bernardino County. The four populations of A. 
jaegerianus are arrayed more or less linearly along a 20-mile-long (32 
km) axis that trends in a northeasterly-to-southwesterly direction. The 
region is characterized by block-faulted mountain ranges separated by 
alluvium-filled basins. The basins consist of broad valley plains, 
gently sloping bajadas, and rolling hills with low relief (Charis 
2003). At the landscape level, the plant community within which A. 
jaegerianus occurs can be described as Mojave mixed woody scrub 
(Holland 1998), Mojave creosote bush scrub (Holland 1988; Cheatham and 
Haller 1975; Thorne 1976), or creosote bush series (Sawyer and Keeler-
Wolf 1995). More specifically, the sites where A. jaegerianus occurs 
have a high diversity of low shrub species, including: Turpentine bush 
(Thamnosma montana), white bursage (Ambrosia dumosa), Mormon tea 
(Ephedra nevadensis), Cooper goldenbush (Ericameria cooperi var. 
cooperi), California buckwheat (Eriogonum fasciculatum var. 
polifolium), brittlebush (Encelia farinosa or Encelia actoni), desert 
aster (Xylorrhiza tortifolia), goldenheads (Acamptopappus 
spherocephalus), spiny hop-sage (Grayia spinosa), cheesebush 
(Hymenoclea salsola), winter fat (Kraschenninikovia lanata), and paper 
bag bush (Salazaria mexicana). Astragalus jaegerianus grows within what 
are referred to as ``host shrubs,'' which it uses for structural 
support. The first five of the shrubs listed above, along with dead 
shrubs, are host to approximately 75 percent of the A. jaegerianus 
individuals that have been observed. Host shrubs may also be important 
in providing appropriate microhabitat conditions (such as shelter from 
herbivores, and modified soil and water conditions) for A. jaegerianus 
seed germination and seedling establishment (Charis 2002).
    These plant communities also support insects that pollinate 
Astragalus jaegerianus. Based on limited observation, Anthidium 
dammersi, a solitary bee in the megachilid family (Megachilidae), was 
found to be the most frequent pollinator observed on A. jaegerianus in 
2003 (Kearns 2003). This species will fly up to 0.6 mi (1 km) away from 
its nest; however, if floral resources are abundant, it will decrease 
its flight distances accordingly (Doug Yanega, University of California 
Riverside, pers. comm. 2003). Three other occasional visitors to A. 
jaegerianus were a hover fly (Eupeodes volucris), a large anthophrid 
bee (Anthophora sp.), and the white-lined sphinx moth (Hyles lineata) 
(Kearns 2003). Additional pollinator observations are scheduled for the 
2005 flowering season (Hopkins 2005).
    These plant communities also support animal species that are likely 
to disperse the seeds of Astragalus jaegerianus. Compared with the seed 
sizes of many desert annual species, the A. jaegerianus seed's 
relatively large size of would make them an attractive food source to 
ants and other large insects, small mammals, and birds (Brown et al. 
1979). These animal species would also be the most likely vectors to 
disperse A. jaegerianus seeds within and between populations. Rasoul 
Sharifi (pers. comm. 2004) confirmed the presence of A. jaegerianus 
seeds within native ant coppices (mounds). Seed may also be moved 
across the soil surface by wind or running water (Sharifi et al. 2004); 
however, long-distance dispersal by these means is more likely a rare 
than common event.
    Although the aboveground portion of Astragalus jaegerianus 
individuals die back each year, they persist as a perennial rootstock 
through the dry season. The perennial rootstock may also allow A. 
jaegerianus to survive occasional dry years, while longer periods of 
drought might be endured by remaining dormant (Beatley in Bagley 1999). 
Individuals begin regrowth in the late fall or winter, once sufficient 
soil moisture is available. Seed set typically follows flowering in 
April and May. However, if climatic conditions are unfavorable, the 
plants may desiccate prior to flowering or completing seed set. 
Therefore, substantial contributions to the seedbank may occur 
primarily in climatically favorable years. The seedbank then persists 
in the soil around the base of host shrubs and allows for germination 
and growth of new individuals in those years when suitable climatic 
conditions (rainfall, temperatures) occur.

Areas That Provide the Basic Requirements for Growth (Such as Water, 
Light, and Minerals)

    Astragalus jaegerianus is most frequently found on shallow soils 
derived from Jurassic or Cretaceous granitic bedrock. A small portion 
of the individuals located to date occur on soils derived from diorite 
or gabbroid bedrock (Charis 2002). In one location on the west side of 
the Coolgardie site, plants were found on granitic soils overlain by 
scattered rhyolitic cobble, gravel, and sand. Soils tend to be 
shallower immediately adjacent to milk-vetch plants than in the 
surrounding landscape; at the Montana Mine site, rotten, highly 
weathered granite bedrock was reached within 2 in (5 cm) of the soil 
surface near A. jaegerianus plants (Fahnestock 1999). The topography 
where A. jaegerianus most frequently occurs is on low ridges and rocky 
low hills where bedrock is exposed at or near the surface and the soils 
are coarse or sandy (Prigge 2000b; Charis 2002). Most of the 
individuals found to date occur between 3,100 and 4,200 ft (945 to 
1,280 m) in elevation (Charis 2002). At lower lying elevations, the 
alluvial soils appear to be too fine to support A. jaegerianus, and at 
higher elevations the soils may not be developed enough to support A. 
jaegerianus (Prigge 2000b; Charis 2002).
    Sharifi et al (2004) have noted annual rainfall amounts at two 
weather stations representative of the northern portion of the range of 
Astragalus jaegerianus and compared them to germination and survival 
rates of over 200 A. jaegerianus individuals. They believe that 
successful recruitment (addition of individuals to a population by 
reproduction) is correlated with, among other factors, annual 
precipitation of at least 15 cm (5.9 in). Annual precipitation between 
7 and 15 cm (2.8-6 in) may represent years when established individuals 
continue to persist, though with some death due to water stress at the 
lower levels; annual precipitation of less than 7 cm may be years when 
many individuals die due to water stress or remain dormant. Although 
many years may not provide optimal climatic conditions to result in 
germination and seed set of Astragalus jaegerianus, the region north of 
Barstow provides the appropriate soils, vegetation communities, and 
rainfall patterns to support the growth of A. jaegerianus.
    Based on the best available information at this time, the primary 
constituent elements of critical habitat for Astragalus jaegerianus 
consist of:
    (1) Shallow soils (between 3,100 and 4,200 ft (945 to 1,280 m) in 
elevation) derived primarily from Jurassic or Cretaceous granitic 
bedrock, and less frequently on soils derived from diorite or gabbroid 
bedrock and at one location on granitic soils overlain by scattered 
rhyolitic cobble, gravel, and sand.
    (2) The host shrubs (between 3,100 and 4,200 ft (945 to 1,280 m) in 
elevation) within which Astragalus jaegerianus grows, most notably 
Thamnosma montana, Ambrosia dumosa, Eriogonum fasciculatum ssp. 
polifolium, Ericameria cooperi var. cooperi, Ephedra nevadensis, and 
Salazaria mexicana that are usually found in mixed desert shrub 
communities.

[[Page 18234]]

Criteria Used To Identify Essential Habitat

    In our proposed critical habitat designation (69 FR 18018), we 
delineated critical habitat units to provide for the conservation of 
Astragalus jaegerianus at the four sites where it is known to occur. 
All four sites are essential habitat because A. jaegerianus exhibits 
life history attributes, including variable seed production, low 
germination rates, and habitat specificity in the form of a dependence 
on a co-occurring organism (host shrubs), all of which make it 
particularly vulnerable to extinction (Keith 1998; Gilpin and Soule 
1986). Please refer to the proposed rule (69 FR 18018) for details on 
how we determined the boundaries of the proposed critical habitat 
units.

Special Management Considerations or Protections

    Within the geographical area occupied by the species special 
management considerations or protections may be needed to maintain the 
physical or biological features that are essential to the conservation 
of Astragalus jaegerianus. Habitat for A. jaegerianus within the 
proposed Goldstone-Brinkman, Paradise, and Coolgardie units may require 
special management considerations or protection due to the threats to 
the species and its habitat posed by invasions of non-native plants 
such as Sahara mustard (Brassica tournefortii) that may take over 
habitat for the species; habitat fragmentation that detrimentally 
affects plant-host plant (composition and structure of the desert scrub 
community) and plant-pollinator interactions, leading to a decline in 
species reproduction and increasing susceptibility to non-native plant 
invasion; and vehicles (military vehicles or unauthorized OHV users) 
that cause direct and indirect impacts, such as excessive dust, to the 
plant. Habitat for A. jaegerianus in the Goldstone-Brinkman, Paradise, 
and Coolgardie units has been fragmented to a minor extent. We 
anticipate that in the future, habitat fragmentation will increase, 
that changes in composition and structure of the plant community may be 
altered by the spread of non-native plants, and that the direct and 
indirect effects of dust may increase. All of these threats would 
render the habitat less suitable for A. jaegerianus, and special 
management may be needed to address them.

Application of Critical Habitat Under Section 3(5)(A), 4(a)(3), and 
4(b)(2) of the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species on which are 
found those physical and biological features (i) essential to the 
conservation of the species and (ii) which may require special 
management considerations or protection. Therefore, areas within the 
geographic area occupied by the species that do not contain the 
features essential for the conservation of the species are not, by 
definition, critical habitat. Similarly, areas within the geographic 
area occupied by the species that do not require special management or 
protection also are not, by definition, critical habitat. To determine 
whether an area requires special management, we first determine if the 
essential features located there generally require special management 
to address applicable threats. If those features do not require special 
management, or if they do in general but not for the particular area in 
question because of the existence of an adequate management plan or for 
some other reason, then the area does not require special management.
    We consider a current plan to provide adequate management or 
protection if it meets three criteria: (1) The plan is complete and 
provides a conservation benefit to the species (i.e., the plan must 
maintain or provide for an increase in the species' population, or the 
enhancement or restoration of its habitat within the area covered by 
the plan); (2) the plan provides assurances that the conservation 
management strategies and actions will be implemented (i.e., those 
responsible for implementing the plan are capable of accomplishing the 
objectives, and have an implementation schedule or adequate funding for 
implementing the management plan); and (3) the plan provides assurances 
that the conservation strategies and measures will be effective (i.e., 
it identifies biological goals, has provisions for reporting progress, 
and is of a duration sufficient to implement the plan and achieve the 
plan's goals and objectives).
    Section 318 of fiscal year 2004 the National Defense Authorization 
Act (Pub. L. 108-136) amended the Endangered Species Act to address the 
relationship of Integrated Natural Resources Management Plans (INRMPs) 
to critical habitat by adding a new section 4(a)(3)(B). This provision 
prohibits the Service from designating as critical habitat any lands or 
other geographical areas owned or controlled by the Department of 
Defense, or designated for its use, that are subject to an INRMP 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the 
Secretary of the Interior determines in writing that such plan provides 
a benefit to the species for which critical habitat is proposed for 
designation. Fort Irwin has prepared a draft INRMP which includes 
Astragalus jaegerianus. We are currently consulting with Fort Irwin on 
the draft INRMP. It is not likely that the INRMP will be finalized 
prior to publication of this rule and therefore, section 4(a)(3)(B) 
cannot be applied.
    Further, section 4(b)(2) of the Act states that critical habitat 
shall be designated, and revised, on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact of specifying 
any particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species.
    In our critical habitat designations we have used the provisions 
outlined in sections 3(5)(A), 4(a)(3)(B), and 4(b)(2) of the Act to 
evaluate those specific areas proposed for designation as critical 
habitat and those areas which are subsequently finalized (i.e., 
designated). We have applied the provisions of these sections of the 
Act to lands essential to the conservation of Astragalus jaegerianus to 
evaluate and exclude them from final critical habitat.

Relationship of Critical Habitat to Lands Managed by the Bureau of Land 
Management (Bureau)

    Under section 3(5)(A) and (4)(b)(2) of the Act, the Service is 
excluding from critical habitat the Coolgardie Unit and a portion of 
the Paradise Unit that were proposed for designation. We provide 
greater explanation below.
    As discussed in the proposed rule (69 FR 18018), the Bureau has led 
the development of the West Mojave Plan (WMP) (see additional 
information at http://www.ca.blm.gov/cdd/wemo.html). The final WMP was 
published in February 2005 and the Notice of Availability for the final 
WMP Final Environmental Impact Statement was published on April 1, 
though the Record of Decision is due to be signed by July 2005. The WMP 
includes the Federal action of amending the Bureau's California Desert 
Conservation Area Plan and the framework for the

[[Page 18235]]

development of an HCP for non-Federal lands within the planning area. 
Conservation of A. jaegerianus is a key factor that was considered in 
the development of the WMP. We have been providing technical assistance 
to the Bureau to ensure that the WMP provides for protection and 
management of habitat essential for the conservation of this species. 
In addition, the Bureau is currently consulting with the Service on its 
proposed amendments to the California Desert Conservation Area Plan 
under section 7 of the Act. As part of the WMP, the Bureau has proposed 
to establish the Coolgardie Mesa and West Paradise Conservation Areas, 
to implement management actions that will contribute toward the 
conservation of the species, and to modify current activities within 
these areas so that such activities will not impair the conservation of 
the species. The WMP does not contain specific measures to conserve A. 
jaegerianus on private lands; however, the WMP targets these lands for 
acquisition and subsequent management by the Bureau for the 
conservation of the species. The DOD is providing the funding to 
acquire these private lands in the Coolgardie Mesa and West Paradise 
Conservation areas. As of February 2005, the DOD had already acquired 
over 50 percent of the 4,300 ac of private lands outside of Fort Irwin 
and included in the proposed critical habitat designation.
    We have reviewed the Bureau's WMP, and we find that it meets the 
three criteria we use for evaluating such plans as discussed above. The 
WMP provides an adequate conservation management plan that covers the 
species and provides for adaptive management sufficient to conserve the 
species. The first criterion is whether the plan is complete and 
provides a conservation benefit to the species. The WMP includes 
prescriptions for establishing two ACECs that include all the known 
habitat for Astragalus jaegerianus outside of DOD lands at Fort Irwin. 
The areas will be managed to maintain the integrity of the habitat, and 
include both protective measures, such as restricting certain uses that 
would alter or destroy the habitat (including: botanical surveys will 
be required prior to issuing use permits, certain routes will be closed 
through a route designation process, certain areas may be fenced if 
needed to protect the species, lands will be withdrawn from mineral 
entry to limit future exploration, and restrictions on casual use 
mining will be developed as necessary), and measures to restore habitat 
that has already been impacted (closed routes will be signed as such, 
and roadbeds will be vertically mulched).
    The second criterion is whether the plan provides assurances that 
the conservation management strategies and actions will be implemented. 
As the primary Federal land manager for the lands that support A. 
jaegerianus populations in the proposed Coolgardie unit and a portion 
of the proposed Paradise unit, the Bureau is directed by section 
7(a)(1) of the Act to ``utilize their authorities in furtherance of the 
purposes of the Act by carrying out programs for the conservation of 
endangered species.'' In addition, the Bureau's own national and State 
policies (Bureau 1996, 2001) include the objective to conserve listed 
species and the ecosystems on which they depend. The plan also includes 
an implementation schedule for conservation measures to be taken; 
monitoring includes an annual review of implementation of the measures 
undertaken, and tracking the progress of land acquisition within the 
ACEC boundaries.
    The third criterion is whether the plan provides assurances that 
the conservation strategies and measures will be effective. We believe 
the measures that will be implemented by the Bureau will be effective 
because the primary strategy to conserve A. jaegerianus is to ensure 
that the quality of its habitat is maintained by avoiding future 
impacts. Based on this analysis of the three criteria, we have found 
that the Bureau's WMP provides for the management that is needed to 
conserve A. jaegerianus in these two areas and under 3(5)(A) of the 
Act, we are not designating as critical habitat these BLM areas. To the 
extent that these areas meet the definition of critical habitat 
pursuant to section 3(5)(A)(i)(II), we are excluding the Coolgardie 
unit and a portion of the Paradise unit that were proposed for critical 
habitat, totaling 9,627 ac (3,896 ha), from final critical habitat 
designation under section 4(b)(2) as discussed below.
    In the proposed critical habitat designation, approximately 4,427 
ac (1,792 ha) of private lands were included. The amount of private 
lands within the three proposed critical habitat units was as follows: 
Goldstone-Brinkman unit 193 ac (78 ha); Paradise unit 607 ac (246 ha); 
Coolgardie unit 3,714 ac (1,503 ha). These private lands are also being 
excluded from critical habitat because most of these lands will fall 
under the management of DOD or the Bureau over time. As part of the 
proposal to expand training lands on Fort Irwin included in the 2004 
consultation with the Service, DOD has planned to purchase parcels from 
Catellus Corporation, a real estate company that is assisting with the 
transfer of parcels previously owned by Santa Fe Railroad. Catellus 
parcels were located within the expansion area as well as on Bureau 
lands. As of February 2005, the following acquisitions of Catellus land 
have already been completed by DOD: 100 percent of those in the 
Goldstone-Brinkman unit; 33 percent of those in the Paradise unit, and 
67 percent of those in the Coolgardie unit. In 2005, DOD will continue 
with the acquisition of non-Catellus private lands from willing sellers 
within the boundaries of the two ACECs on Bureau lands.
    Federal and other lands may also be excluded from critical habitat 
designation based on section 4(b)(2) of the Act. An area may be 
excluded from critical habitat if it is determined, following an 
analysis of relevant impacts, that the benefits of such exclusion 
outweigh the benefits of specifying a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species. We are excluding Bureau 
lands in the proposed Paradise and Coolgardie units, and private lands 
within the proposed units, under section 4(b)(2) of the Act. The 
analysis, which led us to the conclusion that the benefits of excluding 
these areas exceed the benefits of designating them as critical 
habitat, and will not result in the extinction of the species, follows.
(1) Benefits of Inclusion
    The benefits of inclusion are low. If these areas were designated 
as critical habitat, any actions the Bureau proposed to approve, fund, 
or undertake which might destroy or adversely modify the critical 
habitat would require a consultation with us. If the action affects an 
area occupied by the plants, consultation is required even without the 
critical habitat designation. As indicated above, these units are each 
occupied by the listed plant, so consultation on BLM's activities on 
the excluded lands will be required even without the critical habitat 
designation. Further, if a consultation on adverse modification were to 
occur after designating critical habitat, since Bureau's plan 
adequately provides for the conservation of habitat for this species, 
the benefit from additional consultation is likely also to be minimal. 
We are consulting on the WMP and anticipate that the Bureau's plan will 
provide for the conservation for the species. This is because the 
conservation measures included in the final West Mohave Plan to 
conserve A.

[[Page 18236]]

jaegerianus, detailed above, were a key factor that was considered in 
the development of the WMP. Under the Ninth Circuit judicial opinion 
(Gifford Pinchot Task Force v. United States Fish and Wildlife 
Service), critical habitat designations may provide greater benefits to 
recovery of a species than previously believed, but it is not possible 
to quantify these benefits at this time.
    Another possible benefit of a critical habitat designation is 
education of landowners and the public regarding the potential 
conservation value of these areas through the proposed rule and request 
for public comments. This may focus and contribute to conservation 
efforts by other parties by clearly delineating areas of high 
conservation value for certain species. However, we believe that this 
educational benefit has largely been achieved because the DOD-sponsored 
surveys for Astragalus jaegerianus in 2001 provided the basis for the 
Bureau's proposal to establish the Coolgardie and Paradise ACECs 
(included in the West Mojave Plan) for the purposes of conserving the 
species. Furthermore, private landowners and users of the Bureau lands 
in these areas have had the opportunity to participate in the planning 
process for the West Mojave Plan for over a decade, and thus have been 
made aware of the presence of A. jaegerianus and the importance of this 
habitat to its conservation. Therefore, we believe the education 
benefits, which might arise from a critical habitat designation here, 
have already been generated.
    In summary, we believe that a critical habitat designation for this 
plant species would provide virtually no additional Federal regulatory 
benefits. Because almost all of the proposed critical habitat is 
Federal land occupied by the species, the Bureau must consult with the 
Service over any action it undertakes, approves, or funds which might 
impact the Astragalus jaegerianus. The additional educational benefits, 
which might arise from critical habitat designation, are largely 
accomplished through the proposed rule and request for public comment 
that accompanied the development of this regulation, and the proposed 
critical habitat is known to the Bureau. Furthermore, under the Gifford 
Pinchot decision, critical habitat designations may provide greater 
benefits to recovery of a species than was previously believed, but it 
is not possible to quantify this at present.
(2) Benefits of Exclusion
    The Bureau commented that critical habitat designation may not be 
necessary or appropriate given the extensive conservation actions it 
has included in the WMP, including establishment of the Paradise and 
Coolgardie ACECs and the conservation measures that will be implemented 
to protect the habitat of Astragalus jaegerianus. Based on our review 
of the WMP conservation measures, detailed above, we agree with the 
Bureau that the measures it is undertaking are sufficient to provide 
for the long-term conservation of the species in these two areas, and 
that little additional benefit would be provided by designating 
critical habitat on Bureau lands.
    It will benefit the Bureau, and private parties seeking permits and 
approvals from the Bureau to exclude these areas from designation. 
Existing conservation measures are already being undertaken for the 
species, and thus without a designation, because these measures will 
provide long-term conservation benefits for the species, designating 
critical habitat in theses areas would require an additional 
administrative burden, through requiring consultation on the critical 
habitat that is unlikely to provide additional protection to that 
already provided in the WMP.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    Because the Astragalus jaegerianus habitat identified on Bureau 
lands in the proposed Paradise and Coolgardie units does provide the 
primary constituent elements and requires special management 
considerations or protection, it was proposed for designation as 
critical habitat. However, because all of the actions that the Bureau 
has proposed for these lands in the WMP are focused on providing for 
the long-term conservation of Astragalus jaegerianus and provide 
benefits that exceed those that would arise from the designation of 
critical habitat (because the WMP provides positive conservation 
measures), we have determined that the benefits of exclusion of these 
Bureau lands from the critical habitat designation outweigh the 
benefits of the designation and therefore we are excluding these lands 
under section 4(b)(2) of the Act.
(4) Exclusion Will Not Result in Extinction of the Species
    Exclusion of the Bureau lands in the proposed Paradise and 
Coolgardie critical habitat units will not result in extinction of the 
species. We are currently consulting with the Bureau on the WMP, which 
includes the establishment of the Paradise and Coolgardie ACECs. 
Although the consultation is not complete, we believe that all of the 
actions that the Bureau will be undertaking in these two areas will 
contribute to the conservation of the species, and would not cause 
jeopardy to the species. Any additional actions by the Bureau which 
might adversely affect the species must undergo a consultation with the 
Service under the requirements of section 7 of the Act.

Relationship of Critical Habitat to Lands Managed by the Department of 
Defense (DOD)

    We have excluded all DOD lands (including proposed critical habitat 
currently leased to NASA) at Fort Irwin under section 4(b)(2) of the 
Act for military readiness and national security. DOD requested that 
all Fort Irwin lands be excluded for national security. Of lands 
currently leased to NASA from DOD, a 996-acre inholding was proposed as 
critical habitat that lies completely within the boundaries of Fort 
Irwin. These lands include approximately 600 acres within the Goldstone 
Conservation Area that is managed by DOD for the benefit of Astragalus 
jaegerianus, further supporting our exclusion under section 4(b)(2) of 
the Act. Because the INRMP has not yet been completed, we did not 
consider DOD lands for non-inclusion under Section 4(a)(3)(B). We 
provide greater explanation below.
    The Sikes Act Improvement Act of 1997 (Sikes Act) requires each 
military installation that includes land and water suitable for the 
conservation and management of natural resources to complete, by 
November 17, 2001, an INRMP. Section 318 of the fiscal year 2004 
National Defense Authorization Act (Pub. L. 108-136) amended the Act, 
under Section 4(a)(3)(B), to address the relationship of INRMPs to 
critical habitat. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found there. Each INRMP includes an assessment of the ecological needs 
on the installation, including the need to provide for the conservation 
of listed species; a statement of goals and priorities; a detailed 
description of management actions to be implemented to provide for 
these ecological needs; and a monitoring and adaptive management plan. 
We consult with the military on the development and implementation of 
INRMPs for installations with listed species. Section 4(a)(3)(B) of the 
Act states that the Secretary shall not designate as critical habitat 
any lands controlled by the Department of Defense, or designated for 
its use, that are subject to an INRMP if the Secretary

[[Page 18237]]

determines that the plan provides a benefit to the species for which 
critical habitat is being proposed for designation. The DOD 
specifically requested that we exclude Fort Irwin from critical habitat 
based on this exclusion, and we worked closely with DOD to revise its 
draft INRMP over the last year. However, because DOD has not completed 
its INRMP for Fort Irwin, these DOD lands do not meet the requirements 
for non-inclusion under Section 4(a)(3)(B).
    Military lands may be excluded from critical habitat designation 
based on section 4(b)(2) of the Act. An area may be excluded from 
critical habitat if we determine, following an analysis of relevant 
impacts including the impact to national security, that the benefits of 
such exclusion outweigh the benefits of specifying a particular area as 
critical habitat, unless the failure to designate such area as critical 
habitat will result in the extinction of the species. DOD further 
requested the exclusion of all lands in Fort Irwin under section 
4(b)(2) based on national security concerns. After conducting the 
requisite 4(b)(2) analysis under section, we have excluded all DOD 
lands at Fort Irwin (the Goldstone-Brinkman and Paradise units) under 
section 4(b)(2) of the Act for military readiness and national 
security. The analysis, which led us to the conclusion that the 
benefits of excluding these areas exceed the benefits of designating 
them as critical habitat, and will not result in the extinction of the 
species, follows.
(1) Benefits of Inclusion
    The benefits of inclusion are low. Since the Fort Irwin units are 
all occupied by Astragalus jaegerianus, DOD must already consult with 
the Service regarding any activities on these lands that may affect the 
species. In other words, consultation would be required even without 
critical habitat designation. Under the Gifford Pinchot decision, 
critical habitat may provide greater recovery benefits to species than 
was previously believed, but it is not possible to quantify this at 
present. However, we have already consulted with and provided technical 
assistance to the Army relative to this expansion area. The largest 
aggregations of plants on these lands will be protected (see discussion 
above), and not subject to activities which would likely adversely 
affect the ability of the conservation areas to contribute to the 
recovery of the species.
    Another possible benefit of a critical habitat designation in 
general is education of landowners and the public regarding the 
potential conservation value of these areas. This may focus and 
contribute to conservation efforts by other parties by clearly 
delineating areas of high conservation value for certain species. In 
this case the primary land owner is DOD, and we believe that this 
educational benefit has largely been achieved because we have been 
coordinating for many years with DOD on its land management programs 
and its proposal to expand training activities. Based on these 
coordinating efforts, we believe that DOD is very aware of the 
conservation needs of Astragalus jaegerianus. For example, DOD 
sponsored the surveys for Astragalus jaegerianus in 2001 that provided 
the basis for the proposed critical habitat designation. Therefore, we 
believe the education benefits, which might arise from a critical 
habitat designation here, have already been generated.
(2) Benefits of Exclusion
    The Army has commented that critical habitat on Fort Irwin would 
result in substantial economic and military readiness impact. The Army 
believes that critical habitat would impact their ability to use the 
expansion lands for military training because such designation could 
separate entirely the western expansion areas from the installation and 
in the Army's opinion critical habitat ``does not allow any means of 
using the land for training without violating the critical habitat that 
would be designated.'' If critical habitat were to have such an effect, 
it might require the Army to relocate its training facilities. The Army 
commented that startup costs to establish a brigade-sized force-on-
force Combat Training Center in another location would cost $830 
million, and as much as $10 billion to improve an existing installation 
so that it could support the training mission.
    If these impacts were to occur, the benefits of excluding the 
installation from critical habitat would be high. The Service defers to 
the Army's identification of specific credible military readiness or 
national security impacts. Further, critical habitat would require 
additional administrative expenditures for consultation activities 
required by the designation for Fort Irwin (and the DOD lands leased to 
NASA). Since Fort Irwin is already working to conserve the species and 
habitat on its property and proposing measures that will conserve 
species and habitats, it is unlikely that the designation of critical 
habitat would provide additional benefits to the habitat through these 
additional consultations.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    Because the Astragalus jaegerianus habitat identified on Fort Irwin 
lands proposed for military training does provide the primary 
constituent elements and requires special management considerations or 
protection, it was proposed for designation as critical habitat. 
However, because the military has commented that critical habitat for 
A. jaegerianus had the potential to disrupt their critical national 
defense mission, we have determined that the benefits of exclusion of 
critical habitat at Fort Irwin outweigh the benefits of the designation 
and therefore we are excluding these lands under section 4(b)(2) of the 
Act. In addition to national security concerns, NASA expressed concern 
that creation of critical habitat on their lands leased from Fort Irwin 
would severely limit NASA's ability to develop cutting edge space 
communications technology. Furthermore, management is being provided in 
these areas to provide for species conservation.
(4) Exclusion Will Not Result in Extinction of the Species
    The exclusion of the DOD lands on Fort Irwin will not result in 
extinction of the species. We have already consulted with DOD on its 
proposal to expand military training in the expansion area and made the 
determination that this action would not cause jeopardy to the species 
(see Comment 6). Any additional actions by DOD which might adversely 
affect the species must undergo a consultation with the Service under 
the requirements of section 7 of the Act. The exclusions leave these 
protections unchanged from those that would exist if the excluded areas 
were designated as critical habitat.

Critical Habitat Designation

    Because all three critical habitat units that were proposed were 
excluded from final designation, we are designating zero acres (0 ac) 
(zero hectares (0 ha) of critical habitat in this final rule for 
Astragalus jaegerianus in San Bernardino County, California. Congress 
envisioned that there would be circumstances where no critical habitat 
would be designated (Congressional Research Service 1982).

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, or carry out do 
not destroy or adversely modify critical habitat.

[[Page 18238]]

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) requires Federal agencies to confer with us on any 
action that is likely to jeopardize the continued existence of a 
proposed species or result in destruction or adverse modification of 
proposed critical habitat. Conference reports provide conservation 
recommendations to assist the action agency in eliminating conflicts 
that may be caused by the proposed action. We may issue a formal 
conference report if requested by a Federal agency. Formal conference 
reports on proposed critical habitat contain an opinion that is 
prepared according to 50 CFR 402.14, as if critical habitat were 
designated. We may adopt the formal conference report as the biological 
opinion when the critical habitat is designated, if no substantial new 
information or changes in the action alter the content of the opinion 
(see 50 CFR 402.10(d)). The conservation recommendations in a 
conference report are advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency must enter into 
consultation with us. Through this consultation, the action agency 
ensures that their actions do not destroy or adversely modify critical 
habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Director 
believes would avoid the destruction or adverse modification of 
critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated, and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law.
    Activities on Federal lands that may affect Astragalus jaegerianus 
will require section 7 consultation. Activities on private or State 
lands requiring a permit from a Federal agency, such as a permit from 
the U.S. Army Corps of Engineers under section 404 of the Clean Water 
Act or any other activity requiring Federal action (i.e., funding, 
authorization), will also continue to be subject to the section 7 
consultation process. Federal actions not affecting listed species, and 
actions on non-Federal and private lands that are not federally funded, 
authorized, or permitted, do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to briefly describe and 
evaluate in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat or that may be affected by such 
designation. Though we have not designated any areas as critical 
habitat in this final rule, we note Federal actions may jeopardize the 
continued existence of the species.
    We recognize that those areas included in the proposed designation 
of critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the conservation of the 
species. For this reason, we want to ensure that the public is aware 
that the critical habitat designation process does not signal that 
habitat outside the proposed designation is unimportant or may not be 
required for the species' conservation. Any areas where Astragalus 
jaegerianus occurs will continue to be subject to conservation actions 
that may be 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 prohibitions of section 9 of the Act. Critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans, or other species 
conservation planning efforts if new information available to these 
planning efforts calls for a different outcome.
    As discussed previously in this rule, we are consulting with both 
the Army and the Bureau on activities that are being proposed on their 
lands. We have completed consultation with the Army and continue to 
coordinate with them on its proposed addition of training lands on NTC 
(Charis 2003). We are also consulting with the Bureau as the lead 
Federal agency on the WMP (Bureau 2003).
    Where federally listed wildlife species occur on private lands 
proposed for development, any habitat conservation plans submitted by 
the applicant to secure an incidental take permit, pursuant to section 
10(a)(1)(B) of the Act, would be subject to the section 7 consultation 
process. The Superior-Cronese Critical Habitat Unit for the desert 
tortoise (Gopherus agassizii), a species that is listed as threatened 
under the Act, overlaps in range with Astragalus jaegerianus in a 
portion of the Brinkman-Montana, Paradise, and Coolgardie populations 
of the species. Although we anticipate that most of the activities 
occurring on private lands within the range of A. jaegerianus will 
eventually be included under the umbrella of the HCP to be prepared by 
the County of San Bernardino, there may be activities proposed for 
private lands that either need to be completed prior to the approval of 
the WMP's HCP, or there may be a proposed activity that is not covered 
by the HCP, and therefore may require a separate habitat conservation 
plan.
    If you have questions regarding whether specific activities would 
require consultation under section 7 of the Act, contact the Field 
Supervisor, Ventura Fish and Wildlife Office (see ADDRESSES section). 
Requests for copies of the regulations on listed wildlife and inquiries 
about prohibitions and permits may be addressed to the U.S. Fish and 
Wildlife Service, Portland Regional Office, 911 NE 11th Avenue, 
Portland, OR 97232 (telephone 503/231-6131; facsimile 503/231-6243).

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial

[[Page 18239]]

data available and to consider the economic and other relevant impacts 
of designating a particular area as critical habitat. We may exclude 
areas from critical habitat upon a determination that the benefits of 
such exclusions outweigh the benefits of specifying such areas as 
critical habitat. We cannot exclude such areas from critical habitat 
when such exclusion will result in the extinction of the species.
    An analysis of the potential economic impacts of designating 
critical habitat for Astragalus jaegerianus was prepared and was made 
available for public review on December 8, 2004 (69 FR 70971). This 
analysis considered the potential economic effects of designating 
critical habitat as well as the protective measures taken as a result 
of the listing of A. jaegerianus as an endangered species, and other 
Federal, State, and local laws that aid habitat conservation in areas 
designated as critical habitat. However, because the Service has not 
designated any lands as critical habitat for A. jaegerianus the 
economic impact within the final designation is zero.
    A copy of the final economic analysis and supporting documents are 
included in our administrative record and may be obtained by contacting 
U.S. Fish and Wildlife Service, Branch of Endangered Species (see 
ADDRESSES section) or by download from the Internet at http://ventura.fws.gov.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order (EO) 12866, this document is not 
a significant rule in that it will not raise novel legal and policy 
issues, and it is not anticipated to have an annual effect on the 
economy of $100 million or more or affect the economy in a material 
way. This action was submitted to the Office of Management and Budget 
(OMB); however, OMB declined to review the proposed rule. We prepared 
an economic analysis of this action and used this analysis to meet the 
requirement of section 4(b)(2) of the Act to determine the economic 
consequences of designating the specific areas as critical habitat and 
excluding any area from critical habitat if it is determined that the 
benefits of such exclusion outweigh the benefits of specifying such 
areas as part of the critical habitat, unless failure to designate such 
area as critical habitat will lead to the extinction of Astragalus 
jaegerianus. However, because we are not designating any critical 
habitat, we will not be submitting the final rule to OMB for review.

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

    Under the Regulatory Flexibility Act (RFA) (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effects of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. SBREFA amended the RFA to 
require Federal agencies to provide a statement of the factual basis 
for certifying that a rule will not have a significant economic impact 
on a substantial number of small entities. SBREFA also amended the RFA 
to require a certification statement. Based on the information that is 
available to us at this time, we are certifying that this designation 
of critical habitat will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our rationale.
    According to the Small Business Administration (SBA), small 
entities include small organizations, including any independent 
nonprofit organization that is not dominant in its field, and small 
governmental jurisdictions, including school boards and city and town 
governments that serve fewer than 50,000 residents, as well as small 
businesses. The SBA defines small businesses categorically and has 
provided standards for determining what constitutes a small business at 
13 CFR 121.201 (also found at http://www.sba.gov/size/), which the RFA 
requires all federal agencies to follow. To determine if potential 
economic impacts to these small entities would be significant, the 
draft economic analysis considered the types of activities that might 
trigger regulatory impacts if critical habitat were to be designated as 
proposed. However, because zero acres (0 ac (zero ha)) of critical 
habitat for Astragalus jaegerianus are being designated with this final 
rule, we are certifying that this rule will not have a significant 
economic impact on a substantial number of small entities, and thus a 
regulatory flexibility analysis is not required.

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

    Under the SBREFA (5 U.S.C. 804(20), this rule is not a major rule. 
Based on the effects identified in the economic analysis, we believe 
that this critical habitat designation of zero acres (0 ac (zero ha)) 
will not have an effect on the economy of $100 million or more, will 
not cause a major increase in costs or prices for consumers, individual 
industries, federal, state, or local government agencies, or 
geographical regions, and will not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
None of these criteria are relevant to this analysis because we are 
designating zero acres (0 ac (zero ha)) of critical habitat. 
Nevertheless, based on the economic analysis, the likelihood of any 
energy-related activity occurring within the zero acres (0 ac (zero 
ha)) of designated critical habitat is minimal for the following 
reasons: (1) There are no transmission power lines identified on the 
what we originally proposed as critical habitat, and (2) there are no 
energy extraction activities (Bureau of Land Management 1980). 
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.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, Tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
two exceptions. It excludes ``a condition of federal assistance.'' It 
also excludes ``a duty

[[Page 18240]]

arising from participation in a voluntary Federal program,'' unless the 
regulation ``relates to a then-existing Federal program under which 
$500,000,000 or more is provided annually to State, local, and tribal 
governments under entitlement authority,'' if the provision would 
``increase the stringency of conditions of assistance'' or ``place caps 
upon, or otherwise decrease, the Federal Government's responsibility to 
provide funding'' and the State, local, or Tribal governments ``lack 
authority'' to adjust accordingly. (At the time of enactment, these 
entitlement programs were: Medicaid; AFDC work programs; Child 
Nutrition; Food Stamps; Social Services Block Grants; Vocational 
Rehabilitation State Grants; Foster Care, Adoption Assistance, and 
Independent Living; Family Support Welfare Services; and Child Support 
Enforcement.) ``Federal private sector mandate'' includes a regulation 
that ``would impose an enforceable duty upon the private sector, except 
(i) a condition of Federal assistance; or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities who receive Federal 
funding, assistance, or permits or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments. As such, Small Government Agency Plan is 
not required.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. As discussed above, the designation of zero acres (0 ac (zero 
ha)) of critical habitat in areas currently occupied by Astragalus 
jaegerianus would have little incremental impact on State and local 
governments and their activities. This is because the zero acres (0 ac 
(zero ha)) of critical habitat occurs to a great extent on Federal 
lands managed by the Department of Defense and the Bureau of Land 
Management. Less than 15 percent occurs on private lands that would 
involve State and local agencies, and the amount of private lands 
continues to diminish as parcels are purchased by DOD.
    Even though zero acres (0 ac (zero ha)) of critical habitat are 
designated, the process of identifying proposed critical habitat may 
have some benefit to State and local governments in that the areas 
essential to the conservation of these 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 making them wait for case-by-case section 7 
consultation to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and does meet the requirements of sections 3(a) and 
3(b)(2) of the Order. We are designating zero acres (0 ac (0 ha)) 
critical habitat in accordance with the provisions of the Endangered 
Species Act. The proposed rule used standard property descriptions and 
identified the primary constituent elements within the proposed 
designated areas to assist the public in understanding the habitat 
needs of Astragalus jaegerianus.

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

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

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the National 
Environmental Policy Act of 1969 in connection with designating 
critical habitat under the Endangered Species Act of 1973, as amended. 
We published a notice outlining our reasons for this determination in 
the Federal Register on October 25, 1983 (48 FR 49244). This position 
was upheld in the courts of the Ninth Circuit (Douglas County v. 
Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S Ct. 698 
(1996)). This final rule 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 coordinate with federally recognized Tribes on a 
Government-to-Government basis. We have determined that there are no 
Tribal lands essential for the conservation of Astragalus jaegerianus. 
Therefore, no tribal lands were proposed as critical habitat for A. 
jaegerianus.

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from the Field Supervisor, Ventura Fish and 
Wildlife Office (see ADDRESSES section).

Author

    The primary author of this proposed rule is Constance Rutherford, 
Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 
Portola Road, Suite B, Ventura, California 93003 (805/644-1766).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and

[[Page 18241]]

recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

0
Accordingly, the Service hereby amends part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
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.


0
2. In Sec.  17.12(h), revise the entry for ``Astragalus jaegerianus'' 
under ``FLOWERING PLANTS,'' to read as follows:


17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
      Flowering Plants .............................................................................................................................................................
 
                                                                      * * * * * * *
Astragalus jaegerianus...........  Lane Mountain milk-   U.S.A. (CA)........  Fabaceae--Pea......  E                       647     17.96(a)           NA
                                    vetch.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.96(a), add critical habitat for Astragalus jaegerianus, 
in alphabetical order under Family Fabaceae to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    Family Fabaceae: Astragalus jaegerianus (Lane Mountain milk-vetch)
    (1) Lands proposed for critical habitat, but excluded under 4(b)(2) 
and exempted under 3(5)(A) of the Act, consists of the mixed desert 
scrub community within the range of Astragalus jaegerianus that is 
characterized by the following primary constituent elements:
    (i) Shallow soils derived primarily from Jurassic or Cretaceous 
granitic bedrock, and less frequently soils derived from diorite or 
gabbroid bedrock and, at one location, granitic soils overlain by 
scattered rhyolitic cobble, gravel, and sand.
    (ii) The highly diverse mixed desert scrub community that includes 
the host shrubs within which Astragalus jaegerianus grows, most 
notably: Thamnosma montana, Ambrosia dumosa, Eriogonum fasciculatum 
ssp. polifolium, Ericameria cooperi var. cooperi, Ephedra nevadensis, 
and Salazaria mexicana.
    (2) Critical Habitat Map Units.
    Because zero acres (0 ac) of critical habitat are being designated, 
no critical habitat maps are provided here.

    Dated: April 1, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-6920 Filed 4-4-05; 3:01 pm]
BILLING CODE 4310-55-P