[Federal Register Volume 71, Number 191 (Tuesday, October 3, 2006)]
[Proposed Rules]
[Pages 58340-58363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8189]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU77


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Ceanothus ophiochilus (Vail Lake ceanothus) and 
Fremontodendron mexicanum (Mexican flannelbush)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for Ceanothus ophiochilus (Vail Lake 
ceanothus) and Fremontodendron mexicanum (Mexican flannelbush) pursuant 
to the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 644 acres (ac) (262 hectares (ha)) are proposed for the 
designation of critical habitat for these two species. Approximately 
283 ac (115 ha) of land in Riverside County, California, are being 
proposed as critical habitat for C. ophiochilus, and approximately 361 
ac (147 ha) of land in San Diego County, California, are being proposed 
as critical habitat for F. mexicanum.

DATES: We will accept comments from all interested parties until 
December 4, 2006. We must receive requests for public hearings, in 
writing, at one of the addresses shown in the ADDRESSES section by 
November 17, 2006.

ADDRESSES: If you wish to comment on the proposed rule, you may submit 
your written comments and information by any of the following methods:
    (1) E-mail: [email protected]. Include ``RIN 1018-AU77'' in 
the subject line. Please see the Public Comments Solicited section 
under SUPPLEMENTARY INFORMATION.
    (2) Fax: 760/431-9624.
    (3) U.S. mail or hand-delivery: Jim Bartel, Field Supervisor, 
Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, 
CA 92011.
    (4) Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Carlsbad Fish and Wildlife Office at the above address.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, telephone, 760/431-9440.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 
et seq.), including whether it is prudent to designate critical 
habitat;
    (2) Specific information on the amount and distribution of 
Ceanothus ophiochilus or Fremontodendron mexicanum habitat, what areas 
should be included in the designations that were occupied at the time 
of listing that contain the features that are essential for the 
conservation of the species, and what areas that were not occupied at 
the listing are essential to the conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
mapped critical habitat subunits and their possible effects on proposed 
critical habitat;
    (4) We are proposing to exclude non-Federal lands targeted for 
conservation within the Western Riverside County MSHCP from the final 
designation of critical habitat for Ceanothus ophiochilus under section 
4(b)(2) of the Act (see Exclusions Under Section 4(b)(2) of the Act for 
details on the Western Riverside MSHCP). Please provide information 
concerning whether the benefits of exclusion of any of these specific 
areas outweigh the benefits of their inclusion under section 4(b)(2) of 
the Act. If the Secretary determines the benefits of including these 
lands outweigh the benefits of excluding them, they will not be 
excluded from critical habitat;
    (5) The appropriateness of excluding lands that contain 
Fremontodendron mexicanum occurrences within areas of the San Diego 
MSCP and areas of the BLM Otay Mountain Wilderness covered by the 1994 
multiple agency MOU (MOU 1994) from the final designation of critical 
habitat. Fremontodendron mexicanum is not covered by the MSCP; however, 
other species that co-occur with F. mexicanum are covered by the MSCP. 
Please provide comments whether the protection and management of the 
habitat for these co-occurring species is adequate to justify the 
exclusion of these lands under section 4(b)(2) of the Act. Also, we are 
seeking any information on the benefits of including or excluding these 
lands from the critical habitat designation;
    (6) The appropriateness of including lands in the Agua Tibia 
Mountains owned by the U.S. Forest Service and managed under its Land 
Management Plans for the Four Southern California National Forests from 
the final designation of critical habitat for Ceanothus ophiochilus. 
Please provide comments on how implementation of the management plan(s) 
in the Agua Tibia Mountains will or will not provide for conservation 
for C. ophiochilus. Also provide information on any minimization 
measures or monitoring plans for C. ophiochilus that will help insure 
that the occurrences of C. ophiochilus remain healthy and viable in the 
Cleveland National Forest. Finally, provide comments on the benefits of 
including or excluding these lands from the critical habitat 
designation;
    (7) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities;
    (8) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments;
    (9) Information concerning pollinator species for Ceanothus 
ophiochilus or Fremontodendron mexicanum and whether sufficient 
information exists to determine if such a biological feature should be 
considered a primary constituent element for either of these species 
(please see ``Primary Constituent Elements'' section of this proposed 
rule for a detailed discussion);
    (10) Whether any areas not currently known to be occupied by either 
species, but essential to the conservation of either species, should be 
included in the proposed designation; and
    (11) Whether the benefit of exclusion of any particular area 
outweighs the

[[Page 58341]]

benefits of inclusion under section 4(b)(2) of the Act.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please submit Internet comments to [email protected]. 
Please also include ``Attn: RIN 1918-AU77'' in your e-mail subject line 
and your name and return address in the body of your message. If you do 
not receive a confirmation from the system that we have received your 
Internet message, contact us directly by calling our Carlsbad Fish and 
Wildlife Office at phone number (760) 431-9440. Please note that the e-
mail address [email protected] will be closed at the termination 
of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their names and/or home addresses, etc. but if you wish us to consider 
withholding this information you must state this prominently at the 
beginning of your comments. In addition, you must present rationale for 
withholding this information. This rationale must demonstrate that 
disclosure would constitute a clearly unwarranted invasion of privacy. 
Unsupported assertions will not meet this burden. In the absence of 
exceptional, documentable circumstances, this information will be 
released. We will always make submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives of or officials of organizations or businesses, 
available for public inspection in their entirety. Comments and 
materials received will be available for public inspection, by 
appointment, during normal business hours at the Carlsbad Fish and 
Wildlife Office (see ADDRESSES section).

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

    Attention to and protection of habitat is paramount to successful 
conservation actions. The role that designation of critical habitat 
plays in protecting habitat of listed species, however, is often 
misunderstood. As discussed in more detail below in the discussion of 
exclusions under section 4(b)(2) of the Act, there are significant 
limitations on the regulatory effect of designation under section 
7(a)(2) of the Act. In brief, (1) Designation provides additional 
protection to habitat only where there is a federal nexus; (2) the 
protection is relevant only when, in the absence of designation, 
destruction or adverse modification of the critical habitat would in 
fact take place (in other words, other statutory or regulatory 
protections, policies, or other factors relevant to agency decision-
making would not prevent the destruction or adverse modification); and 
(3) designation of critical habitat triggers the prohibition of 
destruction or adverse modification of that habitat, but it does not 
require specific actions to restore or improve habitat.
    Currently, 475 species, or 36 percent of the 1,310 listed species 
in the United States under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,310 
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, the Section 10 incidental take permit process, and cooperative, 
nonregulatory efforts with private landowners. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    In considering exclusions of areas proposed for designation, we 
evaluated the benefits of designation in light of Gifford Pinchot Task 
Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004) 
(hereinafter Gifford Pinchot). In that case, the Ninth Circuit 
invalidated the Service's regulation defining ``destruction or adverse 
modification of critical habitat.'' In response, on December 9, 2004, 
the Director issued guidance to be considered in making section 7 
adverse modification determinations. This proposed critical habitat 
designation does not use the invalidated regulation in our 
consideration of the benefits of including areas in this final 
designation. The Service will carefully manage future consultations 
that analyze impacts to designated critical habitat, particularly those 
that appear to be resulting in an adverse modification determination. 
Such consultations will be reviewed by the Regional Office prior to 
finalizing to ensure that an adequate analysis has been conducted that 
is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, 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.

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 limited ability to provide for 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, and is very 
expensive, thus diverting resources from conservation actions that may 
provide relatively more benefit to imperiled species.

[[Page 58342]]

    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). These costs, which are not 
required for many other conservation actions, directly reduce the funds 
available for direct and tangible conservation actions.

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this proposed rule. For more 
information on Ceanothus ophiochilus and Fremontodendron mexicanum, 
refer to the final listing rule published in the Federal Register on 
October 13, 1998 (63 FR 54956).

Species Descriptions and Life History

    As discussed in the listing rule, Ceanothus ophiochilus is a 4-5 
feet (ft) (1.2-1.5 meters (m)) tall shrub in the buckthorn family 
(Rhamnaceae) described by Steve Boyd, Timothy Ross, and Laurel Arnseth 
based on a collection made by the authors in March 1989 west of Vail 
Lake in Riverside County, California (Boyd et al. 1991). 
Fremontodendron mexicanum is a small tree or shrub 5-19 ft (1.5-6 m) 
tall in the cacao family (Sterculiaceae) first described by Anstruther 
Davidson (1917) based on a collection sent to him by Kate Sessions.

Ecology and Habitat

    Ceanothus ophiochilus occurs in restricted, localized occurrences 
in the interior foothills of Riverside County, California, and 
Fremontodendron mexicanum occurs in restricted and localized 
occurrences from the foothills of San Diego County and northwestern 
Baja California, Mexico. Ceanothus ophiochilus is found in chamise-
chaparral, often in association with specific soil types (Fross and 
Wilken 2006, p. 216). Fremontodendron mexicanum is known from ephemeral 
drainages and associated slopes with closed-cone coniferous forest 
dominated by Tecate cypress and chaparral. Fremontodendron mexicanum is 
found on the San Miguel Exchequer soil series; however, the 
distribution of this soil series covers a much larger geographic area 
than the known distribution of this species in the United States.
    Chaparral, like other Mediterranean shrubland communities, is 
adapted to intervals between wildfires of approximately 20 to 50 years 
(Keeley 1986). However, chaparral species have differing life history 
modes and characteristics (Keeley 1986, p. 95). Ceanothus ophiochilus 
does not resprout after fire but instead recovers by post-fire seed 
germination from seeds stored in the soil. This ``obligate seeder,'' 
like other species of Arctostaphylos (manzanita) and Ceanothus, 
require[s] 5-25 years for seed crops sufficient to replenish the seed 
pool in the soil (Keeley 1986, p. 99). Citing Arnold et al. 1951 and 
Zedler et al. 1983, Keeley (1986, p. 99) stated that if frequent fires 
occur, obligate seeders may not produce enough seed, then these 
obligate seeders may be eliminated from chaparral. Moreover, sustained 
fire prevention can result in senescent stands of C. ophiochilus that 
may not survive the eventual and unpredictable fires to reproduce 
vegetatively (Boyd et. al. 1991, pp. 30-39).
    On the other hand, Fremontodendron mexicanum is a ``facultative 
resprouter'' because it recovers after fire by seed germination and by 
resprouting from its roots. According to Keeley (1986, pp. 104-105), 
facultative resprouters are ``clearly more resilient to frequent fire 
[than obligate seeders] and they are potentially more resilient to long 
fire-free periods [like ``obligate resprouters''] because of their 
ability to replace their canopy with new basal sprouts in the absence 
of fire.''

Distribution

    Both Ceanothus ophiochilus and Fremontodendron mexicanum have 
extremely limited distributions. The listing rule (63 FR 54956) 
describes only three known occurrences of C. ophiochilus. These 
occurrences are known from two distinct places; one is west of Vail 
Lake and the other two are south of Vail Lake in the Agua Tibia 
Wilderness of the Cleveland National Forest in southwestern Riverside 
County. No new occurrences of this species have been found since the 
time it was listed. Fremontodendron mexicanum is only found growing 
naturally in southern San Diego County on Otay Mountain and in 
northwestern Baja California, Mexico. As stated in the listing rule, F. 
mexicanum is used in landscaping as a drought-tolerant plant, and this 
has led to a number of collection records that are far outside this 
species' natural range. At the time of listing, fewer than 10 
historical locations had been reported for F. mexicanum in the United 
States. After researching the historical locations for the publication 
of the listing rule, it was determined that only one population of F. 
mexicanum was both extant and of native origin.
    In early 2006, a previously undiscovered occurrence of 
Fremontodendron mexicanum was found in Little Cedar Canyon on Otay 
Mountain by Service biologists on land managed by the Bureau of Land 
Management. Little Cedar Canyon is located just to the west of Cedar 
Canyon, where the only other natural U.S. occurrence of F. mexicanum is 
found. This new occurrence in Little Cedar Canyon is spread out over a 
1-mile (1.6 kilometers) stretch of the canyon bottom. Twenty-six plants 
were documented in this canyon; however, the entire canyon was not 
surveyed and additional plants may occur further up the canyon or up 
one of the side canyons. With regards to occurrences in Baja 
California, Mexico, we have no current information on the population in 
Arroyo Seco; however, the occurrence in Arroyo Hediondo was visited in 
early 2006 (Snapp-Cook 2006). During that survey effort, four plants 
were found and a dam had been built upstream about 1 mile (1.6 
kilometers) from the location where the plants were found that may 
affect the hydrology of the stream (Snapp-Cook 2006).

Previous Federal Actions

    Ceanothus ophiochilus and Fremontodendron mexicanum were federally 
listed as endangered and threatened, respectively, on October 13, 1998 
(63 FR 54956). Ceanothus ophiochilus and F. mexicanum are listed as 
endangered and rare, respectively, by the State of California (Fross 
and Wilken 2006, p. 85). At the time these plants were federally 
listed, the Service evaluated the benefits of designating critical 
habitat to the detrimental effects (threats) of increased collection 
and vandalism and the potential for private landowner misunderstandings 
about the effects of critical habitat designation on private lands. The 
Service found, based on these factors, that designation of critical 
habitat for each species, C. ophiochilus and F. mexicanum, was not 
prudent. On August 10, 2004, the Center for Biological Diversity and 
California Native Plant Society challenged our failure to designate 
critical habitat for these two species as well as three other plant 
species (Center for Biological Diversity, et al. v. Gale Norton, 
Secretary of the Department of the Interior, et al., C-04-3240 JL, N. 
D. Cal.). The Service agreed to withdraw our previous not prudent 
finding and publish a proposed determination of critical habitat on or 
before September

[[Page 58343]]

20, 2006. If prudent and a proposed designation is promulgated, then a 
final designation is due by September 20, 2007. Neither of these 
species currently has a completed recovery plan. We are hereby 
withdrawing our previous not prudent determination of critical habitat 
for C. ophiochilus and F. mexicanum. We have further re-evaluated 
prudency of designating critical habitat for these two species and 
reconsidered our evaluation of the threats posed by vandalism and 
overcollection in our previous prudency determination. We currently 
have no credible information indicating that the designation of 
critical habitat would be expected to increase the human threat from 
vandalism or overcollection. Therefore, we have now determined critical 
habitat to be prudent. As a result, we are now proposing to designate 
critical habitat for C. ophiochilus and F. mexicanum.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as (i) The 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) Essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical 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, as defined under section 3 of the Act, means 
to use and the use of all methods and procedures which are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided under the Act are no longer necessary. Such 
methods and procedures include, but are not limited to, all activities 
associated with scientific resources management, such as research, 
census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    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. Section 7 is a 
purely protective measure and does not require implementation of 
restoration, recovery, or enhancement measures.
    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 using the best scientific 
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)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management considerations 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).) In addition, when the best available 
scientific data do not demonstrate that the conservation needs of the 
species require additional areas, we will not designate critical 
habitat in areas outside the geographical area occupied by the species 
at the time of listing. An area currently occupied by the species but 
not known to be occupied at the time of listing will likely, but not 
always, be essential to the conservation of the species and, therefore, 
typically included in the critical habitat designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), along with 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 data available. They require Service biologists to the 
extent consistent with the Act and with the use of the best scientific 
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 the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support occurrences, 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)(2) of the Act, we use the best 
scientific data available in determining areas that contain the 
features that are essential to the conservation of Ceanothus 
ophiochilus and Fremontodendron mexicanum. This includes information 
from the proposed listing rule (October 2, 1995, 60 FR 51433) and final 
listing rule (63 FR 54956), data from research and survey observations 
published in peer-reviewed articles, site visits and unpublished survey 
data, regional Geographic Information System (GIS)

[[Page 58344]]

layers including soil, vegetation and species coverages from both San 
Diego and Riverside Counties, and data compiled in the California 
Natural Diversity Database (CNDDB). We have also reviewed available 
information that pertains to the habitat requirements of these species. 
We are not proposing any areas outside the geographical area occupied 
by the species at the time of listing except for Little Cedar Canyon, 
which contains F. mexicanum.
    For Ceanothus ophiochilus, the primary informational sources used 
for this proposal are (1) CNDDB (2005 and 2006); (2) Boyd et. al. 
(1991); (3) Boyd and Banks (1995); (4) herbarium records from San Diego 
Natural History Museum, University of California at Berkeley, 
University of California at Riverside, and Rancho Santa Ana Botanical 
Garden; and (5) site visits by Service biologists to the known 
occurrences of Ceanothus ophiochilus in the Agua Tibia Wilderness of 
the Cleveland National Forest in early 2006. Additional information was 
provided by the Cleveland National Forest of the U.S. Forest Service 
(USFS), which was reviewed for development of this proposed rule.
    For Fremontodendron mexicanum, the primary informational sources 
used for mapping the Fremontodendron mexicanum proposed critical 
habitat are the following: (1) CNDDB (2005 and 2006); (2) Kelman (1983, 
1991); (3) herbarium records from San Diego Natural History Museum, 
University of California at Berkeley, University of California at 
Riverside, and Rancho Santa Ana Botanical Garden; and (4) site visits 
conducted by Service biologists in late 2005 and early 2006. The 
following informational sources were also used in the preparation of 
this rule: (1) The San Diego Project Office/Palm Springs--South Coast 
Field Office of the U.S. Bureau of Land Management (BLM); (2) the 
County of San Diego, MSCP Division; (3) the Botany Department of San 
Diego Natural History Museum; and (4) site visits by Service 
biologists. Service biologists conducted site visits to Cedar Canyon 
(CNDDB element occurrence 1, 13, 16), Little 
Cedar Canyon, and one unnamed canyon on the west side of Otay Mountain 
(CNDDB element occurrence 7) in late 2005 and early 2006 with 
the goal of relocating presumed extirpated historical occurrences of F. 
mexicanum. Service biologists also surveyed Horsethief Canyon north of 
Barret Lake in early 2006 to investigate a collection of F. mexicanum 
made in 1999 (CNDDB element occurrence 17). Service biologists 
were unable to relocate any of the historical sites outside of the 
known occurrence in Cedar Canyon; however, Service biologists did 
locate a previously undiscovered occurrence of F. mexicanum in Little 
Cedar Canyon during these site visits. In the site visit to the 
occurrences in Cedar Canyon and Little Cedar Canyon, the species was 
found growing on the terraces adjacent to Cedar Creek and on the slopes 
associated with the stream and terraces.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we consider those physical and biological features, or primary 
constituent elements (PCEs), that are essential to the conservation of 
the species, and within areas occupied by the species at the time of 
listing, 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 breeding, reproduction, and rearing (or development) 
of offspring; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.

Ceanothus ophiochilus

    The specific primary constituent elements required for Ceanothus 
ophiochilus are derived from the biological and physical needs of the 
species as described in the final listing rule (63 FR 54956), as well 
as information contained in this proposed rule.
Space for Growth and Reproduction
    Ceanothus ophiochilus is restricted to ridgetops and north- to 
northeast-facing slopes in chamise chaparral (PCE 1). It 
occurs on soils formed from metavolcanic and ultra-basic parent 
materials or deeply weathered gabbro, all of which are phosphorus 
deficient and thus considered to be nutrient-poor (PCE 2) 
(Boyd et al. 1991). These soils are similar to serpentine soils, which 
are well known for the high number of associated rare and endemic 
plants (Kruckeburg 1984). The high number of rare and endemic plants 
that grow on nutrient-poor soils, sometimes termed as harsh soils, is 
due to the difficulty that common plants have with growing in these 
conditions. In turn, when plants become established on such soils, they 
remain genetically isolated from close relatives that are not able to 
thrive on the specialized soils. In this way, these nutrient-poor soils 
may help the species maintain reproductive isolation (Boyd et al. 
1991). This is important because C. ophiochilus appears to hybridize 
with the locally common C. crassifolius in places where the two species 
come in close proximity (Boyd et al. 1991). Hybrids are generally found 
on the margins of C. ophiochilus occurrences, where the soil changes 
from the harsh metavolcanic soil that C. ophiochilus is typically found 
on to the milder surrounding soil that supports species such as C. 
crassifolius (Boyd et al. 1991). Because hybridization is a common 
natural phenomenon among the species of Ceanothus (Schmidt 1993; Fross 
and Wilken 2006, pp. 131-149), these metavolcanic soils are not only 
important for growth and reproduction of C. ophiochilus, but also for 
space and separation from other Ceanothus species.
    Soils where the plant is found in the Agua Tibia Wilderness are 
mapped as Ramona, Cienaba, and Vista series (USDA 1973, pp 38-40, 70-
71, 82-83), but appear to be Las Posas series based on field review and 
soil samples (USFS 1998a). Soils where the plant is found at Vail Lake 
are mapped as Cajalco series (USDA 1971, p. 21).
    Ceanothus ophiochilus is found in chamise chaparral or mixed 
chamise-ceanothus-manzanita chaparral at elevations of 2,000-3,000 ft 
(666 to 1,000 m) (California Department of Fish and Game 2000, CNF 
occurrence record forms) with the following associated species: 
Adenostoma fasciculatum, A. sparsifolium, Quercus berberidifolia, C. 
crassifolius, Arctostaphylos spp., Salvia clevelandii, and Eriodictyon 
crassifolium (PCE 3) (Boyd et. al. 1991). These species are 
much more common than C. ophiochilus in chaparral ecosystems. Even 
though they grow in close proximity to C. ophiochilus, some of these 
species are unable to grow on the specific type of soil where C. 
ophiochilus is found, and hybrids were found on the edges of the 
occurrence in a different type of soil (Boyd et. al. 1991, p. 38).
    We have little information about the pollinators or reproductive 
biology of this species. This species does not have a burl (an 
underground mass from which the species can resprout following fire) as 
some species of Ceanothus do; instead, the seeds need fire to germinate 
and sprout. Little information exists regarding the dispersal of this 
species.
Primary Constituent Elements for Ceanothus ophiochilus
    Pursuant to our regulations, we are required to identify the known 
physical and biological features (PCEs) essential

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to the conservation of Ceanothus ophiochilus. All areas proposed as 
critical habitat for C. ophiochilus are currently occupied, within the 
species' historical geographic range, identified within the listing 
rule, and contain sufficient PCEs to support at least one life history 
function. Based on our current knowledge of the life history, biology, 
and ecology of the species and the requirements of the habitat to 
sustain the essential life history functions of the species, we have 
determined that C. ophiochilus' PCEs are:
    (1) Flat to gently sloping north to northeast facing ridge tops 
with slopes in the range of 0 to 40 percent slope that provide the 
appropriate solar exposure for seedling establishment and growth;
    (2) Soils formed from metavolcanic and ultra-basic parent materials 
and deeply weathered gabbro or pyroxenite-rich outcrops that provide 
nutrients and space for growth and reproduction. Specifically in the 
areas that Ceanothus ophiochilus is found, the soils are:
    (a) Ramona, Cienaba, Las Posas, and Vista series in the Agua Tibia 
Wilderness; and
    (b) Cajalco series in the vicinity of Vail Lake; and
    (3) Chamise chaparral or mixed chamise-ceanothus-arctostaphylos 
chaparral at elevations of 2,000 ft to 3,000 ft (610 m to 914 m) that 
provide the appropriate canopy cover and elevation requirements for 
growth and reproduction.
    This proposed designation is designed for the conservation of PCEs 
necessary to support the life history functions which were the basis 
for the proposal. Because not all life history functions require all 
the PCEs, not all proposed critical habitat will contain all the PCEs.
    Each of the areas proposed in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of Ceanothus ophiochilus. In some cases, the PCEs exist as a 
result of ongoing Federal actions. As a result, ongoing Federal actions 
at the time of designation will be included in the baseline in any 
consultation conducted subsequent to this designation.

Fremontodendron mexicanum

    The specific primary constituent elements required for 
Fremontodendron mexicanum are derived from the biological and physical 
needs of the species as described in the final listing rule (63 FR 
54956), as well as the information below.
Space for Growth and Reproduction
    For its individual and population growth, Fremontodendron mexicanum 
needs alluvial terraces and benches adjacent to moderately sloped 
streams, creeks, and ephemeral drainages; stabilized north-to east-
facing slopes associated with steep slopes (San Miguel--Exchequer soil 
complex has slopes in a range of 9 to 70 percent (USDA 1973, p. 76)); 
and canyons (PCE 1 and 2). Fremontodendron mexicanum 
occurs at elevations of 900 ft (274 m) to 3,000 ft (914 m) in the 
United States (63 FR 54956); however, in Mexico, F. mexicanum occurs at 
an elevation of approximately 30 ft (9 m). Erosion from the steep 
slopes on Otay Mountain provides soils that form benches along the 
streambeds in Cedar Canyon and Little Cedar Canyon where F. mexicanum 
grows. Fremontodendron mexicanum also occupies some areas on slopes 
adjacent to the streambeds (Snapp-Cook 2006). Approximately 1,000 
plants were observed on the slopes associated with the alluvial 
terraces in three specific locations (Snapp-Cook 2006). In each of 
these locations, plants occurring on the slopes were between 10 and 500 
ft (3 and 152 m) from the stream bed. Although the role that the plants 
on sloped areas play in the dynamics of growth and reproduction of this 
species is unknown at this time, the high density of these plants 
suggests that they may play a significant role.
    Fremontodendron mexicanum is found growing within open stands of 
Tecate cypress, which often form a closed-cone coniferous forest, or is 
interspersed with mixed chaparral and Platanus racemosa (sycamore) (PCE 
3) (63 FR 54956). In addition to cypress and sycamore, F. 
mexicanum is frequently associated with Dendromecon rigida ssp. rigida 
(tree poppy) and Malosma laurina (laurel sumac) (Snapp-Cook 2006). The 
canyon slopes around F. mexicanum are generally vegetated with 
chaparral and coastal sage scrub species (63 FR 54956). This mix of 
chaparral and riparian species may provide adequate shade and ground 
cover to exclude nonnative species, preventing such species from 
competing with F. mexicanum (Snapp-Cook 2006). Fremontodendron 
mexicanum is a facultative resprouter, meaning it is able to sprout 
from underground roots after a fire, flood, or other disturbance 
destroys the above ground plant (Snapp-Cook 2006). This makes F. 
mexicanum more resilient to frequent fire than obligate seeders (plants 
that need fire to activate the germination of their seeds) because 
obligate seeders like Tecate cypress need 6 to 30 years to produce 
sufficient numbers of seeds to reproduce following a fire, whereas, F. 
mexicanum has the ability to begin replacing its canopy with new basal 
sprouts relatively quickly following a fire (Keeley 1986). More 
research is needed into F. mexicanum's reproduction and the role that 
pollination and seed production play in its survival.
Hydrology and Soil Moisture Requirements for the Species
    Fremontodendron mexicanum has been cultivated since its discovery 
in the early 1900s, and the data available from the cultivation reports 
suggest that this species does not need much water and does not do well 
in soils that do not drain well (Bornstein et al. 2005). 
Fremontodendron mexicanum grows on terraces and alluvial benches that 
are maintained by a natural hydrological cycle, which erodes the 
surrounding metavolcanic soils on the slopes and deposits those soils 
in the stream beds (Snapp-Cook 2006). The natural hydrological cycle 
also maintains open and semi-open spaces where F. mexicanum can 
establish itself. The natural flows may also provide transportation of 
seeds down stream to establish and augment downstream occurrences.
Primary Constituent Elements for Fremontodendron mexicanum
    Pursuant to our regulations, we are required to identify the known 
physical and biological features (PCEs) essential to the conservation 
of Fremontodendron mexicanum. The areas proposed as critical habitat 
for F. mexicanum are currently occupied, within the species' historical 
geographic range, and contain sufficient PCEs to support the species. 
Based on our current knowledge of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that the PCEs for F. mexicanum are:
    (1) Alluvial terraces, benches, and associated slopes within 500 
feet (152 meters) of streams, creeks, and ephemeral drainages where 
water flows primarily after peak seasonal rains with a gradient ranging 
from 3 to 7 percent; and stabilized north-to east-facing slopes 
associated with steep (9 to 70 percent) slopes and canyons that provide 
space for growth and reproduction.
    (2) Silty loam soils derived from metavolcanic and metabasic 
bedrock, mapped as San Miguel-Exchequer Association soil series that 
provide

[[Page 58346]]

nutrients and substrate with adequate drainage to support seedling 
establishment and growth.
    (3) Open Cupressus forbesii and Platanus racemosa stands at 
elevations of 900 ft (274 m) to 3,000 ft (914 m) within a matrix of 
chaparral (such as Dendromecon rigida ssp. rigida and Malosma laurina) 
and riparian vegetation that provide adequate space for growth and 
reproduction.
    This proposed designation is designed for the conservation of PCEs 
necessary to support the life history functions which were the basis 
for the proposal. Because not all life history functions require all 
the PCEs, not all proposed critical habitat will contain all the PCEs.
    Each of the areas proposed in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of Fremontodendron mexicanum. In some cases, the PCEs exist 
as a result of ongoing Federal actions. As a result, ongoing Federal 
actions at the time of designation will be included in the baseline in 
any consultation conducted subsequent to this designation.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific data available in determining areas that contain the 
features that are essential to the conservation of Ceanothus 
ophiochilus and Fremontodendron mexicanum. Both of these species have 
small ranges and relatively few occurrences; therefore, all known 
occurrences of each species are essential for their conservation.
    To delineate the proposed critical habitat for Ceanothus 
ophiochilus, we used the following criteria: (1) We identified all 
areas known to be occupied by C. ophiochilus at the time of listing 
and/or currently known to be occupied using the location data from Boyd 
and Banks (1995); (2) we created GIS polygons, using these areas as 
guides, that included the occurrences and the ridge tops and north- and 
northeast-facing slopes immediately adjacent (within 500 ft (152 m)) to 
the occurrences of C. ophiochilus; and (3) we connected the polygons 
that were closer than 0.6 mi (1 km) to reduce fragmentation and ensure 
that the subunits captured populations and not individual occurrences.
    To delineate the proposed critical habitat for Fremontodendron 
mexicanum, we used the following criteria: (1) We identified all areas 
known to be occupied by native occurrences (we did not include 
occurrences known to be of cultivated origin) of F. mexicanum at the 
time of listing and/or currently known to be occupied using current 
data in the CNDDB (2005) and data obtained from field surveys (Snapp-
Cook 2006); (2) we created GIS polygons, using these areas as guides, 
that included the alluvial terraces and benches occupied by F. 
mexicanum, and the associated slopes within 500 ft (152 m) of the areas 
occupied by F. mexicanum to insure that adequate space was delineated 
to encompass all existing F. mexicanum and the area needed to maintain 
the PCEs; and (3) we connected the polygons that were closer than 0.5 
mi (0.8 km) from one another with a 660 ft. (201 m) wide corridor to 
allow for connectivity between known occurrences for the transfer of 
pollen and seeds and natural riparian process to occur.
    We then analyzed areas meeting these criteria to determine if any 
existing conservation or management plans exist that benefit the 
species and their PCEs. Ceanothus ophiochilus is included as a covered 
species in the Western Riverside County MSHCP. As a result, some 
occupied areas are being proposed for exclusion under section 4(b)(2) 
of the Act from the final designation of critical habitat for this 
species (please see ``Exclusions under Section 4(b)(2) of the Act'' for 
a detailed discussion). Fremontodendron mexicanum was initially 
considered for coverage under the San Diego MSCP; however, it was not 
covered because there was not enough information to determine how the 
MSCP would affect this plant. Other species covered by the San Diego 
MSCP, such as Tecate cypress and the Thorne's hairstreak butterfly 
(Mitoura thornei) co-occur with F. mexicanum in Cedar Canyon and/or 
Little Cedar Canyon, and the management for these other species may 
benefit F. mexicanum. At this time we are not proposing these areas for 
exclusion; however, we are soliciting public comment on any benefits to 
F. mexicanum from management of co-occurring species and the 
appropriateness of exclusion in the final rule (see Public Comments 
Solicited section).
    The MSHCP and MSCP documents were used as aids in determining areas 
that contain the features that are essential to the conservation of 
these two species. No areas outside the geographical area occupied at 
the time of listing by C. ophiochilus have been proposed for 
designation. Areas known to be occupied by F. mexicanum at the time of 
listing plus one newly discovered occupied area are proposed for 
designation. On the basis of an analysis of the newly discovered 
population we have determined that the population is essential for the 
recovery of the species. As such, the specific area containing this 
population has been determined to be essential to the conservation of 
F. mexicanum. The importance of the identification of any additional 
populations was identified in the 1997 biological opinion on the San 
Diego MSCP, which states, ``due to the rarity of the species, any new 
population found within the planning area will be significant to the 
survival and recovery of this species' (Service 1997, p. 112).
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including areas such as buildings, paved areas, 
and other structures that lack PCEs for Fremontodendron mexicanum and/
or Ceanothus ophiochilus. The scale of the maps prepared under the 
parameters for publication within the Code of Federal Regulations may 
not reflect the exclusion of such developed areas. Any such structures, 
and the land under them inadvertently left inside critical habitat 
boundaries shown on the maps for this proposed rule have been excluded 
by text in the proposed rule and are not proposed for designation as 
critical habitat. Therefore, Federal actions limited to these areas 
would not trigger section 7 consultation, unless they may affect the 
species and/or primary constituent elements in adjacent critical 
habitat.
    We are proposing to designate critical habitat on lands that we 
have determined are occupied and contain sufficient primary constituent 
elements to support life history functions essential for the 
conservation of each species.
    Units are proposed for designation based on sufficient PCEs being 
present to support one or more of the species life history functions. 
Some units contain all PCEs and support multiple life processes. Some 
segments contain only a portion of the PCEs necessary to support the 
two species' particular use of that habitat. Where a subset of the PCEs 
are present (such as water temperature during migration flows) at the 
time of designation, this rule protects those PCEs and thus the 
conservation function of the habitat.
    Section 10(a)(1)(B) of the Act authorizes us to issue permits for 
the take of listed species incidental to otherwise lawful activities. 
An incidental take permit application must be supported by a habitat 
conservation plan (HCP) that identifies conservation measures that the 
permittee agrees to implement for the species to minimize and mitigate 
the impacts of the

[[Page 58347]]

requested incidental take. We often exclude non-Federal public lands 
and private lands that are covered by an existing operative HCP and 
executed implementation agreement (IA) under section 10(a)(1)(B) of the 
Act from designated critical habitat because the benefits of exclusion 
outweigh the benefits of inclusion as discussed in section 4(b)(2) of 
the Act. While take of listed plant species is not authorized under 
section 10(a)(1)(B) of the Act, HCPs can include conservation measures 
that benefit listed plant species. We are proposing to exclude the 
private lands at Vail Lake under the Western Riverside County MSHCP 
from the final designation of critical habitat for Ceanothus 
ophiochilus because the benefits of exclusion outweigh the benefits of 
inclusion (please see ``Exclusions under Section 4(b)(2) of the Act'' 
for a detailed discussion).

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing contain one or more 
PCEs that may require special management considerations or protection.
    As stated in the final listing rule, threats to Ceanothus 
ophiochilus include habitat destruction, alteration, fragmentation, and 
degradation from urban development, as well as fire at too frequent 
intervals to allow for sufficient seed bank replenishment in the soil 
(63 FR 54956). Threats to Fremontodendron mexicanum as cited in the 
final listing rule include altered fire regimes, indirect impacts from 
nearby urbanization, and increased competition from nonnative species 
(63 FR 54965). These threats could impact the PCEs determined to be 
essential for conservation of C. ophiochilus and F. mexicanum.
    Urban development near Ceanothus ophiochilus proposed units may 
alter the habitat characteristics required by the species. Land grading 
in and around occurrences of C. ophiochilus may affect the topography 
of the site and change the soil composition (PCEs 1 and 
2) rendering it unsuitable for species growth and 
reproduction. Urban development in these areas may also encourage 
invasion by nonnative plant species that would change the vegetation 
community and/or directly impact the vegetation community (PCE 
3). In addition, urban development near this species may 
increase the frequency of fire. No urban development is expected to 
impact the occurrences of C. ophiochilus on land owned by the U.S. 
Forest Service, and all of the private land included in this proposed 
critical habitat designation is covered by the Western Riverside County 
MSHCP (MSHCP). The single occurrence of C. ophiochilus on private land 
in the MSHCP is targeted for development avoidance, and this occurrence 
and associated habitat will be managed as part of the MSHCP. We do not 
believe that special management or protections will be required in 
addition to what is provided for by the MSHCP for the occurrence on 
private land within the MSHCP. Therefore, we are proposing to exclude 
private lands covered under the MSHCP from the final designation of 
critical habitat for C. ophiochilus (please see ``Exclusions under 
Section 4(b)(2) of the Act'' for a detailed discussion).
    Nonnative plant species such as Tamarix spp. (salt cedar) and 
Cortaderia selloana (Pampas grass) could reduce the amount of space 
available to F. mexicanum (PCE 1 and 2) and alter the 
vegetation community (PCE 3) if they become well established 
in either Cedar Canyon or Little Cedar Canyon. In our unit descriptions 
below for this proposed designation, we further describe the threats 
requiring special management or protections for each proposed unit.

Proposed Critical Habitat Designation for Ceanothus ophiochilus

    In total, approximately 644 acres (ac) (262 hectares (ha)) are 
proposed for the designation of critical habitat for these two species. 
We are proposing as critical habitat 283 ac (115 ha) of land for 
Ceanothus ophiochilus within one unit. This unit is further divided 
into two subunits: subunits 1A (Vail Lake) and 1B (Agua Tibia 
Mountains). Of this 283 ac (115 ha) of land, we are proposing to 
exclude 80 ac (33 ha) under section 4(b)(2) of the Act from the final 
designation of critical habitat for C. ophiochilus (See Figure 1)

.BILLING CODE 4310-55-P

[[Page 58348]]

[GRAPHIC] [TIFF OMITTED] TP03OC06.000

BILLING CODE 4310-55-C

[[Page 58349]]

    Unit 1 is located near Vail Lake in southern Riverside County, 
California. The areas being proposed as critical habitat constitute our 
best assessment at this time of areas determined to be occupied at the 
time of listing, containing the primary constituent elements essential 
to the conservation of the species that may require special management 
considerations or protection for Ceanothus ophiochilus. Below, we 
present brief descriptions of the proposed subunits, reasons why they 
meet the definition of critical habitat for C. ophiochilus, and our 
rationale for their inclusion in this proposal.

Unit 1: Western Riverside County

Subunit 1A, Vail Lake, Riverside County, California
    Subunit 1A (Vail Lake) consists of 76 ac (31 ha) of privately-owned 
land proposed for exclusion from the final critical habitat 
designation. Subunit 1A contains CNDDB element occurrence 1, 
and it is one of only three occurrences of Ceanothus ophiochilus known 
of at the time of listing. Land in this subunit is entirely within an 
area targeted for conservation under the Western Riverside County 
MSHCP. Threats to the PCEs that require special management or 
protections include impacts to ridge tops (PCE 1) from grading 
activities resulting from urban development impacts to the associated 
vegetation community (PCE 3), and special planning efforts to 
maintain a natural fire regime. However, the Western Riverside County 
MSHCP outlines conservation measures for this species and its habitat, 
and therefore, the 76 ac (31 ha) of privately owned land is being 
proposed for exclusion from the final designation (please see 
``Exclusions under Section 4(b)(2) of the Act'' for a detailed 
discussion).
Subunit 1B, Agua Tibia Mountains, Riverside County, California
    Subunit 1B (Agua Tibia Mountains) consists of 207 ac (84 ha) of 
land, of which 203 ac (82 ha) is federally owned. The remaining 4 ac (2 
ha) of privately-owned land are within an area targeted for 
conservation under the Western Riverside County MSHCP. Therefore, these 
lands are being proposed for exclusion from the final critical habitat 
designation (please see ``Exclusions under Section 4(b)(2) of the Act'' 
for a detailed discussion). Subunit 1B contains two of the three CNDDB 
element occurrences (2 and 3) of Ceanothus 
ophiochilus known at the time of listing. Threats to features within 
this subunit that may require special management include impacts to 
ridge tops (PCE 1) from grading associated with the creation 
of fuel breaks and impacts to the associated vegetation community (PCE 
3) resulting from unnatural fire regimes. Subunit 1B is mostly 
within the Agua Tibia Wilderness of the Cleveland National Forest, 
which is managed by the USFS.
    Recently the USFS completed the revised Land Management Plans for 
the Four Southern California National Forests (Forest Plans). 
Implementation of these Forest Plans was analyzed by the Service to 
address potential impacts to C. ophiochilus. This analysis found that 
impacts to C. ophiochilus would be minor or negligible upon 
implementation of appropriate minimization measures due to the low 
impact nature of activities planned (e.g., dispersed recreation, non-
motorized trails) (Service 2005 p. 129-132). However, the plan did not 
set up specific management and monitoring for C. ophiochilus, which may 
be necessary to insure that the occurrences of C. ophiochilus remain 
healthy and viable. As a result, we believe that the features essential 
to the conservation of C. ophiochilus within this area require special 
management to address altered fire regime and nonnative species. 
Therefore, we are proposing to include these lands containing features 
essential to the conservation of the species in this critical habitat 
proposal. In this proposed rule, we ask for public comment on the 
appropriateness of including portions of the Agua Tibia Wilderness in 
the final designation.

Proposed Critical Habitat Designation for Fremontodendron mexicanum

    We are proposing as critical habitat 361 ac (147 ha) of land for 
Fremontodendron mexicanum within one unit. This unit is further divided 
into two subunits: subunits 1A (Cedar Canyon) and 1B (Little Cedar 
Canyon). The one unit of critical habitat is located on Otay Mountain 
in southern San Diego County, California. This unit contains privately 
owned land and federally owned land in the Otay Mountain Wilderness 
Area managed by the Bureau of Land Management (BLM) (Otay Mountain 
Wilderness Act of 1999, Pub. L. 106-145, H.R. 15). The critical habitat 
described below constitutes our best assessment of specific areas 
determined to be occupied at the time of listing, containing the 
primary constituent elements essential to the conservation of the 
species that may require special management considerations or 
protection for Fremontodendron mexicanum. Critical habitat also 
includes those additional areas that were not known to be occupied at 
the time of listing, but are currently occupied and contain the primary 
constituent elements essential to the conservation of the species. 
These latter lands (Subunit 1B: Little Cedar Canyon) have been 
determined to be essential to the conservation of F. mexicanum.
    Below, we present brief descriptions of the proposed subunits, 
reasons why they meet the definition of critical habitat for 
Fremontodendron mexicanum, and our rationale for their inclusion in 
this proposal.

Unit 1: Otay Mountain

    Unit 1 consists of 361 ac (147 ha) on Otay Mountain in San Diego 
County and contains Federal land managed by the BLM and private land. 
Subunit 1A (Cedar Canyon) and subunit 1B (Little Cedar Canyon) are each 
separate canyons on the northwest portion of Otay Mountain; subunit 1A 
encompasses proposed critical habitat within Cedar Canyon and subunit 
1B encompasses proposed critical habitat within Little Cedar Canyon. 
This unit contains all of the PCEs required by Fremontodendron 
mexicanum and is essential to the conservation of the species because 
it supports the only natural occurrences of this species in the United 
States.
    Otay Mountain is located in southern San Diego County and is part 
of the San Ysidro Mountains. The Otay Mountain Wilderness Act of 1999 
states, ``this rugged mountain adjacent to the United States-Mexico 
border is internationally known for its diversity of unique and 
sensitive plants.'' The base of Otay Mountain is at 500 ft (152 m) 
elevation and the peak is at 3,566 ft (1,087 m) elevation. The distance 
from the north base of the mountain to the peak is 4 mi (6.4 km) and 
from the western flank the distance is 4.5 mi (7.2 km).
    The majority of lands proposed for designation in this unit are 
federally owned and under the management of the BLM. This area is also 
within the Multiple Habitat Preserve Area (MHPA)/Pre-approved 
Mitigation Area (PAMA) of the MSCP for the City and County of San Diego 
(MSCP). At the time the plan was written, Fremontodendron mexicanum was 
not included for coverage under the MSCP because there was not enough 
information on this species. In our analysis of the MSCP, we concluded 
that the implementation of the plan would not jeopardize the species 
(Service 1997, p. 112). Using GIS analysis, we determined that the 
proposed critical habitat for this species overlaps with the 
distribution of other

[[Page 58350]]

species that are covered species under the MSCP. These species include: 
Tecate cypress; Muilla clevelandii (San Diego goldenstar); Tetracoccus 
dioicus (Parry's tetracoccus); coastal California gnatcatcher 
(Polioptila californica californica); and the Thorne's hairstreak 
butterfly (Mitoura thornei). The BLM currently has a MOU with several 
parties stating that the management of the Otay Mountain will follow 
the MSCP. We are requesting public comment to determine if the 
protection and management provided for the species covered by the MSCP 
benefits F. mexicanum and its PCEs. However, at this time we are not 
proposing these areas for exclusion based on the MSCP.
Subunit 1A, Cedar Canyon, Otay Mountain, San Diego County, California
    Subunit 1A, Cedar Canyon, consists of 259 ac (105 ha) of land 
proposed for designation as critical habitat. Subunit 1A contains CNDDB 
element occurrences 1, 13, and 16. Land in 
this subunit is entirely within the Cedar Canyon Area of Critical 
Environmental Concern (ACEC) and a Research Natural Area (RNA) (BLM 
1994, pp. 1, 19, 22). The BLM has not yet developed a specific 
management plan that outlines how the species would be managed for in 
the Cedar Canyon ACEC and RNA. The majority of this subunit (145 ac (59 
ha)) is managed by BLM as part of the Otay Mountain Wilderness Area. An 
additional 114 ac (46 ha) are on private land. This subunit was known 
to be occupied at the time of listing and contains all of the PCEs. 
This population requires special management considerations or 
protection to adequately protect it from negative impacts related to 
fire fighting activities and possible negative impacts from the growth 
of nonnative species that may affect the space available for this 
species.
    In 1998, when Fremontodendron mexicanum was federally listed, less 
than 100 individual plants were documented from Cedar Canyon. This 
occurrence was thought to be the only location where F. mexicanum 
occurred naturally in the United States. Prior to the 2003 fire, the 
canyon was dominated by Tecate cypress and riparian vegetation. In late 
2005 and early 2006 when this canyon was surveyed for F. mexicanum by 
Service biologists, over 1,000 plants were found. Because this species 
is a facultative resprouter (i.e., resprouts and produces seedlings 
after fire), this increase in numbers may be a result of the 2003 Otay 
fire that burned Cedar Canyon. This phenomenon of healthy F. mexicanum 
plants growing following fire was also recorded following a 1979 fire 
in Cedar Canyon (CNDDB 2005 p. 1). Future monitoring of this occurrence 
of F. mexicanum will help determine if the number of plants recorded in 
2005 and 2006 decline as other vegetation further recovers following 
the 2003 fire.
Subunit 1B, Little Cedar Canyon, Otay Mountain, San Diego County, 
California
    Subunit 1B, Little Cedar Canyon, consists of 102 ac (42 ha) of land 
proposed for designation as critical habitat. This occurrence has not 
yet been assigned a number by the CNDDB. Little Cedar Canyon is located 
approximately 1.9 miles (3 km) to the west of Cedar Canyon. Within this 
subunit, 83 ac (34 ha) of land are federally owned and managed by the 
BLM as part of the Otay Mountain Wilderness Area and 19 ac (8 ha) are 
on privately owned land. However, this area is not within the Cedar 
Canyon ACEC and RNA because the presence of the species in Little Cedar 
Canyon was not known at the time the ACEC and RNA were created. Though 
only 26 plants were documented in Little Cedar Canyon in early 2006, 
these plants were healthy, and evidence of mature seed from 2005 was 
detected. Although this occurrence is a relatively small one when 
compared to the more than 1,000 plants in Cedar Canyon estimated in 
early 2006, the Little Cedar Canyon occurrence likely will help to 
stabilize the existence of F. mexicanum in the United States. Despite 
relatively few plants found in this canyon, the discovery of F. 
mexicanum in Little Cedar Canyon almost doubles the amount of known 
occupied habitat for this species in the United States. Prior to the 
2003 fire, Little Cedar Canyon likely would have been difficult to 
survey due to thick riparian vegetation and chaparral. This subunit was 
not known to be occupied at the time of listing; however, it is 
considered to be essential to the conservation of this species. This 
subunit contains all of the PCEs. This population and the essential 
features within the unit require special management or protection to 
adequately protect it from negative impacts related to fire fighting 
activities and possible negative impacts from the growth of nonnative 
species that may affect the space available for this species.
    Table 1 provides the approximate area (ac/ha) determined to meet 
the definition of critical habitat for C. ophiochilus and F. mexicanum 
and indicates the areas proposed for final designation and the areas 
proposed for exclusion from the final critical habitat designation 
under section 4(b)(2) of the Act (please see ``Exclusions under Section 
4(b)(2) of the Act'' for a detailed discussion).

   Table 1.--Areas Proposed for Final Critical Habitat Designation for Ceanothus ophiochilus and Fremontodendron mexicanum, and the Area Proposed for
                                 Exclusion From the Final Critical Habitat Designation Under Section 4(b)(2) of the Act
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Area that meets the definition      Area proposed as final       Area proposed for exclusion
       Critical habitat unit            Land ownership           of critial habitat               critital habitat          from final critical habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Ceanothus ophiochilus
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Western Riverside County
    1A. Vail Lake.................  Private..............  76 ac (31 ha).................  0 ac (0 ha)...................  76 ac (31 ha)*.
    1B. Agua Tibia Mountains......  U.S. Forest Service..  203 ac (82 ha)................  203 ac (82 ha)................  0 ac (0 ha).
                                    Private..............  4 ac (2 ha)...................  0 ac (0 ha)...................  4 ac (2 ha)*.
                                                          ----------------------------------------------------------------------------------------------
        Subtotal..................  .....................  283 ac (115 ha)...............  203 ac (82 ha)................  80 ac (33 ha).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Fremontodendron mexicanum
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Otay Mountain
    1A. Cedar Canyon..............  BLM..................  145 ac (59 ha)................  145 ac (59 ha)................  0 ac (0 ha).
                                    Private..............  114 ac (46 ha)................  114 ac (46 ha)................  0 ac (0 ha).
    1B. Little Cedar Canyon.......  BLM..................  83 ac (34 ha).................  83 ac (34 ha).................  0 ac (0 ha).

[[Page 58351]]

 
                                    Private..............  19 ac (8 ha)..................  19 ac (8 ha)..................  0 ac (0 ha).
                                                          ----------------------------------------------------------------------------------------------
        Subtotal..................  .....................  361 ac (147 ha)...............  361 ac (147 ha)...............  0 ac (0 ha).
                                                          ----------------------------------------------------------------------------------------------
        Total.....................  .....................  644 ac (262 ha)...............  564 ac (229 ha)...............  80 ac (33 ha).
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Lands proposed for exclusion under section 4(b)(2) of the Act due to inclusion in the Western Riverside County MSHCP.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, recent decisions by the 5th and 9th Circuit 
Court of Appeals have invalidated this definition (see Gifford Pinchot 
Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 
2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 
F.3d 434, 442F (5th Cir 2001)). Pursuant to current national policy and 
the statutory provisions of the Act, destruction or adverse 
modification is determined on the basis of whether, with implementation 
of the proposed Federal action, the affected critical habitat would 
remain functional (or retain the current ability for the primary 
constituent elements to be functionally established) to serve the 
intended conservation role for the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. This is a procedural requirement only. 
However, once a proposed species becomes listed, or proposed critical 
habitat is designated as final, the full prohibitions of section 
7(a)(2) apply to any Federal action. The primary utility of the 
conference procedures is to maximize the opportunity for a Federal 
agency to adequately consider proposed species and critical habitat and 
avoid potential delays in implementing their proposed action as a 
result of the section 7(a)(2) compliance process, should those species 
be listed or the critical habitat designated.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report; while the results of a formal conference are 
typically transmitted in a conference opinion. Conference opinions on 
proposed critical habitat are typically prepared according to 50 CFR 
402.14, as if the proposed critical habitat were designated. We may 
adopt the conference opinion 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)). As noted above, any conservation recommendations in a 
conference report or opinion are strictly advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's issuance of: (1) A concurrence letter for Federal 
actions that may affect, but are not likely to adversely affect, listed 
species or critical habitat; or (2) a biological opinion for Federal 
actions that may affect, but are likely to adversely affect, listed 
species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or 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 
jeopardy to the listed species or 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 a new

[[Page 58352]]

species is listed or critical habitat is subsequently designated that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action or such discretionary 
involvement or control is authorized by law. Consequently, some Federal 
agencies may request reinitiation of consultation with us on actions 
for which formal consultation has been completed, if those actions may 
affect subsequently listed species or designated critical habitat or 
adversely modify or destroy proposed critical habitat.
    Federal activities that may affect Ceanothus ophiochilus and 
Fremontodendron mexicanum or its designated critical habitat will 
require section 7 consultation under the Act. Activities on State, 
Tribal, local or private lands requiring a Federal permit (such as a 
permit from the Corps under section 404 of the Clean Water Act or a 
permit under section 10(a)(1)(B) of the Act from the Service) or 
involving some other Federal action (such as funding from the Federal 
Emergency Management Agency) will also be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat, and actions on State, Tribal, local or private lands 
that are not federally funded, authorized, or permitted, do not require 
section 7 consultations.

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to Fremontodendron Mexicanum and Ceanothus 
Ophiochilus and Its Critical Habitat

Jeopardy Standard
    Prior to and following designation of critical habitat, the Service 
has applied and will apply an analytical framework for Ceanothus 
ophiochilus and Fremontodendron mexicanum jeopardy analyses that rely 
heavily on the importance of core area occurrences to the survival and 
recovery of C. ophiochilus and F. mexicanum. The section 7(a)(2) 
analysis is focused not only on these occurrences but also on the 
habitat conditions necessary to support them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of Ceanothus ophiochilus and Fremontodendron mexicanum in a 
qualitative fashion without making distinctions between what is 
necessary for survival and what is necessary for recovery. Generally, 
if a proposed Federal action is incompatible with the viability of the 
affected core area population(s), inclusive of associated habitat 
conditions, a jeopardy finding is considered to be warranted, because 
of the relationship of each core area occurrence to the survival and 
recovery of the species as a whole.
Adverse Modification Standard
    The analytical framework described in the Director's December 9, 
2004, memorandum may be used to complete section 7(a)(2) analyses for 
Federal actions affecting Ceanothus ophiochilus and Fremontodendron 
mexicanum critical habitat. The key factor related to the adverse 
modification determination is whether, with implementation of the 
proposed Federal action, the affected critical habitat would remain 
functional (or retain the current ability for the primary constituent 
elements to be functionally established) to serve the intended 
conservation role for the species. Generally, the conservation role of 
C. ophiochilus and F. mexicanum critical habitat units is to support 
viable core area occurrences.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the species.
    Activities that may destroy or adversely modify critical habitat 
are those that alter the PCEs to an extent that the conservation value 
of critical habitat for Ceanothus ophiochilus and Fremontodendron 
mexicanum is appreciably reduced. Activities that, when carried out, 
funded, or authorized by a Federal agency, may affect critical habitat 
and therefore result in consultation for C. ophiochilus and F. 
mexicanum, include, but are not limited to:
    (1) Actions that would directly impact C. ophiochilus and F. 
mexicanum habitat. Such activities could include, but are not limited 
to, road grading, streambed clearing, the creation of firebreaks, and 
grading near these occurrences. These activities could change the 
physical and biological features of the habitat by affecting the 
topography of the site; removing soil and associated species; burying 
the appropriate soil for these species, making it unavailable for 
species growth and/or reproduction; or encouraging invasion by 
nonnative plant species;
    (2) Actions that would alter fire frequency in the areas occupied 
by C. ophiochilus. Such activities could include, but are not limited 
to, prescribed burns. These activities could alter the soil composition 
by increasing the nutrients in the soil; and
    (3) Actions that would increase the presence of nonnative species. 
Such activities could include, but are not limited to, seeding areas 
with nonnative species following a fire and inadvertently introducing 
nonnative seed via machinery, vehicles, and field gear. These 
activities could reduce the ability of these two species to grow and 
produce seed because the nonnative species may crowd out or otherwise 
compete with Ceanothus ophiochilus and Fremontodendron mexicanum. An 
increase presence of nonnative species could also change the fire 
regime as mentioned above or could alter the soil composition.
    All lands proposed as critical habitat, including those that have 
been proposed for exclusion from the final designations, contain 
features essential to the conservation of Ceanothus ophiochilus and 
Fremontodendron mexicanum. Except for the Little Cedar Canyon 
population of F. mexicanum, all subunits are within the geographic 
range of either species, and were known to be occupied at the time of 
listing. All of the subunits proposed for designation are currently 
occupied. Federal agencies already consult with us on activities in 
areas occupied by these species, or if either species may be affected 
by the action, to ensure that their actions do not jeopardize the 
continued existence of C. ophiochilus and F. mexicanum.

Exclusions Under Section 4(b)(2) of the Act

    There are multiple ways to provide management for species' habitat. 
Statutory and regulatory frameworks that exist at a local level can 
provide such protection and management, as can lack of pressure for 
change, such as areas too remote for anthropogenic disturbance. 
Finally, State, local, or private management plans, as well as 
management under Federal agencies' jurisdictions, can provide 
protection and management to avoid the need for designation of critical 
habitat. When we consider a plan to determine its adequacy in 
protecting habitat, we consider whether the plan as a whole will 
provide the same level of protection that designation of critical 
habitat would provide. The plan need not lead to exactly the same 
result as a designation in every individual application, as long as the 
protection it provides is equivalent overall. In making this 
determination, we examine whether the plan provides management, 
protection, or enhancement of the PCEs that is at least equivalent to 
that

[[Page 58353]]

provided by a critical habitat designation, and whether there is a 
reasonable expectation that the management, protection, or enhancement 
actions will continue into the foreseeable future. Each review is 
particular to the species and the plan, and some plans may be adequate 
for some species and inadequate for others.
    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. The Secretary may exclude an area 
from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the Secretary is afforded broad discretion and the 
Congressional record is clear that in making a determination under the 
section, the Secretary has discretion as to which factors and how much 
weight will be given to any factor.
    Under section 4(b)(2), in considering whether to exclude a 
particular area from the designation, we must identify the benefits of 
including the area in the designation, identify the benefits of 
excluding the area from the designation, and determine whether the 
benefits of exclusion outweigh the benefits of inclusion. If an 
exclusion is contemplated, then we must determine whether excluding the 
area would result in the extinction of the species. In the following 
sections, we address a number of general issues that are relevant to 
the exclusions we considered. In addition, the Service is conducting an 
economic analysis of the impacts of the proposed critical habitat 
designation and related factors, which will be available for public 
review and comment. Based on public comment on that document, the 
proposed designation itself, and the information in the final economic 
analysis, additional areas beyond those identified in this assessment 
may be excluded from critical habitat by the Secretary under the 
provisions of section 4(b)(2) of the Act. This is provided for in the 
Act, and in our implementing regulations at 50 CFR 242.19.

Conservation Partnerships on Non-Federal Lands

    Most federally listed species in the United States will not recover 
without the cooperation of non-Federal landowners. More than 60 percent 
of the United States is privately owned (National Wilderness Institute 
1995) and at least 80 percent of endangered or threatened species occur 
either partially or solely on private lands (Crouse et al. 2002). Stein 
et al. (1995) found that only about 12 percent of listed species were 
found almost exclusively on Federal lands (i.e., 90-100 percent of 
their known occurrences were restricted to Federal lands) and that 50 
percent of federally listed species are not known to occur on Federal 
lands at all.
    Given the distribution of listed species with respect to land 
ownership, conservation of listed species in many parts of the United 
States is dependent upon working partnerships with a wide variety of 
entities and the voluntary cooperation of many non-Federal landowners 
(Wilcove and Chen 1998; Crouse et al. 2002; James 2002). Building 
partnerships and promoting voluntary cooperation of landowners is 
essential to understanding the status of species on non-Federal lands 
and is necessary to implement recovery actions such as reintroducing 
listed species, habitat restoration, and habitat protection.
    Many non-Federal landowners derive satisfaction in contributing to 
endangered species recovery. The Service promotes these private-sector 
efforts through the Four Cs philosophy--conservation through 
communication, consultation, and cooperation. This philosophy is 
evident in Service programs such as HCPs, Safe Harbors, Candidate 
Conservation Agreements, Candidate Conservation Agreements with 
Assurances, and conservation challenge cost-share. Many private 
landowners, however, are wary of the possible consequences of 
encouraging endangered species to their property, and there is mounting 
evidence that some regulatory actions by the Federal government, while 
well-intentioned and required by law, can under certain circumstances 
have unintended negative consequences for the conservation of species 
on private lands (Wilcove et al. 1996; Bean 2002; Conner and Mathews 
2002; James 2002; Koch 2002; Brook et al. 2003). Many landowners fear a 
decline in their property value due to real or perceived restrictions 
on land-use options where threatened or endangered species are found. 
Consequently, harboring endangered species is viewed by many landowners 
as a liability, resulting in anti-conservation incentives because 
maintaining habitats that harbor endangered species represents a risk 
to future economic opportunities (Main et al. 1999; Brook et al. 2003).
    The purpose of designating critical habitat is to contribute to the 
conservation of threatened and endangered species and the ecosystems 
upon which they depend. The outcome of the designation, triggering 
regulatory requirements for actions funded, authorized, or carried out 
by Federal agencies under section 7 of the Act, can sometimes be 
counterproductive to its intended purpose on non-Federal lands. 
According to some researchers, the designation of critical habitat on 
private lands significantly reduces the likelihood that landowners will 
support and carry out conservation actions (Main et al. 1999; Bean 
2002; Brook et al. 2003). The magnitude of this negative outcome is 
greatly amplified in situations where active management measures (e.g., 
reintroduction, fire management, control of invasive species) are 
necessary for species conservation (Bean 2002).
    The Service believes that the judicious use of excluding specific 
areas of non-federally owned lands from critical habitat designations 
can contribute to species recovery and provide a level of conservation 
superior to that of critical habitat alone. For example, less than 17 
percent of Hawaii is federally owned, but the State is home to more 
than 24 percent of all federally listed species, most of which will not 
recover without State and private landowner cooperation. Castle and 
Cooke Resorts, LLC, which owns 99 percent of the Island of Lanai, 
entered into a conservation agreement with the Service. The 
conservation agreement provides conservation benefits to target species 
through management actions that remove threats to these target species. 
These actions will significantly improve the habitat for all currently 
occurring species. Because of the low likelihood of a Federal nexus on 
the island, we believe this agreement provides a superior level of 
protection to the affected species than would be provided through the 
designation of critical habitat.
    The Department's Four Cs philosophy--conservation through 
communication, consultation, and cooperation--is the foundation for 
developing the tools of conservation. These tools include conservation 
grants, funding for Partners for Fish and Wildlife Program, the Coastal 
Program, and cooperative-conservation challenge cost-share grants. Our 
Private Stewardship Grant program and Landowner Incentive Program 
provide assistance to private land owners in their voluntary efforts to 
protect

[[Page 58354]]

threatened, imperiled, and endangered species, including the 
development and implementation of HCPs.
    Conservation agreements with non-Federal landowners (e.g., Habitat 
Conservation Plans (HCPs), contractual conservation agreements, 
easements, and stakeholder-negotiated State regulations) enhance 
species conservation by extending species protections beyond those 
available through section 7 consultations. In the past decade, we have 
encouraged non-Federal landowners to enter into conservation 
agreements, based on a view that we can achieve greater species 
conservation on non-Federal land through such partnerships than we can 
through coercive methods (61 FR 63854; December 2, 1996).

General Principles of Section 7 Consultations Used in the 4(b)(2) 
Balancing Process

    The most direct, and potentially largest, regulatory benefit of 
critical habitat is that federally authorized, funded, or carried out 
activities require consultation pursuant to section 7 of the Act to 
ensure that they are not likely to destroy or adversely modify critical 
habitat. There are two limitations to this regulatory effect. First, it 
only applies where there is a Federal nexus--if there is no Federal 
nexus, designation itself does not restrict actions that destroy or 
adversely modify critical habitat. Second, it only limits destruction 
or adverse modification. By its nature, the prohibition on adverse 
modification is designed to ensure that those areas that contain the 
physical and biological features essential to the conservation of the 
species, or unoccupied areas that are essential to the conservation of 
the species, are not eroded. Critical habitat designation alone, 
however, does not require specific steps toward recovery.
    Once consultation under section 7 of the Act is triggered, the 
process may conclude informally when the Service concurs in writing 
that the proposed Federal action is not likely to adversely affect the 
listed species or its critical habitat. However, if the Service 
determines through informal consultation that adverse impacts are 
likely to occur, then formal consultation would be initiated. Formal 
consultation concludes with a biological opinion issued by the Service 
on whether the proposed Federal action is likely to jeopardize the 
continued existence of a listed species or result in destruction or 
adverse modification of critical habitat, with separate analyses being 
made under both the jeopardy and the adverse modification standards. 
For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to primary constituent elements, but it would not contain any mandatory 
reasonable and prudent measures or terms and conditions. Reasonable and 
prudent alternatives to the proposed Federal action would only be 
issued when the biological opinion results in a jeopardy or adverse 
modification conclusion.
    We also note that for 30 years prior to the Ninth Circuit Court's 
decision in Gifford Pinchot Task Force v. U.S. Fish and Wildlife 
Service, 378 F.3d 1059 (9th Cir 2004) (hereinafter Gifford Pinchot), 
the Service equated the jeopardy standard with the standard for 
destruction or adverse modification of critical habitat. The Court 
ruled that the Service could no longer equate the two standards and 
that adverse modification evaluations require consideration of impacts 
on the recovery of species. Thus, under the Gifford Pinchot decision, 
critical habitat designations may provide greater benefits to the 
recovery of a species. However, we believe the conservation achieved 
through implementing habitat conservation plans (HCPs) or other habitat 
management plans is typically greater than would be achieved through 
multiple site-by-site, project-by-project, section 7 consultations 
involving consideration of critical habitat. Management plans commit 
resources to implement long-term management and protection to 
particular habitat for at least one and possibly other listed or 
sensitive species. Section 7 consultations only commit Federal agencies 
to prevent adverse modification to critical habitat caused by the 
particular project, and they are not committed to provide conservation 
or long-term benefits to areas not affected by the proposed project. 
Thus, any HCP or management plan that considers enhancement or recovery 
as the management standard will always provide as much or more benefit 
than a consultation for critical habitat designation conducted under 
the standards required by the Ninth Circuit in the Gifford Pinchot 
decision.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat in that it provides the framework for the 
consultation process.

Educational Benefits of Critical Habitat

    A benefit of including lands in critical habitat is that the 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and promote conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for Ceanothus ophiochilus and Fremontodendron mexicanum. In general, 
the educational benefit of a critical habitat designation always 
exists, although in some cases it may be redundant with other 
educational effects. For example, HCPs have significant public input 
and may largely duplicate the educational benefit of a critical habitat 
designation. This benefit is closely related to a second, more indirect 
benefit: that designation of critical habitat would inform State 
agencies and local governments about areas that could be conserved 
under State laws or local ordinances.
    However, we believe that there would be little additional 
educational benefit gained from the designation of critical habitat in 
areas we are proposing to exclude in this rule. The educational benefit 
normally served by the designation of critical habitat has already been 
satisfied by other existing habitat management protections. These 
protections have provided State agencies and local governments, as well 
as Federal agencies with information on the areas that would benefit 
from the protection and enhancement of Ceanothus ophiochilus and 
Fremontodendron mexicanum habitat. Thus, in areas proposed to be 
excluded from critical habitat, we believe that the educational 
benefits have already been provided for.
    The Service is conducting an economic analysis of the potential 
impacts of the proposed critical habitat designation and related 
factors, which will be available for public review and comment. Based 
on public comment on that document, the proposed designation itself, 
and the information in the final economic analysis, additional areas 
beyond those identified in this assessment may be excluded from 
critical habitat by the Secretary under the provisions of section 
4(b)(2) of the Act. This is provided for in the Act, and in our 
implementing regulations at 50 CFR 242.19.
    The information provided in this section applies to all the 
discussions below on the benefits of inclusion and exclusion of 
critical habitat.

Benefits of Excluding Lands With HCPs or Other Approved Management 
Plans From Critical Habitat

    The benefits of excluding lands with HCPs or other approved 
management plans from critical habitat designation

[[Page 58355]]

include relieving landowners, communities, counties, and States of any 
additional regulatory burden that may occur as a result of a critical 
habitat designation. Most HCPs and other conservation plans take many 
years to develop and, upon completion, are consistent with the recovery 
objectives for listed species that are covered within the plan area. In 
addition, many conservation plans provide conservation benefits to 
unlisted sensitive species; measures designed to proactively protect 
species to ensure that listing under the Act will not be necessary. 
Imposing an additional regulatory review as a result of the designation 
of critical habitat may undermine these important conservation efforts 
and partnerships.
    Designation of critical habitat within the boundaries of management 
plans that provide conservation measures for a species could be viewed 
as a disincentive to those entities currently developing these plans or 
contemplating them in the future, because one of the incentives for 
undertaking conservation is greater ease of permitting where listed 
species are affected. Addition of a new regulatory requirement would 
remove a significant incentive for undertaking the time and expense of 
management planning. In fact, designating critical habitat in areas 
covered by a pending HCP or conservation plan could result in the loss 
of some species' benefits if participants abandon the planning process, 
in part because of the strength of the perceived additional regulatory 
compliance that such designation would entail. The time and cost of 
regulatory compliance for a critical habitat designation do not have to 
be quantified in order for them to be perceived as additional Federal 
regulatory burden sufficient to discourage continued participation in 
plans targeting listed species' conservation.
    A related benefit of excluding lands within an HCP or management 
plan from critical habitat designation is the unhindered, continued 
ability to seek new partnerships with future plan participants, 
including States, counties, local jurisdictions, conservation 
organizations, and private landowners, which together can implement 
conservation actions that we would be unable to accomplish otherwise. 
Designation of lands within approved HCP or management plan areas as 
critical habitat would likely have a negative effect on our ability to 
establish new partnerships to develop these plans, particular plans 
that address landscape-level conservation of species and their 
habitats. By excluding these lands, we preserve our current 
partnerships and encourage additional conservation actions in the 
future.
    Furthermore, an HCP or NCCP/HCP application must itself be 
consulted upon pursuant to section 7 of the Act. Such a consultation 
would review the effects of all activities covered by the HCP that 
might adversely impact the species under a jeopardy standard, including 
possible habitat modification even without the critical habitat 
designation. In addition, Federal actions not covered by the HCP in 
areas occupied by listed species would still require consultation under 
section 7 of the Act.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat.

Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act

    We consider a current plan to provide adequate management or 
protection if it meets three criteria: (1) The plan is complete and 
provides the same or better level of protection from adverse 
modification or destruction than that provided through a consultation 
under section 7 of the Act; (2) there is a reasonable expectation that 
the conservation management strategies and actions will be implemented 
based on past practices, written guidance, or regulations; and (3) the 
plan provides conservation strategies and measures consistent with 
currently accepted principles of conservation biology. We believe that 
the Western Riverside County MSHCP fulfils these criteria, and we are 
considering the exclusion of non-Federal lands covered by this plan 
that provide for the conservation of Ceanothus ophiochilus from the 
final designation of critical habitat pursuant to section 4(b)(2) of 
the Act. We are requesting comments on the benefit to Fremontodendron 
mexicanum from the San Diego MSCP and the 1994 MOU with BLM; however, 
at this time we are not proposing the exclusion of any areas in the 
proposed critical habitat for F. mexicanum.

Western Riverside County Multiple Species Habitat Conservation Plan

    The Western Riverside County MSHCP is a large-scale, multi-
jurisdictional habitat conservation plan (HCP) that addresses 146 
listed and unlisted ``Covered Species,'' including Ceanothus 
ophiochilus, within the 1,260,000 ac (510,000 ha) Plan Area in western 
Riverside County. Participants in the MSHCP include 14 cities in 
western Riverside County; the County of Riverside, including the 
Riverside County Flood Control and Water Conservation Agency, Riverside 
County Transportation Commission, Riverside County Parks and Open Space 
District, and Riverside County Waste Department; California Department 
of Parks and Recreation; and the California Department of 
Transportation (Caltrans). The MSHCP was designed to establish a multi-
species conservation program that minimizes and mitigates the expected 
loss of habitat and the incidental take of Covered Species. On June 22, 
2004, the Service issued a single incidental take permit pursuant to 
section 10(a)(1)(B) of the Act to 22 Permittees under the MSHCP for a 
period of 75 years. The Service granted the participating jurisdictions 
``take authorization'' of listed species in exchange for their 
contribution to the assembly and management of the MSHCP Conservation 
Area. Collectively, the MSHCP Conservation Area includes MSHCP lands 
and additional Federal partner lands, and totals approximately 500,000 
ac (202,343 ha).
    The MSHCP will establish approximately 153,000 ac (61,916 ha) of 
new conservation lands (Additional Reserve Lands) to complement the 
approximate 347,000 ac (140,426 ha) of existing natural and open space 
areas (e.g., State Parks, USFS, and County Park lands known as Public/
Quasi-Public (PQP) Lands) in forming the MSHCP Conservation Area. The 
precise configuration of the 153,000 ac (61,916 ha) of Additional 
Reserve Lands is not mapped or precisely identified in the MSHCP, but 
rather is based on textual descriptions within the bounds of a 310,000-
ac (125,453-ha) Criteria Area that is interpreted as implementation of 
the MSHCP proceeds. For Ceanothus ophiochilus, critical habitat 
subunits 1A (Vail Lake) and 1B (Agua Tibia Wilderness) are located 
entirely within the MSHCP Plan Area and are comprised of USFS and 
private lands.
    The private lands within these subunits are within the Criteria 
Area and are targeted for inclusion within the MSHCP Conservation Area 
as potential Additional Reserve Lands. Specific conservation objectives 
in the MSHCP for Ceanothus ophiochilus provide for conservation and 
management of at least 13,290 ac (5,378 ha) of suitable chaparral 
habitat and at least three core locations of this species in the 
vicinity of Vail Lake and the Agua Tibia Wilderness. Additionally, the 
plan requires surveys for C. ophiochilus as part of the project review 
process for public and private projects where

[[Page 58356]]

suitable habitat is present within a defined boundary of the Criteria 
Area (see Criteria Area Species Survey Area Map, Figure 6-2 of the 
MSHCP, Volume I). For locations with positive survey results, 90 
percent of those portions of the property that provide long-term 
conservation value for the species will be avoided until it is 
demonstrated that the conservation objectives for the species are met. 
We are currently only aware of three populations of C. ophiochilus in 
the MSHCP Conservation Area. The MSHCP recognizes these same three 
populations. The goal of the MSHCP is to conserve a minimum of three 
populations of C. ophiochilus. Although the specific location of 
individual target areas for this species has yet to be identified, we 
recognize that no other populations of the plant have been identified 
and agree that conservation of three populations of this plant through 
the survey requirements, avoidance and minimization measures, and 
management for C. ophiochilus (and its PCEs) exceed any conservation 
value provided as a result of any regulatory protections that may be 
afforded through a critical habitat designation over the three known 
populations.
    We propose to exclude approximately 80 ac (33 ha) of non-Federal 
lands from the Ceanothus ophiochilus final critical habitat designation 
in subunits 1A and 1B within the MSHCP Plan Area under section 4(b)(2) 
of the Act. These non-Federal lands are comprised of private lands to 
the west of Vail Lake (approximately 76 ac (31 ha)) (subunit 1A) and 
private lands adjacent to the northern boundary of the Cleveland 
National Forest east of Woodchuck Road (approximately 4 ac (2 ha)) 
(subunit 1B).
    The USFS lands within these subunits are considered PQP lands under 
the MSHCP and as such are included within the overall 500,000 ac 
(202,343 ha) MSHCP Conservation Area. While these Federal lands are 
managed by the USFS and are an integral part of the overall 
conservation strategy of the MSHCP, the USFS is not a permittee under 
the section 10(a)(1)(B) permit. Therefore, we are not excluding USFS 
lands within subunit 1B based on the MSHCP.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have reviewed and evaluated the proposed exclusion from the 
final designation of approximately 80 ac (33 ha) of critical habitat on 
non-Federal lands within the MSHCP Plan Area, and have determined that 
the benefits of proposing to exclude these non-Federal lands in 
subunits 1A and 1B outweigh the benefits of including these lands. The 
PCEs required by Ceanothus ophiochilus will benefit by the conservation 
measures outlined in the MSHCP. In summary, these conservation measures 
include protecting and managing PCEs within the MSHCP Conservation 
Area, primarily through the protection of habitat from surface-
disturbing activities; implementing specific management and monitoring 
practices to help ensure the conservation of C. ophiochilus and its 
PCEs in the Plan Area; maintaining the physical and ecological 
characteristics of occupied habitat; and conducting surveys and 
implementing other required procedures to ensure avoidance of impacts 
to at least 90 percent of suitable habitat areas determined important 
to the long-term conservation of C. ophiochilus within the Criteria 
Area. The specific area identified as Subunit 1A will be addressed 
under the MSHCP. These specific conservation actions, survey 
requirements, avoidance and minimization measures, and management for 
C. ophiochilus and its PCEs exceed any conservation value provided as a 
result of any regulatory protections that may be afforded through a 
critical habitat designation.
    The exclusion of these lands from critical habitat will also help 
preserve the partnerships that we have developed with the local 
jurisdictions and project proponents in the development of the MSHCP. 
The benefits of excluding these lands from critical habitat outweigh 
the minimal benefits of including these lands as critical habitat, 
including the educational benefits of critical habitat through 
informing the public of areas important for the long-term conservation 
of this species, because these educational benefits can still be 
accomplished from materials provided on our Web site. Further, many 
educational benefits of critical habitat designation will be achieved 
through the overall designation process and notice and public comment, 
and will occur whether or not these particular subunits are designated.

Exclusion Will Not Result in Extinction of the Species

    We do not believe that the exclusion of 80 ac (33 ha) from the 
final designation of critical habitat for Ceanothus ophiochilus will 
result in the extinction of the taxon because the Western Riverside 
County MSHCP provides for the conservation of this species and its PCEs 
on all known occupied areas within the county, including areas that may 
be newly discovered occupied areas in the future. Importantly, as we 
stated in our biological opinion, while some loss of modeled habitat 
for C. ophiochilus is anticipated due to implementation of the MSHCP, 
we concluded that implementation of the plan will not jeopardize the 
continued existence of this species.
    The jeopardy standard of section 7 and routine implementation of 
conservation measures through the section 7 process also provide 
assurances that the species will not go extinct. The proposed exclusion 
of critical habitat leaves these protections unchanged from those that 
would exist if the proposed excluded areas were designated as critical 
habitat.

Economic Analysis

    An analysis of the potential economic impacts of proposing critical 
habitat for Ceanothus ophiochilus and Fremontodendron mexicanum is 
being prepared. We will announce the availability of the draft economic 
analysis as soon as it is completed, at which time we will seek public 
review and comment. At that time, copies of the draft economic analysis 
will be available for downloading from the Internet at http://www.fws.gov/carlsbad/SpeciesInfo.htm or by contacting the Carlsbad Fish 
and Wildlife Office directly (see ADDRESSES section).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), and based on our implementation 
of the Office of Management and Budget's Final Information Quality 
Bulletin for Peer Review, dated December 16, 2004, we will seek the 
expert opinions of at least five appropriate and independent peer 
reviewers regarding the science in this proposed rule. The purpose of 
such review is to ensure that our critical habitat designation is based 
on scientifically sound data, assumptions, and analyses. We will send 
copies of this proposed rule to these peer reviewers immediately 
following publication in the Federal Register. We will invite these 
peer reviewers to comment during the public comment period on the 
specific assumptions and conclusions regarding the proposed revised 
designation of critical habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings

[[Page 58357]]

must be made in writing at least 15 days prior to the close of the 
public comment period. We will schedule public hearings on this 
proposal, if any are requested, and announce the dates, times, and 
places of those hearings in the Federal Register and local newspapers 
at least 15 days prior to the first hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical jargon that interferes with the clarity? (3) Does the format 
of the proposed rule (grouping and order of the sections, use of 
headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is 
the description of the notice in the SUPPLEMENTARY INFORMATION section 
of the preamble helpful in understanding the proposed rule? (5) What 
else could we do to make this proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You 
may e-mail your comments to this address: [email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. Due to 
the tight timeline for publication in the Federal Register, the Office 
of Management and Budget (OMB) has not formally reviewed this rule. We 
are preparing a draft economic analysis of this proposed action, which 
will be available for public comment, to determine the economic 
consequences of designating the specific area as critical habitat. This 
economic analysis also will be used to determine compliance with 
Executive Order 12866, Regulatory Flexibility Act, Small Business 
Regulatory Enforcement Fairness Act, and Executive Order 12630.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, Circular A-4, September 17, 2003). Pursuant to 
Circular A-4, once it has been determined that the Federal regulatory 
action is appropriate, the agency will need to consider alternative 
regulatory approaches. Since the determination of critical habitat is a 
statutory requirement under the Act, we must then evaluate alternative 
regulatory approaches, where feasible, when promulgating a designation 
of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts under section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are listed 
above in the section on Section 7 Consultation. The availability of the 
draft economic analysis will be announced in the Federal Register so 
that it is available for public review and comments. The draft economic 
analysis can be obtained from the internet Web site at http://www.fws.gov/carlsbad/SpeciesInfo.htm or by contacting the Carlsbad Fish 
and Wildlife Office directly (see ADDRESSES section).

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that the rule 
will not have a significant economic impact on a substantial number of 
small entities.
    At this time, the Service lacks the available economic information 
necessary to provide an adequate factual basis for the required RFA 
finding. Therefore, the RFA finding is deferred until completion of the 
draft economic analysis prepared pursuant to section 4(b)(2) of the ESA 
and E.O. 12866. This draft economic analysis will provide the required 
factual basis for the RFA finding. Upon completion of the draft 
economic analysis, the Service will publish a notice of availability of 
the draft economic analysis of the proposed designation and reopen the 
public comment period for the proposed designation. The Service will 
include with the notice of availability, as appropriate, an initial 
regulatory flexibility analysis or a certification that the rule will 
not have a significant economic impact on a substantial number of small 
entities accompanied by the factual basis for that determination. The 
Service has concluded that deferring the RFA finding until completion 
of the draft economic analysis is necessary to meet the purposes and 
requirements of the RFA. Deferring the RFA finding in this manner will 
ensure that the Service makes a sufficiently informed determination 
based on adequate economic information and provides the necessary 
opportunity for public comment.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This proposed rule to 
designate critical habitat for Ceanothus ophiochilus and 
Fremontodendron mexicanum is considered to be a significant regulatory 
action under Executive Order 12866 in that it may raise novel legal and 
policy issues. However, based on the extent of specific areas being 
proposed for designation, it is not expected to significantly affect 
energy supplies, distribution, or use. Therefore, we do not believe 
that this action is not a significant energy action and no Statement of 
Energy Effects is required. We will, however, further evaluate this 
issue as we conduct our economic analysis and revise this assessment if 
appropriate.

[[Page 58358]]

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding,'' and the State, local, 
or tribal governments ``lack authority'' to adjust accordingly. At the 
time of enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) A condition of Federal assistance or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) We do not anticipate that this rule will significantly or 
uniquely affect small governments due to current public knowledge of 
the species' protection, the prohibition against take of the species 
both within and outside of the designated areas, and the fact that 
critical habitat provides no incremental restrictions. As such, a Small 
Government Agency Plan is not required. We will, however, further 
evaluate this issue as we conduct our economic analysis and revise this 
assessment if appropriate.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with DOI and Department of Commerce policy, we 
coordinated development and requested information on this proposed 
critical habitat designation with appropriate State resource agencies 
in California. The designation of critical habitat in areas currently 
occupied by Ceanothus ophiochilus and Fremontodendron mexicanum imposes 
no additional restrictions to those currently in place and, therefore, 
has little incremental impact on State and local governments and their 
activities. The designation may have some benefit to these governments 
in that the areas that contain the features essential to the 
conservation of the species are more clearly defined, and the primary 
constituent elements of the habitat necessary to the conservation of 
the species are specifically identified. While making this definition 
and identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We have proposed designating critical habitat in 
accordance with the provisions of the Endangered Species Act. This 
proposed rule uses standard property descriptions and identifies the 
primary constituent elements within the designated areas to assist the 
public in understanding the habitat needs of Ceanothus ophiochilus and 
Fremontodendron mexicanum.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. 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 (NEPA)

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by NEPA 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 assertion 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).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that no 
essential habitat for either Ceanothus ophiochilus or Fremontodendron 
mexicanum exists on tribal lands. Therefore, critical habitat for C. 
ophiochilus and F. mexicanum has not been proposed on Tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Carlsbad Fish and 
Wildlife Office (see ADDRESSES section).

[[Page 58359]]

Author(s)

    The primary author of this package is the staff of the Carlsbad 
Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. In Sec.  17.12(h), revise the entry for ``Ceanothus 
ophiochilus'' and the entry for ``Fremontodendron mexicanum'' under 
``FLOWERING PLANTS'' to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         FLOWERING PLANTS
 
                                                                      * * * * * * *
Ceanothus ophiochilus............  Vail Lake ceanothus.  U.S.A. (CA)........  Rhamnaceae.........  T                       648     17.96(a)           NA
 
                                                                      * * * * * * *
Fremontodendron mexicanum........  Mexican flannelbush.  U.S.A. (CA), Mexico  Sterculiaceae......  E                       648     17.96(a)           NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec.  17.96(a), by adding an entry for Ceanothus 
ophiochilus (Vail Lake ceanothus) in alphabetical order under family 
Rhamnaceae and an entry for Fremontodendron mexicanum (Mexican 
flannelbush) in alphabetical order under family Sterculiaceae, to read 
as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering Plants.
* * * * *
Family Rhamnaceae: Ceanothus ophiochilus (Vail Lake ceanothus)
    (1) Critical habitat units are depicted for Riverside County, 
California on the maps below.
    (2) The primary constituent elements (PCEs) of critical habitat for 
Ceanothus ophiochilus are the habitat components that provide:
    (i) Flat to gently sloping north to northeast facing ridge tops 
with slopes in the range of 0 to 40 percent slope that provide the 
appropriate solar exposure for seedling establishment and growth.
    (ii) Soils formed from metavolcanic and ultra-basic parent 
materials and deeply weathered gabbro or pyroxenite-rich outcrops that 
provide nutrients and space for growth and reproduction. Specifically 
in the areas that Ceanothus ophiochilus is found, the soils are:
    (A) Ramona, Cienaba, Las Posas, and Vista series in the Agua Tibia 
Wilderness; and
    (B) Cajalco series in the vicinity of Vail Lake;
    (iii) Chamise chaparral or mixed chamise-ceanothus-arctostaphylos 
chaparral at elevations of 2,000 ft to 3,000 ft (610 m to 914 m) that 
provide the appropriate canopy cover and elevation requirements for 
growth and reproduction.
    (3) Critical habitat does not include man-made structures existing 
on the effective date of this rule and not containing one or more of 
the primary constituent elements, such as buildings, aqueducts, 
airports, and roads, and the land on which such structures are located.
    (4) Data layers defining map units were created on a base of USGS 
1:24,0000 maps, and critical habitat units were then mapped using 
Universal Transverse Mercator (UTM) coordinates.
    (5) Unit 1.
    (i) Subunit 1A for Ceanothus ophiochilus, Vail Lake Subunit, 
Riverside County, California. From USGS 1:24,000 quadrangles Pechanga 
and Vail Lake, lands bounded by the following UTM NAD27 coordinates (E, 
N): 499944, 3705490; 500174, 3705450; 500339, 3705344; 500489, 3705188; 
500546, 3705102; 500615, 3704967; 500677, 3704920; 500682, 3704828; 
500626, 3704765; 500519, 3704736; 500004, 3705012; thence returning to 
499944, 3705490.
    (ii) Map depicting Subunit 1A is located at paragraph (5)(iv) of 
this entry.
    (iii) Subunit 1B for Ceanothus ophiochilus, Agua Tibia Subunit, 
Riverside County, California. From USGS 1:24,000 quadrangles Pechanga 
and Vail Lake, lands bounded by the following UTM NAD27 coordinates (E, 
N): 499902, 3701154; 499909, 3701222; 499950, 3701238; 500022, 3701235; 
500060, 3701218; 500091, 3701184; 500127, 3701138; 500158, 3701092; 
500191, 3701048; 500226, 3701010; 500247, 3700998; 500262, 3700990; 
500273, 3700981; 500294, 3700965; 500326, 3700909; 500351, 3700872; 
500353, 3700869; 500362, 3700855; 500375, 3700824; 500398, 3700735; 
500400, 3700646; 500370, 3700546; 500308, 3700359; 500293, 3700272; 
500173, 3700102; 500057, 3699889; 500008, 3699730; 499990, 3699595; 
499988, 3699460; 500022, 3699376; 500045, 3699326; 500113, 3699213; 
500179, 3699040; 500199, 3698902; 500173, 3698801; 500010, 3698618; 
499966, 3698566; 499920, 3698544; 499823, 3698518; 499757, 3698516; 
499704, 3698537; 499671, 3698570; 499655, 3698612; 499671, 3698670; 
499783, 3698843; 499834, 3698968; 499840, 3699020; 499840, 3699090; 
499819, 3699185; 499755, 3699338; 499731, 3699474; 499757, 3699750; 
499838, 3699993; 499974, 3700214; 500037, 3700349; 500055, 3700453; 
500063, 3700594; 500033, 3700813; 499984, 3700976; 499924, 3701105; 
thence returning to 499902, 3701154.
    (iv) Map of Subunits 1A and 1B (Map 1) follows.

BILLING CODE 4310-55-P

[[Page 58360]]

[GRAPHIC] [TIFF OMITTED] TP03OC06.001


[[Page 58361]]


Family Sterculiaceae: Fremontodendron mexicanum (Mexican flannelbush)
    (1) Critical habitat units are depicted for San Diego County, 
California, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Fremontodendron mexicanum are the habitat components that provide:
    (i) Alluvial terraces, benches, and associated slopes within 500 
feet (152 meters) of streams, creeks, and ephemeral drainages where 
water flows primarily after peak seasonal rains with a gradient ranging 
from 3 to 7 percent; and stabilized north- to east-facing slopes 
associated with steep (9 to 70 percent) slopes and canyons that provide 
space for growth and reproduction.
    (ii) Silty loam soils derived from metavolcanic and metabasic 
bedrock, mapped as San Miguel--Exchequer Association soil series that 
provides the nutrients and substrate with adequate drainage to support 
seedling establishment and growth.
    (iii) Open Cupressus forbesii and Platanus racemosa stands at 
elevations of 900 ft (274 m) to 3,000 ft (914 m) within a matrix of 
chaparral (such as Dendromecon rigida ssp. rigida and Malosma laurina) 
and riparian vegetation that provides adequate space for growth and 
reproduction.
    (3) Critical habitat does not include man made structures existing 
on the effective date of this rule and not containing one or more of 
the primary constituent elements, such as buildings, aqueducts, 
airports, and roads, and the land on which such structures are located.
    (4) Data layers defining map units were created on a base of USGS 
1:24,0000 maps, and critical habitat units were then mapped using 
Universal Transverse Mercator (UTM) coordinates.
    (5) Unit 1.
    (i) Subunit 1A for Fremontodendron mexicanum, Cedar Canyon Subunit, 
San Diego County, California. From USGS 1:24,000 quadrangles Dulzura 
and Otay Mountain, lands bounded by the following UTM NAD27 coordinates 
(E, N): 515014, 3611487; 515155, 3611552; 515695, 3611495; 515848, 
3611474; 516142, 3611376; 516372, 3611063; 516368, 3610565; 516091, 
3610192; 516251, 3609616; 516229, 3608802; 516080, 3608793; 516038, 
3608958; 516013, 3609134; 516008, 3609701; 515493, 3609581; 515407, 
3609585; 515418, 3609710; 515497, 3609804; 515663, 3609889; 515878, 
3609887; 515904, 3610258; 515952, 3610432; 515921, 3610608; 516125, 
3610698; 515989, 3611007; 515889, 3611230; 515567, 3611277; 515159, 
3611261; 515064, 3611374; thence returning to 515014, 3611487.
    (ii) Map depicting Subunit 1A is located at paragraph (5)(iv) of 
this entry.
    (iii) Subunit 1B for Fremontodendron mexicanum, Little Cedar Canyon 
Subunit, San Diego County, California. From USGS 1:24,000 quadrangles 
Dulzura and Otay Mountain, lands bounded by the following UTM NAD27 
coordinates (E, N): 512964, 3610810; 513099, 3610671; 513104, 3609924; 
513252, 3609684; 513232, 3609584; 513344, 3609302; 513278, 3609139; 
513174, 3609122; 512911, 3609699; 512854, 3610125; 512821, 3610402; 
512834, 3610662; thence returning to 512964, 3610810.
    (iv) Map of Subunits 1A and 1B (Map 2) follows.

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[GRAPHIC] [TIFF OMITTED] TP03OC06.002


[[Page 58363]]


* * * * *

    Dated: September 18, 2006.
David M. Verhey,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-8189 Filed 10-2-06; 8:45 am]
BILLING CODE 4310-55-C