[Federal Register Volume 75, Number 62 (Thursday, April 1, 2010)]
[Proposed Rules]
[Pages 16404-16421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7117]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[Docket No. FWS-R8-ES-2009-0078]
[MO 99210-0-0009-B4]

50 CFR Part 17

RIN 1018-AW53


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
revise designated critical habitat for the Lane Mountain milk-vetch 
(Astragalus jaegerianus) under the Endangered Species Act of 1973, as 
amended (Act). The previous final rule designated 0 acres (ac) (0 
hectares (ha)) of critical habitat and was published in the Federal 
Register on April 8, 2005. We now propose to designate approximately 
16,156 ac (6,538 ha) of land located in the Mojave Desert in San 
Bernardino County, California, which, if finalized as proposed, would 
result in an increase of approximately 16,156 ac (6,538 ha).

DATES: We will accept comments until June 1, 2010. We must receive 
requests for public hearings, in writing, at the address shown in the 
FOR FURTHER INFORMATION CONTACT section by May 17, 2010.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. [FWS-R8-
ES-2009-0078].
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: [FWS-R8-ES-2009-0078]; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Diane Noda, Field Supervisor, Ventura 
Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola 
Road, Suite B, Ventura, CA 93003; telephone (805) 644-1766; facsimile 
(805) 644-3958. If you use a telecommunications device for the deaf 
(TDD), call the Federal Information Relay Service (FIRS) at (800) 877-
8339.

[[Page 16405]]


SUPPLEMENTARY INFORMATION:

Public Comments

    We intend any final action resulting from this proposal to be based 
on the best scientific and commercial data available and be as accurate 
and as effective as possible. Therefore, we request comments or 
information from the public, other governmental agencies, Tribes, the 
scientific community, industry, or other interested parties concerning 
this proposed rule. We particularly seek comments concerning:
    (1) The reasons why we should or should not revise the designation 
of habitat as ``critical habitat'' under section 4 of the Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), 
including whether there are threats to the species from human activity, 
the degree of which can be expected to increase due to the designation, 
and whether that increase in threat outweighs the benefit of 
designation such that the designation of critical habitat is not 
prudent.
    (2) Specific information on:
     The amount and distribution of Astragalus jaegerianus 
habitat included in this proposed revised rule;
     What areas within the geographic area occupied by the 
species at the time of listing contain features essential to the 
conservation of the species and why; and
     What areas outside the geographical area occupied by the 
species at the time of listing are essential for the conservation of 
the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation. We are particularly interested in any impacts on small 
entities, and the benefits of including or excluding areas that exhibit 
these impacts;
    (5) Comments or information that may assist us in identifying or 
clarifying the primary constituent elements;
    (6) How the proposed revised critical habitat boundaries could be 
refined to more closely circumscribe the landscapes identified as 
essential;
    (7) Information on the currently predicted effects of climate 
change on Astragalus jaegerianus and its habitat;
    (8) Any foreseeable impacts on energy supplies, distribution, and 
use resulting from the proposed revised designation and, in particular, 
any impacts on electricity production, and the benefits of including or 
excluding any particular areas that exhibit these impacts; and
    (9) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Our final determination concerning critical habitat for Astragalus 
jaegerianus will take into consideration all written comments we 
receive during the comment period, including comments from peer 
reviewers, comments we receive during a public hearing, should one be 
requested, and any additional information we receive during the 60-day 
comment period. All comments will be included in the public record for 
this rulemaking. On the basis of peer reviewer and public comments, we 
may, during the development of our final determination, find that areas 
within the proposed designation do not meet the definition of critical 
habitat, that some modifications to the described boundaries are 
appropriate, or that areas may or may not be appropriate for exclusion 
under section 4(b)(2) of the Act.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If your written 
comments provide personal identifying information, you may request at 
the top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy comments on http://www.regulations.gov. Please 
include sufficient information with your comment to allow us to verify 
any scientific or commercial data you submit.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).
    You may obtain copies of the proposed revised rule by mail from the 
Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT) 
or by visiting the Federal eRulemaking Portal at http://www.regulations.gov.

Background

    It is our intent to discuss only those topics directly relevant to 
the revised designation of critical habitat in this proposed rule. 
Additional information on the Lane Mountain milk-vetch may also be 
found in the final listing rule published in the Federal Register on 
October 6, 1998 (63 FR 53596) and the previous proposed critical 
habitat of April 6, 2004 (69 FR 18018). These documents are available 
on the Ventura Fish and Wildlife Office website at http://www.fws.gov/ventura.

Species Description

    Astragalus jaegerianus is a member of the pea family (Fabaceae), 
and has a range restricted to a portion of the west Mojave Desert that 
is north of Barstow, in San Bernardino County, California. The plant is 
an herbaceous perennial that typically dies back at the end of each 
growing season, and persists through the dry season as a taproot. The 
stems often grow in a zigzag pattern, usually up through low bushes, 
referred to in this proposed rule as host shrubs.
    This species can be considered a hemicryptophyte (partially 
hidden), because it is usually found growing within the canopy of a 
host shrub. Like other species of Astragalus, the roots of Astragalus 
jaegerianus contain nodules that fix nitrogen. Gibson et al. (1998, p. 
81) postulate that A. jaegerianus may have a mutually beneficial 
relationship with the host shrub, wherein the host shrub provides 
trellis-like support for A. jaegerianus, and benefits from higher 
levels of soil nitrogen derived from the litter and roots of A. 
jaegerianus.

Life History

    As with other perennial species in the Mojave Desert, the plant 
begins regrowth in the late fall or winter, once sufficient soil 
moisture is available. Individuals go dormant in the late spring or 
summer when soil moisture has been depleted (Bagley 1999, p. 2). 
Blooming typically occurs in April and May. However, if climatic 
conditions are unfavorable, the plants may desiccate (dry out) prior to 
flowering or setting seed. Therefore, substantial contributions to the 
seed bank may occur primarily in climatically favorable years.
    Production of pods and the number of seeds per pod can be highly 
variable, both in the field and in greenhouse conditions. Seed pods can 
contain as many as 18 seeds, but more typically 4 to 14 seeds (Sharifi 
et al. 2003, p. 5). In the field, seeds that do not germinate during 
the subsequent year become part of the seed bank. Seed germination 
rates

[[Page 16406]]

in the field may resemble the low germination rate of 5 percent that is 
observed in germination trials of unscarified (outer cover is not 
broken) seed (Sharifi in litt. 2004, p. 1).
    Seeds collected from Astragalus jaegerianus range in size from 
.000053 ounces (1.5 milligrams) to .000764 ounces (5.0 milligrams) in 
weight (Sharifi in litt. 2003, p. 5). The relatively large size of 
these seeds, compared to those of many desert annual species, makes 
them an attractive food source to ants and other large insects, small 
mammals, and birds (Brown et al. 1979, p. 203). These animal species 
would also be the most likely vectors to disperse A. jaegerianus seeds 
within and between populations. Sharifi (pers. comm. 2004) confirmed 
the presence of A. jaegerianus seeds within native ant coppices 
(mounds).
    Limited observations on Astragalus jaegerianus pollinators were 
carried out in 2003 (Kearns 2003, pp. 9-16), 2004, and 2005 (Hopkins 
2005, p. 1). Kearns made observations at two plants in one population 
for 7 days. Although 30 different insect species were observed visiting 
flowers in the area, only 4 visited A. jaegerianus flowers. The most 
frequent pollinator was Anthidium dammersi, a solitary bee in the 
megachilid family (Megachilidae). Anthidium dammersi occurs in the 
Mojave and Colorado deserts of California, Nevada, and Arizona (Kearns 
2003, p. 12), and will fly up to 0.6 mile (1 kilometer (km)) away from 
their nest; although if floral resources are abundant, they will 
decrease their flight distances accordingly (Yanega, pers. comm. 2003). 
Kearns (2003) found that the Anthidium individuals he inspected carried 
pollen primarily from phacelia (Phacelia distans) (82 percent of 
individuals) and A. jaegerianus (64 percent of individuals). The three 
occasional visitors to A. jaegerianus were a hover fly (Eupeodes 
volucris), a large anthophrid bee (Anthophora sp.), and the white-lined 
sphinx moth (Hyles lineata). The extent to which Astragalus jaegerianus 
relies on these and other pollinators to achieve seed set is not yet 
known. However, in a greenhouse experiment, 25 percent of pollinated 
Astragalus jaegerianus flowers set seed, while only 5 percent of 
nonpollinated flowers set seed (Sharifi pers. comm. 2004).
    In a study conducted in 2004 and 2005, Hopkins collected three bee 
species observed on the flowers of Astragalus jaegerianus. Yanega 
identified the three bee species as Osmia laisulcata, Anthidium 
emarginatum, and Anthidium dammersi, all of which belong to the 
megachilid family. Hopkins also observed two species of flies 
associated with Astragalus jaegerianus flowers. However, Hopkins 
concluded that the common hoverfly (Eupeodes volucris) and bee fly 
(Lordotus albidus) were not effective pollinators of A. jaegerianus 
flowers (Hopkins 2005, p. 1).
    Although the aboveground portion of the plant dies back each year, 
individuals of Astragalus jaegerianus persist as a perennial rootstock 
through the dry season. The perennial rootstock may also allow A. 
jaegerianus to survive occasional dry years, while longer periods of 
drought might be endured by remaining dormant (Beatley in Bagley 1999, 
p. 2). In another federally listed species, Osterhout milk-vetch 
(Astragalus osterhoutii), which occurs in sagebrush steppe habitat in 
Colorado, individuals have remained dormant for up to 4 years (Dawson 
in litt. 1999, p. 1).
    Although a substantial Astragalus jaegerianus seedbank most likely 
exists, establishment of new individuals may not occur with great 
frequency, and may pose a large bottleneck for the continued 
persistence of the species. In addition to the possible low seed 
germination rates discussed earlier, several other observations 
contribute to this assertion. First, we have some indication that 
individuals may have a long life span; in one long-term plot, 
individuals have been tracked for a period of 13 years. Out of a total 
of 9 individuals, 1 has persisted over a period of 13 years, 1 has 
persisted 12 years, 1 has persisted 10 years, 1 has persisted 6 years, 
1 has persisted 5 years, and 2 have persisted 3 years (Rutherford in 
litt. 2004). Secondly, despite careful observation, very few seedlings 
have been observed. During the extensive surveys of 2001, approximately 
2 percent of the 4,964 individuals observed were thought to be 
seedlings (Charis 2002, p. 36). However, the actual number of seedlings 
may have been even lower, because resprouts from established 
individuals were most likely mistaken for seedlings (Sharifi pers. 
comm. 2004).

Geographical Area Occupied at the Time of Listing

    At the time of listing, Astragalus jaegerianus was known to occur 
in four geographically distinct areas, referred to as Brinkman Wash, 
Montana Mine, Paradise Wash, and Coolgardie. The species was found from 
a fifth area, referred to as Goldstone in 2001. Based on what we 
understand about the lifespan of the species, we infer that the 
Goldstone area was also occupied at the time of listing (see below).

Current Distribution

    After the early collections in 1939 and 1941, the plant was not 
collected again until 1985 at the sites referred to as Brinkman Wash, 
Montana Mine, and Paradise Wash. Throughout the 1990s, hundreds more 
plants were located in these areas (Lee and Ro Consulting Engineers 
1986, pp. 10-13; Brandt et al. 1993, p. 4; Prigge 2000a, p. 6) in 
surveys sponsored by the Department of the Army (Army). Surveys in 1999 
established that the Brinkman Wash and Montana Mine sites together 
support one large spatially contiguous population (Prigge et al. 2000a, 
p. 7), and thus these areas are now considered one population. In 1992, 
the southernmost and now considered the third population was found 9 
miles (mi) (14 kilometers (km)) to the south, on Coolgardie Mesa, a few 
miles west of Lane Mountain. This site closely approximates the 
location of the type locality (the location where a type specimen 
originated) as described by Edmund C. Jaeger (1940, p. 119).
    Extensive surveys funded by the Army were conducted in 2001 (Charis 
2002, pp. 1-85). The 2001 surveys contributed greatly to our knowledge 
of the overall distribution and abundance of Astragalus jaegerianus in 
the three populations (Brinkman Wash-Montana Mine, Paradise Wash, and 
Coolgardie). In addition, a fourth population was located during these 
surveys on Army lands within the bounds of the National Training Center 
at Fort Irwin (NTC) in an area referred to as Goldstone. Approximately 
20 percent of this population is on lands leased by the Army to the 
National Aeronautics and Space Administration (NASA) for tracking 
facilities. Much of the information on population distribution included 
in this proposed rule is taken from the Army survey report (Charis 
2002, pp. 1-85).
    Individuals of Astragalus jaegerianus are concentrated in four 
geographically distinct areas. In this rule, a population refers to a 
concentration of A. jaegerianus individuals, a site refers to the land 
that supports the population, and a unit refers to specific sites that 
are being considered for critical habitat designation. The four 
populations of A. jaegerianus are arrayed more or less linearly along a 
20-mile-long (32-kilometer) axis that trends in a northeasterly-to-
southwesterly direction. The names of the four populations, from 
northeast to southwest, and land ownership are as follows: the 
Goldstone population occurs on Army lands including a portion leased to 
NASA; the Brinkman

[[Page 16407]]

Wash-Montana Mine population occurs entirely on Army lands; the 
Paradise Wash population occurs primarily on Army lands, with a small 
portion of the remaining population occurring on Bureau of Land 
Management (Bureau) lands intermixed with private lands along the 
southwestern fringe of the population; the Coolgardie population occurs 
primarily on Bureau-managed lands and to a lesser extent lands owned by 
the Army, with a number of small privately owned parcels scattered 
within.
    Based on the information available, including historic records and 
current location information, there is nothing to suggest that 
Astragalus jaegerianus was more widespread prior to listing than the 
currently-known distribution. The Army surveys in 2001 (Charis 2002, p. 
17) included reconnaissance surveys on habitat that appeared suitable 
but outside the known range of A. jaegerianus, including the Mount 
General area near Barstow and in the Alvord Mountains 20 mi (32 km) to 
the east. In addition, since 1996, rare plant surveys have been 
conducted on the Naval Air Weapons Station at China Lake 6 miles (4.8 
km) northwest of the known distribution (Silverman in litt. 2003). None 
of these surveys have resulted in the location of any other 
populations.

Habitat

    Astragalus jaegerianus is most frequently found on shallow soils 
derived from Jurassic or Cretaceous granitic bedrock. A small portion 
of the individuals located to date occur on soils derived from diorite 
or gabbroid bedrock (Charis 2002, p. 35). In one location on the west 
side of the Coolgardie site, plants were found on granitic soils 
overlain by scattered rhyolitic cobble, gravel, and sand. Soils tend to 
be shallower immediately adjacent to milk-vetch plants (within 30 feet 
(ft) (10 meters (m))) than in the surrounding landscape (Brandt et al. 
1997, p. 8). At the Montana Mine site, highly weathered granite bedrock 
was reached within 2 inches (6 centimeters (cm)) of the soil surface 
near A. jaegerianus plants (Fahnestock 1999, p. 3). The topography 
where A. jaegerianus most frequently occurs is on low ridges and rocky 
low hills where bedrock is exposed or near the surface and the soils 
are coarse or sandy (Prigge 2000b, p. 5; Charis 2002, p. 35). Most of 
the individuals found to date occur between 3,100 and 4,200 ft (945 and 
1,280 m) in elevation (Charis 2002, p. 40). At lower elevations, the 
alluvial soils appear to be too fine to support A. jaegerianus, and at 
higher elevations the soils may not be developed enough to support A. 
jaegerianus (Prigge 2000b, p. 6; Charis 2002, p. 40). Prigge (pers. 
comm. 2003) examined and found no relationship between the abundance 
and distribution of A. jaegerianus and levels of micronutrients or 
heavy metals, such as selenium, in the soil.
    At the broad landscape level, the plant community within which 
Astragalus jaegerianus occurs can be described as Mojave mixed woody 
scrub (Holland 1986 p. 13), Mojave creosote bush scrub (Cheatham and 
Haller 1975, p. 2; Thorne 1976, p. 23; Holland 1986, p. 13), or 
creosote bush series (Sawyer and Keeler-Wolf 1995, p. 144). These broad 
descriptions, however, are not sufficiently detailed to be useful in 
describing the communities where A. jaegerianus is found. While 
creosote bush (Larrea tridentata) is present in the landscape, its 
presence and abundance is not as extensive in the specific areas where 
A. jaegerianus occurs, presumably because these soils are shallower 
than optimal depth for creosote bush.
    Data gathered from the four sites that support Astragalus 
jaegerianus populations have been detailed, and thus very useful in 
describing the particular plant community within which A. jaegerianus 
grows. Common to all four sites is the remarkably high diversity of 
desert shrub species, although the relative frequency of these species 
varies slightly from site to site. The shrub species that occur in the 
highest densities at A. jaegerianus sites include turpentine bush 
(Thamnosma montana), white bursage (Ambrosia dumosa), Mormon tea 
(Ephedra nevadensis), Cooper goldenbush (Ericameria cooperi var. 
cooperi), California buckwheat (Eriogonum fasciculatum var. 
polifolium), brittlebush (Encelia farinosa or E. actoni), desert aster 
(Xylorrhiza tortifolia), goldenheads (Acamptopappus spherocephalus), 
spiny hop-sage (Grayia spinosa), cheesebush (Hymenoclea salsola), 
winter fat (Kraschenninikovia lanata), and paper bag bush (Salazaria 
mexicana).
    Astragalus jaegerianus utilizes a variety of species as host 
shrubs. Individuals of A. jaegerianus are sometimes found growing 
within dead shrubs, and are rarely observed on bare ground. Host shrubs 
may be important in providing appropriate microhabitat conditions for 
A.jaegerianus seed germination and seedling establishment (Charis 2003, 
p. 25).
    At the Brinkman-Montana Mine site, Prigge et al. (2000b, p. 6) 
showed that the difference between the relative frequency of use of 
host shrub species by Astragalus jaegerianus and the relative frequency 
with which these shrubs occurred in the plant community was 
statistically significant, indicating that some shrubs are more 
suitable as hosts than others. During Army surveys in 2001, host shrubs 
were noted for 4,899 individuals of A. jaegerianus. Six shrub species 
(Thamnosma montana, Ambrosia dumosa, Eriogonum fasciculatum ssp. 
polifolium, Ericameria cooperi var. cooperi, Ephedra nevadensis, 
Salazaria mexicana) accounted for 75 percent of the host shrub records. 
Some relatively frequent shrubs had an extremely low frequency of 
occurrence as a host. These included Larrea tridentata, Krameria 
erecta, Psorothamnus arborescens var. minutifolius, Lepidium fremontii, 
and Lycium cooperi (Charis 2001, p. 41).

Population Characteristics

    The cumulative total number of Astragalus jaegerianus individuals 
found from all surveys to date is approximately 5,800 (Charis 2002, p. 
34). Charis (2002) attempted to extrapolate the total number of 
individuals by factoring in the amount of intervening suitable habitat 
between transects in confirmed occupied habitat, along with an 
``observability'' factor ranging from 30 percent to 70 percent; this 
results in estimations of the total number of individuals ranging from 
20,524 to 47,890. The actual numbers of individuals observed during the 
surveys at the four population sites during the climatically favorable 
year of 2001 are as follows: Goldstone, 555; Brinkman Wash-Montana 
Mine, 1,487; Paradise Wash, 1,667; Coolgardie, 2,014 (Charis 2002, p. 
36). Low numbers of individuals observed in prior and subsequent years 
(2000, 2002, and 2003) suggest that this species may well follow the 
pattern of other perennial desert species that rely on climatic 
conditions (particularly a heavy rainfall during October or November) 
that are infrequent and unpredictable (Beatley 1974, p. 860; Kearns 
2003, p. 5; Prigge, pers. comm. 2003).

Reasons for Decline and Threats

    At the time Astragalus jaegerianus was listed as endangered in 
1998, threats to the species included: Dry wash mining, recreational 
off-highway vehicle use, military maneuvers on Army lands at the NTC 
and its future training expansion lands (see New Information Since the 
Time of Listing section below), and the lack of regulatory mechanisms 
that would offer formal protection for the species or its habitat. 
Stochastic extinction (extinction

[[Page 16408]]

from random natural events) resulting from flooding (that could wash 
substantial amounts of the seedbank into unsuitable habitat), prolonged 
drought (that could reduce the abundance of viable seed in the 
seedbank), or unforeseen events including wildfire, wildfire 
suppression activities, or pipeline breaks or repairs were also of 
concern.

New Information Since the Time of Listing

Survey information

    Surveys conducted in 2001 (Charis 2002, pp. 1-85) increased our 
understanding of the distribution of the species. The areal extent of 
the three populations that were previously known was found to be much 
greater, and the fourth population (Goldstone) was discovered during 
these surveys. Also, the size of the populations (as represented by the 
number of individuals that can be observed in a favorable climatic 
year) is now known to be larger than was thought at the time of 
listing.

Army land transfers and management

    A substantial change in land management occurred since the time of 
listing. On January 11, 2002, the Fort Irwin Military Lands Withdrawal 
Act of 2001 (Public Law 107-107) was signed into law. This legislation 
withdrew approximately 110,000 acres (ac) (44,516 hectares (ha)) of 
land, formerly managed by the Bureau, for military use and management 
by the Army at the NTC. Subsequent surveys and Geographic Information 
System (GIS) analysis indicated that the expansion area was actually 
118,674 ac (48,026 ha).
    As part of their Integrated Natural Resources Management Plan 
(INRMP) responsibilities, the Army established 40 study plots in 2005 
to study the demographics of Astragalus jaegerianus and reports 
annually to the Service. Ten study plots were established in each of 
the four populations. Information summarized from the 2008 annual 
monitoring report indicates that the total number of A. jaegerianus 
plants observed above-ground within the plots has decreased since 2005 
(Hessing 2008, pp. 2-6). Study plot surveys in 2005 documented 224 
individuals. In 2006 the total number of individual plants increased to 
230. In 2007, the total number of plants observed in the study plots 
was 4 plants; drought conditions are suspected to be the cause of 
decreased numbers observed above-ground. In 2008 the observed 
population total rose to 123 plants. Fourteen of the 123 plants (11.4 
percent) were new recruits (new individuals from seeds) in 2008; this 
was correlated with increased rainfall that resulted in the germination 
of new individuals as well as the reappearance of older, established 
individuals that had gone dormant during the previous years of drought. 
In 2009, the total number of living plants observed in the study plots 
was 124 plants. Eleven of these plants were new plants that had not 
been observed or tagged previously (Hessing 2009, p. 3). Long-term 
recruitment into the population is expected to be less, because of 
seedling and juvenile mortality. For example, only 35 percent of the 
new recruits in 2006 plants survived until 2008 (Hessing 2008, pp. 2-
6).
    Population demography studies conducted at permanent survey plots 
showed that Astragalus jaegerianus populations at the Montana Mine and 
Goldstone sites are failing to recruit new plants into those 
populations as a result of low seedling survival and perhaps a depleted 
seed bank (Sharifi et al. 2009, p. 10). Additionally, recruitment is 
probably episodic and requires two or more uncommon conditions such as: 
A large seed bank, precipitation greater than 200 mm and frequently 
spaced (approximately four times a month), and a subsequent wet year or 
summer precipitation (Sharifi et al. 2009, p. 10). Recent genetic 
analysis of A. jaegerianus showed that the species exhibits low levels 
of genetic variation likely due to its small population size and 
restricted geographical range (over a 20-mi long (32-km) area) (Walker 
and Metcalf 2009, p. 18).
    Three of the four populations of Astragalus jaegerianus (Goldstone, 
Brinkman Wash-Montana Mine, and Paradise Wash populations) occur almost 
entirely on Army lands at the NTC. The Army established two 
conservation areas for A. jaegerianus in 2005. The first conservation 
area, referred to as the Goldstone Conservation Area, comprises 2,470 
ac (1,000 ha) at the Goldstone site where the Goldstone population 
occurs and encompasses almost the entire population. The second 
conservation area, referred to as Paradise Valley Conservation Area, 
comprises 4,302 ac (1,741 ha) along the southwestern boundary of the 
NTC where the Paradise Wash population occurs. A portion of the 
Brinkman Wash-Montana Mine population occurs on a site designated as a 
``no-dig zone'' by the Army; while not as protective as a conservation 
area, the no-dig zone limits the extent of ground disturbance, and 
hence disturbance to the habitat of Astragalus jaegerianus. Therefore, 
of the three populations on the NTC lands, all of one and a portion of 
a second are on sites that have been designated as conservation areas, 
and a portion of a third population is on a site designated as a no-dig 
zone.

Bureau land transfers and management

    As discussed above under ``Army land transfers and management,'' 
approximately 118,674 ac (48,026 ha) of lands, primarily Bureau lands, 
were transferred to the Army in 2002. This transfer included lands that 
support a large portion of the population of Astragalus jaegerianus at 
Brinkman Wash-Montana Mine and almost all the Astragalus jaegerianus 
population at Paradise Wash. The Bureau continues to have jurisdiction 
on lands that support the Astragalus jaegerianus population at 
Coolgardie.
    In 2005, the Bureau amended the California Desert Conservation Area 
plan with respect to the management of approximately 3,300,000 ac 
(1,335,477 ha) of Bureau lands in the western Mojave Desert. As part of 
the plan amendment of the CDCA, the Bureau established two Areas of 
Critical Environmental Concern (ACEC) for Astragalus jaegerianus. The 
first ACEC, referred to as the West Paradise Conservation Area, 
comprises 1,243 ac (503 ha), and is contiguous with the Army's Paradise 
Valley Conservation Area along the southwestern boundary of the NTC. 
This area was previously designated as land-use class L by the Bureau, 
which denotes limited use. The second ACEC is the Coolgardie Mesa 
Conservation Area (CMCA); it comprises approximately 13,354 ac (5,404 
ha) at the Coolgardie site. This area was previously designated as 
land-use class M by the Bureau, which denotes moderate use. Under the 
plan amendments to the CDCA, both conservation areas are now managed to 
maintain habitat for A. jaegerianus with the following management 
prescriptions: Implement a minerals withdrawal and notify claimholders 
of the presence of A. jaegerianus, prohibit grazing, issue no permits 
that allow take of this species, require a 5-to-1 mitigation ratio for 
land-disturbing projects, acquire private lands to the extent feasible, 
and limit total ground disturbance to 1 percent of the conservation 
areas.
    Since 2005, Congress and the Department of Interior supported the 
use of public lands for alternative energy development, including 
passage of the Energy Policy Act of 2005. The purpose of the act is to 
encourage energy efficiency and conservation,

[[Page 16409]]

promote alternative and renewable energy sources, reduce our dependence 
on foreign sources of energy, and increase domestic production in an 
environmentally responsible way. Stepdown orders address more 
specifically how to implement the Energy Policy Act of 2005 (for 
example, Order No. 3283 (DOI 2009a pp. 1-2) and Order No. 3285 (DOI 
2009b pp. 1-3)). In addition, the Bureau has issued its own guidelines 
for implementing these policies and orders on Bureau lands. In 2008, 
the Bureau issued IM 2009-043, the Wind Energy Development Policy, 
which includes guidelines for the development of wind energy projects 
within designated ACEC areas (Bureau 2008, p. 2). In accordance with 
these guidelines, the Bureau will not issue right-of-way authorizations 
for wind energy development in ACECs when wind energy development is 
incompatible with specific resource values. Since 2005, the Bureau has 
received two applications to install meteorological monitoring towers 
adjacent to Astragalus jaegerianus habitat on Coolgardie Mesa. These 
applications were denied due to concerns over habitat alteration and 
potential impacts to A. jaegerianus. The Bureau worked with the 
applicants to relocate these two wind energy projects outside of the 
ACECs designated for A. jaegerianus (Trost 2009), thereby avoiding 
impacts to A. jaegerianus while pursuing alternative energy 
development.

Previous Federal Action

    The final rule listing Astragalus jaegerianus as an endangered 
species was published on October 6, 1998 (63 FR 53596).
    On November 15, 2001, our decision not to designate critical 
habitat for Astragalus jaegerianus and seven other plant and wildlife 
species at the time of listing was challenged in Southwest Center for 
Biological Diversity and California Native Plant Society v. Norton 
(Case No. 01-CV-2101-IEG (S.D.Cal.). On July 1, 2002, the court ordered 
the Service to reconsider its not prudent determination, and propose 
critical habitat, if prudent, for the species by September 15, 2003, 
and a final critical habitat designation, if prudent, no later than 
September 15, 2004. In light of Natural Resources Defense Council v. 
U.S. Department of the Interior, 113 F.3d 1121 (9th Cir. 1997), and the 
diminished threat of overcollection, the Service reconsidered its 
decision and determined that it was prudent to propose critical habitat 
for the species. However, the Service exhausted the funding 
appropriated by Congress to work on critical habitat designations in 
2003 prior to completing the proposed rule. On September 8, 2003, the 
court issued an order extending the date for issuance of the proposed 
critical habitat designation for A. jaegerianus to April 1, 2004, and 
the final designation to April 1, 2005.
    On April 6, 2004 (69 FR 18018), we published a proposed critical 
habitat designation that included 29,522 ac (11,947 ha) in 4 units in 
San Bernardino County, California. On April 8, 2005 (70 FR 18220), we 
published our final designation of critical habitat for Astragalus 
jaegerianus. Because we excluded all proposed acreage from the 
designation, the final designation included zero (0) acres (0 
hectares).
    On December 19, 2007, the 2005 critical habitat determination was 
challenged by the Center for Biological Diversity (Center for 
Biological Diversity v. United States Fish and Wildlife Service et al., 
Case No. CV-07-08221-JFW-JCRx). In a settlement agreement accepted by 
the court on June 27, 2008, we agreed to reconsider the critical 
habitat designation for A. jaegerianus. The settlement stipulated that 
we submit a proposed revised critical habitat rule for A. jaegerianus 
to the Federal Register for publication on or before April 1, 2010, and 
submit a final revised determination on the proposed critical habitat 
rule to the Federal Register for publication on or before April 1, 
2011. This revised proposed rule complies with the June 27, 2008, court 
order.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
     (1) 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
     (a) essential to the conservation of the species, and
     (b) that may require special management considerations or 
protection; and
     (2) 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 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 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 otherwise be 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 discretionary 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 the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
private landowners. Where a landowner seeks or requests Federal agency 
funding or authorization of an activity that may affect a listed 
species or critical habitat, the consultation requirements of section 
7(a)(2) would apply, but even in the event of a destruction or adverse 
modification finding, the landowner's obligation is not to restore or 
recover the species, but to implement reasonable and prudent 
alternatives to avoid destruction or adverse modification of critical 
habitat.
    To be included in a critical habitat designation, habitat within 
the geographical area occupied by the species at the time it was listed 
must contain the physical and biological features that are essential to 
the conservation of the species. Areas containing the essential 
physical and biological features are identified, to the extent known 
using the best scientific data available, as the habitat areas that 
provide essential life cycle needs of the species; that is, areas on 
which are found the primary constituent elements laid out in the 
appropriate quantity and spatial arrangement essential to the 
conservation of the species. Habitat within the geographical area 
occupied by the species at the time of listing that contains features 
essential to the conservation of the species meets the definition of 
critical habitat only if these features may require special management 
considerations or protection. Under the Act and the regulations at 50 
CFR 424.12, we can designate critical habitat in areas outside the 
geographical area occupied by the species at the time it is listed

[[Page 16410]]

only when we determine that the best available scientific data 
demonstrate that the designation of those areas is essential for the 
conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our ``Policy on Information Standards Under the Endangered 
Species Act'' (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our 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 we determine which areas to propose as revised critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species and any previous 
designation of critical habitat. Additional information sources may 
include the recovery plan and 5-year reviews 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.
    Habitat is dynamic, and species may move from one area to another 
over time. In particular, we recognize that climate change may cause 
changes in the arrangement of occupied habitat patches. Current climate 
change predictions for terrestrial areas in the Northern Hemisphere 
indicate warmer air temperatures, more intense precipitation events, 
and increased summer continental drying (Field et al. 1999, pp. 1-3; 
Hayhoe et al. 2004, p. 12422; Cayan et al. 2005, p. 6; 
Intergovernmental Panel on Climate Change 2007, p. 11; Cayan et al. 
2009, p. xi). However, predictions of climatic conditions for smaller 
subregions such as California remain uncertain. It is unknown at this 
time if climate change in California will result in a warmer trend with 
localized drying, higher precipitation events, or other effects. Thus, 
the information currently available on the effects of global climate 
change and increasing temperatures does not make sufficiently precise 
estimates of the location and magnitude of the effects. Nor are we 
currently aware of any climate change information specific to the 
habitat of Astragalus jaegerianus that would indicate what areas may 
become important to the species in the future. Therefore, we are unable 
to determine what additional areas, if any, may be appropriate to 
include in the proposed revised critical habitat for this species to 
respond to potential effects of climate change; however, we 
specifically request information from the public on the currently 
predicted effects of climate change on A. jaegerianus and its habitat. 
Additionally, we recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated critical habitat area is unimportant or 
may not be required for recovery of the species.
    Areas that support populations of Astragalus jaegerianus, but are 
outside the critical habitat designation, may continue to be subject to 
conservation actions we implement under section 7(a)(1) of the Act. 
They are also subject to the regulatory protections afforded by the 
section 7(a)(2) jeopardy prohibition, as determined on the basis of the 
best available information at the time of the agency 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 (HCPs), section 7 consultations, or other 
species conservation planning efforts if new information available to 
these planning efforts calls for a different outcome.

Methods

    As required by section 4(b) of the Act and 50 CFR 424.12, we used 
the best scientific information available in determining which areas 
within the geographic area occupied by the species at the time of 
listing contain the features essential to the conservation of 
Astragalus jaegerianus, and which areas outside the geographic area 
occupied at the time of listing are essential for the conservation of 
the species. We reviewed information used to prepare the 2004 proposed 
critical habitat rule (69 FR 18018); the 5-year review (Service 2008, 
pp. 1-21); published peer-reviewed articles; data from our files that 
we used for listing the species; geologic maps (California Geologic 
Survey 1953); recent biological surveys and reports, particularly from 
the Army surveys of 2001 (Charis 2002, pp. 1-85); additional 
information provided by the Army, the Bureau, and other interested 
parties; and discussions with botanical experts. We also conducted site 
visits to all three units that are being proposed for designation.
    The long-term probability of the survival and recovery of 
Astragalus jaegerianus is dependent upon: The protection of existing 
population sites; the maintenance of ecologic functions within these 
sites, including connectivity within and between populations in close 
geographic proximity to one another (to facilitate pollinator activity 
and seed dispersal mechanisms); and keeping these areas free of major 
ground-disturbing activities. The areas we are proposing to designate 
as critical habitat provide all of the features essential for the 
conservation of A. jaegerianus.
    In our delineation of the proposed critical habitat units, we 
initially selected areas to provide for the conservation of Astragalus 
jaegerianus at the four population sites where it is known to occur. As 
discussed under the section on Distribution, at the time of listing, A. 
jaegerianus was known to occur from Brinkman Wash and Montana Mine 
(these two sites subsequently determined to be contiguous and thus 
considered one population), Paradise Wash, and Coolgardie; due to our 
understanding of the lifespan of the species, we also conclude that the 
Goldstone site was occupied at the time of listing even though this was 
not confirmed until three years subsequent to listing. All four sites 
are important because A. jaegerianus exhibits life history attributes, 
including variable seed production, low germination rates, and habitat 
specificity in the form of a dependence on a co-occurring organism 
(host shrubs), that make it vulnerable to extinction (see previous 
rules (69 FR 18018 and 70 FR 18220) and Keith 1998, p. 1080; Gilpin and 
Soule 1986, p. 33). We believe the proposed designation is of 
sufficient size to maintain landscape-scale processes and to minimize 
the secondary impacts resulting from human occupancy and human 
activities occurring in adjacent areas. We mapped the units with a 
degree of precision commensurate with the best available information 
and the size of the unit.
    Of principle importance in the process of delineating the proposed 
critical habitat units are data in a

[[Page 16411]]

geographic information system (GIS) format provided by the Army, 
depicting the results of Army field surveys for Astragalus jaegerianus 
conducted in 2001 (Charis 2002, pp. 1-85). These data consisted of 
three files depicting the locations of transects that were surveyed for 
A. jaegerianus, the locations of A. jaegerianus individuals found 
during the surveys, and minimum convex polygons (MCP) calculated to 
represent the outer bounds of A. jaegerianus populations (Charis 2002, 
pp. 1-85).
    For mapping proposed critical habitat units, we proceeded through a 
multi-step process. First, we started with the MCPs that had been 
calculated by the Army (Charis 2002, pp. 1-85) based on the presence of 
documented individuals. We then expanded these boundaries outward from 
the edge of each of the 4 populations by a distance of 0.25 mi (0.4 
km). We did this to include Astragalus jaegerianus individuals that are 
part of these populations, but were not noted during surveys. The basis 
for determining that these additional land areas are occupied is as 
follows: (1) This habitat has the appropriate elevational range, and 
includes the granitic soils and plant communities that support host 
plants required by A. jaegerianus; (2) botanists involved in the Army 
surveys stated that ``the estimate of [A. jaegerianus] distribution is 
a minimum'' (SAIC 2003, pp. 1-2), and that additional individuals of A. 
jaegerianus most likely occurred on the fringes of the MCPs (SAIC 2003, 
pp. 1-2); (3) this 0.25-mi (0.4-km) distance is commensurate in scale 
with the distance between transects where individuals were found and 
the distance between individuals along one transect, and it is well 
within the distance that can be traversed by pollinators and seed 
dispersers; (4) mapping errors during the 2001 surveys indicated that 
the location of individuals did not match up precisely with the 
location of the transect boundaries (Charis 2002); and (5) limited 
surveys were conducted in 2003, and despite the unfavorable climatic 
conditions for A. jaegerianus, 13 additional individuals were located 
outside the MCPs (SAIC 2003). Three of the four areas where new plants 
were found were within the 0.25-mi (0.4-km) distance around the MCPs.
    We next removed areas on the margins of the resultant polygons 
where we determined, by referring to digital raster graphic maps, the 
topography is either too steep or the elevation too high to support 
additional Astragalus jaegerianus individuals. This boundary 
modification involved editing the eastern and southeastern edge of the 
Coolgardie MCP and a cirque-shaped sliver from the central portion of 
the southern boundary of the Brinkman-Montana MCP.
    For the Goldstone and Brinkman-Montana populations, expansion of 
the MCP boundaries by 0.25 mi (0.4 km) left a narrow corridor (about 
0.125 mi (0.2 km)) between the revised polygons. We chose to bridge the 
gap between the two polygons by incorporating the intervening habitat 
that is within the geographic area occupied by the species between the 
Goldstone and Brinkman-Montana polygons into a single critical habitat 
unit, called the Goldstone-Brinkman unit. We did this for several 
reasons: The intervening habitat between the two MCPs contains the PCEs 
with the appropriate elevational range, granitic soils, and plant 
communities (based on topographic maps, geologic maps, and aerial 
photos) that Astragalus jagerianus requires; there were no obvious 
physical barriers between the two MCPs; the distance between the two 
closest A. jaegerianus individuals across the gap of the two MCPs was 
smaller than the distance between individuals within the MCPs; and the 
distance between the two MCPs was small enough that it could be easily 
traversed by a pollinator with a potential flight distance of 0.6 mi (1 
km), or a seed disperser such as certain small mammals and birds. 
Granitic soil and the plant community in the intervening area between 
the two polygons also provide habitat for the pollinators that visit A. 
jaegerianus flowers, habitat for seed dispersers (birds, small mammals, 
and large insects) that carry seed between the coppices of suitable 
host shrubs, and the area functions as long-term storage for the soil 
seedbank of A. jaegerianus.
    For the Paradise population, we removed a small portion of habitat 
(47 ac (19 ha)) from the eastern edge of the 5,497-ac (2,225-ha) MCP, 
thereby eliminating a small cluster of three individuals and the 
surrounding suitable habitat from the proposed critical habitat unit. 
We did this for two reasons: The distance between this small cluster of 
three individuals and the other 1,487 individuals mapped within the MCP 
was greater than the distance between other clusters of individuals 
within the MCP, and this cluster of individuals was not adjacent or 
providing connectivity to any other known population of Astragalus 
jaegerianus.
    Finally, the boundaries of the critical habitat units were modified 
slightly in the process of creating the legal descriptions of the 
critical habitat units. This process consisted of overlaying the 
critical habitat units with grid lines spaced at 100-m intervals; the 
grid lines following the Universal Transverse Mercator (UTM) coordinate 
system ties to the North American Datum of 1927. Vertices defining the 
critical habitat boundary polygon were then moved to the closest vertex 
on the 100-m UTM grid lying inside of the critical habitat boundary. 
Vertices not necessary to define the shape of the boundary polygon were 
deleted. Changing the boundaries in this fashion serves two purposes: 
(1) It creates a list of coordinates that is easier for the public to 
use when looking at USGS 7.5-minute topographic maps, and (2) it 
minimizes the number of coordinates necessary to define the shapes of 
the critical habitat units.
    In selecting areas of proposed critical habitat, we typically make 
an effort to avoid developed areas that are unlikely to contribute to 
the conservation of the species at issue. However, we did not map 
critical habitat in sufficient detail to exclude patches of habitat 
within the larger areas being mapped that are unlikely to contain the 
primary constituent elements essential for the conservation of 
Astragalus jaegerianus. Land within the boundaries of the mapped units 
upon which are located facilities, such as buildings, roads, parking 
lots, communication tower pads, and other paved areas, does not and 
will not contain any of the primary constituent elements. In addition, 
old mining sites, where the soil profile and topography have been 
altered such that no native vegetation can grow, also do not and will 
not contain any of the primary constituent elements. Federal actions 
limited to these areas, therefore, would not trigger a section 7 
consultation under the Act, unless they affect the species and/or 
primary constituent elements in adjacent critical habitat.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas occupied at the time of 
listing to propose as critical habitat, we consider the physical and 
biological features that are essential to the conservation of the 
species and that may require special management considerations or 
protection. These include, but are not limited to:
    1. Space for individual and population growth and for normal 
behavior;
    2. Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    3. Cover or shelter;

[[Page 16412]]

    4. Sites for breeding, reproduction, or rearing (or development) of 
offspring; and
    5. Habitats that are protected from disturbance or are 
representative of the historic, geographical, and ecological 
distributions of a species.
    The appropriate quantity and spatial arrangement of the principal 
biological or physical features within the defined area essential to 
the conservation of the species compromise the ``primary constituent 
elements'' (PCEs) of critical habitat. As defined by our implementing 
regulations at 50 CFR 424.12(b), these primary constituent elements may 
include, but are not limited to, features such as roost sites, nesting 
grounds, spawning sites, feeding sites, seasonal wetlands or drylands, 
water quality and quantity, host species or plant pollinators, 
geological formations, vegetation types, tides, and specific soil 
types.
    Much of what is known about the specific physical and biological 
requirements of Astragalus jaegerianus is described in the Background 
section of this proposal and in the final listing rule. The proposed 
revised critical habitat is designed to provide sufficient habitat to 
maintain self-sustaining populations of A. jaegerianus throughout its 
range and to provide those habitat components essential for the 
conservation of the species. The proposed revised critical habitat: (1) 
provides for individual and population growth, including sites for 
germination, pollination, reproduction, pollen and seed dispersal, and 
seed banks; (2) provides sites for the host plants that provide 
structural support for A.jaegerianus; (3) includes intervening areas 
that allow gene flow and provide connectivity or linkage within 
segments of the larger population; and (4) includes areas that provide 
basic requirements for growth, such as water, light, and minerals.
    Annual distribution of Astragalus jaegerianus varies due to a 
variety of factors. Some of the factors associated with the observed 
and actual distribution of this species include the following: The 
degree to which germination requirements of scarification and moisture 
are met within a germination time frame for the species; the 
distribution of the seed bank in the soils; and the existence of 
favorable climatic conditions in a particular year. Therefore, 
including habitat surrounding the known populations outward for a 
distance of 0.25 mi (0.4 km) would ensure inclusion of most of the 
population.
    Based on our current knowledge, the primary constituent elements of 
critical habitat for Astragalus jaegerianus consist of:
     (1) Shallow soils at elevations between 3,100 and 4,200 ft (945 to 
1,280 m) derived primarily from Jurassic or Cretaceous granitic 
bedrock, and less frequently on soils derived from diorite or gabbroid 
bedrock, or on granitic soils overlain by scattered rhyolitic cobble, 
gravel, and sand.
     (2) Host shrubs at elevations between 3,100 and 4,200 ft (945 to 
1,280 m). The primary host shrubs are Thamnosma montana, Ambrosia 
dumosa, Eriogonum fasciculatum ssp. polifolium, Ericameria cooperi var. 
cooperi, Ephedra nevadensis, and Salazaria mexicana that are usually 
found in mixed desert shrub communities.
Special Management Considerations or Protection
    The term critical habitat is defined in section 3(5)(A) of the Act 
as geographic areas on which are found those physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. Accordingly, 
when designating critical habitat, we assess whether the primary 
constituent elements within the areas occupied at the time of listing 
may require special management considerations or protection. Although 
the determination that special management may be required is not a 
prerequisite to designating critical habitat in areas essential to the 
conservation of the species that were unoccupied at the time of 
listing, all areas being proposed as critical habitat require some 
level of management to address current and future threats to Astragalus 
jaegerianus, to maintain or enhance the physical and biological 
features essential to its conservation, and to ensure the recovery and 
survival of the species.
    A detailed discussion of threats affecting the physical and 
biological features essential to the conservation of Astragalus 
jaegerianus, and that may require special management considerations or 
protection, can be found in the previous proposed critical habitat of 
April 6, 2004 (69 FR 18018), and the 5-year review (Service 2008, pp. 
1-21). In summary, these threats include surface mining, off-highway 
vehicle recreation, military training activities competition with 
nonnative species, and habitat fragmentation. In addition, the Bureau 
has received interest from wind energy companies that are seeking sites 
for wind energy development.
    The areas proposed for designation as revised critical habitat will 
require some level of management to address the current and future 
threats to Astragalus jaegerianus and to maintain the physical and 
biological features essential to the conservation of the species. In 
units that were occupied at the time of listing and are currently 
occupied, special management will be needed to ensure that designated 
habitat is able to provide areas for germination, pollination, 
reproduction, and sites for the host plants that provide structural 
support for A. jaegerianus; intervening areas that allow gene flow and 
provide connectivity or linkage within segments of the larger 
population; and areas that provide basic requirements for growth, such 
as water, light, and minerals.
    There will be impacts from military activities on Astragalus 
jaegerianus and its habitat at NTC. We will not discuss the impacts any 
further, because areas where A. jaegerianus occurs on NTC are being 
exempted. Army-owned lands in the Paradise and Coolgardie units are not 
part of the NTC. The lands were purchased for A. jaegerianus 
conservation and will not be impacted by military activities.
    The designation of critical habitat does not imply that lands 
outside of critical habitat do not play an important role in the 
conservation of Astragalus jaegerianus. Activities with a Federal nexus 
that may affect those areas outside of critical habitat, such as 
development, surface mining, agricultural, military, and road 
construction activities, are still subject to review under section 7 of 
the Act if they may affect A. jaegerianus. The prohibitions of section 
9 of the Act applicable to plants also continue to apply both inside 
and outside of designated critical habitat. With respect to plants, 
section 9 of the Act includes among its prohibitions the import or 
export of listed species, the removal to possession or malicious damage 
or destruction of species on areas under Federal jurisdiction, or the 
removal, damage or destruction of species in violation of State law (16 
U.S.C. Sec. 1538(a)(2)).
Criteria Used to Identify Critical Habitat
    Using the best scientific and commercial data available as required 
by section 4(b)(1)(A) of the Act, we identified those areas to propose 
for revised designation as critical habitat that, within the 
geographical area occupied by the species at the time of listing (see 
``Geographical Range Occupied at the Time of Listing'' section), 
possess those physical and biological features essential to the 
conservation of Astragalus jaegerianus and which may require special

[[Page 16413]]

management considerations or protection. We also considered the area 
outside the geographical area occupied by the species at the time of 
listing for any areas that are essential for the conservation of A. 
jaegerianus. The material we used included the 1998 final listing rule 
(63 FR 53596), the 2004 proposed critical habitat rule (69 FR 18018), 
data in reports submitted during section 7 consultations and by 
biologists holding section 10(a)(1)(A) recovery permits, research 
published in peer-reviewed articles and presented in academic theses 
and agency reports, the 5-year review (Service 2008, pp. 1-21), Army 
surveys of 2001 (Charis 2002, pp. 1-85), and regional GIS coverages. We 
analyzed this information to develop criteria for identifying areas 
that contain the PCEs in the appropriate quantity and spatial 
arrangement essential to the conservation of the Astragalus jaegerianus 
that may require special management considerations or protection, or 
that are essential for the conservation of A. jaegerianus. Extensive 
surveys funded by the Army were conducted in 2001 (Charis 2002). The 
2001 surveys were conducted under optimal growing conditions for the 
species and contributed greatly to our knowledge of the overall 
distribution and abundance of A. jaegerianus. We believe the survey 
results capture the fullest expression of A. jaegerianus and provide an 
accurate representation of habitat occupied by the species.
    We are proposing to designate all habitat occupied by Astragalus 
jaegerianus during the extensive Army surveys conducted in 2001. 
Because the species is long lived and the surveys were conducted under 
optimal conditions, we believe the species was growing in all potential 
habitat for the species.
Summary of Changes from Previously Proposed Critical Habitat
    In our proposed revised critical habitat rules, we typically 
provide a Summary of Changes that compares the proposed revised 
critical habitat designation with the previously designated critical 
habitat. However, we designated zero (0) acres (0 hectares) in our 
previous designation. Therefore, we are also providing comparison 
between the previously proposed critical habitat designation from April 
6, 2004 (69 FR 18018), and the current proposed revised critical 
habitat designation The current proposed revision compares with the 
previous proposed designation as follows:
     (1) In 2004 we proposed 9,627 ac (3,896 ha) of Bureau lands and 
4,427 ac (1,792 ha) of private lands. Currently we are proposing 9,888 
ac (4,002 ha) of Bureau lands and 2,899 ac (1,169 ha) of private lands.
     (2) In 2004 we proposed 211 ac (85 ha) of lands inaccurately 
identified as State Lands. Currently we are not including, through 
exemption, 211 ac (85 ha) of the NTC lands covered under the Army's 
INRMP. The land was inaccurately identified as State Lands in our 2004 
proposed critical habitat rule.
     (3) Currently we are proposing 1,282 ac (519 ha) of lands that 
were formerly in private ownership but have been acquired by the 
Department of the Defense for the purposes of conservation of 
Astragalus jaegerianus. These lands are not contiguous with the NTC and 
are not covered under the Army's INRMP.
     (4) Currently we are not including through exemption 16,462 ac 
(6,662 ha) of the NTC lands covered under the Army's INRMP.
    Below is a table that compares the acreage by land ownership 
included in the previous proposed critical habitat designation and the 
previous final critical habitat designation with what we are proposing 
in this proposed revised critical habitat designation.

  Table 1: Comparison of acreages included in 2004 proposed critical habitat rule, 2005 final critical habitat
                             rule, and 2010 proposed revised critical habitat rule.
----------------------------------------------------------------------------------------------------------------
                                                                 2005 final revision to
                                            2004 proposed         the critical habitat    2010 revised proposed
    Name of critical habitat unit      designation of critical    designation   (63 FR   designation of critical
                                       habitat   (69 FR 18018)           53596)                  habitat
----------------------------------------------------------------------------------------------------------------
Goldstone-Brinkman                     9,906 ac (4,008 ha)      Excluded0 ac (0 ha)      10,394 ac (4,206 ha)
                                                                                          exempted due to INRMP
                                                                                          on NTC lands
----------------------------------------------------------------------------------------------------------------
Paradise                               6,828 ac (2,763 ha)      Excluded0 ac (0 ha)      A portion exempted due
                                                                                          to INRMP on NTC lands,
                                                                                          6,068 ac (2,456 ha); a
                                                                                          portion included 964
                                                                                          ac (390 ha)
----------------------------------------------------------------------------------------------------------------
Coolgardie                             12,788 ac (5,175 ha)     Excluded0 ac (0 ha)       13,105 ac (5,303 ha)
                                                                                          included
----------------------------------------------------------------------------------------------------------------
Totals                                 29,522 ac (11,947 ha)    0 ac (0 ha)              14,069 ac (5,693 ha)
----------------------------------------------------------------------------------------------------------------

Proposed Revised Critical Habitat Designation
    The proposed revised critical habitat areas described below 
constitute our best assessment at this time of the areas needed for the 
species' conservation. The two units being proposed as critical habitat 
are all within an area that is north of the town of Barstow in the 
Mojave Desert in San Bernardino County, California, were occupied at 
the time of listing, are currently occupied, and contain the primary 
constituent elements that sustain Astragalus jaegerianus. We are 
exempting the previously proposed Goldstone-Brinkman unit and a large 
portion of the previously proposed Paradise unit (from the 2004 
proposed critical habitat rule) because NTC now has an approved INRMP. 
Please see discussion in Exemptions section below for a description of 
the importance of these exempted areas to A. jaegerianus.
Paradise Unit:
    The Paradise unit consists of approximately 7,032 ac (2,846 ha). We 
are proposing critical habitat for Astragalus jaegerianus on 964 ac 
(390 ha). Of this, 318 ac (129 ha) is Army-owned land adjacent to the 
NTC (off Fort Irwin), 237 ac (96 ha) is privately owned land located 
adjacent to the NTC, and approximately 409 ac (166 ha) is on adjacent 
Federal lands managed by the Bureau. The remaining 6,068 acres (2456 
ha) within this unit are on Army lands at NTC subject to the INRMP and 
have been exempted as discussed below, in the Exemptions section.
    As part of the plan amendments to the CDCA, the Bureau in 2005 
designated an area of approximately 1,000 ac (405 ha) as part of the 
West Paradise Valley Conservation Area (See section on Bureau land 
transfers and management above for a description of current management 
of this ACEC). It generally overlaps with the 964 ac (390 ha) being

[[Page 16414]]

proposed here for critical habitat. The boundary of the West Paradise 
Valley Conservation Area encompasses some Army lands not on NTC and 
some private inholdings. This unit is important because it supports a 
portion of the Paradise population, only one of four populations of 
Astragalus jaegerianus; in 2001 surveys, 1,667 individuals were 
observed in this population. The land within this unit supports the 
granitic soils (PCE 1) and host shrubs (PCE 2) that are necessary for 
the growth, reproduction, and establishment of A. jaegerianus 
individuals. These granitic soils and host shrubs also provide habitat 
for the pollinators that visit A. jaegerianus flowers that results in 
the production of seed, habitat for seed dispersers (birds, small 
mammals, and large insects) that carry seed between the coppices of 
suitable host shrubs, and the soils provide sites for long-term storage 
for seedbank of A. jaegerianus.
    The Paradise unit may require special management considerations or 
protection due to the threats to the species and its habitat posed by: 
Invasions of non-native plants such as Sahara mustard (Brassica 
tournefortii) and other plant species that may take over habitat for 
the species; habitat fragmentation that detrimentally affects plant-
host plant and plant-pollinator interactions (i.e., composition and 
structure of the desert scrub community), leading to a decline in 
species reproduction and increasing susceptibility to nonnative plant 
invasion; and vehicles that cause direct and indirect impacts, such as 
excessive dust, to the plant. Habitat for Astragalus jaegerianus in the 
Paradise unit has been fragmented to a minor extent. We anticipate that 
in the future, habitat fragmentation may increase, composition and 
structure of the plant community may be altered by the spread of 
nonnative plants, and direct and indirect effects of dust may increase. 
All of these threats would render the habitat less suitable for A. 
jaegerianus, and special management may be needed to address them.
Coolgardie Unit:
    The Coolgardie unit consists of approximately 13,105 ac (5,303 ha), 
primarily on Federal lands managed by the Bureau. The proposed 
Coolgardie critical habitat unit overlaps to a great extent with the 
Bureau's Coolgardie Mesa Conservation Area (CMCA) (See section on 
Bureau land transfers and management above for a description of current 
management of the CMCA). Of this acreage, approximately 9,479 ac (3,836 
ha) are managed by the Bureau, and approximately 964 ac (390 ha) were 
formerly in private ownership, but have been acquired by the Army for 
the purposes of conservation of Astragalus jaegerianus since 2005. 
These lands are not contiguous with the NTC and are not covered under 
the Army's INRMP. Parcels of private land are scattered throughout this 
unit and total approximately 2,662 ac (1,077 ha). Some of these parcels 
may be acquired by the Bureau and added to the CMCA. This unit supports 
one of only four populations of A. jaegerianus. In 2001, surveyors 
observed 2,014 plants in this population.
    The land within this unit supports the granitic soils (PCE 1) and 
host shrubs (PCE 2) that are necessary for the growth, reproduction, 
and establishment of Astragalus jaegerianus individuals. It should be 
noted that the proposed critical habitat does not include the ``donut 
hole'' in the center of the unit, where granitic soils are absent. 
Within the proposed unit, the granitic soils and host shrubs (1) 
provide habitat for the pollinators that visit A. jaegerianus flowers 
and result in the production of seed; (2) provide habitat for seed 
dispersers (birds, small mammals, and large insects) that carry seed 
between the coppices of suitable host shrubs; and (3) provide for long-
term seedbank storage for A. jaegerianus.
    The Coolgardie unit may require special management considerations 
or protection due to the threats to the species and its habitat posed 
by: Invasions of non-native plants such as Sahara mustard (Brassica 
tournefortii) and other plant species that may take over habitat for 
the species; habitat fragmentation that detrimentally affects plant-
host plant and plant-pollinator interactions (composition and structure 
of the desert scrub community), leading to a decline in species 
reproduction and increasing susceptibility to nonnative plant invasion; 
vehicles that cause direct and indirect impacts, such as excessive 
dust, to the plant; and limited mining activities that can lead to 
changes in habitat conditions (e.g., decreases in plant cover, and 
increases in nonnative species). Habitat for Astragalus jaegerianus in 
the Coolgardie unit has been fragmented to a moderate extent from 
current and historical mining and from off-road vehicle use, and 
nonnative species have been introduced into the area. We anticipate 
that in the future, habitat fragmentation may increase, and composition 
and structure of the plant community may be altered by the continued 
spread of nonnative plants. Due to increased recreational pressure, 
off-road vehicle use has increased in the past 4 years. All of these 
threats would render the habitat less suitable for A. jaegerianus, and 
special management may be needed to address them.

    Table 2. Approximate areas, given in acres (ac)\1\ and hectares (ha), of proposed critical habitat for Astragalus jaegerianus by land ownership.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Bureau of Land           State Lands
             Unit Name                Army lands (Federal)   Management   (Federal)        Commission           Private lands              Totals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Paradise                              318 ac(129 ha)          409 ac(166 ha)         0 ac(0 ha)             237 ac(96 ha)           964 ac (390 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Coolgardie                           964 ac(390 ha)           9,479 ac (3,836 ha)    0 ac(0 ha)             2,662 ac (1,077 ha)    13,105 ac (5,303 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Totals                               1,282 ac(519 ha)        9,888 ac (4,002 ha)     0 ac(0 ha)             2,899 ac (1,173 ha)    14,069 ac(5,693ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Approximate acres have been converted to hectares (1 ac = 0.4047 ha). Fractions of acres and hectares have been rounded to the nearest whole number.
  Totals are sums of units.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out do 
not destroy or adversely modify critical habitat. Decisions by the 
Fifth and Ninth Circuit Courts of Appeal have invalidated our 
definition of ``destruction or adverse modification'' (50 CFR 402.02) 
(see Gifford Pinchot Task Force v. U.S. Fish

[[Page 16415]]

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 
PCEs to be functionally established) to serve its intended conservation 
role for the species.
    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
endangered or threatened and with respect to its critical habitat, if 
any is proposed or designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a 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 proposed species 
become listed, or proposed critical habitat is designated as final, the 
full prohibitions of section 7(a)(2) of the Act apply to any Federal 
action. The primary utility of the conference procedures is to maximize 
the opportunity for a Federal agency to adequately consider proposed 
species and critical habitat and avoid potential delays in implementing 
their proposed action as a result of the section 7(a)(2) compliance 
process, should those species be listed or the critical habitat 
designated.
    Conference reports provide conservation recommendations to assist 
the action agency in eliminating conflicts with the proposed species or 
proposed critical habitat that may be caused by the proposed action. We 
may issue a formal conference report if requested by a Federal agency. 
Formal conference reports on proposed critical habitat contain an 
opinion that is prepared according to 50 CFR 402.14, as if critical 
habitat were designated. We may adopt the formal conference report as 
the biological opinion when the critical habitat is designated, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)). The conservation recommendations 
in a conference report are advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency must enter into 
consultation with us.
    As a result of this consultation, we document compliance with the 
requirements of section 7(a)(2) of the Act 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.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Director 
believes would avoid the destruction or adverse modification of 
critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated, and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Federal activities that may affect Astragalus jaegerianus or its 
designated critical habitat will require section 7(a)(2) consultation 
under 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 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) will also be 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.
    Designation of critical habitat could affect the following agencies 
and/or actions:
     (1) Military-related and construction activities of the Army on 
its lands or lands under its jurisdiction not covered by an INRMP;
     (2) Activities of the Bureau of Land Management on its lands or 
lands under its jurisdiction;
     (3) Activities of the Federal Energy Regulatory Commission (FERC);
     (4) The release or authorization of release of biological control 
agents by Federal agencies, including the Bureau of Land Management, 
the Army, and the U.S. Department of Agriculture; and
     (5) Habitat restoration projects on private lands receiving 
funding from Federal agencies, such as from the Natural Resources 
Conservation Service.
    As discussed previously in this rule, we completed consultation 
with both the Army and the Bureau on activities that are being proposed 
on their lands. We consulted with the Army on its proposed addition of 
training lands on the NTC (Charis 2003; Service 2005). We also 
consulted with the Bureau as the lead Federal agency on the plan 
amendments to the CDCA plan (Bureau 2005; Service 2005).
    Where federally listed wildlife species occur on private lands 
proposed for development, any habitat conservation plans submitted by 
the applicant to secure an incidental take permit, under section 
10(a)(1)(B) of the Act, would be subject to the section 7 consultation 
process. The Superior-Cronese Critical Habitat Unit for the desert 
tortoise (Gopherus agassizii), a species that is listed as threatened 
under the Act, overlaps in range with Astragalus jaegerianus in a 
portion of the Paradise

[[Page 16416]]

and population of the species. We anticipate that most of the 
activities occurring on private lands within the range of A. 
jaegerianus will eventually be included under the umbrella of the HCP 
to be prepared by the County of San Bernardino. However, there may be 
activities proposed for private lands that either need to be completed 
prior to the approval of the HCP, or there may be a proposed activity 
that is not covered by the HCP, and therefore may require a separate 
habitat conservation plan.
    If you have questions regarding whether specific activities will 
likely constitute destruction or adverse modification of critical 
habitat, contact the Field Supervisor, Ventura Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT section). Requests for copies of 
the regulations on listed wildlife and inquiries about prohibitions and 
permits may be addressed to the U.S. Fish and Wildlife Service, Pacific 
Southwest Region, 2800 Cottage Way, Suite W-2606, Sacramento, CA 95825-
1846 (telephone (916) 414-6464; facsimile (916) 414-6486).

Application of the Jeopardy and Adverse Modification Standard

Jeopardy Standard

    Currently, the Service applies an analytical framework for 
Astragalus jaegerianus jeopardy analyses that relies heavily on the 
importance of known populations to the species' survival and recovery. 
The section 7(a)(2) of the Act analysis is focused not only on these 
populations but also on the habitat conditions necessary to support 
them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of Astragalus jaegerianus in a qualitative fashion without making 
distinctions between what is necessary for survival and what is 
necessary for recovery. Generally, the jeopardy analysis focuses on the 
range-wide statuses of A. jaegerianus, the factors responsible for that 
condition, and what is necessary for the species to survive and 
recover. An emphasis is also placed on characterizing the conditions of 
A. jaegerianus in the area affected by the proposed Federal action and 
the role of affected populations in the survival and recovery of A. 
jaegerianus. That context is then used to determine the significance of 
adverse and beneficial effects of the proposed Federal action and any 
cumulative effects for purposes of making the jeopardy determination.

Adverse Modification Standard

    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 PCEs to be functionally established. Activities that may 
destroy or adversely modify critical habitat are those that alter the 
physical and biological features, or other conservation role and 
function of the affected designated area, to an extent that appreciably 
reduces the conservation value of critical habitat for Astragalus 
jaegerianus. Generally, the conservation role of A. jaegerianus 
critical habitat units is to support viable core populations and areas 
that maintain connectivity between 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, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the species.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may directly or indirectly affect critical habitat and, 
therefore, should result in consultation for Astragalus jaegerianus 
include, but are not limited to:
     (1) Activities that would disturb the upper layers of soil, 
including disturbance of the soil crust, soil compaction, soil 
displacement, and soil destabilization. These activities include, but 
are not limited to, livestock grazing, fire management, and 
recreational use that would include mechanical disturbance such as 
would occur with tracked vehicles, heavy-wheeled vehicles, off-highway 
vehicles (including motorcycles), and mining activities, such as ``club 
mining'' with drywashers and sluices.
     (2) Activities that appreciably degrade or destroy the native 
desert scrub communities that support host shrubs, including but not 
limited to livestock grazing, clearing, discing, fire management, and 
recreational use that would include mechanical disturbance such as 
would occur with tracked vehicles, heavy-wheeled vehicles, off-highway 
vehicles (including motorcycles), and mining activities such as ``club 
mining'' with drywashers and sluices.
     (3) The application or runoff of chemical or biological agents 
into the air, onto the soil, or onto native vegetation, including 
substances such as pesticides, herbicides, fertilizers, tackifiers, 
obscurants, and chemical fire retardants.

Exemptions

Application of Section 4(a)(3) of the Act

    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Endangered Species Act to limit areas eligible 
for designation as critical habitat. Specifically, section 
4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: 
``The Secretary shall not designate as critical habitat any lands or 
other geographical areas owned or controlled by the Department of 
Defense, or designated for its use, that are subject to an integrated 
natural resources management plan (INRMP) prepared under section 101 of 
the Sikes Improvement Act of 1997 (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species 
for which critical habitat is proposed for designation.''
    The Sikes Act required each military installation that includes 
land and water suitable for the conservation and management of natural 
resources to complete, by November 17, 2001, an INRMP. An INRMP 
integrates implementation of the military mission of the installation 
with stewardship of the natural resources found on the base. Each INRMP 
includes:
     (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
     Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management, fish and wildlife 
habitat enhancement or modification, wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife, and 
enforcement of applicable natural resource laws.
    Army lands within the boundaries of the NTC at Fort Irwin are 
subject to an INRMP for 2006-2011 (NTC 2005), which includes management 
guidelines for Astragalus jaegerianus. The Service will monitor the 
status of the INRMP to assure that it adequately addresses management 
guidelines for Astragalus jaegerianus prior to the completion of the 
final critical habitat rule. As part of the Army's consultation on the 
proposed expansion of training lands at

[[Page 16417]]

NTC (Service 2005), the Army established a 4,300-ac (1,740-ha) East 
Paradise Conservation Area on NTC. This area contains approximately 80 
percent of the East Paradise population of A. jaegerianus. The Army 
established a 3,700-ac (1497-ha) Brinkman Wash Restricted Access Area 
(no-dig zone) on NTC. This area contains 1,872 ac (758 ha) of A. 
jaegerianus habitat and approximately 51 percent of the Montana Mine 
population of A. jaegerianus. The Army also maintains the 2,471-ac 
(1,000-ha) Goldstone Conservation Area. The Army's INRMP management 
guidelines provide a benefit to A. jaegerianus by prohibiting off-road 
activity. The Army will reduce threats to A. jaegerianus caused by dust 
through the application of soil binders. They will also collect and 
store site-specific seed from host plants to restore closed routes and 
other disturbed areas with A. jaegerianus habitat. Contingent on funds, 
the Army will perform intensive nonnative species control and 
eradication efforts at conservation areas if such species are found 
there.
     In the previous 2004 proposed designation (69 FR 18018), the Army 
had not yet completed its INRMP and, therefore, was not exempted under 
section 4(a)(3)(B) of the Act. However, the Army was excluded under 
section 4(b)(2) of the Act for reasons of national security, and 
because existing management plans provided a benefit to Astragalus 
jaegerianus. The Army's INRMP was approved in 2006, and includes 
management actions that the Secretary has determined benefit A. 
jaegerianus. With our current exemption of all areas within the Army's 
NTC (see ``Relationships to Sections 4(a)(3) of the Act'' section), the 
entire Goldstone-Brinkman unit has been exempted from proposed 
designation as revised critical habitat. Similarly, almost all (6,068 
acres (2456 ha) of 7,032 ac (2,846 ha)) of the Paradise Unit on NTC has 
been exempted from proposed designation as revised critical habitat. 
Army lands outside the NTC are not subject to the INRMP and therefore 
not exempted.

Exclusions

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, we consider all relevant 
impacts, including economic impacts. In compliance with section 4(b)(2) 
of the Act, we are preparing a new analysis of the economic impacts of 
this proposed revision to critical habitat for Astragalus jaegerianus 
to evaluate the potential economic impact of the proposed revised 
designation. We will announce the availability of the draft economic 
analysis as soon as it is completed, at which time we will seek public 
review and comment. At that time, copies of the draft economic analysis 
will be available for downloading from the Internet at http://www.regulations.gov, or from the Ventura Fish and Wildlife office 
directly (see FOR FURTHER INFORMATION CONTACT). During the development 
of the final revised designation, we will consider economic impacts, 
public comments, and other new information. Certain areas may be 
excluded from the final critical habitat designation under section 
4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.
     At this time, we are not proposing any specific exclusions of 
areas from critical habitat under section 4(b)(2) of the Act for 
Astragalus jaegerianus. We will consider any available information 
about areas covered by conservation or management plans that we should 
consider for exclusion from the designation under section 4(b)(2) of 
the Act, including whether the benefit of exclusion of those lands 
would outweigh the benefits of their inclusion. For example, we 
consider whether there are conservation partnerships that would be 
encouraged or discouraged by designation of, or exclusion from, 
critical habitat in an area. In addition, we look at the presence of 
Tribal lands or Tribal Trust resources that might be affected, and 
consider the government-to-government relationship of the United States 
with the Tribal entities. We also consider any social impacts that 
might occur because of the designation.

Peer Review

     In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will solicit the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will send these peer reviewers 
copies of this proposed rule immediately following publication in the 
Federal Register. We will invite these peer reviewers to comment, 
during the public comment period, on the specific assumptions and 
conclusions regarding the proposed designation of critical habitat.
     We will consider all comments and information received within the 
60-day comment period on this proposed rule as we prepare our final 
rulemaking. Accordingly, the final determination may differ from this 
proposal.

Public Hearings

     The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received within 45 days of the date of 
publication of the proposal in the Federal Register. Such requests must 
be made in writing and be addressed to the Field Supervisor (see FOR 
FURTHER INFORMATION CONTACT section). We will schedule public hearings 
on this proposal, if any are requested, and announce the dates, times, 
and places of those hearings in the Federal Register and local 
newspapers at least 15 days prior to the first hearing.

Required Determinations

Regulatory Planning and Review - Executive Order 12866

     The Office of Management and Budget (OMB) determines whether this 
rule is significant under Executive Order (E.O.) 12866. OMB bases its 
determination upon the following four criteria:
    (1) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (2) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (3) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (4) Whether the rule raises novel legal or policy issues.
    At this time, we do not believe that the rule would have an annual 
effect on the economy of $100 million or more or affect the economy in 
a material way. We base this on information provided in the economic 
analysis that was prepared

[[Page 16418]]

for the previous proposed critical habitat designation in 2004 
(Industrial Economics 2005). In that economic analysis, the 
predesignation costs (from the time of listing, 1998 to 2004) ranged 
from $2.23 to $2.75 million, and the annualized (over 20 years) 
postdesignation costs ranged from $351,000 to $787,000 at a 3-percent 
discount rate. However, we will be conducting a new economic analysis 
in conjunction with this revised proposed designation.

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

     Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
Regulatory Flexibility Act (RFA) to require Federal agencies to provide 
a statement of the factual basis for certifying that a rule will not 
have a significant economic impact on a substantial number of small 
entities. SBREFA also amended the RFA to require 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.
     According to the Small Business Administration (SBA), small 
entities include small organizations, including any independent 
nonprofit organization that is not dominant in its field, and small 
governmental jurisdictions, including school boards and city and town 
governments that serve fewer than 50,000 residents, as well as small 
businesses. The SBA defines small businesses categorically and has 
provided standards for determining what constitutes a small business at 
13 CFR 121-201 (also found at http://www.sba.gov/size/), which the 
Regulatory Flexibility Act requires all federal agencies to follow. 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.
     An analysis of the economic impacts of the 2004 proposed critical 
habitat designation was made available to the public on December 8, 
2004 (69 FR 70971). In that analysis, we summarized that the estimated 
predesignation costs ranged from $1.58 million to $2.1 million. These 
costs were associated primarily with two major conservation efforts: 
those taken by the Army to plan for and implement conservation actions 
at Fort Irwin, and those taken by the BLM to plan for, and implement, 
conservation actions within the framework of the West Mojave Plan. The 
total post-designation costs were estimated to range from $5.84 million 
to $13.01 million. These estimated costs were associated primarily with 
land management activities and project-related surveys and monitoring 
associated with the conservation of Astragalus jaegerianus over a 20-
year time period. Note that although zero (0) acres of critical habitat 
were designated in the previous final rule in 2005, some of these 
estimated costs have been borne by the Army and BLM since then for 
activities related to the conservation of A. jaegerianus.
     We do not anticipate significant impacts to small entities as a 
result of this rulemaking. Of the approximately 14,069 acres proposed 
for critical habitat for Astragalus jaegerianus, approximately 1,282 
acres are on Army lands but outside the boundaries of the NTC, about 
9,888 acres are lands managed by the Bureau, and 2,899 acres are 
privately owned. The prospective costs associated with conservation 
measures for A. jaegerianus are a result of multiple causative factors, 
including implementation of conservation measures proposed as parts of 
the Army's NTC expansion plan and the Bureau's CDCA plan amendments. 
Conservation measures associated with A. jaegerianus are not expected 
to result in appreciable reduction of either mining or dual-sport 
activities in the area.

Energy Supply, Distribution, or Use - Executive Order 13211

     On May 18, 2001, the President issued an Executive Order (E.O. 
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 proposed rule to designate critical habitat for 
the Astragalus jaegerianus, as described above, is not expected to 
significantly affect energy supplies, distribution, or use. There are 
no transmission power lines identified on the proposed designated 
habitat, or energy extraction activities (Bureau of Land Management 
1980). Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required. However, we will further 
evaluate this issue as we conduct our economic analysis, and review and 
revise this assessment as warranted.

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

     In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
     (1) This proposed 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 [T]ribal 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 [T]ribal governments under entitlement 
authority,'' if the provision would ``increase the stringency of 
conditions of assistance'' or ``place caps upon, or otherwise decrease, 
the Federal Government's responsibility to provide funding,'' and the 
State, local, or Tribal governments ``lack authority'' to adjust 
accordingly. At the time of enactment, these entitlement programs were: 
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social 
Services Block Grants; Vocational Rehabilitation State Grants; Foster 
Care, Adoption Assistance, and Independent Living; Family Support 
Welfare Services; and Child Support Enforcement. ``Federal private 
sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
     The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies

[[Page 16419]]

must ensure that their actions do not destroy or adversely modify 
critical habitat under section 7. While non-Federal entities that 
receive Federal funding, assistance, or permits, or that otherwise 
require approval or authorization from a Federal agency for an action, 
may be indirectly impacted by the designation of critical habitat, the 
legally binding duty to avoid destruction or adverse modification of 
critical habitat rests squarely on the Federal agency. Furthermore, to 
the extent that non-Federal entities are indirectly impacted because 
they receive Federal assistance or participate in a voluntary Federal 
aid program, the Unfunded Mandates Reform Act would not apply, nor 
would critical habitat shift the costs of the large entitlement 
programs listed above onto State governments.
     (2) This proposed rule will not ``significantly or uniquely'' 
affect small governments. A Small Government Agency Plan is not 
required. State lands will not be proposed. Given the distribution of 
this species, small governments will not be uniquely affected by this 
proposed rule. Small governments will not be affected at all unless 
they propose an action requiring Federal funds, permits, or other 
authorization. Any such activity will require that the involved Federal 
agency ensure that the action is not likely to adversely modify or 
destroy designated critical habitat. However, as discussed above, 
Federal agencies are currently required to ensure that any such 
activity is not likely to jeopardize the species, and no further 
regulatory impacts from this proposed designation of critical habitat 
are anticipated. We will examine any potential impacts to small 
governments in our economic analysis, and revise our determination if 
necessary.

Takings - Executive Order 12630

     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 Astragalus jaegerianus. This 
preliminary assessment concludes that this proposed rule does not pose 
significant takings implications. However, we have not yet completed 
the economic analysis for this proposed revised rule. Once the economic 
analysis is available, we will review and revise this preliminary 
assessment as warranted.

Federalism - Executive Order 13132

     In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. As discussed above, the designation of critical habitat in 
areas currently occupied by Astragalus jaegerianus would have little 
incremental impact on State and local governments and their activities. 
This is because the proposed revised critical habitat occurs to a great 
extent on Federal lands managed by the Department of Defense and the 
Bureau of Land Management, and less than 2 percent occurs on private 
lands that would involve State and local agencies.
     The proposed designation of critical habitat may have some benefit 
to State and local governments, in that the areas essential to the 
conservation of these species are more clearly defined, and the primary 
constituent elements of the habitat necessary to the survival of the 
species are identified. While this information 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 consultation to occur.

Civil Justice Reform - Executive Order 12988

     In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this proposed 
revised rule does not unduly burden the judicial system and that it 
does meet the requirements of sections 3(a) and 3(b)(2) of the Order. 
We are proposing to designate critical habitat in accordance with the 
provisions of the Endangered Species Act. This proposed revision uses 
standard property descriptions and identifies the primary constituent 
elements within the designated areas to assist the public in 
understanding the habitat needs of Astragalus jaegerianus.

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

     This proposed rule does not contain new or revised information 
collection that requires approval by OMB under the Paperwork Reduction 
Act of 1995. This rule will not impose recordkeeping or reporting 
requirements on State or local governments, individuals, businesses, or 
organizations. An agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.

National Environmental Policy Act

     It is our position that, outside the jurisdiction of the Circuit 
Court of the United States for the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by 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 by the 
Circuit Court of the United States for the Ninth Circuit (Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 
1042 (1996)).

Clarity of the Rule

     We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
     (1) Be logically organized;
     (2) Use the active voice to address readers directly;
     (3) Use clear language rather than jargon;
     (4) Be divided into short sections and sentences; and
     (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

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), E.O. 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 essential for the conservation of Astragalus 
jaegerianus. Therefore, designation of critical habitat for A. 
jaegerianus has not been proposed on Tribal lands.

References Cited

     A complete list of all references cited herein is available at 
http://www.regulations.gov and upon request

[[Page 16420]]

from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT section).

Author

     The primary authors of this proposed rule are the staff of the 
Ventura Fish and Wildlife Office.

List of Subjects in 50 CFR part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

     2. In Sec. 17.96(a), revise critical habitat for Astragalus 
jaegerianus under Family Fabaceae to read as follows:


Sec. 17.96  Critical habitat--plants.

     (a) Flowering plants.
* * * * *

Family Fabaceae: Astragalus jaegerianus (Lane Mountain milk-vetch)

     (1) Critical habitat units are depicted for San Bernardino County, 
California, on the map below.
     (2) Critical habitat consists of the mixed desert scrub community 
within the range of Astragalus jaegerianus that is characterized by the 
following primary constituent elements:
     (i) Shallow soils derived primarily from Jurassic or Cretaceous 
granitic bedrock, and less frequently soils derived from diorite or 
gabbroid bedrock and at one location granitic soils overlain by 
scattered rhyolitic cobble, gravel, and sand.
     (ii) The highly diverse mixed desert scrub community that includes 
the host shrubs within which Astragalus jaegerianus grows, most 
notably: Thamnosma montana, Ambrosia dumosa, Eriogonum fasciculatum 
ssp. polifolium, Ericameria cooperi var. cooperi, Ephedra nevadensis, 
and Salazaria mexicana.
     (3) Critical habitat does not include manmade structures 
(including, but not limited to, buildings, aqueducts, runways, roads, 
and other paved areas) and the land on which they are located existing 
within the legal boundaries on the effective date of this rule and not 
containing one or more of the primary constituent elements.
     (4) Critical habitat map units. These critical habitat units were 
mapped using Universal Transverse Mercator, Zone 10, North American 
Datum 1983 (UTM NAD 83) coordinates. These coordinates establish the 
vertices and endpoints of the boundaries of the units.
     (5) Note: Map of Paradise and Coolgardie Critical Habitat Units 
for Astragalus jaegerianus follows:
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[[Page 16421]]

[GRAPHIC] [TIFF OMITTED] TP01AP10.000

     (6) Paradise Unit, San Bernadino County, CA [Description of unit 
location to be inserted here.]
     (7) Coolgardie Unit, San Bernadino County, CA [Description of unit 
location to be inserted here.]
* * * * *

    Dated: March 18, 2010
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-7117 Filed 3-31-10; 8:45 am]
BILLING CODE 4310-55-C