[Federal Register Volume 72, Number 187 (Thursday, September 27, 2007)]
[Rules and Regulations]
[Pages 54984-55010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-4723]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 20



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

  Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / 
Rules and Regulations  

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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: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for Ceanothus ophiochilus (Vail Lake 
ceanothus) and Fremontodendron mexicanum (Mexican flannelbush) under 
the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 431 acres (ac) (175 hectares (ha)) of federally-owned 
land fall within the boundaries of the critical habitat designation for 
these two species. Approximately 203 ac (82 ha) of land in Riverside 
County, California, are being designated as critical habitat for C. 
ophiochilus, and approximately 228 ac (93 ha) of land in San Diego 
County, California, are being designated as critical habitat for F. 
mexicanum. Of the approximately 283 ac (115 ha) proposed for 
designation for C. ophiochilus, approximately 80 ac (33 ha) of 
privately-owned land covered by the Western Riverside County Multiple 
Species Habitat Conservation Plan (MSHCP) have been excluded from 
critical habitat for C. ophiochilus under section 4(b)(2) of the Act. 
Of the approximately 361 ac (147 ha) proposed for designation for F. 
mexicanum, approximately 133 ac (54 ha) of privately-owned land covered 
by the San Diego Multiple Species Conservation Plan (MSCP) have been 
excluded from critical habitat for F. mexicanum under section 4(b)(2) 
of the Act.

DATES: This rule becomes effective on October 29, 2007.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Carlsbad Fish and 
Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92011 (telephone 
760-431-9440). The final rule, economic analysis, and maps will also be 
available via the Internet at http://www.fws.gov/carlsbad/.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office (see ADDRESSES); telephone 760-431-9440; 
facsimile 760-431-5901. If you use a telecommunications device for the 
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.


SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this final 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), or the proposed critical habitat rule 
published in the Federal Register on October 3, 2006 (71 FR 58340).

Species Descriptions and Life History

    No new information pertaining to the descriptions or life histories 
of these species was received following the 2006 proposed designation 
of critical habitat for each species; therefore, please refer to the 
proposed critical habitat designation published in the Federal Register 
on October 3, 2006 (71 FR 58340) for a discussion of the species 
description and life history for these two species.

Ecology and Habitat

    No new information pertaining to the ecology or habitat of these 
two species was received following the 2006 proposed designation of 
critical habitat for each species. Therefore, please refer to the 
proposed critical habitat designation published in the Federal Register 
on October 3, 2006 (71 FR 58340), for a discussion of the ecology and 
habitat for these two species.

Distribution

    In 2007, an occurrence of Fremontodendron mexicanum was documented 
at the historical ``Woodwardia Canyon'' occurrence on Otay Mountain, 
which was last documented in 1936 (Snapp-Cook 2007, p. 1). Prior to the 
rediscovery of this occurrence, the exact location of ``Woodwardia 
Canyon'' was difficult to discern from existing records. There were no 
maps of ``Woodwardia Canyon'' and the California Natural Diversity 
Database (CNDDB) cited ``Woodwardia Canyon'' in two separate areas 
(CNDDB 2005, p. 1 and p. 3). The rediscovered occurrence is located on 
Otay Mountain 0.3 miles (mi) (0.5 kilometers (km)) to the southwest of 
the known occurrence of F. mexicanum in Little Cedar Canyon, and is not 
within the area designated as critical habitat. Approximately 500 F. 
mexicanum were documented at this rediscovered occurrence (Snapp-Cook 
2007, p. 1). The significance of this occurrence and its impact on 
designated critical habitat will need to be further evaluated by the 
Service. Appropriate action, if any, will be addressed in a future 
rulemaking. For a detailed discussion of the distribution of F. 
mexicanum and Ceanothus ophiochilus documented prior to this final 
designation, please refer to the proposed critical habitat designation 
published in the Federal Register on October 3, 2006 (71 FR 58340).

Previous Federal Actions

    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.). In a Settlement Agreement dated December 21, 2004, we agreed 
to submit for publication in the Federal Register a proposed 
designation of critical habitat, if prudent and determinable, on or 
before September 20, 2006, and a final determination by September 20, 
2007. As part of the 2006 proposed designation we determined that it 
was prudent to designate critical habitat for each of these two 
species. The combined proposed critical habitat designation for both 
species was signed on September 18, 2006, and published in the Federal 
Register on October 3, 2006 (71 FR 58340). This final rule completes 
the Service's obligations regarding these species under the December 
21, 2004, settlement agreement.
    A draft economic analysis (DEA) for the proposed designation was 
completed on March 2, 2007, and a notice of availability for this DEA 
was published in the Federal Register on April 5, 2007 (72 FR 16756). 
Publication of the notice of availability opened a public comment 
period for the draft economic analysis of the proposed designation as 
well as the proposed designation from April 5, 2007, to May 7, 2007. 
Please refer to the ``Previous Federal Actions'' section of the 
proposed critical habitat rule for Ceanothus ophiochilus and 
Fremontodendron mexicanum, which published in the Federal Register on 
October 3, 2006 (71 FR 58340) for a discussion of additional Federal 
actions

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that occurred prior to the designation of critical habitat for each 
species.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for Ceanothus ophiochilus and 
Fremontodendron mexicanum in the proposed rule that published on 
October 3, 2006 (71 FR 58340), and in the notice of availability of the 
DEA published on April 5, 2007 (72 FR 16756). We also contacted 
appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed rule and the DEA.
    During the comment period that opened on October 3, 2006, and 
closed on December 4, 2006, we received three comments directly 
addressing the proposed critical habitat designation: Two from peer 
reviewers and one from the County of San Diego. We did not receive any 
requests for a public hearing during this first comment period. A 
second comment period opened on April 5, 2007, to allow for comment on 
the DEA and the proposed critical habitat. During the comment period 
that opened on April 5, 2007, and closed on May 7, 2007, we received 
seven comments directly addressing the proposed critical habitat 
designation and the draft economic analysis. Of these latter comments, 
two were from peer reviewers, one was from a Federal agency, two were 
from local governments, one was from an organization, and one was from 
an individual.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from five knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from four of the 
peer reviewers. The peer reviewers generally concurred with our methods 
and conclusions and one peer reviewer commented that the information 
for Fremontodendron mexicanum was well researched and complete.
    All comments are addressed in the following summary and 
incorporated into the final rule as appropriate.
    Peer Reviewer Comments
    1. Comment: One peer reviewer requested that we clarify the 
statement that Ceanothus ophiochilus is found on metavolcanic 
substrate. The peer reviewer indicated that the 1977 Jennings Geologic 
Maps do not indicate any metavolcanic substrate, only gabbro substrate 
in the vicinity of species occurrences.
    Response: We reviewed the soils information for this species. 
Geological maps that are more recent than the 1977 Jennings Geologic 
Maps are available. These maps indicate that the area around Vail Lake 
and in the Agua Tibia Wilderness, where Ceanothus ophiochilus is found, 
consists of metavolcanic, metasedimentary, and Gabbro substrates 
(Kennedy et al. 2000, p. 1; and Kennedy and Mertz 2003, p. 1).
    2. Comment: One peer reviewer stated that the Ceanothus ophiochilus 
population in Subunit 1A near Vail Lake is important to the 
preservation of the genetic purity of this species and should not be 
excluded from critical habitat because the Western Riverside County 
Multiple Species Habitat Conservation Plan (MSHCP) does not adequately 
protect this population. The peer reviewer made the following points to 
the argument that this population is important and should be protected:
    a. In the proposed rule we wrote that Ceanothus ophiochilus 
``appears'' to hybridize with C. crassifolius; however, the peer 
reviewer commented that C. ophiochilus ``does'' hybridize with C. 
crassifolius and that there are several specimens deposited at the 
herbarium of Rancho Santa Ana Botanic Garden which document the 
hybridization of these two species.
    b. The peer reviewer commented that both Ceanothus ophiochilus and 
C. crassifolius are members of the subgenus Cerastes. All members of 
this subgenus lack a burl and are obligate seeders. The peer reviewer 
states that because both of these species only regenerate from seeds 
following a fire and that the two species hybridize, the threat of 
hybridization is a threat to the survival of the species.
    c. The peer reviewer commented that the occurrences near Vail Lake 
and the occurrences in the Agua Tibia wilderness are affected 
differently by hybrids because Ceanothus crassifolius grows immediately 
adjacent to the C. ophiochilus in the Agua Tibia Wilderness and these 
two species are separated by 0.25 mi (0.4 km) in Vail Lake.
    d. The peer reviewer commented that due to soil disturbance from 
roads and fuel breaks within the populations of Ceanothus ophiochilus 
in the Agua Tibia Wilderness, hybrid plants are now more interspersed 
with the population. The greater amount of hybrid individuals may 
increase the relative likelihood of further introgressive hybridization 
within the new cohort of C. ophiochilus. This contrasts with the 
populations near Vail Lake where the natural distance to C. 
crassifolius populations is greater and there has not been disturbance 
within the population.
    These factors lead to the conclusion that the population at Vail 
Lake has a much better chance of keeping the pure form of C. 
ophiochilus intact and lower the risk caused by hybridization.
    Response: We agree with the peer reviewer's comments on the 
potential problems associated with hybridization, and we have made the 
appropriate changes to this final rule to clarify that hybridization is 
a threat to this species (please see the ``Primary Constituent 
Elements'' section for Ceanothus ophiochilus). However, we disagree 
with the peer reviewer's comment that Subunit 1A for C. ophiochilus 
should not be excluded from critical habitat because the Western 
Riverside County MSHCP does not adequately protect this population. The 
Western Riverside County MSHCP provides measures to benefit the 
conservation of C. ophiochilus by: protecting habitat from surface-
disturbing activities; implementing specific management and monitoring 
practices to help ensure the conservation of C. ophiochilus in the 
MSHCP Conservation 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. As discussed in the proposed critical habitat rule, the exclusion 
of critical habitat does not dismiss or lessen the value that the Vail 
Lake population has to the overall conservation of this species. 
Rather, we have determined that the benefits of excluding Subunit 1A 
are greater than the benefits of including the subunit, and the 
exclusion of Subunit 1A will not result in the extinction of the 
species (please see the ``Relationship of Critical Habitat to Habitat 
Conservation Plan Lands --Exclusions Under Section 4(b)(2) of the Act'' 
section of this final rule for a detailed discussion).
    3. Comment: A second peer reviewer commented that the hybridization 
between Ceanothus ophiochilus and C. crassifolius may result in the 
loss of homogeneous C. ophiochilus populations at some sites. This is 
especially true in those populations where the C. crassifolius 
significantly outnumbers C. ophiochilus or where the two species are in 
close contact. The

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reviewer further commented that management plans need to take this 
potential problem into consideration.
    Response: The information provided by this peer reviewer and the 
previous peer reviewer help to explain why hybridization threatens this 
species. We have made the appropriate changes to this final rule to 
clarify that hybridization is a threat to the species (please see 
``Primary Constituent Elements'' section for Ceanothus ophiochilus and 
the ``Special Management Considerations or Protection'' section). We 
have based this critical habitat designation on the best scientific and 
commercial data available. Currently, we are unaware of any studies 
specifically addressing the extent to which these two species are 
hybridizing. We also do not have information on the reproductive 
characteristics of the hybrid plants in the wild. However, we agree 
that researching the issue of hybridization as it relates to C. 
ophiochilus will be important to the conservation of this species.
    4. Comment: One peer reviewer stated that Ceanothus ophiochilus 
will not survive in the long term if intentionally exposed to fire-
suppression. The peer reviewer stated that this species is unable to 
reproduce vegetatively and requires fire to prepare seeds for 
germination and provide an open, mineral-rich soil free from 
competition among seedlings. The peer reviewer commented that plans for 
managing critical habitat need to take this natural process into 
consideration.
    Response: Designation of critical habitat does not necessarily 
require changes to existing management plans. However, we have 
incorporated this information as it relates to the potential impacts of 
fire-suppression into the ``Primary Constituent Elements'' section for 
Ceanothus ophiochilus of this final rule, so it will be considered in 
any relevant future section 7 consultations. We will also encourage 
parties to consider the effects of fire-suppression when developing 
management plans covering areas supporting essential habitat for C. 
ophiochilus.
    5. Comment: One peer reviewer indicated that the seeds of 
Fremontodendron decumbens differ from the seeds of F. mexicanum. 
Fremontodendron decumbens seeds have an orange waxy protrusion called a 
caruncle. The caruncle attracts ants which in turn disperse the seeds. 
It has been reported that F. mexicanum does not have a caruncle. The 
peer reviewer commented that this should be verified through a formal 
study because the presence or absence of a caruncle has important 
implications in the regeneration ecology of seed dispersal in this 
species and, therefore, its continued persistence.
    Response: As required under the Act, we have based this critical 
habitat designation on the best scientific and commercial data 
available. We agree that investigating the seed dispersal mechanism for 
Fremontodendron mexicanum and the relationship with ants or other 
possible dispersers is important. We encourage further study and will 
continue to investigate dispersal mechanisms as we work towards the 
conservation of the species.

Public Comments

    6. Comment: The County of San Diego commented that private lands in 
subunits 1A and 1B occupied by Fremontodendron mexicanum are entirely 
within a designated preserve area that will be protected and managed 
under the San Diego MSCP. The County provided specific information on 
the monitoring and management activities that will benefit this species 
and requested that lands covered by the MSCP be excluded from the final 
designation under section 4(b)(2) of the Act.
    Response: In the proposed rule, we requested comments on the 
appropriateness of excluding lands occupied by Fremontodendron 
mexicanum covered by the San Diego MSCP but did not propose these lands 
for exclusion. Based on comments we received during the public comment 
periods for the proposed rule, we have determined that even though F. 
mexicanum is not a covered species under the San Diego MSCP, private 
lands occupied by this species will be conserved under the San Diego 
MSCP through the Otay Ranch Phase 2 Resource Management Plan. The Otay 
Ranch Phase 2 Resource Management Plan includes specific protection 
measures that will benefit F. mexicanum. In addition, these private 
lands will receive management for associated species that are covered 
under the MSCP that is consistent with the biological needs of F. 
mexicanum and preservation of its primary constituent elements. Based 
on the benefits of preserving and fostering our partnerships with these 
local jurisdictions and other non-Federal entities, and after 
considering the conservation benefits provided by the Otay Ranch Phase 
2 Resource Management Plan under the MSCP, we have now determined that 
the benefits of excluding these lands from critical habitat outweigh 
the benefits of including these lands, and we have, therefore, excluded 
133 ac (54 ha) of private lands proposed as critical habitat for this 
species from this final designation under section 4(b)(2) of the Act 
(see the ``Relationship of Critical Habitat to Habitat Conservation 
Plan Lands--Exclusions Under Section 4(b)(2) of the Act'' section of 
this final rule for detailed discussion of the protections provided 
under the MSCP).
    7. Comment: The County indicated that the location of subunit 1A is 
not consistently described in the proposed rule. The County stated the 
proposed rule indicates that subunit 1A for Fremontodendron mexicanum 
is entirely on BLM land, but the map indicates that the subunit 
contains BLM land and private land.
    Response: The proposed rule (71 FR 58340, October 3, 2006) 
indicates that subunit 1A for Fremontodendron mexicanum consists of 
both BLM and private land in the unit description on page 58350 and in 
Table 1 on the same page.
    8. Comment: One commenter requested that we discuss how the 
designation of critical habitat for Ceanothus ophiochilus may 
contribute to the fuel load and the fire hazard in the area around the 
designation. The commenter also requested that we identify range land 
plants species important to healthy rangelands that C. ophiochilus 
could overtake in its recovery after wildfire.
    Response: Ceanothus ophiochilus is a relatively uncommon component 
of chaparral and occurs in very limited areas. We do not believe that 
the conservation of this species will increase the fire danger in areas 
where critical habitat is designated. Management for this species would 
favor a natural fire regime, on the order of once every 20 to 50 years 
(Keeley 2006, p. 367). Ceanothus ophiochilus is restricted to a limited 
soil type found in small patches on ridge-tops and north-facing slopes. 
This species is found in chaparral habitat and not areas that are 
historically range land. Following fire, C. ophiochilus repopulates 
limited areas in chaparral habitat and will not overtake rangelands.
    9. Comment: One commenter stated that the critical habitat 
designation should include all lands occupied by these two species.
    Response: Under section 3(5)(c) of the Act, critical habitat shall 
not include the entire geographical area which can be occupied by the 
species unless otherwise determined by the Secretary. The proposed 
designation of critical habitat for these two species included all of 
the areas known to be occupied by Ceanothus ophiochilus and

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Fremontodendron mexicanum at the time of the proposed rule (71 FR 
58340, October 3, 2006). After critical habitat was proposed for 
Fremontodendron mexicanum, approximately 500 F. mexicanum were 
documented at the location of an historical occurrence on Otay Mountain 
that was previously believed to be extirpated. This rediscovered 
occurrence is not within the area proposed as critical habitat. 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. Therefore, critical habitat designations 
do not signal that habitat outside the designation is unimportant or 
may not be required for recovery.
    10. Comment: One commenter stated that we should include critical 
habitat Subunit 1A for Ceanothus ophiochilus because the Western 
Riverside County Multiple Species Habitat Conservation Plan (MSHCP) 
fails to provide special management to address altered fire regime and 
nonnative species.
    Response: Under the Western Riverside County MSHCP, an adaptive 
management program will be used to meet the conservation goals and 
objectives for this species. The species account for Ceanothus 
ophiochilus in the MSHCP documentation acknowledges that altered fire 
regimes and nonnative invasive species threaten this species. The 
Western Riverside County MSHCP provides a mechanism to address special 
management considerations and protections for the population of C. 
ophiochilus and its primary constituent elements identified for 
conservation under the MSHCP in Subunit 1A. After considering all 
relevant factors, including the conservation measures provided by the 
MSHCP, we have determined that the benefits of excluding lands covered 
by the MSHCP from critical habitat outweigh the benefits of inclusion 
(see ``Relationship of Critical Habitat to Habitat Conservation Plan 
Lands--Exclusions Under Section 4(b)(2) of the Act'' section for a 
detailed discussion of the MSHCP and further explanation of the bases 
for this conclusion).
    11. Comment: One commenter stated that both the Western Riverside 
County MSHCP and U.S. Forest Service's (USFS) Land Management Plan 
(LMP) should be evaluated using the same standards when considering the 
exclusion of critical habitat Subunit 1A and 1B for Ceanothus 
ophiochilus.
    Response: We did evaluate lands covered by the Western Riverside 
County MSHCP and the USFS's Land Management Plan for exclusion from the 
final designation using the same standards under section 4(b)(2) of the 
Act. In considering whether this plan provides adequate management or 
protection for the species for purposes of applying section 4(b)(2) of 
the Act, we evaluated the plan based on the following three criteria: 
(1) The plan is complete and provides the same or a higher 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. As discussed in the ``Relationship of Critical Habitat to 
Habitat Conservation Plan Lands--Exclusions Under Section 4(b)(2) of 
the Act'' section, we believe that the Western Riverside County MSHCP 
fulfills these criteria, and we are excluding 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. The USFS's Land Management Plan contains general 
provisions for conservation of this species, and additional guidance 
documents are available that suggest specific management and 
conservation actions that should be considered. However, the LMP does 
not identify specific management measures to address the threat posed 
by short-interval fires and by competing nonnative species (Zedler 
1983, p. 815; Keeley 2006, p. 367; Merriam et al. 2007, p. vi, v, 48, 
61). Therefore, after analyzing the LMP in light of the criteria 
identified above, we have determined that the LMP does not provide 
management for C. ophiochilus in a manner that provides the same or 
higher level of protection from adverse modification or destruction 
than that provided through a consultation under section 7(a)(2) of the 
Act. In addition, as discussed below in the ``Exclusions under Section 
4(b)(2) of the Act'' section below, we have determined not to exclude 
these Federal lands from the final designation of critical habitat 
pursuant to section 4(b)(2) of the Act.
    12. Comment: One commenter stated that both subunits 1A and 1B for 
Fremontodendron mexicanum need to be retained in the final designation 
of critical habitat, despite the overlap of F. mexicanum with other 
species that are included in the Multiple Habitat Preserve Area/Pre-
approved Mitigation Area of the MSCP for the City and County of San 
Diego.
    Response: Fremontodendron mexicanum is not covered by the San Diego 
MSCP; however, all of the known occurrences of this species occur 
within the preserve design for the MSCP (Pryor 2007, p. 1-2). When the 
private lands where F. mexicanum occurs are conveyed into the MSCP 
preserve, they will be subject to adaptive management activities, 
consistent with the MSCP. Protections, management, and monitoring are 
described in the draft Otay Ranch Phase 2 Resource Management Plan 
(Otay Ranch 2002, p. 141-144; Pryor 2007, p. 2). Therefore, we believe 
that private lands where this species and associated primary 
constituent elements are found will be managed in a way that will help 
to achieve the recovery of this species and have determined that the 
benefits of exclusion outweigh the benefits of inclusion as described 
in the ``Relationship of Critical Habitat to Habitat Conservation Plan 
Lands--Exclusions Under Section 4(b)(2) of the Act'' section.
    13. Comment: One commenter stated that we should use the Primary 
Constituent Elements (PCEs) to model suitable habitat for these species 
and designate suitable unoccupied habitat for these species. The 
commenter stated that the Service should consider and evaluate the 
recovery benefits of critical habitat designation as part of our 
critical habitat designation.
    Response: When determining habitat essential for the conservation 
of these species, we used a set of specific criteria for each species 
(see ``Criteria Used To Identify Critical Habitat'' below for more 
detail). Based on the resulting areas that were identified using these 
criteria, we made the determination that additional, unoccupied areas 
were not essential for the conservation of either species. We believe 
the current distribution of known, occupied locations of both species 
will provide for the conservation and contribute to the recovery of 
these species. Additionally, both of these species occur in very 
limited areas. These species are endemic to a very narrow range, and we 
have determined that the best conservation strategy for these two 
species is to conserve them in the locations where they currently are 
found. Accordingly, when the best available scientific data does 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.

[[Page 54988]]

    When proposing and finalizing critical habitat designations, the 
Service does consider the recovery benefits to species. The 
identification of those lands that are essential for the conservation 
of the species and can, if managed, provide for the recovery of a 
species, is beneficial. The process of proposing and finalizing a 
critical habitat rule provides the Service with the opportunity to 
identify the species' essential primary constituent elements and areas 
essential for the conservation of the species. The designation process 
includes peer review and public comment on the identified features and 
lands. This process is valuable to land owners and managers in 
developing conservation management plans for identified lands, as well 
as any other occupied or unoccupied suitable habitat that may not have 
been included in the Service's determination of essential habitat.
    14. Comment: One commenter requested that we evaluate how an 
exclusion under 4(b)(2) of the Act will affect the recovery of the 
species in addition to whether or not the exclusion will lead to the 
extinction of the species.
    Response: We believe the designation of critical habitat promotes 
the recovery of species, and when proposing and finalizing critical 
habitat designations we do consider the recovery benefits to species. 
When considering an exclusion under section 4(b)(2) of the Act, the 
recovery benefits to the species from designating a particular area as 
critical habitat are fully considered when we determine whether the 
benefits of inclusion of such area are outweighed by the benefits of 
exclusion.
    If we determine that the benefits of excluding a particular area 
from critical habitat outweigh the benefits of including such area, and 
have determined that excluding the area from the final critical habitat 
designation is appropriate, we then evaluate whether that exclusion 
would result in the extinction of the species and provide clear 
explanation for this determination. If we have been considering an 
exclusion that we determine will result in the extinction of a species, 
consistent with the statutory requirements of Section 4(b)(2), we will 
not exclude the area from the critical habitat designation. Please see 
the ``Relationship of Critical Habitat to Habitat Conservation Plan 
Lands--Exclusions Under Section 4(b)(2) of the Act'' section of this 
final rule for a detailed discussion and our determinations that the 
exclusions in this final rule will not result in the extinction of 
Ceanothus ophiochilus or Fremontodendron mexicanum. Areas meeting the 
definition of critical habitat for both C. ophiochilus and F. mexicanum 
occur on private lands. The HCPs in Riverside County and San Diego 
County include these private lands and provide for the management and 
monitoring of these lands as they are conserved. These plans are 
believed to provide for long-term conservation of these lands that the 
designation of critical habitat would not provide (please see the 
``Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act'' section of this final 
rule for a detailed discussion).
    15. Comment: One comment stated that the individual supports all of 
the past and on-going conservation efforts that have taken place for 
these two species; however, these conservation efforts are not a 
substitute for critical habitat. The person commented that critical 
habitat complements the conservation goals of habitat conservation 
plans and, by designating critical habitat, the Service assures that 
the Federal Government meets its legal obligation to ensure the 
continued existence and recovery for Ceanothus ophiochilus and 
Fremontodendron mexicanum.
    Response: The process of designating critical habitat does 
complement the existing habitat conservation plans (HCPs). The proposed 
rule identifies areas that meet the definition of critical habitat. 
These areas are then analyzed based on existing land-use planning 
documents, such as HCPs. Based on this analysis, areas may be excluded 
from the final designation of critical habitat, if the benefits of 
exclusion outweigh the benefits of including them in the critical 
habitat designation and the exclusions will not result in the 
extinction of the species. This exclusion analysis considers all 
benefits, including recovery benefits, and through the analysis the 
Service meets all legal requirements for designation of critical 
habitat.
    16. Comment: One commenter expressed support for our exclusion of 
private lands within the Western Riverside County MSHCP; however, the 
commenter stated that all lands covered by the MSHCP, including the 
USFS lands, should be excluded from critical habitat. The commenter 
cited the Implementing Agreement for the MSHCP indicating the Service 
had agreed that ``in the event that a critical habitat determination is 
made for any covered species adequately conserved * * * lands within 
the boundaries of the MSHCP will not be designated as critical habitat 
(Implementing Agreement for the Western Riverside County Multiple 
Species Habitat Conservation Plan, sec. 14.10 at p. 51).''
    Response: In the Biological Opinion for the MSHCP, the Service 
concluded that the proposed conservation strategy would adequately 
conserve Ceanothus ophiochilus and its primary constituent elements 
(Service 2004, p. 402-406). We believe that the conservation mechanisms 
in place under the HCP will adequately conserve the populations and 
primary constituent elements on private lands. Further, the benefits 
analysis provided herein under section 4(b)(2) of the Act determined 
that the benefits of excluding the specific lands from critical habitat 
outweigh the benefits of including them in critical habitat (see the 
``Exclusions under Section 4(b)(2) of the Act'' section of this final 
rule for further details). Therefore, we have excluded private lands 
covered by the MSHCP. We appreciate the conservation work that the USFS 
is doing for C. ophiochilus; however, the USFS is not a signatory to 
the MSHCP permit and therefore is not bound by the requirements of the 
MSHCP. The phrase ``lands within the boundaries of the MSHCP,'' as used 
in the provision of the Implementing Agreement referenced by the 
commenter, refers to lands under the jurisdiction of the MSHCP 
permittees, and does not include federal lands that fall within the 
overall MSHCP boundaries. For the reasons stated in the above response 
to Comment 11, we have determined not to exclude the USFS lands.

Comments From Other Federal Agencies

    17. Comment: The USFS commented that the proposed critical habitat 
contains the occurrences and habitat for Ceanothus ophiochilus on USFS 
land. They also highlighted that the proposed designation stated that 
the Cleveland National Forest (CNF) lands were proposed for designation 
because of impacts to ridge tops from grading associated with the 
creation of fuel breaks, impacts to the associated vegetation community 
from unnatural fire regimes, and nonnative species. While the USFS 
agreed that these threats could damage C. ophiochilus habitat, they 
indicated that their Land Management Plan (LMP) provides for the 
minimization and avoidance of impacts to endangered species. 
Specifically, they indicated that Standard 12 of their LMP states, 
``When occupied or suitable habitat for threatened, endangered, 
proposed, candidate or sensitive species is present on an ongoing or 
proposed project site, consider species guidance documents to develop 
project-specific design criteria.''

[[Page 54989]]

    Response: We acknowledge the efforts the USFS has made towards the 
conservation of the Ceanothus ophiochilus and acknowledge that the LMP 
contains general provisions for conservation of this species. However, 
in considering whether the plan provides adequate management or 
protection for the species for purposes of applying section 4(b)(2) of 
the Act, we evaluated the plan based on the following three criteria: 
(1) The plan is complete and provides the same or a higher 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. The LMP does not identify specific management measures to 
address the threat posed by short-interval fires and by competing 
nonnative species (Keeley 2006, p. 367; Merriam et al. 2007, p. vi, v, 
48, 61). Because the USFS does not have a management plan specific to 
C. ophiochilus that provides the same or better level of protection 
from adverse modification or destruction than that provided through a 
consultation under section 7(a)(2) of the Act, we have determined that 
exclusion of these lands from the final designation of critical habitat 
pursuant to section 4(b)(2) of the Act is not appropriate for these 
Federal lands.
    18. Comment: The USFS commented that like HCPs, the USFS LMPs are 
designed to ensure the long-term survival of covered species in the 
plan area and designed to protect, restore, and enhance the value of 
USFS lands as habitat for listed species. They indicated that their LMP 
provides comparable conservation measures for Ceanothus ophiochilus and 
its primary constituent elements as the Western Riverside County MSHCP, 
and therefore should be excluded from critical habitat under section 
4(b)(2) of the Act.
    Response: Based on a review of the USFS LMP, we do not believe that 
the LMP provides conservation measures for Ceanothus ophiochilus 
comparable to those provided in the Western Riverside County MSHCP. 
During the development of this final designation, we evaluated lands 
covered by the Western Riverside County MSHCP, the USFS's LMP, and 
other relevant conservation plans for exclusion using the same 
standards under section 4(b)(2) of the Act. Please see our response to 
Comment number 11.
    19. Comment: The USFS commented that current laws, regulations, and 
policies, and land management practices on the CNF are adequate to 
provide for the conservation of Ceanothus ophiochilus and its habitat. 
They further state that designation of critical habitat on CNF lands 
would not provide any additional benefit to the conservation of C. 
ophiochilus, or its habitat, and that designation would unnecessarily 
add to their analysis burden by requiring the USFS to make a 
determination of effect regarding critical habitat when consulting 
under section 7(a)(2) of the Act.
    Response: Although the comment letter from the USFS does not 
explicitly request that the lands proposed for designation be excluded 
from final critical habitat, based on their comments we did consider 
their lands for exclusion. We concluded that despite the LMP and other 
regulations that exist, which require the USFS to manage Ceanothus 
ophiochilus and its habitat, the benefits of including this area in 
critical habitat outweigh the benefits of excluding this area from the 
designation of critical habitat (please see the ``Unit Description'' 
section for detailed discussion on the exclusion of the USFS lands in 
this critical habitat determination).

Comments Related To the Draft Economic Analysis

    20. Comment: One commenter stated that the DEA should consider 
potential economic impacts to all occupied and unoccupied but suitable 
habitat, rather than just the areas included in the draft rule.
    Response: In a critical habitat designation, section 4(b)(2) of the 
Act requires that we consider the economic impact of specifying any 
particular area as critical habitat. Therefore, we prepare an economic 
analysis to identify the economic impact of designating areas proposed 
as critical habitat (including any areas proposed for exclusion under 
section 4(b)(2) of the Act). The economic analysis focuses on 
activities within or affecting these areas. Potential economic impacts 
to areas supporting occupied and suitable habitat that are outside the 
boundaries of proposed critical habitat are not relevant to the 
required analysis under section 4(b)(2) of the Act.
    21. Comment: One commenter stated that the DEA overestimates costs 
associated with conserving both Ceanothus ophiochilus and 
Fremontodendron mexicanum, because it includes economic impacts 
attributable to listing under the Act. The comment further states that 
the DEA inaccurately attributes all of the costs to critical habitat 
designation and confuses the economic costs by including costs of 
conservation efforts for the species (not just critical habitat) with 
conservation of the proposed critical habitat.
    Response: The economic analysis estimates the total cost of species 
conservation activities without subtracting the impact of pre-existing 
baseline regulations (i.e., the cost estimates are fully co-extensive). 
In 2001, the U.S. 10th Circuit Court of Appeals instructed the Service 
to conduct a full analysis of all of the economic impacts of proposed 
critical habitat designation, regardless of whether those impacts are 
attributable co-extensively to other causes (New Mexico Cattle Growers 
Ass'n v. USFWS, 248 F.3d 1277 (10th Cir. 2001)). The economic analysis 
for Ceanothus ophiochilus and Fremontodendron mexicanum is consistent 
with this direction from the U.S. 10th Circuit Court of Appeals. The 
analysis identifies those economic activities believed most likely to 
threaten the species and their habitat and, where possible, quantifies 
the economic impact to avoid, mitigate, or compensate for such threats 
within the boundaries of the critical habitat designation. We 
acknowledge that some of these costs will likely be incurred regardless 
of whether critical habitat is designated. However, due to the 
difficulty in making a credible distinction between listing and 
critical habitat effects within critical habitat boundaries, the 
analysis considered all future conservation-related impacts to be 
coextensive with the designation. We have not excluded any areas from 
the final critical habitat designation based on economic impacts under 
section 4(b)(2) of the Act.
    22. Comment: One comment states that the DEA fails to evaluate any 
benefits of conserving a species that is threatened by extinction. The 
comment further notes that in addition to the dollar value of both 
Ceanothus ophiochilus and Fremontodendron mexicanum, there are many 
other values, destined to grow with our knowledge of the species in 
science, medicine, and aesthetics and in ways still unforeseen. The 
same commenter requests that at least some of these values be 
quantified and estimated in the final economic analysis.
    Response: Section 4(b)(2) of the Act requires the Secretary to 
designate critical habitat based on the best scientific data available 
after taking into consideration the economic impact, impact on national 
security, and any

[[Page 54990]]

other relevant impact, of specifying any particular area as critical 
habitat. The Service's approach for estimating economic impacts 
includes both economic efficiency and distributional effects. The 
measurement of economic efficiency is based on the concept of 
opportunity costs, which reflect the value of goods and services 
foregone in order to comply with the effects of the designation (e.g., 
lost economic opportunity associated with restrictions on land use). 
Where data are available, the economic analyses do attempt to measure 
the net economic impact. However, no data was found that would allow 
for the measurement of such an impact, nor was such information 
submitted during the public comment period.
    Most of the other benefit categories submitted by the commenter 
reflect broader social values, which are not the same as economic 
impacts. While the Secretary must consider economic and other relevant 
impacts as part of the final decision-making process under section 
4(b)(2) of the Act, the Act explicitly states that it is the 
government's policy to conserve all threatened and endangered species 
and the ecosystems upon which they depend. Thus, we believe that 
explicit consideration of broader social values for the species and 
their habitat, beyond the more traditionally defined economic impacts, 
is not necessary as Congress has already clarified the social 
importance.
    We note, as a practical matter, it is difficult to develop credible 
estimates of such values, as they are not readily observed through 
typical market transactions and can only be inferred through advanced, 
tailor-made studies that are time consuming and expensive to conduct. 
We lacked both the budget and time needed to conduct such research 
before meeting our court-ordered final rule deadline. In summary, we 
believe that Congress has placed significant value on conserving any 
and all threatened and endangered species and the habitats upon which 
they depend, and the critical habitat designation process under section 
4 of the Act incorporates these values. Thus, although we limit the 
scope of the economic analysis to economic impacts (both positive and 
negative), when we consider whether it is appropriate to exclude 
particular areas from critical habitat under section 4(b)(2) of the 
Act, we consider not just economic impacts, but all relevant impacts. 
In doing so, consistent with the value Congress has placed on species 
preservation, conservation benefits for the species at issue derived 
from the designation of critical habitat are afforded appropriate 
weight in the balancing analysis under section 4(b)(2).
    23. Comment: One commenter requested that we identify the potential 
cost of loss of private property and habitat due to wildfires that may 
occur as a result of the designation of critical habitat.
    Response: Ceanothus ophiochilus and Fremontodendron mexicanum are 
adapted to a natural fire regime with wildfire intervals of 
approximately 20 to 50 years. For example, C. ophiochilus reproduces 
after fire from seed. As a result, fire suppression activities can 
considerably limit the species' ability to reproduce because the seeds 
need fire to sprout. However, short-interval fires can also be 
detrimental to the species by preventing plants from reaching 
reproductive maturity and facilitating the establishment of non-native 
grasses that compete for limited space and resources. Federal agencies 
indicated that they would need to develop fire management plans for 
each species. Adoption of species-specific fire management plans, which 
are themselves subject to consultation pursuant to Section 7 of the 
Act, will allow Federal land managers to maintain the natural fire 
regimes required by each species. Fire management plans take 
neighboring properties into account such that application of prescribed 
burns or management of wildfires should occur in such a manner that 
would not increase the risk to surrounding properties and development. 
As such, we do not believe it is appropriate to evaluate the cost of 
the potential loss of private property due to wildfire as a part of 
this designation.
    24. Comment: One commenter stated that the co-extensive costs 
projected in the draft economic analysis are unacceptable.
    Response: In 2001, the U.S. 10th Circuit Court of Appeals 
instructed the Service to conduct a full analysis of all of the 
economic impacts of proposed critical habitat designation, regardless 
of whether those impacts are attributable co-extensively to other 
causes (New Mexico Cattle Growers Ass'n v. USFWS, 248 F.3d 1277 (10th 
Cir. 2001)). The economic analysis for Ceanothus ophiochilus and 
Fremontodendron mexicanum is consistent with this direction from the 
U.S. 10th Circuit Court of Appeals. See response to comment 21.

Summary of Changes From Proposed Rule

    In preparing the final critical habitat designation for Ceanothus 
ophiochilus and Fremontodendron mexicanum, we reviewed and considered 
public and peer review comments on the proposed designation of critical 
habitat and the DEA. As a result of comments received on the proposed 
rule and the DEA, and a reevaluation of the proposed critical habitat 
boundaries, we made the changes identified below to our proposed 
designation.
    In the proposed rule, we requested comments on the appropriateness 
of excluding lands occupied by Fremontodendron mexicanum covered by the 
San Diego MSCP but did not propose these lands for exclusion. Based on 
information we received during the public comment periods for the 
proposed rule, we have determined that even though F. mexicanum is not 
a covered species under the San Diego MSCP, private lands occupied by 
this species will be conserved under the San Diego MSCP through the 
Otay Ranch Phase 2 Resource Management Plan. The management provided by 
the MSCP for other covered species will also benefit the recovery of F. 
mexicanum (see ``Relationship of Critical Habitat to Habitat 
Conservation Plan Lands--Exclusions Under Section 4(b)(2) of the Act'' 
section for further discussion). We reanalyzed the lands covered by the 
MSCP for exclusion and determined that the benefits of excluding these 
lands from critical habitat outweighs the benefits of including them in 
the designation. Therefore, we have excluded 133 ac (54 ha) of private 
lands proposed as critical habitat for this species from this final 
designation under section 4(b)(2) of the Act (see the ``Exclusions 
under Section 4(b)(2) of the Act'' section of this final rule for 
further details).

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 that 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

[[Page 54991]]

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(a)(2) of the Act requires 
consultation on Federal actions that may affect 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(a)(2) of the Act is a purely 
protective measure and does not require implementation of restoration, 
recovery, or enhancement measures, nor does it apply to private actions 
for which there is no involved Federal action.
    To be included in a critical habitat designation, habitat within 
the geographical 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 (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. Furthermore, when the best 
available scientific data do not demonstrate that the conservation 
needs of the species require additional areas, we cannot designate 
critical habitat in areas outside the geographical area occupied by the 
species at the time of listing. However, an area currently occupied by 
the species but not occupied at the time of listing, will likely be 
essential to the conservation of the species and, therefore, may be 
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), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service, provide criteria, establish procedures, and provide guidance 
to ensure that decisions made by the Service represent the best 
scientific 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 may 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 and commercial 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 populations of Ceanothus ophiochilus and 
Fremontodendron mexicanum, but are outside their respective critical 
habitat designations, 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.

Primary Constituent Elements (PCEs)

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to designate as critical 
habitat within areas occupied by the species at time of listing, we 
consider those physical or biological features (primary constituent 
elements (PCEs)) that are essential to the conservation of the species, 
and 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, October 
13, 1998), the proposed critical habitat rule (71 FR 58340, October 3, 
2006), and information contained in this final 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 substrates, all of which are phosphorus 
deficient and thus considered to be nutrient-poor (PCE 2) (Boyd et al. 
1991, pp. 31, 37-38; Kennedy et al. 2000, p. 1; and Kennedy and Mertz 
2003, p. 1). These soils are similar to serpentine soils, which are 
well known for the high number of associated rare and endemic plants 
(Kruckeberg 1984, pp.3-5, p. 34). 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 nutrient-poor soils. In this way, these 
nutrient-poor soils may help the species maintain reproductive 
isolation (Boyd et al. 1991, p. 37-38). This is important because C. 
ophiochilus hybridizes with the locally

[[Page 54992]]

common C. crassifolius in places where the two species grow in close 
proximity (Boyd et al. 1991, p. 37-38). Hybrids are generally found on 
the margins of C. ophiochilus occurrences, where the soil changes from 
the harsh metavolcanic and gabbro soils that C. ophiochilus is 
typically found on to the milder sedimentary soils that support species 
such as C. crassifolius (Boyd et al. 1991, p. 37-38). Hybridization is 
a common natural phenomenon among the species of Ceanothus genus 
(Schmidt 1993, p. 935; Fross and Wilken 2006, pp. 131-149), and 
metavolcanic and gabbro soils are important for growth and reproduction 
of C. ophiochilus, as well as for space and separation from C. 
crassifolius, a species with which C. ophiochilus is known to 
hybridize.
    Soils where Ceanothus ophiochilus 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 C. ophiochilus 
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 feet (ft) 
to 3,000 ft (610 meters (m) to 914 m) (California Department of Fish 
and Game 2000; California Natural Diversity Database (CNDDB) 2005) with 
the following associated species: Adenostoma fasciculatum, A. 
sparsifolium, Quercus berberidifolia, C. crassifolius, Arctostaphylos 
spp. Salvia clevelandii, and Eriodictyon crassifolium (PCE 3) (Boyd and 
Banks 1995, p. 15). Within chaparral of southern Riverside County, 
these associated species are much more common than C. ophiochilus.
    We have little information about the pollinators or reproductive 
biology of this species. This species is in the subgenus Cerastes, and, 
like all members of this subgenus, it is an obligate seeding species 
and does not have a burl (an underground mass from which the species 
can resprout following fire). Therefore, this species requires fire to 
establish new seedlings. However, if fire burns too frequently there is 
insufficient time for the plant to mature and establish a seed bank, 
placing populations at risk of extirpation (Keeley 2006, p. 367). The 
natural fire regime for the chaparral ecosystem is once every 20 to 50 
years. Little information exists regarding the dispersal of this 
species.

Primary Constituent Elements for Ceanothus ophiochilus

    Pursuant to the Act and its implementing regulations, we are 
required to identify the known physical or biological features (PCEs) 
within the geographical area occupied at the time of listing that are 
essential to the conservation of Ceanothus ophiochilus, which may 
require special management considerations or protection. All areas 
designated as critical habitat for C. ophiochilus are occupied, within 
the species' historical geographic range, 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 
the PCEs for Ceanothus ophiochilus 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.

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, October 13, 1998), the proposed critical habitat (71 FR 58340, 
October 3, 2006), and information contained in this final rule.

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 northwest to 
northeast 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)) (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). In addition to plants growing near 
the streambed, plants observed on slopes adjacent to the streambeds 
were between 10 and 500 ft (3 and 152 m) from the streambed. Although 
the role that the plants on sloped areas play in the dynamics of growth 
and reproduction for 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 
Cupressus forbesii (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, October 13, 1998). 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, October 13, 1998). The 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, and can also reproduce 
from seeds following a fire. This ability to repopulate an area using 
multiple strategies following a fire makes F. mexicanum more resilient 
to short-interval fire than obligate seeders (plants that can only 
reproduce from seed following a fire). For example an obligate seeder 
like Tecate cypress needs 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). Other members of the 
Fremontodendron genus have a

[[Page 54993]]

structure on their seeds that attracts ants to disperse the seeds (Boyd 
2001, p. 234; Keeley 1987, p. 443). This structure is a waxy orange 
protrusion growing at the base of each seed; it is called a 
``caruncle'' or an ``elaiosome.'' No observations have been made that 
indicate the presence of a caruncle on F. mexicanum; however, this 
should be investigated to learn if any similarities exist between the 
various species of Fremontodendron that would provide information about 
how F. mexicanum's seed is dispersed. 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 
state that this species does well in soils that are well drained 
(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. 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 the Act and its implementing regulations, we are 
required to identify the known physical and biological features (PCEs) 
within the geographical area occupied at the time of listing that are 
essential to the conservation of Fremontodendron mexicanum, which may 
require special management considerations or protections. All areas 
designated as critical habitat for F. mexicanum are occupied, within 
the species' historic geographic range, 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 
the PCEs for Fremontodendron mexicanum are:
    (1) Alluvial terraces, benches, and associated slopes within 500 ft 
(152 m) 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 northwest to northeast facing slopes associated 
with steep (9 to 70 percent) slopes 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 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.
    The designation of critical habitat for Ceanothus ophiochilus and 
Fremontodendron mexicanum is designed for the conservation of PCEs 
necessary to support the life history functions of each species and the 
areas containing the PCEs for each species. Units are designated based 
on sufficient PCEs being present to support each species' life history 
functions. Each critical habitat unit contains all of the PCEs and 
supports multiple life processes for the species present in that unit.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing contain the primary 
constituent elements 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 hybridization and fire 
at too frequent intervals to allow for sufficient seed bank 
replenishment in the soil (63 FR 54956, October 13, 1998). 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, October 13, 
1998). These threats could impact the PCEs determined to be essential 
for conservation of C. ophiochilus and F. mexicanum.
    Urban development near Ceanothus ophiochilus critical habitat 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 habitat and change the soil composition (PCEs 1 and 
2) rendering the habitat unsuitable for species growth and 
reproduction. Urban development may also encourage invasion by 
nonnative plant species, changing the vegetation community and/or 
directly impacting the vegetation community (PCE 3). In addition, urban 
development near this species may increase the frequency of fire. All 
identified private land is covered by the Western Riverside County 
MSHCP (MSHCP), and those lands have been excluded from the final 
designation (see ``Relationship of Critical Habitat to Habitat 
Conservation Plan Lands--Exclusions Under Section 4(b)(2) of the Act'' 
section for a detailed discussion). No urban development is expected to 
directly impact the occurrences of C. ophiochilus on land owned by the 
USFS. Therefore, we do not believe threats from urban development would 
require special management considerations or protection of the PCEs on 
designated critical habitat for this species.
    The management of both fire frequency and the placement of fuel 
breaks is important for the conservation of Ceanothus ophiochilus, and 
special management considerations or protection of the PCEs for C. 
ophiochilus may be required on USFS lands to address potential threats 
posed by fire management activities. In the past, fuel breaks have been 
placed on the ridgelines (PCE 1) in C. ophiochilus habitat and have 
caused soil disturbance (PCE 2). Studies of fuel breaks in the 
Cleveland National Forest near the critical habitat designation have 
demonstrated an increase in the density of competing nonnative species 
(Merriam et al. 2007, p. 48), and it has been hypothesized that fuel 
breaks promote the introduction and spread of nonnative plants (Merriam 
et al. 2007, p. vi). These nonnative invasive plants alter local fuel 
conditions and change fire behavior and frequency (Merriam et al. 2007, 
p. 61). Ceanothus ophiochilus is very sensitive to short-interval 
fires, which may extirpate the species from a site entirely (Keeley 
2006, p. 367). Soil disturbance, caused by the creation of fuel breaks, 
has also led to increased hybridization between Ceanothus ophiochilus 
and C. crassifolius. However, the degree to which hybridization is 
impacting C. ophiochilus and its habitat is not yet known.
    Fremontodendron mexicanum does not face direct threats from urban 
development; however, the PCEs for this species may require special 
management considerations or

[[Page 54994]]

protection to address the threat from nonnative species. 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 addition, the PCEs for this species may require special 
management considerations or protection to address negative impacts 
related to fire fighting activities. Fire fighting activities may alter 
the alluvial terraces and benches that F. mexicanum grows on (PCE 
1) if activities occur directly in the streambed adjacent to 
where F. mexicanum occurs. Special management may be needed to insure 
that fire fighting activities do not alter these areas or that measures 
are in place to restore damage to habitat after the activities occur. 
Likewise, future fuel breaks should be designed such that they do not 
create situations were extra run off is channeled into the canyons thus 
increasing the scouring that occurs in the creek bottoms and eroding 
the terraces and benches where F. mexicanum grows (PCE 1).
    In our unit descriptions for this designation, we further describe 
the threats requiring special management considerations or protection 
for each subunit.

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 essential to the conservation of Ceanothus ophiochilus or 
Fremontodendron mexicanum. Recovery of Ceanothus ophiochilus and 
Fremontodendron mexicanum will require conservation of all populations 
identified in the proposed critical habitat rule. Both these species 
are narrow endemics with few populations and all populations may be 
important for redundancy and resilience of these two narrow-ranging 
species.
    To delineate the critical habitat for Ceanothus ophiochilus, we 
used the following criteria: (1) We identified all areas occupied by C. 
ophiochilus at the time of listing and/or currently occupied using the 
location data from Boyd and Banks (1995); (2) we created GIS 
(Geographic Information System) 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 critical habitat for Fremontodendron mexicanum, we 
used the following criteria: (1) We identified all areas, except one 
(see below), 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 occupied using current data in the 
California Natural Diversity Database (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 
identified in the CNDDB and in field surveys conducted prior to the 
publication of the proposed critical habitat (71 FR 58340, October 3, 
2006); 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 to allow for natural riparian process to occur. The 
recently rediscovered occurrence of F. mexicanum on Otay Mountain 
(Snapp-Cook 2007, p. 1) discussed above in the ``Distribution'' section 
was not included in the delineation because the Service was not aware 
of its existence at the time of the proposed critical habitat rule, and 
the significance of this rediscovered population and its impact on 
designated critical habitat will need to be further evaluated by the 
Service. Appropriate action, if any, will be addressed in a future 
rulemaking.
    We analyzed all areas meeting the criteria used to identify 
critical habitat for both species to determine if any existing 
conservation or management plans exist that benefit either species and/
or their respective PCEs. We determined that the Western Riverside 
County MSHCP benefits the conservation of Ceanothus ophiochilus and 
that the San Diego MSCP benefits the conservation of Fremontodendron 
mexicanum. We also determined that the benefits of excluding these 
areas outweighed the benefits of including these areas in the critical 
habitat designation. Therefore, approximately 213 ac (87 ha) of private 
lands occupied by these species covered by the MSHCP or MSCP have been 
excluded under section 4(b)(2) of the Act in this final designation 
(please see ``Exclusions under Section 4(b)(2) of the Act'' for a 
detailed discussion).
    The MSHCP and MSCP documents were used as aids in determining areas 
that contain the features essential to the conservation of these two 
species. No areas outside the geographical area occupied at the time of 
listing by Ceanothus ophiochilus or Fremontodendron mexicanum were 
included in this final designation.
    When determining critical habitat boundaries within this final 
rule, we made every effort to avoid including developed areas such as 
buildings, paved areas, and other structures that lack PCEs for 
Ceanothus ophiochilus and Fremontodendron mexicanum. 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 of this final rule 
have been excluded by text in the final rule and are not designated as 
critical habitat. Therefore, Federal actions limited to these areas 
would not trigger section 7(a)(2) consultations, unless they may affect 
the species or primary constituent elements in adjacent critical 
habitat.
    A brief discussion of each area designated as critical habitat is 
provided in the unit descriptions below. Additional detailed 
documentation concerning the essential nature of these areas is 
contained in our supporting record for this rulemaking.

Critical Habitat Designation

    We are designating approximately 203 ac (82 ha) of federally-owned 
land as critical habitat for Ceanothus ophiochilus and approximately 
228 ac (93 ha) of federally-owned land as critical habitat for 
Fremontodendron mexicanum. Table 1 provides the approximate area (ac/
ha) determined to meet the definition of critical habitat for C. 
ophiochilus and F. mexicanum, the areas being excluded from 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), and the areas being designated as critical habitat.
    Areas proposed as critical habitat for Ceanothus ophiochilus and 
Fremontodendron mexicanum, areas excluded from the final critical 
habitat designation under section 4(b)(2) of the Act, and areas 
designated as final critical habitat (acres (ac)/hectares (ha)) are 
shown in Table 1.

[[Page 54995]]



                                                     Table 1
----------------------------------------------------------------------------------------------------------------
                                                                         Areas excluded
                                                    Proposed critical    under section
     Critical habitat unit         Land ownership     habitat (71 FR     4(b)(2) of the   Final critical habitat
                                                          58340)              Act
----------------------------------------------------------------------------------------------------------------
Ceanothus ophiochilus:
    1. Western Riverside County
        1A. Vail Lake..........  Private..........  76 ac (31 ha)....  76 ac (31 ha)....  0 ac (0 ha).
        1B. Agua Tibia           USFS*............  203 ac (82 ha)...  0 ac (0 ha)......  203 ac (82 ha).
         Mountains.
                                 Private..........  4 ac (2 ha)......  4 ac (2 ha)......  0 ac (0 ha).
            Total..............  .................  283 ac (115 ha)..  80 ac (33 ha)....  203 ac (82 ha).
Fremontodendron mexicanum:
    1. Otay Mountain
        1A. Cedar Canyon.......  BLM*.............  145 ac (59 ha)...  0 ac (0 ha)......  145 ac (59 ha).
                                 Private..........  114 ac (46 ha)...  114 ac (46 ha)...  0 ac (0 ha).
        1B. Little Cedar Canyon  BLM*.............  83 ac (34 ha)....  0 ac (0 ha)......  83 ac (34 ha).
                                 Private..........  19 ac (8 ha).....  19 ac (8 ha).....  0 ac (0 ha).
            Total..............  .................  361 ac (147 ha)..  133 ac (54 ha)...  228 ac (93 ha).
----------------------------------------------------------------------------------------------------------------
*USFS = U.S. Forest Service; BLM = Bureau of Land Management.

    Below we present brief descriptions of all units, and reasons why 
they meet the definition of critical habitat for Ceanothus ophiochilus 
and Fremontodendron mexicanum.

Critical Habitat Designation for Ceanothus ophiochilus

    We are designating 203 ac (82 ha) of land as critical habitat for 
Ceanothus ophiochilus within a single unit. In the proposed critical 
habitat, this unit was divided into two subunits: Subunits 1A (Vail 
Lake) and 1B (Agua Tibia Mountains). We excluded all of subunit 1A (76 
ac (31 ha)) and a portion of subunit 1B (4 ac (2 ha)) under section 
4(b)(2) of the Act from the final designation of critical habitat for 
C. ophiochilus (please see the ``Exclusions under Section 4(b)(2) of 
the Act'' section). Therefore, only the lands in subunit 1B designated 
as final critical habitat are discussed below.

Unit 1: Western Riverside County

    Unit 1 is located near Vail Lake in southern Riverside County, 
California. The area was occupied at the time of listing and contains 
all of 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 a brief 
description of subunit 1B, reasons why it meets the definition of 
critical habitat for C. ophiochilus, and our rationale for our final 
designation of critical habitat.
Subunit 1B, Agua Tibia Mountains, Riverside County, California
    Subunit 1B (Agua Tibia Mountains) consists of 203 ac (82 ha) of 
land which is managed by the USFS. Subunit 1B contains two of the three 
CNDDB element occurrences (2 and 3) of Ceanothus ophiochilus, both 
known at the time of listing. The PCEs within this subunit may require 
special management considerations or protection to address the threats 
posed by short-interval fires, competing nonnative species, 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 entirely within 
the Agua Tibia Wilderness of the Cleveland National Forest.
    Recently the USFS completed the LMP for the Four Southern 
California National Forests. Implementation of the LMP was analyzed by 
the Service to address potential impacts to Ceanothus 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 LMP does not identify specific management measures to address the 
threat posed by short-interval fires and by competing nonnative species 
(Keeley 2006, p. 367; Merriam et al. 2007, p. vi, v, 48, 61). Because 
the USFS does not have a management plan specific to C. ophiochilus 
that 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, we have determined that exclusion of these 
lands from the final designation of critical habitat pursuant to 
section 4(b)(2) of the Act is not appropriate for these Federal lands 
(please see ``Exclusions under Section 4(b)(2) of the Act'' for a 
detailed discussion). Therefore, we are designating the USFS lands 
containing features essential to the conservation of C. ophiochilus as 
critical habitat for this species.

Critical Habitat Designation for Fremontodendron mexicanum

    We are designating 228 ac (93 ha) of land as critical habitat for 
Fremontodendron mexicanum within one unit on Otay Mountain in southern 
San Diego County. This unit contains land managed by the Bureau of Land 
Management (BLM) within the Otay Mountain Wilderness Area (Otay 
Mountain Wilderness Act of 1999, Pub. L. 106-145, H.R. 15). This unit 
is further divided into two subunits. Subunit 1A (Cedar Canyon) and 
subunit 1B (Little Cedar Canyon) are each separate canyons on the 
northwest portion of Otay Mountain. All 133 ac (54 ha) of private land 
in Unit 1 proposed as critical habitat (71 FR 58340, October 3, 2006) 
have been excluded from this final designation under section 4(b)(2) of 
the Act (please see ``Exclusions under Section 4(b)(2) of the Act'' for 
a detailed discussion).
    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.
    Below, we present brief descriptions of the critical habitat 
subunits, reasons why they meet the definition of critical habitat for 
Fremontodendron mexicanum, and our rationale for their designation as 
critical habitat.

[[Page 54996]]

Subunit 1A, Cedar Canyon, Otay Mountain, San Diego County, California
    Subunit 1A, Cedar Canyon, consists of 145 ac (59 ha) of public land 
managed by the BLM. 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 will be managed 
in the Cedar Canyon ACEC and RNA. This subunit was occupied at the time 
of listing and contains all of the features essential to the 
conservation of the 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 Otay fire, the canyon was dominated by Cupressus forbesii 
(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 (Snapp-Cook 2006). This increase in the 
number of plants may be a result of the 2003 Otay fire that burned 
Cedar Canyon as this species is a facultative resprouter (i.e., 
resprouts and produces seedlings after fire). The phenomenon of F. 
mexicanum resprouting following fire was also recorded following a 1979 
fire in Cedar Canyon (CNDDB 2005 p. 1). The PCEs in this subunit may 
require special management considerations or protection to address 
negative impacts related to fire fighting activities (PCE 1) and 
negative impacts from the growth of nonnative species that may affect 
the space available for this species (PCE 1, 2, and 3).
Subunit 1B, Little Cedar Canyon, Otay Mountain, San Diego County, 
California
    Subunit 1B, Little Cedar Canyon, consists of 83 ac (34 ha) of 
public land managed by the BLM. Little Cedar Canyon is located 
approximately 1.9 mi (3 km) to the west of Cedar Canyon. The land in 
this subunit is part of the Otay Mountain Wilderness Area. This site 
was not discovered until after the species was listed; however, we 
believe that it was occupied at the time of listing. Thirty-one healthy 
plants were documented in Little Cedar Canyon in the summer of 2006, 
and evidence of mature seed was detected (Martin 2006). Although this 
occurrence is small when compared to the more than 1,000 plants 
observed in Cedar Canyon in early 2006 (Snapp-Cook 2006), the Little 
Cedar Canyon occurrence will help to stabilize the existence of F. 
mexicanum in the United States and the discovery of F. mexicanum in 
Little Cedar Canyon almost doubles the amount of known occupied habitat 
for this species in the United States. The PCEs in this subunit may 
require special management considerations or protection to minimize 
impacts related to fire fighting activities and to the invasion of 
nonnative species that may affect the space available for this species 
(PCE 1, 2, and 3).

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. Decisions 
by the 5th and 9th Circuit Court of Appeals have invalidated our 
definition of ``adversely modify'' (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)), and we do not rely on this regulatory definition 
when analyzing whether an action is likely to destroy or adversely 
modify critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification 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 its intended conservation role for the species.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
the Service on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. This is a procedural 
requirement only, as any conservation recommendations in a conference 
report or opinion are strictly advisory. However, once a species 
proposed for listing becomes listed, or proposed critical habitat is 
designated as final, the full prohibitions of section 7(a)(2) apply to 
any discretionary Federal action.
    The primary utility of the conference procedures is to allow a 
Federal agency to maximize its opportunity to adequately consider 
species proposed for listing and proposed critical habitat and to avoid 
potential delays in implementing its proposed action, because of the 
section 7(a)(2) compliance process, if we list those species or 
designate critical habitat. We may conduct conferences either 
informally or formally. We typically use informal conferences as a 
means of providing advisory conservation recommendations to assist the 
agency in eliminating conflicts that the proposed action may cause. We 
typically use formal conferences when we or the Federal agency believes 
the proposed action is likely to jeopardize the continued existence of 
the species proposed for listing or adversely modify proposed critical 
habitat.
    We generally provide the results of an informal conference in a 
conference report, while we provide the results of a formal conference 
in a conference opinion. We typically prepare conference opinions on 
proposed species or critical habitat in accordance with procedures 
contained at 50 CFR 402.14, as if the proposed species were already 
listed or the proposed critical habitat was already designated. We may 
adopt the conference opinion as the biological opinion when the species 
is listed or 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)).
    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 the 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, 
we document compliance with the requirements of section 7(a)(2) through 
our 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, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``Reasonable and prudent alternatives'' at 50 
CFR 402.02 as alternative actions identified during consultation that:

[[Page 54997]]

     Can be implemented in a manner consistent with the 
intended purpose of the action,
     Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
     Are economically and technologically feasible, and
     Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying 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 we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's 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.
    Federal activities that may affect Ceanothus ophiochilus or 
Fremontodendron mexicanum and/or their respective designated critical 
habitat require consultation under section 7 of the Act. Activities on 
State, Tribal, local, or private lands requiring a Federal permit (such 
as a permit from the U.S. Army Corps of Engineers under section 404 of 
the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from us under 
section 10 of the Act from the Service or involving some other Federal 
action (such as funding from the Federal Highway Administration, 
Federal Aviation Administration, or the Federal Emergency Management 
Agency) are also subject to the section 7(a)(2) 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(a)(2) consultations.

Application of the Adverse Modification Standard for Actions Involving 
Effects To the 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 continue to serve its intended 
conservation role for the species, or would retain its current ability 
for the primary constituent elements to be functionally established. 
Activities that may destroy or adversely modify critical habitat are 
those that alter the PCEs to an extent that appreciably reduces the 
conservation value of critical habitat for Ceanothus ophiochilus or 
Fremontodendron mexicanum. Generally, the conservation role of 
Ceanothus ophiochilus or Fremontodendron mexicanum critical habitat 
units is to support viable core area populations.
    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, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and, therefore, should 
result in consultation for Ceanothus ophiochilus or Fremontodendron 
mexicanum include, but are not limited to:
    (1) Actions that would directly impact Ceanothus ophiochilus and 
Fremontodendron mexicanum habitat and their primary constituent 
elements. Such activities could include, but are not limited to, road 
grading, streambed clearing, the creation of fuel breaks, 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 Ceanothus 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 
increased presence of nonnative species could also change the fire 
regime as mentioned above or could alter the soil composition.
    We consider all of the units designated as critical habitat, as 
well as those that have been excluded, to contain features essential to 
the conservation of Ceanothus ophiochilus and Fremontodendron 
mexicanum. All subunits are within the geographic range of each 
species, respectively, and were occupied at the time of listing. All of 
the subunits 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.

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary must designate 
and revise critical habitat 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 legislative history is clear that the Secretary has 
broad discretion regarding which factor(s) to use and how much weight 
to give to any factor.
    Under section 4(b)(2) of the Act, 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 we 
consider excluding an area, 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 have made. In addition, the Service has 
conducted an economic analysis of the impacts of the proposed critical 
habitat designation and related factors, which was made available for 
public review and comment on April 5, 2007 (72 FR 16756). Based on 
public comment which provided specific information about private lands 
being proposed for

[[Page 54998]]

designation for Fremontodendron mexicanum, areas in addition to those 
proposed for exclusion in the proposed critical habitat rule have been 
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 424.19.

Benefits of Designating Critical Habitat

Regulatory Benefits
    The consultation provisions under section 7(a)(2) of the Act 
constitute the regulatory benefits of critical habitat. As discussed 
above, Federal agencies must consult with us on actions that may affect 
critical habitat and must avoid destroying or adversely modifying 
critical habitat. Prior to our designation of critical habitat, Federal 
agencies must consult with us on actions that may affect a listed 
species and must refrain from undertaking actions that are likely to 
jeopardize the continued existence of such species. Thus the analysis 
of effects to critical habitat is a separate and different analysis 
from that of the effects to the species. Therefore, the difference in 
outcomes of these two analyses represents the regulatory benefit of 
critical habitat. For some species, and in some locations, the outcome 
of these analyses will be similar, because effects on habitat will 
often also result in effects on the species. However, the regulatory 
standard is different; the jeopardy analysis looks at the action's 
impact on survival and recovery of the species, while the adverse 
modification analysis looks at the action's effects on the designated 
habitat's contribution to the species' conservation. This will, in many 
instances, lead to different results, and different regulatory 
requirements.
    For 30 years prior to the Ninth Circuit's decision in Gifford 
Pinchot, we combined the jeopardy standard with the standard for 
destruction or adverse modification of critical habitat when evaluating 
Federal actions that affected occupied critical habitat. However, the 
court of appeals ruled that the two standards are distinct and that 
adverse modification evaluations require consideration of impacts on 
species recovery. Thus, critical habitat designations may provide 
greater benefits to the recovery of a species than would listing alone.
    There are two limitations to the regulatory effect of critical 
habitat. First, a consultation is required only where there is a 
Federal nexus (an action authorized, funded, or carried out by any 
Federal agency). If there is no Federal nexus, the critical habitat 
designation of private lands itself does not restrict any actions that 
destroy or adversely modify critical habitat. Second, the designation 
only limits destruction or adverse modification. By its nature, the 
prohibition on adverse modification is designed to ensure no 
degradation of those areas containing the physical and biological 
features essential to the conservation of the species or of those 
unoccupied areas that are essential to the conservation of the species. 
Critical habitat designation alone, however, does not require property 
owners to undertake specific steps toward recovery of the species.
    Once an agency determines that consultation under section 7(a)(2) 
of the Act is necessary, the process may conclude informally when we 
concur in writing that the proposed Federal action is not likely to 
adversely affect critical habitat. However, if we determine through 
informal consultation that adverse impacts are likely to occur, then we 
would initiate formal consultation, which would conclude when we issue 
a biological opinion on whether the proposed Federal action is likely 
to result in destruction or adverse modification of critical habitat.
    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 suggest the 
implementation of any reasonable and prudent alternative. We suggest 
reasonable and prudent alternatives to the proposed Federal action only 
when our biological opinion results in an adverse modification 
conclusion.
    We believe that in many instances the regulatory benefit of 
critical habitat is low when compared to voluntary conservation efforts 
or management plans. The conservation achieved through implementing 
HCPs or other habitat management plans can be greater than what we 
achieve through multiple site-by-site, project-by-project, section 
7(a)(2) consultations involving consideration of critical habitat. 
Management plans may commit resources to implement long-term management 
and protection to particular habitat for at least one and possibly 
additional listed or sensitive species. Section 7(a)(2) consultations 
commit Federal agencies to preventing adverse modification of critical 
habitat caused by the particular project only, and not to providing 
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 may often 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.
    In providing the framework for the consultation process, the 
previous section applies to all the following discussions of benefits 
of inclusion or exclusion of critical habitat.
Educational Benefits
    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, 
critical habitat designation always has educational benefits; however, 
in some cases, they may be redundant with other educational effects. 
For example, HCPs have had significant public input during their 
development, which may largely duplicate the educational benefit of a 
critical habitat designation. A second benefit of including lands in 
critical habitat is that the designation of critical habitat would 
inform State agencies and local governments about areas that could be 
conserved under State laws or local ordinances.
Recovery Benefits
    The process of designating critical habitat as described in the Act 
requires that the Service identify those lands on which are found the 
physical or biological features essential to the conservation of the 
species and which may require special management considerations or 
protection. In identifying those lands, the Service must consider the 
recovery needs of the species, such that the habitat that is 
identified, if managed, could provide for the survival and recovery of 
the species. Furthermore, once critical habitat has been designated, 
Federal agencies must consult with the Service under section 7(a)(2) of 
the Act to ensure that their actions will not adversely modify 
designated critical habitat or jeopardize the continued existence of 
the species. As noted in the Ninth Circuit's Gifford Pinchot decision, 
the Court ruled that the jeopardy and adverse modification standards 
are distinct, and that adverse modification evaluations require 
consideration of impacts to the recovery of species. Thus, through the 
section

[[Page 54999]]

7(a)(2) consultation process, critical habitat designations provide 
recovery benefits to species by ensuring that Federal actions will not 
destroy or adversely modify designated critical habitat.
    It is beneficial to identify those areas that are necessary for the 
conservation of the species and that, if managed appropriately, would 
further recovery measures for the species. The process of proposing and 
finalizing a critical habitat rule provides the Service with the 
opportunity to identify the physical or biological features essential 
for conservation of the species within the geographical area occupied 
by the species at the time of listing, as well as to determine other 
areas essential to the conservation of the species. The designation 
process includes peer review and public comment on the identified 
features and areas. This process is valuable to land owners and 
managers in developing conservation management plans for identified 
areas, as well as any other occupied habitat or suitable habitat that 
may not have been included in the Service's determination of essential 
habitat.
    However, the designation of critical habitat does not require that 
any management or recovery actions take place on the lands included in 
the designation. Even in cases where consultation has been initiated 
under section 7(a)(2) of the Act, the end result of consultation is to 
avoid jeopardy to the species and adverse modification of its critical 
habitat, but not specifically to manage remaining lands or institute 
recovery actions on remaining lands. Conversely, management plans 
institute proactive actions over the lands they encompass to remove or 
reduce known threats to a species or its habitat and, therefore, in 
doing so, may implement recovery actions. We believe that the 
conservation benefits to a species and its habitat that could be 
achieved through the designation of critical habitat, in some cases, 
are less than the conservation benefits that could be achieved through 
the implementation of a management plan that includes species-specific 
provisions and considers enhancement or recovery of listed species as 
the management standard over the same lands. Consequently, 
implementation of any HCP or management plan that considers enhancement 
or recovery as the management standard will often provide as much or 
more benefit than a consultation for critical habitat designation.
    The information provided in this section applies to all the 
following discussions that discuss the benefits of inclusion and 
exclusion of critical habitat.
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, p. 2), and at least 80 percent of endangered or threatened 
species occur either partially or solely on private lands (Crouse et 
al. 2002, p. 720). Stein et al. (1995, p. 400) found that only about 12 
percent of listed species were found almost exclusively on Federal 
lands (90 to 100 percent of their known occurrences 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 are 
essential to our understanding the status of species on non-Federal 
lands, and necessary for us to implement recovery actions such as 
reintroducing listed species and restoring and protecting habitat.
    Many non-Federal landowners derive satisfaction from contributing 
to endangered species recovery. We promote these private-sector efforts 
through the Department of the Interior's Cooperative Conservation 
philosophy. Conservation agreements with non-Federal landowners (HCPs, 
safe harbor agreements, other conservation agreements, easements, and 
State and local regulations) enhance species conservation by extending 
species protections beyond those available through section 7(a)(2) 
consultations. In the past decade, we have encouraged non-Federal 
landowners to enter into conservation agreements, based on the view 
that we can achieve greater species conservation on non-Federal land 
through such partnerships than we can through regulatory methods (61 FR 
63854; December 2, 1996).
    Many private landowners, however, are wary of the possible 
consequences of attracting endangered species to their property. 
Mounting evidence suggests 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. This perception 
results 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).
    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 outcome is greatly 
amplified in situations where active management measures (such as 
reintroduction, fire management, control of invasive species) are 
necessary for species conservation (Bean 2002). We believe 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 superior level of conservation than critical habitat 
alone.
    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(a)(2) of the Act, can sometimes be 
counterproductive to its intended purpose on non-Federal lands. Thus 
the benefits of excluding areas that are covered by effective 
partnerships or other conservation commitments can often be high.

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 include relieving 
landowners, communities, and counties of any additional regulatory 
burden that might be imposed by a critical habitat designation. Most 
HCPs and other conservation plans take many years to develop and, upon 
completion, are consistent with the recovery objectives

[[Page 55000]]

for listed species that are covered within the plan area. Many 
conservation plans also provide conservation benefits to unlisted 
sensitive species. Imposing an additional regulatory review as a result 
of the designation of critical habitat may undermine these conservation 
efforts and partnerships designed to proactively protect species to 
ensure that listing under the Act will not be necessary. Our experience 
in implementing the Act has found that designation of critical habitat 
within the boundaries of management plans that provide conservation 
measures for a species is a disincentive to many entities which are 
either currently developing such plans, or contemplating doing so in 
the future, because one of the incentives for undertaking conservation 
is greater ease of permitting where listed species will be 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 for 
them to be perceived as additional Federal regulatory burden sufficient 
to discourage continued participation in developing plans targeting 
listed species' conservation.
    A related benefit of excluding lands within management plans from 
critical habitat designation is the unhindered, continued ability it 
gives us 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. 
We have found that potential participants are not inclined to 
participate in such management plans when we designate critical habitat 
within the area that would be covered by such a management plan, thus 
having a negative effect on our ability to establish new partnerships 
to develop these plans; particularly plans that address landscape-level 
conservation of species and habitats. By preemptively excluding these 
lands, we preserve our current partnerships and encourage additional 
conservation actions in the future.
    Furthermore, both HCPs and Natural Communities Conservation Plan 
(NCCP)-HCP applications require consultation, which would review the 
effects of all HCP-covered activities that might adversely impact the 
species under a jeopardy standard, including possibly significant 
habitat modification (see definition of ``harm'' at 50 CFR 17.3), even 
without the critical habitat designation. In addition, all other 
Federal actions that may affect the listed species would still require 
consultation under section 7(a)(2) of the Act, and we would review 
these actions for possibly significant habitat modification in 
accordance with the definition of harm referenced above.
    The information provided in the previous section applies to all the 
following discussions of benefits of inclusion or exclusion of critical 
habitat.

Areas Considered for Exclusion Under Section 4(b)(2) of the Act

    After considering the following areas under section 4(b)(2) of the 
Act, we are excluding them from the critical habitat designation for 
Ceanothus ophiochilus and Fremontodendron mexicanum. We are excluding 
approximately 80 ac (33 ha) of non-Federal lands from the C. 
ophiochilus critical habitat designation in subunits 1A and 1B that are 
within the Western Riverside County MSHCP Plan Area, and all 133 ac (54 
ha) of private land in Unit 1 from the designation of critical habitat 
for F. mexicanum. A detailed analysis of our exclusion of these lands 
under section 4(b)(2) of the Act is provided in the paragraphs below.

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

    When performing the required analysis under section 4(b)(2) of the 
Act, the existence of a management plan (HCPs as well as other types) 
that considers enhancement or recovery of listed species as its 
management standard is relevant to our weighing of the benefits of 
inclusion of a particular area in the critical habitat designation. We 
considered the following criteria when we evaluated the management and 
protection provided by the plans relevant to these critical habitat 
designations:
    (1) The plan is complete and provides the same or a higher 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 for the 
foreseeable future, 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.
    As discussed in detail below, we believe that the Western Riverside 
County Multiple Species Habitat Conservation Plan (MSHCP) fulfills 
these criteria with respect to the conservation of Ceanothus 
ophiochilus. In addition, although not yet complete, the Otay Ranch 
Phase 2 Resource Management Plan developed under the San Diego Multiple 
Species Conservation Plan (MSCP) substantially fulfills these criteria 
with respect to the conservation of Fremontodendron mexicanum.

Western Riverside County Multiple Species Habitat Conservation Plan

    The Western Riverside County MSHCP is a large-scale, multi-
jurisdictional 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. 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, which the Service determined 
met the requirements for issuance of an incidental take permit under 
section 10 of the Act. Collectively, the MSHCP Conservation Area 
includes new reserve lands and additional Federal partner lands, 
totaling 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

[[Page 55001]]

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 approximately 500,000-ac (202,343-ha) 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 on 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 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 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 aware of only 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 
private lands within these subunits.
    We are excluding approximately 80 ac (33 ha) of non-Federal lands 
from the Ceanothus ophiochilus critical habitat designation in subunits 
1A and 1B that are within the MSHCP Plan Area under section 4(b)(2) of 
the Act. These non-Federal lands comprise private lands to the west of 
Vail Lake (approximately 76 ac (31 ha) in subunit 1A) and private lands 
adjacent to the northern boundary of the Cleveland National Forest east 
of Woodchuck Road (approximately 4 ac (2 ha) in 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, federal entities cannot be 
permittees under a section 10(a)(1)(B) permit, and the USFS is not 
bound by the terms of the MSHCP. In addition, the rationale provided 
below supporting the exclusion of the private lands within these 
subunits is not applicable to Federal lands. 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 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 excluding these non-Federal lands in subunits 1A and 1B 
outweigh the benefits of including these lands. The exclusion of these 
lands from critical habitat will help preserve the partnerships that we 
have developed with the local jurisdictions and project proponents in 
the development of the MSHCP, and aid in fostering additional 
partnerships for the benefit of species on non-Federal lands.
    The benefits of excluding these lands from critical habitat 
outweigh the minimal benefits of including these lands as critical 
habitat. The PCEs required by Ceanothus ophiochilus will benefit by the 
conservation measures outlined in the MSHCP. These conservation 
measures include protecting and managing the PCEs within the MSHCP 
Conservation Area by: Protecting 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 and the private lands identified within 
Subunit 1B are subject to the requirements of the MSHCP. The benefits 
from the required 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. As such, the regulatory benefits of including the 80 ac 
(33 ha) of private land within the MSHCP plan area are minimal.
    The educational benefits of critical habitat derived through 
informing the public of areas important for the long-term conservation 
of this species would also be minimal because these educational 
benefits have been and continue to be accomplished through materials 
provided on our Web site at http://www.fws.gov/carlsbad/. Further, many 
educational benefits of critical habitat designation have already been 
achieved through the overall designation process and notice and public 
comment, and will occur whether or not these particular subunits are 
designated.
    In addition, the recovery benefits associated with designation, 
identified above in the ``Recovery Benefits'' section, have already 
been achieved through the public review process of the proposed 
critical habitat rule. Designation of critical habitat does not require 
that management or recovery actions take place on the lands included in 
the designation. Preserving and supporting the partnerships that we 
have developed with the local jurisdictions and project proponents in 
the implementation the Western Riverside County MSHCP will provide a 
greater benefit to the species, as it ensures both preservation and 
management of lands we have determined essential for the conservation 
of this species.

Exclusion Will Not Result in Extinction of the Species

    We conclude that the exclusion of 80 ac (33 ha) from the final 
designation of critical habitat for Ceanothus ophiochilus will not 
result in the extinction of the species because the Western Riverside 
County MSHCP provides for the conservation of this species and its PCEs 
on all known occupied areas within the county and may also conserve 
newly discovered

[[Page 55002]]

occurrences. 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 exclusion of 
critical habitat leaves these protections unchanged from those that 
would exist if the excluded areas were designated as critical habitat.

Application of Section 4(b)(2) to Lands Within Otay Ranch Which Are 
Within County of San Diego Subarea Plan Under the Multiple Species 
Conservation Plan

    All private lands proposed for designation of Fremontodendron 
mexicanum are within the area covered by the ``Otay Ranch Phase 2 
Resource Management Plan (Otay Ranch 2002, p. 260).'' This plan 
provides for the phased conservation and development of lands in 
southern San Diego County. Lands covered by this plan were originally 
owned by a single owner. Following the development of the Plan the land 
was divided into sections and sold to separate owners. The development 
and associated conservation of these lands is currently taking place in 
a phased approach. A large portion of land is proposed for conservation 
purposes, but this land is not actually conserved until the associated 
development on the section occurs. The land that we proposed for 
designation is part of the eastern section of Otay Ranch and because it 
is the furthest from existing development it will be one of the last 
phases completed.
    The conservation associated with the development of Otay Ranch 
conserves both state and federally-listed species as well as sensitive 
species that do not receive any legal protection under the Act. The 
partnerships that the U.S. Fish and Wildlife Service, the California 
Department of Fish and Game, and County of San Diego (as well as many 
other entities) have formed with the private landowners and other 
stakeholders through the work to conserve the sensitive biological 
resources on Otay Ranch while at the same time allowing for both 
residential and commercial development of the land have taken a long 
time to cultivate. These lands are essential to the long-term 
conservation of several species in southern San Diego County, including 
Fremontodendron mexicanum.
    In its current state, the land excluded from the designation of 
critical habitat is not being managed under the Otay Ranch Phase 2 
Resource Management Plan; however, ongoing measures are in place that 
protect the primary constituent elements for Fremontodendron mexicanum. 
The excluded area is fenced and has locked gates at access points. This 
measure excludes any unauthorized off-road vehicle activity from the 
area. The excluded area is also entirely within the area zoned by the 
County of San Diego as open space. This places restrictions on any 
development that would be permitted in this area.
    Other areas within the Otay Ranch have been conserved as expected 
and we believe a reasonable certainty exists that this area will be 
conserved as planned. One of our partners involved with the 
conservation of these lands, the County of San Diego, provided 
significant comments on the future management that will occur on these 
lands (Pryor 2007, p. 2). Fremontodendron mexicanum will benefit from 
adaptive management activities that occur within the Otay Ranch 
Preserve. The draft Otay Ranch Phase 2 Resource Management Plan (Otay 
Ranch 2002, p. 52, 53, 141, 144) describes the following monitoring and 
management activities, which will benefit F. mexicanum within the Otay 
Ranch Preserve:
    a. Focused surveys and population estimates specifically for F. 
mexicanum (Otay Ranch 2002, p. 141, 144);
    b. Maintenance of existing, high-quality resources through the 
prevention of disturbance, including controlling access to the 
preserve, prohibiting off-road traffic, enforcing no trespassing rules, 
and curtailing activities that degrade resources such as grazing, 
shooting, and illegal dumping (Otay Ranch 2002, p. 52);
    c. Monitoring of resources to identify changes in the quality and 
quantity of sensitive resources and habitat (Otay Ranch 2002, p. 52);
    d. Implementation and monitoring of restoration activities as 
appropriate (Otay Ranch 2002, p. 53);
    e. Trail maintenance (Otay Ranch 2002, p. 53); and
    f. Removal and control of exotic species including nonnative plants 
and cowbirds (Otay Ranch 2002, p. 53).
    As discussed below, we have excluded all private lands within the 
Otay Ranch from the final critical habitat designation within Unit 1 
for Fremontodendron mexicanum under section 4(b)(2) of the Act because 
the benefits of exclusion outweigh the benefits of including these 
lands.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have reviewed and evaluated the current conservation measures in 
place on the private lands within Otay Ranch proposed for designation 
of critical habitat for Fremontodendron mexicanum and the future 
conservation measures as described in the ``Otay Ranch Phase 2 Resource 
Management Plan (Otay Ranch 2002. pp. 260).'' We have determined that 
these conservation measures provide direct and indirect benefits for F. 
mexicanum (see discussion above). We also believe that the partnerships 
that we have developed with the landowners and other stakeholders have 
made this conservation possible. We believe that the designation of 
critical habitat could have a detrimental effect on these important 
partnerships and similar future partnerships.
    We have worked with several different stakeholders to achieve high 
amounts of conservation on Otay Ranch. This large piece of land 
provides habitat for many sensitive species, many that do not receive 
any legal protection under the Act, and the conservation of this 
habitat has been essential to the success of the large scale habitat 
conservation planning efforts taking place in southern San Diego 
County. Partnerships to conserve private land take years to foster and 
it is necessary to build trust between the Federal government and 
private land owners. A large part of this trust comes from each partner 
following through with its commitments. In this case, the owners of 
Otay Ranch have agreed to set aside specific lands for conservation. In 
return they will be allowed to develop other areas of their private 
land. The area that we proposed for designation as critical habitat is 
entirely within the area which is proposed for conservation in the 
land-use planning for Otay Ranch; however, we do not want to impose an 
additional regulatory burden that could unnecessarily interfere with 
these important partnerships. The conservation of this area is already 
supported by the open space zoning on this area under the County of San 
Diego. As other phases of the Otay Ranch project have been developed 
some minor changes have occurred with the open space designations and 
conservation easements, but for the most part large areas that would 
have otherwise been developed have been conserved and now contribute to 
the overall conservation envisioned under the MSCP and Otay Ranch 
Specific

[[Page 55003]]

Plan. We have received comments from potential participants expressing 
their concern over areas included in the designation of critical 
habitat that overlap areas covered by management plans. These potential 
participants have suggested that they are not inclined to participate 
in such management plans, thus having a negative impact on our ability 
to establish new partnerships. The exclusion of these lands from 
critical habitat will help preserve the partnerships that we have 
developed with the land owners of Otay Ranch and the County of San 
Diego and promote the conservation of Fremontodendron mexicanum on 
these private lands.
    In comparison, the regulatory benefits of including these lands in 
critical habitat are minimal. Based on the existing land-use 
restrictions and the future conservation and management of these lands 
under the Otay Ranch Phase 2 Resource Management Plan, we do not 
anticipate Federal activities occurring on these private lands that 
could appreciably reduce the conservation value of this habitat for F. 
mexicanum. In addition, the educational and overall recovery benefits 
of critical habitat designation have largely already been accomplished 
in the rulemaking process through informing the public of areas 
important for the long-term conservation of Fremontodendron mexicanum. 
Such benefits can continue to be achieved through the publication of 
materials regarding this species provided on our Web site.
    Therefore, we have determined that the benefits of excluding the 
identified 133 ac (54 ha) of private land from the critical habitat 
designation outweigh the benefits of including these lands in critical 
habitat.

Exclusion Will Not Result in Extinction of the Species

    Exclusion of these 133 ac (54 ha) of non-Federal lands from the 
final designation of critical habitat will not result in the extinction 
of Fremontodendron mexicanum because these lands will be permanently 
conserved and managed in a manner that clearly benefits this species.
    The jeopardy standard of section 7 and routine implementation of 
habitat protection through the section 7 process also provide 
assurances that the species will not go extinct. Although F. mexicanum 
is not a covered species under the MSCP, F. mexicanum was evaluated in 
the biological opinion for the MSCP, and we found that implementation 
of the plan would not jeopardize this species (Service 1998). The 
exclusion of critical habitat leaves these protections unchanged from 
those that would exist if these areas were designated as critical 
habitat.

Economics

    Section 4(b)(2) of the Act allows the Secretary to exclude areas 
from critical habitat for economic reasons if it is determined that the 
benefits of such exclusion exceed the benefits of designating the area 
as critical habitat. However, this exclusion cannot occur if it will 
result in the extinction of the species concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for public review on April 5, 2007 (72 FR 16756). We 
accepted comments on the draft analysis until May 7, 2007. A final 
analysis of the potential economic effects of the proposed designation 
was then developed taking into consideration the public comments and 
any new information.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for Ceanothus ophiochilus and Fremontodendron mexicanum. The 
information is intended to assist the Secretary in making decisions 
about whether the benefits of excluding particular areas from the 
designation outweigh the benefits of including those areas in the 
designation. This economic analysis considers the economic efficiency 
effects that may result from the designation, including habitat 
protections that may be co-extensive with the listing of the species. 
It also addresses distribution of impacts, including an assessment of 
the potential effects on small entities and the energy industry. This 
information can be used by the Secretary to assess whether the effects 
of the designation might unduly burden a particular group or economic 
sector.
    The analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline.
    The economic analysis estimates the foreseeable potential economic 
impacts of the proposed critical habitat designation and other 
conservation-related actions for these species on government agencies 
and private businesses and individuals. The economic analysis 
identifies potential costs will be $385,000 to $659,000 in undiscounted 
dollars over a 20-year period as a result of the proposed designation 
of critical habitat, including those costs coextensive with listing and 
recovery. Discounted future costs are estimated to be $325,000 to 
$559,000 ($22,000 to $38,000 annualized) at a 3 percent discount rate, 
or $272,000 to $471,000 ($26,000 to $44,000 annualized) at a 7 percent 
discount rate.
    The economic analysis considers the potential economic effects of 
actions relating to the conservation of Ceanothus ophiochilus and 
Fremontodendron mexicanum, including costs associated with sections 4, 
7, and 10 of the Act, and including those attributable to the 
designation of critical habitat. It further considers the economic 
effects of protective measures taken as a result of other Federal, 
State, and local laws that aid habitat conservation for C. ophiochilus 
and F. mexicanum in areas containing features essential to the 
conservation of the species. The analysis considers both economic 
efficiency and distributional effects. In the case of habitat 
conservation, efficiency effects generally reflect the ``opportunity 
costs'' associated with the commitment of resources to comply with 
habitat protection measures (such as lost economic opportunities 
associated with restrictions on land use).
    The analysis also addresses how potential economic impacts are 
likely to be distributed, including an assessment of any local or 
regional impacts of habitat conservation and the potential effects of 
conservation activities on small entities and the energy industry. This 
information can be used by decision-makers to assess whether the 
effects of the designation might unduly burden a particular group or 
economic sector. Finally, this analysis looks retrospectively at costs 
that have been incurred since the date Ceanothus ophiochilus and 
Fremontodendron mexicanum were listed as endangered and threatened, 
respectively (October 13, 1998; 63 FR 54956), and considers those costs 
that may occur in the 20 years following a designation of critical 
habitat. After consideration of the impacts under section 4(b)(2) of 
the Act, we have not excluded any areas from the final critical habitat 
designation based on the identified economic impacts.

[[Page 55004]]

    A copy of the final economic analysis with supporting documents are 
included in our administrative file and may be obtained by contacting 
the Carlsbad Fish and Wildlife Office, Branch of Endangered Species 
(see ADDRESSES) or by downloading from the Internet at http://www.fws.gov/carlsbad/ carlsbad/.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order (E.O.) 12866, this document is a 
significant rule in that it may raise novel legal and policy issues. On 
the basis of our economic analyses of the critical habitat for these 
species, we have determined that the final designations of critical 
habitat for each species will not have an annual effect on the economy 
of $100 million or more or affect the economy in a material way. The 
economic analysis identifies potential costs will be $385,000 to 
$659,000 in undiscounted dollars over a 20-year period as a result of 
the proposed designation of critical habitat, including those costs 
coextensive with listing and recovery. Discounted future costs are 
estimated to be $325,000 to $559,000 ($22,000 to $38,000 annualized) at 
a 3 percent discount rate, or $272,000 to $471,000 ($26,000 to $44,000 
annualized) at a 7 percent discount rate. We used this analysis to meet 
the requirement of section 4(b)(2) of the Act to determine the economic 
consequences of designating the specific areas as critical habitat. We 
also used it in determining whether to exclude any area from critical 
habitat, as provided for under section 4(b)(2). If we determine that 
the benefits of excluding a particular area outweigh the benefits of 
specifying such area as part of the critical habitat, we may exclude 
the area unless we determine, 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. Due to the tight timeline 
for publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed this rule.

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

    Under the Regulatory Flexibility Act (RFA) (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 
whenever an agency must 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 effect 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 an agency certifies the rule will 
not have a significant economic impact on a substantial number of small 
entities. The SBREFA amended the RFA to require Federal agencies to 
provide a statement of factual basis for certifying that the rule will 
not have a significant economic impact on a substantial number of small 
entities. SBREFA amended RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    Small entities include small organizations, such as independent 
nonprofit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., housing 
development, grazing, oil and gas production, timber harvesting). We 
apply the ``substantial number'' test individually to each industry to 
determine if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under section 
7 of the Act on activities they fund, permit, or implement that may 
affect Ceanothus ophiochilus and Fremontodendron mexicanum. Federal 
agencies also must consult with us if their activities may affect 
critical habitat. Designation of critical habitat, therefore, could 
result in an additional economic impact on small entities due to the 
requirement to reinitiate consultation for ongoing Federal activities.
    The draft economic analysis analyzed the possible impacts to small 
entities in the following categories: Development, fire management on 
Federal lands, alien plant species management on Federal lands, and 
other activities on Federal lands. The economic analysis concluded that 
conservation activities would not affect small entities in the above 
categories (Service 2007, Appendix A, p. A-1). There are two private 
land owners in Riverside County that may need to undertake fire 
management activities and/or management of alien plant species. The 
economic cost of fire management was estimated at $3,000 to $4,000 per 
year and the economic cost of alien plant species management was 
estimated at $1,000 to $2,000 per year. It is unclear if these private 
landowners qualify as small businesses.
    In general, two different mechanisms in section 7(a)(2) 
consultations could lead to additional regulatory requirements for 
approximately four small businesses, on average, that may be required 
to consult with us regarding their project's impact on Ceanothus 
ophiochilus and Fremontodendron mexicanum and their habitat. First, if 
we conclude, in a biological opinion, that a proposed action is likely 
to jeopardize the continued existence of a species or adversely modify 
its critical habitat, we can offer ``reasonable and prudent 
alternatives.'' Reasonable and prudent alternatives are alternative 
actions that can be implemented in a manner consistent with the scope 
of the

[[Page 55005]]

Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that would avoid 
jeopardizing the continued existence of listed species or adversely 
modifying critical habitat. A Federal agency and an applicant may elect 
to implement a reasonable and prudent alternative associated with a 
biological opinion that has found jeopardy or adverse modification of 
critical habitat. An agency or applicant could alternatively choose to 
seek an exemption from the requirements of the Act or proceed without 
implementing the reasonable and prudent alternative. However, unless an 
exemption were obtained, the Federal agency or applicant would be at 
risk of violating section 7(a)(2) of the Act if it chose to proceed 
without implementing the reasonable and prudent alternatives.
    Second, if we find that a proposed action is not likely to 
jeopardize the continued existence of a plant species or adversely 
modify its critical habitat, we may identify discretionary conservation 
recommendations designed to minimize or avoid the adverse effects of a 
proposed action on listed species or critical habitat, help implement 
recovery plans, or develop information that could contribute to the 
recovery of the species.
    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7(a)(2) consultations--
can be implemented successfully with, at most, the adoption of 
reasonable and prudent alternatives. These measures, by definition, 
must be economically feasible and within the scope of authority of the 
Federal agency involved in the consultation. We can only describe the 
general kinds of actions that may be identified in future reasonable 
and prudent alternatives. These are based on our understanding of the 
needs of the species and the threats they face, as described in the 
final listing rule and this critical habitat designation. Within the 
final critical habitat units, the types of Federal actions or 
authorized activities that we have identified as potential concerns 
are:
    (1) Land management activities, like fire suppression, grazing, 
mining, and recreation authorized by the USFS and BLM;
    (2) Restoration activities designed to mitigate or repair the 
effects of fire suppression; and
    (3) Activities related to road use and maintenance authorized or 
conducted by USFS, BLM and the Department of Homeland Security.
    The most likely Federal involvement could include projects that 
require permits to conduct activities on USFS or BLM land. It is likely 
that a developer or other project proponent could modify a project or 
take measures to protect Ceanothus ophiochilus and Fremontodendron 
mexicanum. The kinds of actions that may be included if future 
reasonable and prudent alternatives become necessary include 
conservation set-asides, management of competing nonnative species, 
restoration of degraded habitat, and regular monitoring. These are 
based on our understanding of the needs of the species and the threats 
they face, as described in the final listing rule and proposed critical 
habitat designation. These measures are not likely to result in a 
significant economic impact to project proponents.
    In summary, we have considered whether this would result in a 
significant economic effect on a substantial number of small entities. 
Federal involvement, and thus section 7(a)(2) consultations, would be 
limited to a subset of the area designated. Currently, we are unaware 
of any small businesses that use the areas designated as critical 
habitat for economic purposes. Therefore, based on the above reasoning 
and the currently available information, we certify that the rule will 
not have a significant economic impact on a substantial number of small 
entities. A regulatory flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C 801 et 
seq.)

    Under SBREFA, this rule is not a major rule. Our detailed 
assessment of the economic effects of this designation is described in 
the economic analysis. Based on the effects identified in the economic 
analysis, we believe that this rule will not have an annual effect on 
the economy of $100 million or more, will not cause a major increase in 
costs or prices for consumers, and will not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. Refer to the final economic analysis for a 
discussion of the effects of this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 
(Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) 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 final rule to designate critical habitat for 
Ceanothus ophiochilus and Fremontodendron mexicanum is not expected to 
significantly affect energy supplies, distribution, or use because 
there are no existing energy projects within the area designated as 
critical habitat for either of these two species. Therefore, this 
action is not a significant energy action and no Statement of Energy 
Effects is required.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for this rule in a takings implication 
assessment. The takings implications assessment concludes that this 
final designation of critical habitat does not pose significant takings 
implications.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or 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

[[Page 55006]]

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

Federalism

    In accordance with Executive Order 13132 (Federalism), the rule 
does not have significant Federalism effects. A Federalism assessment 
is not required. In keeping with the Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of, this final critical habitat designation 
with appropriate State resource agencies in California. Only federal 
lands are being designated as critical habitat for Ceanothus 
ophiochilus and Fremontodendron mexicanum; therefore, the designation 
is unlikely to impact 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(a)(2) 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are designating critical 
habitat in accordance with the provisions of section 4 of the Act. This 
final 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) (42 U.S.C. 4321 et. seq.)

    It is our position that, outside the jurisdiction of the Tenth 
Federal Circuit, we do not need to prepare environmental analyses as 
defined by the NEPA in connection with designating critical habitat 
under the Act. 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 
Court of Appeals (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 
Ore. 1995), cert. denied 516 U.S. 1042 (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 
there are no Tribal lands that were occupied at the time of listing and 
that contain the features essential for the conservation of Ceanothus 
ophiochilus and Fremontodendron mexicanum, and no Tribal lands that are 
unoccupied areas essential for the conservation of the species. 
Therefore, critical habitat for Ceanothus ophiochilus and 
Fremontodendron mexicanum has not been designated 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).

Author(s)

    The primary author of this package is 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.

Regulation Promulgation

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

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

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


0
2. In Sec.  17.12(h), revise the entry for ``Ceanothus ophiochilus'' 
and the entry for ``Fremontodendron mexicanum'' under ``FLOWERING 
PLANTS'' to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

[[Page 55007]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                          Species
------------------------------------------------------------     Historic range              Family           Status       When     Critical    Special
          Scientific name                  Common name                                                                    listed    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
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.96(a) as follows:
0
a. By adding an entry for Ceanothus ophiochilus (Vail Lake ceanothus) 
in alphabetical order under family Rhamnaceae;
0
b. By adding Family Sterculiaceae in alphabetical order by family name; 
and
0
c. By adding an entry for Fremontodendron mexicanum (Mexican 
flannelbush) under Family Sterculiaceae.


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 feet to 3,000 feet (610 meters to 914 
meters) 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 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.
    (ii) Map of Unit 1, subunit 1B (Map 1) follows:
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    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 feet (274 meters) to 3,000 feet (914 meters) 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 manmade 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 
1:24,000 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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* * * * *

    Dated: May 19, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.

    Editorial Note: This document was received at the Office of the 
Federal Register on September 20, 2007.

[FR Doc. 07-4723 Filed 9-26-07; 8:45 am]
BILLING CODE 4310-55-C