2001 Federal Register, 66 FR 53756; Centralized Library: U.S. Fish & Wildlife Service

[Federal Register: October 24, 2001 (Volume 66, Number 206)]
[Proposed Rules]
[Page 53756-53768]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24oc01-26]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG92

Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for Thlaspi californicum (Kneeland
Prairie Penny-cress)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat pursuant to the Endangered Species Act of
1973, as amended (Act), for Thlaspi californicum (Kneeland Prairie
penny-cress). Approximately 30 hectares (74 acres) in Humboldt County,
California, are proposed for designation as critical habitat. If this
proposal is made final, section 7 of the Act requires Federal agencies
to ensure that any actions they fund, authorize, or carry out do not
result in the destruction or adverse modification of critical habitat.
Section 4 of the Act requires us to consider economic and other
relevant impacts when specifying any particular area as critical
habitat.
We solicit data and comments from the public on all aspects of this
proposal, including data on economic and other impacts of the
designation. We may revise this proposal prior to final designation to
incorporate or address new information received during the comment
period.

DATES: We will accept comments until December 24, 2001. Public hearing
requests must be received by December 10, 2001.

ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of several methods:
1. You may submit written comments and information to the Project
Leader, Arcata Fish and Wildlife Office, U.S. Fish and Wildlife
Service, 1655 Heindon Road, Arcata, California 95521.
2. You may also send comments by electronic mail (e-mail) to
FW1_kneelandpennycress@fws.gov. See the Public Comments Solicited
section below for file format and other information about electronic
filing.
3. You may hand-deliver comments to our Arcata Fish and Wildlife
Office at the address given above.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.

[[Page 53757]]

FOR FURTHER INFORMATION CONTACT: Bruce Halstead, Project Leader, Arcata
Fish and Wildlife Office, U.S. Fish and Wildlife Service, 1655 Heindon
Road, Arcata, California 95521 (telephone 707/822-7201; facsimile 707/
822-8411).

SUPPLEMENTARY INFORMATION:

Background

Thlaspi californicum (Kneeland Prairie penny-cress) is a perennial
member of the mustard family (Brassicaceae). The species grows from 9.5
to 12.5 centimeters (3.7 to 4.9 inches) tall with a basal cluster of
green to purplish, sparsely toothed leaves. Leaves borne along the stem
are sessile (without a stalk) with entire to toothed margins. The white
flowers have strongly ascending flower stalks. Thlaspi californicum
flowers from April to June. The fruit is a sharply pointed silicle (a
short fruit typically no more than two to three times longer than
wide), and is elliptic to obovate, without wings, and with an ascending
stalk.
Serano Watson (1882) first described Thlaspi californicum based on
a collection made by Volney Rattan from among rocks at Kneeland Prairie
at 760 meters (m) (2,500 feet (ft)) elevation. Jepson (1925) later
referred to it as T. alpestre var. californicum. Munz (1959) referred
to the taxon as T. glaucum var. hesperium; however, he segregated it as
T. californicum in his supplement (Munz 1968). Holmgren (1971) assigned
the name Thlaspi montanum var. californicum. Finally, the taxon was
returned to T. californicum in the current Jepson Manual (Hickman 1993;
Rollins 1993).
Thlaspi californicum is endemic to serpentine soils in Kneeland
Prairie, located in the outer north coast range of Humboldt County,
California. Serpentine soils are derived from ultramafic rocks (rocks
with unusually large amounts of magnesium and iron). The entire known
distribution of T. californicum occurs on Ashfield Ridge at elevations
ranging from 792 to 841 m (2,600 to 2,760 ft).
Plant communities in Kneeland Prairie include the following:
California annual and introduced perennial grasslands; seasonal and
perennial wetlands; and mixed oak/Douglas-fir woodlands (SHN 1997).
Boulder outcrops in Kneeland Prairie form scattered knobs that protrude
out of the grasslands. The majority of these outcrops are volcanic rock
types such as greenstone pillow basalt, basalt, tuff, or agglomerates
(State of California 1975). Along Ashfield Ridge and nearby side
ridges, many of the outcrops are serpentine (State of California 1975).
The serpentine outcrops exhibit a distinctive flora compared to the
surrounding grassland (SHN 2001). In addition to Thlaspi californicum,
serpentine outcrops on Ashfield Ridge support the following two special
interest plants, both considered as rare by the California Native Plant
Society: Fritillaria purdyi (Purdy's fritillary) and Astragalus
rattanii (Rattan's milk-vetch) (SHN 1997).
Little is known about the reproductive biology of Thlaspi
californicum. Some members of the genus, such as T. montanum, are known
to be outbreeding, while others, such as T. alpestre, are primarily
self-pollinating (Holmgren 1971). Due to its very close taxonomic
relationship to T. montanum, T. californicum is almost certainly an
outbreeder. The principal pollinators are believed to be generalist
bees and/or flies (SHN 2001).
The only known occurrence of Thlaspi californicum includes five
relatively distinct groups of plants all located within 300 m (980 ft)
of each other. The area occupied by the species is divided by the
Kneeland Airport and Mountain View Road. We do not know if genetic
interchange occurs between plants in these separate groups; therefore,
the five areas will be referred to as individual colonies. The location
was described as consisting of three colonies in 1990 (Imper 1990; SHN
2001); a fourth colony was discovered in 1999 (SHN 2001), and one
additional colony in 2001 (SHN 2001).
In 1997, the largest colony was estimated at 10,840 plants (SHN
1997); this estimate was later corrected to 9,919 plants (SHN 2001).
The sizes of the other two colonies known in 1997 were 140 and 40
plants (SHN 1997); therefore, the total revised estimate in 1997 was
10,099 plants. In 2001, the total number of Thlaspi californicum plants
was estimated at approximately 5,293 (SHN 2001), with 5,142 plants at
the largest colony, and 90 plants, 30 plants, 16 plants, and 15 plants
at the four smaller colonies. These data suggest the total number of
plants has declined by about 48 percent since 1997, even though two new
small colonies have been discovered (SHN 2001).
Historically, several land use activities may have altered the
distribution and abundance of Thlaspi californicum colonies. These
activities included construction of the county road in the 1800s
(currently Mountain View Road), the Kneeland Airport in 1964, and the
California Department of Forestry & Fire Protection (CDFFP) helitack
base in 1980. Prior to 1964, suitable habitat for T. californicum on
Ashfield Ridge consisted of two serpentine patches (1.9 hectares (ha)
(4.7 acres (ac)) and 0.6 ha (1.4 ac)) and scattered smaller patches of
0.01 ha (0.02 ac) to 0.2 ha (0.6 ac) in size. The two larger serpentine
outcrops formed a semi-continuous ridgetop exposure covering more than
2.4 ha (6 ac), extending in an east-west direction along the top of the
ridge in the area now occupied by the airstrip, county road, and
helitack base (SHN 2001).
Construction of the county road, airstrip, and helitack base
fragmented the two largest patches of suitable habitat into four
relatively isolated patches. The construction also reduced the total
available habitat by approximately 50 percent. No data are available on
the distribution or number of individuals prior to this habitat
alteration. However, anecdotal evidence indicates that prior to this
habitat loss these colonies occupied more area or formed one large
colony. The impacts on population or community processes from this
habitat loss and possible population reduction are unknown. In general,
smaller serpentine outcrops are known to support fewer native species
and more exotic species (Wolf and Harrison 2001). Smaller outcrops may
also be more vulnerable to recreational impacts, trampling, and
modification of the unique serpentine soil chemistry as a result of
enrichment from the surrounding meadow system (SHN 2001). All of these
factors, in addition to a reduction and/or fragmentation of the site,
increase the likelihood of extinction.
In 2001, all the known colonies occupied an estimated 0.3 ha (0.8
ac), divided among the five colonies as follows: 0.29 ha (0.72 acre);
0.02 ha (0.05 ac); 0.008 ha (0.02 ac); 0.004 ha (0.01 ac); and 0.002 ha
(0.005 ac). The five known colonies occur on three separate serpentine
outcrops, but currently occupy only about 29 percent of the suitable
habitat on these three outcrops (total area 1.1 ha (2.8 ac)). In
addition to the three occupied outcrops, fourteen unoccupied serpentine
outcrops occur on Ashfield Ridge, ranging in size from 0.01 ha (0.02
ac) to 0.2 ha (0.6 ac) (combined area of 0.9 ha (2.2 ac)). The
distances between the outcrops range from 10 m to 85 m (33 ft to 279
ft). All of these patches are located within 400 m (1,312 ft) of the
largest T. californicum colony. Serpentine soils contiguous with and in
the vicinity of the colonies are the most likely to support T.
californicum in the future.
Historic records for Thlaspi californicum refer to Kneeland Prairie
and Ashfield Ridge as site locations (Watson 1882; Holmgren 1971). Over
99

[[Page 53758]]

percent of the serpentine soils in Kneeland Prairie occur on Ashfield
Ridge. Two additional small serpentine outcrops are located on a ridge
approximately 4.8 kilometers (km) (3 miles (mi)) southwest of Ashfield
Ridge (State of California 1975). We do not have any historic records
to show that these two outcrops were once occupied by T. californicum
or current records to indicate that they are occupied. The next nearest
known serpentine outcrops to Kneeland Prairie occur approximately 6.4
km (4 mi) southeast of Ashfield Ridge at Iaqua Buttes. The serpentine
at Iaqua Buttes supports the more widespread T. montanum. No evidence
of T. californicum or intergradation between T. californicum and T.
montanum was observed during surveys at the Iaqua Buttes site in 2001
(SHN 2001). Thlaspi montanum also occurs on serpentine soils in the
vicinity of Horse Mountain approximately 24 km (15 mi) northeast of
Ashfield Ridge (SHN 2001). Evidence that the historic range of T.
californicum ever extended beyond Kneeland Prairie does not currently
exist (SHN 2001).

Previous Federal Action

Federal Government actions for Thlaspi californicum began when we
published an updated notice of review (NOR) for plants on December 15,
1980 (45 FR 82480). This notice included T. californicum (referred to
as T. montanum var. californicum) as a category 2 candidate. Category 2
candidates were those taxa for which data in our possession indicated
listing might be appropriate, but for which additional biological
information was needed to support a proposed rule. On November 28,
1983, we published a supplement to the 1980 NOR (48 FR 53640) as well
as the subsequent revision on September 27, 1985 (50 FR 39526) which
included T. m. var. californicum as a category 2 candidate.
We published revised NORs on February 21, 1990 (55 FR 6184) and
September 30, 1993 (58 FR 511440). In both notices, we included Thlaspi
montanum var. californicum as a category 1 candidate. Category 1
candidates are those taxa for which we have on file sufficient
information on biological vulnerability and threats to support
preparation of listing proposals, but issuance of the proposed rules
are precluded by other pending listing proposals of higher priority. In
our February 28, 1996, Federal Register Notice of Review of Plant and
Animal Taxa that are Candidates for Listing as Endangered or Threatened
Species (CNOR) (61 FR 7595), we discontinued designation of multiple
categories of candidates. Only those taxa meeting the definition of
former category 1 are now considered candidates for listing. Thlaspi
montanum var. californicum was included as a candidate species in the
February 28, 1996, notice. Our September 19, 1997, CNOR (62 FR 49397)
included T. californicum as a candidate for listing.
On February 12, 1998 (63 FR 7112), we published a proposal to list
Thlaspi californicum as endangered. Our October 25, 1999, CNOR (64 FR
57533) included T. californicum as a taxon proposed for listing as
endangered. The final rule listing T. californicum as an endangered
species was published on February 9, 2000 (65 FR 6332).
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
the species is determined to be endangered or threatened. Our
regulations (50 CFR 424.12(a)(1)) state that designation of critical
habitat is not prudent when one or both of the following situations
exist: (1) the species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of threat to the species; or (2) such designation of critical
habitat would not be beneficial to the species. At the time Thlaspi
californicum was proposed, we determined that designation of critical
habitat for T. californicum was not prudent because of a concern that
publication of precise maps and descriptions of critical habitat in the
Federal Register could increase the vulnerability of this species to
incidents of collection and vandalism. We also indicated that
designation of critical habitat was not prudent because we believed it
would not provide any additional benefit beyond that provided through
listing as endangered.
A series of court decisions for a variety of species overturned our
determinations that designation of critical habitat would not be
prudent (e.g., Natural Resources Defense Council v. U.S. Department of
the Interior 113 F. 3d 1121 (9th Cri. 1997); Conservation Council for
Hawaii v. Babbitt, 2 F. Supp. 2d 1280 (D. Hawaii 1998)). Based on the
standards applied in those judicial opinions, we reexamined the
question of whether designation of critical habitat for Thlaspi
californicum was prudent. At the time T. californicum was listed, we
found that designation of critical habitat was prudent.
On June 17, 1999, our failure to issue final rules for listing
Thlaspi californicum and nine other plant species as endangered or
threatened, and our failure to make a final critical habitat
determination for the 10 species was challenged in Southwest Center for
Biological Diversity and California Native Plant Society v. Babbitt
(Case No. C99-2992 (N.D.Cal.)). On May 19, 2000, the U.S. District
Court for the Northern District of California issued an order setting
the timetable for the promulgation of the critical habitat
designations. We agreed to complete the proposed critical habitat
designations for the 10 species by September 30, 2001. However, in mid-
September 2001, plaintiffs agreed to a brief extension of this due date
until October 19, 2001. We will make our final critical habitat
determinations no later than May 1, 2002.

Critical Habitat

Critical habitat is defined in section 3(5)(A) of the Act as--(i)
the specific areas within the geographic area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographic area occupied by a species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. Areas outside the geographic area currently occupied by the
species shall be designated as critical habitat only when a designation
limited to its present range would be inadequate to ensure the
conservation of the species.
Conservation is defined in section 3(3) of the Act as the use of
all methods and procedures which are necessary to bring any endangered
or threatened species to the point at which listing under the Act is no
longer necessary. Regulations under 50 CFR 424.02(j) define special
management considerations or protection to mean any methods or
procedures useful in protecting the physical and biological features of
the environment for the conservation of listed species.
In order to be included in a critical habitat designation, the
habitat must first be ``essential to the conservation of the species.''
Critical habitat designations identify, to the extent known using the
best scientific and commercial data available, habitat areas that
provide essential life cycle needs of the species (i.e., areas on which
are found the primary constituent elements, as defined at 50 CFR
424.12(b)).
When we designate critical habitat at the time of listing, as
required under

[[Page 53759]]

Section 4 of the Act, or under short court-ordered deadlines, we may
not have the information necessary to identify all areas which are
essential for the conservation of the species. Nevertheless, we are
required to designate those areas we know to be critical habitat, using
the best information available to us.
We will designate only currently known essential areas. Essential
areas should already have the features and habitat characteristics that
are necessary to sustain the species. We will not speculate about what
areas might be found to be essential if better information became
available, or what areas may become essential over time. If the
information available at the time of designation does not show that an
area provides essential life cycle needs of the species, then the area
should not be included in the critical habitat designation. We will not
designate areas that do not now have the primary constituent elements,
as defined at 50 CFR 424.12(b), that provide essential life cycle needs
of the species.
Our regulations state that, ``The Secretary shall designate as
critical habitat areas outside the geographic area presently occupied
by the species only when a designation limited to its present range
would be inadequate to ensure the conservation of the species.'' (50
CFR 424.12(e)). Accordingly, we do not designate critical habitat in
areas outside the geographic area occupied by the species unless the
best scientific and commercial data demonstrate that the unoccupied
areas are essential for the conservation needs of the species.
Our Policy on Information Standards Under the Endangered Species
Act, published in the Federal Register on July 1, 1994 (59 FR 34271),
provides criteria, establishes procedures, and provides guidance to
ensure that our decisions represent the best scientific and commercial
data available. It requires our biologists, to the extent consistent
with the Act and with the use of the best scientific and commercial
data available, to use primary and original sources of information as
the basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information should be the listing package for the species. Additional
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties,
scientific status surveys and studies, and biological assessments,
unpublished materials, and expert opinion or personal knowledge.

Methods

As required by the Act and regulations (section 4(b)(2) and 50 CFR
424.12) we used the best available scientific information in
determining which areas are essential for the conservation of Thlaspi
californicum. This information included data from the following
sources: 1993 United States Geological Survey (USGS) 1:24,000 scale
3.75' infrared color digital orthophotographic quarter quadrangle
images; geologic map of the Van Duzen River Basin (State of California
1975); 1962 panchromatic 1:12,000 scale aerial photograph HCN-222-17;
ownership parcels from the Humboldt County Planning Department, updated
as of August 2000; recent biological surveys and reports; and
discussions with botanical experts. We also conducted or contracted for
site visits, either cursory or more extensive, at locations on private
lands where access had been obtained, on State lands managed by CDFFP,
and on public lands managed by Six Rivers National Forest and the
Bureau of Land Management, including Iaqua Buttes and Board Camp
Mountain.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we consider those physical and biological features (primary
constituent elements) that are essential to the conservation of the
species and that may require special management considerations or
protection. These include, but are not limited to: space for individual
and population growth, and for normal behavior; food, water, air,
light, minerals or other nutritional or physiological requirements;
cover or shelter; sites for breeding, reproduction, or rearing of
offspring, germination, or seed dispersal; and habitats that are
protected from disturbance or are representative of the historic
geographical and ecological distributions of a species.
The long-term probability of survival and recovery of Thlaspi
californicum is dependent upon a number of factors, including
protection of serpentine sites containing existing colonies; protection
of all serpentine sites on Ashfield Ridge to allow for recolonization
or expansion; preservation of the connectivity between serpentine sites
to allow gene flow between the colonies through pollinator activity and
seed dispersal mechanisms; and protection and maintenance of proximal
areas for the survival of pollinators and seed dispersal agents. In
addition, the small, fragmented distribution of this species makes it
especially vulnerable to edge effects from adjacent activities, such as
the spread of non-native species; nearby uses of herbicides and
pesticides; livestock grazing; and erosion due to natural or diverted
flow patterns.
Based on our knowledge of this species to date, the primary
constituent elements of critical habitat for Thlaspi californicum
consist of, but are not limited to:
(1) Thin rocky soils that have developed on exposures of serpentine
substrates (SHN 2001);
(2) Plant communities that support a relatively sparse assemblage
of serpentine indicator or facultative-serpentine indicator species,
including various native forbs and grasses but not trees or shrubs,
such that competition for space and water (both above and below
ground), and light is reduced, compared to the surrounding habitats
(SHN 2001). Known associated species include: Festuca rubra (red
fescue), Koeleria macrantha (junegrass), Elymus glaucus (blue wildrye),
Eriophyllum lanatum (woolly sunflower), Lomatium macrocarpum (large-
fruited lomatium), and Viola hallii (Hall's violet) (SHN 2001);
(3) Serpentine substrates that contain 15 percent or greater (by
surface area) of exposed gravels, cobbles, or larger rock fragments,
which may contribute to alteration of factors of microclimate,
including surface drainage and moisture availability, exposure to wind
and sun, and temperature (SHN 2001); and
(4) Prairie grasslands and oak woodlands located within 30 m (100
ft) of the serpentine outcrop area on Ashfield Ridge. Protection of
these habitats is essential to the conservation of the Thlaspi
californicum in that it will provide connectivity among the serpentine
sites, help to maintain the hydrologic and edaphic integrity of the
serpentine sites, and support populations of pollinators and seed
dispersal organisms.

Criteria Used To Identify Critical Habitat

In our delineation of the critical habitat unit, we selected areas
to provide for the conservation of Thlaspi californicum at the only
location it is known to occur. Adult individuals of the species are
currently only growing on approximately 0.3 ha (0.8 ac) of land on
Ashfield Ridge in Kneeland Prairie. However, the area essential for the
conservation of the species is not restricted solely to the area where
the plant is physically visible. It must include an area large enough
to maintain the ecological functions upon

[[Page 53760]]

which the species depends (e.g., the hydrologic and edaphic
conditions).
We first mapped all the known T. californicum occurrences. Due to
the historic loss and fragmentation of the largest patches of suitable
habitat, we also mapped all suitable habitat in proximity to the known
occurrences. Maintaining the number and distribution of serpentine
outcrops on Ashfield Ridge will help to ensure the long-term viability
of T. californicum, as high-quality habitat patches in close proximity
to a source population which have the highest likelihood of future
occupancy (Murphy et al. 1990). Protection of these outcrops will
provide a range in habitat conditions, for example, moisture
availability, temperature, and wind exposure, which will optimize the
opportunities for recolonization or expansion and reduce the likelihood
of extinction due to stochastic events. They will also provide
protection of undetected T. californicum colonies and seed banks.
We also mapped grasslands and oak woodlands surrounding the
serpentine outcrops. These areas provide connectivity between all
serpentine outcrops; maintain the hydrologic and edaphic integrity of
the serpentine sites; and support biological agents of pollination and
seed dispersal deemed necessary for the conservation of the species.
Inclusion of the grasslands and oak woodlands will also minimize
impacts to the serpentine outcrops resulting from external peripheral
influences, such as erosion, grazing, or the spread of exotic species.
At this time, we do not propose to designate as critical habitat
any serpentine outcrops within Kneeland Prairie, other than the
outcrops on Ashfield Ridge. Serpentine outcrops not located on Ashfield
Ridge, however, may also be necessary for the conservation of Thlaspi
californicum. Since T. californicum has an extremely restricted range,
establishment at new locations may be necessary to provide insurance
against stochastic events. A draft recovery plan for this species has
not been completed. The recovery plan may provide additional guidance
regarding areas essential for the conservation of the species. If
necessary, we will reexamine our critical habitat designation after
completion of the recovery plan.
We considered ownership status in proposing areas as critical
habitat. Thlaspi californicum is known only to occur on State, county,
and private lands. We could not depend on Federal lands for critical
habitat designation because we are not currently aware of any Federal
lands occupied by this taxon. We are not aware of any Tribal lands in
or near our proposed critical habitat unit for T. californicum.
However, should we learn of any Tribal lands in the vicinity of the
critical habitat designation subsequent to this proposal, we will
coordinate with the Tribes before making a final determination as to
whether any Tribal lands should be included as critical habitat for T.
californicum.
We used a geographic information system (GIS) to facilitate the
identification of proposed critical habitat. We used information from
recent biological surveys and reports; discussions with botanical
experts; and locations of serpentine soils to create GIS data layers.
The serpentine soil sites were derived from a geologic map, infrared
color digital orthophotos, and global positioning system data collected
in the field during 2000 and 2001. These data layers were created on a
base of 1:24,000 scale USGS 3.75' infrared color digital
orthophotographic quarter quadrangle images. We used the data layers to
map the primary constituent elements. We defined the boundaries for the
proposed critical habitat unit by overlaying this map with a 100-m
Universal Transverse Mercator (UTM) North American Datum of 1927
(NAD27) grid and removing all NAD27 grid cells that did not contain the
primary constituent elements.
In selecting areas of proposed critical habitat, we attempted to
avoid developed areas and other lands unlikely to contribute to the
conservation of Thlaspi californicum. However, we did not map the
critical habitat unit in sufficient detail to exclude all such areas.
Existing features and structures within the critical habitat unit
boundary, such as buildings, roads, airports, and other paved areas
will not contain one or more of the primary constituent elements.
Federal actions limited to these areas, therefore, would not trigger a
section 7 consultation, unless they affect the species and/or primary
constituent elements in adjacent critical habitat.

Special Management Considerations

As noted in the Critical Habitat section, ``special management
considerations or protection'' is a term that originates in the
definition of critical habitat. We believe the proposed area may
require special management considerations or protection because Thlaspi
californicum occupies an extremely localized range and the number of
individuals may be declining. Potential threats to the habitat of T.
californicum include: Expansion of Kneeland Airport and CDFFP helitack
base; road realignment; fires caused by airplane or vehicular
accidents; contaminant spills; erosion; application of herbicides and
pesticides; livestock grazing; and introduction and spread of exotic
species.
Additional special management is not required if adequate
management or protection is already in place. Adequate special
management considerations or protection is provided by a legally
operative plan/agreement that addresses the maintenance and improvement
of the primary constituent elements important to the species and
manages for the long-term conservation of the species. Currently, no
plans meeting these criteria have been developed for T. californicum.

Proposed Critical Habitat Designation

The proposed critical habitat area described below includes all the
primary constituent elements discussed above, and constitutes our best
assessment at this time of the areas needed for the species'
conservation. Critical habitat is being proposed for Thlaspi
californicum at the only location it is known to occur. We are not
proposing any critical habitat units that do not contain the species.
We propose designating one unit of critical habitat, comprising 30
ha (74 ac), surrounding Kneeland Airport and roughly bisected by
Mountain View Road. The unit includes all five known colonies and all
other serpentine outcrops in close proximity to the colonies. All of
the proposed critical habitat for Thlaspi californicum is located on
Ashfield Ridge in Kneeland Prairie, Humboldt County, California. This
ridge separates the Van Duzen and Mad River basins near the community
of Kneeland in central Humboldt County.
The unit contains approximately 2 ha (5 ac) of serpentine soils.
Approximately 16 percent of the serpentine soils are known to be
occupied. However, undetected colonies may exist on the serpentine
soils within the unit. The approximate area, by land ownership, of this
unit is shown in Table 1. Approximately 5 percent (2 ha (4 ac)) of this
area consists of State lands, while County lands comprise approximately
11 percent (3 ha (8 ac)), and private lands comprise approximately 84
percent (25 ha (62 ac)). No Federal lands are within the proposed
critical habitat unit. This species is not currently known to occur or
to have occurred historically on Federal lands.

[[Page 53761]]

Table 1.--Approximate Areas and Percent of Proposed Critical Habitat of
Thlaspi californicum in Hectares (ha) (Acres (ac)) in Humboldt County,
California, by Land Ownership.
[Estimates reflect the total area within critical habitat unit
boundaries]
------------------------------------------------------------------------
Ownership Hectares Acres Percent
------------------------------------------------------------------------
State............................ 2 4 5
Private.......................... 25 62 84
County........................... 3 8 11
Federal.......................... 0 0 0
Total........................ 30 74 100
------------------------------------------------------------------------

Effects of Critical Habitat Designation

Section 7 Consultation

Habitat is often dynamic, and populations may move from one area to
another over time. Furthermore, we recognize that designation of
critical habitat may not include all of the habitat areas that may
eventually be determined to be necessary for the recovery of the
species. For these reasons, all should understand that critical habitat
designations do not signal that habitat outside the designation is
unimportant or may not be required for recovery. Areas outside the
critical habitat designation will continue to be subject to
conservation actions that may be implemented under section 7(a)(1) and
to the regulatory protections afforded by the section 7(a)(2) jeopardy
standard and the applicable prohibitions of section 9, as determined on
the basis of the best available information at the time of the action.
If Thlaspi californicum is discovered outside of the designated
critical habitat area, it is possible that federally funded or assisted
projects affecting plants outside of the designated critical habitat
area may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 also requires Federal
agencies to confer with the Service on any actions that are likely to
result in the destruction or adverse modification of critical habitat.
In our regulations at 50 CFR 402.02, we define destruction or adverse
modification as ``* * * a direct or indirect alteration that
appreciably diminishes the value of critical habitat for both the
survival and recovery of a listed species. Such alterations include,
but are not limited to, alterations adversely modifying any of those
physical or biological features that were the basis for determining the
habitat to be critical.'' Aside from the added protection that may be
provided under section 7, the Act does not provide other forms of
protection to lands designated as critical habitat. Because
consultation under section 7 of the Act does not apply to activities on
private or other non-Federal lands that do not involve a Federal nexus,
critical habitat designation would not afford any additional
protections under the Act against such activities.
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, permit, or carry
out do not destroy or adversely modify critical habitat to the extent
that the action appreciably diminishes the value of the critical
habitat for the survival and recovery of the species. Individuals,
organizations, States, local governments, and other non-Federal
entities are affected by the designation of critical habitat only if
their actions occur on Federal lands, require a Federal permit,
license, or other authorization, or involve Federal funding.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened, and with respect to its
critical habitat, if any is designated or proposed. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires
Federal agencies to confer with us on any action that is likely to
jeopardize the continued existence of a proposed species or result in
destruction or adverse modification of proposed critical habitat.
Conference reports provide conservation recommendations to assist
Federal agencies in eliminating conflicts that may be caused by their
proposed action(s). The conservation measures 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 actions they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. Through this consultation we
would ensure that the permitted actions do not jeopardize the species
or destroy or adversely modify critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. ``Reasonable and prudent
alternatives'' are defined at 50 CFR 402.02 as alternative actions
identified during consultation that can be implemented in a manner
consistent with the intended purpose of the action, that are consistent
with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the Director believes would avoid 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

[[Page 53762]]

has been completed, if those actions may affect designated critical
habitat, or adversely modify or destroy proposed critical habitat.
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)).
If Thlaspi californicum is discovered on Federal lands, those
activities on Federal lands that may affect Thlaspi californicum or its
critical habitat would require a section 7 consultation. Activities on
private or State lands requiring a permit from a Federal agency, such
as a permit from the Army Corps of Engineers under section 404 of the
Clean Water Act, a section 10(a)(1)(B) permit from the Service, or some
other Federal action, including funding (e.g., Federal Housing
Administration or Federal Emergency Management Agency), will also
continue to be subject to the section 7 consultation process. Federal
actions not affecting listed species or critical habitat and actions on
non-Federal and private lands that are not federally funded,
authorized, or permitted do not require section 7 consultation.
Section 4(b)(8) of the Act requires us to evaluate briefly and
describe within any proposed or final regulation that designates
critical habitat those activities involving a Federal action that may
adversely modify such habitat or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat are those that appreciably reduce the value of critical habitat
for both the survival and recovery of Thlaspi californicum. We note
that such activities may also jeopardize the continued existence of the
species.
To properly portray the effects of critical habitat designation, we
must first compare the section 7 requirements for actions that may
affect critical habitat with the requirements for actions that may
affect a listed species. Section 7 prohibits actions funded,
authorized, or carried out by Federal agencies from jeopardizing the
continued existence of a listed species or destroying or adversely
modifying the listed species' critical habitat. Actions likely to
``jeopardize the continued existence'' of a species are those that
would appreciably reduce the likelihood of the species' survival and
recovery. Actions likely to ``destroy or adversely modify'' critical
habitat are those that would appreciably reduce the value of critical
habitat for the survival and recovery of the listed species.
Common to both definitions is an appreciable detrimental effect on
both survival and recovery of a listed species. Given the similarity of
these definitions, actions likely to destroy or adversely modify
critical habitat would almost always result in jeopardy to the species
concerned, particularly when the area of the proposed action is
occupied by the species concerned. Designation of critical habitat in
areas occupied by Thlaspi californicum is not likely to result in a
regulatory burden above that already in place due to the presence of
the listed species. Designation of critical habitat in areas not
occupied by T. californicum may result in an additional regulatory
burden when a Federal nexus exists.
Activities that, when carried out, funded, or authorized by a
Federal agency, may directly or indirectly destroy or adversely modify
critical habitat include, but are not limited to:
(1) Ground disturbance of serpentine outcrops and grassland and oak
woodland areas, including but not limited to, grading, ripping,
tilling, and paving;
(2) Alteration of serpentine outcrops, including but not limited
to, removal of boulders, mining, and quarrying;
(3) Removing, destroying, or altering vegetation in the critical
habitat unit, including but not limited to inappropriately managed
livestock grazing, clearing, introducing or encouraging the spread of
nonnative species, recreational activities, and maintaining an
unnatural fire regime either through fire suppression or prescribed
fires that are too frequent or poorly timed;
(4) Hydrologic changes or other activities that alter surface
drainage patterns resulting in erosion of serpentine outcrops or
adjacent areas, including but not limited to water diversion,
groundwater pumping, irrigation, and erosion control;
(5) Construction or maintenance activities that destroy or degrade
critical habitat, including but not limited to road building, building
construction, airport expansion, drilling, and culvert maintenance or
installation;
(6) Application or runoff of pesticides, herbicides, fertilizers,
or other chemical or biological agents; and
(7) Emergency response and clean-up of fuel or other contaminant
spills.
Designation of critical habitat could affect the following agencies
and/or actions: development on private, State, or county lands
requiring permits or funding from Federal agencies, such as the U.S.
Army Corps of Engineers, the Department of Housing and Urban
Development, the Federal Aviation Administration, or the Federal
Highway Administration; construction of communication sites licensed by
the Federal Communications Commission; and authorization of Federal
grants or loans. These actions would be subject to the section 7
process. Where federally listed wildlife species occur on private lands
proposed for development, any habitat conservation plans submitted by
the applicant to secure a permit to take according to section
10(a)(1)(B) of the Act would be subject to the section 7 consultation
process.
If you have questions regarding whether specific activities will
likely constitute adverse modification of critical habitat, contact the
Project Leader, Arcata Fish and Wildlife Office (see ADDRESSES
section). Requests for copies of the regulations on listed wildlife,
and inquiries about prohibitions and permits may be addressed to the
U.S. Fish and Wildlife Service, Region 1, Division of Endangered
Species, 911 NE 11th Avenue, Portland, Oregon 97232-4181 (503/231-6131,
facsimile 503/231-6243).

Relationship to Habitat Conservation Plans and Other Planning
Efforts

Currently, no habitat conservation plans (HCPs) exist that include
Thlaspi californicum as a covered species. However, we believe that, in
most instances, the benefits of excluding HCPs from critical habitat
designations will outweigh the benefits of including them. In the event
that future HCPs covering T. californicum are developed within the
boundaries of the designated critical habitat, we will work with
applicants to ensure that the HCPs provide for protection and
management of habitat areas essential for the conservation of this
species. This will be accomplished by either directing development and
habitat modification to nonessential areas, or appropriately modifying
activities within essential habitat areas so that such activities will
not adversely modify the primary constituent elements. The HCP
development process would provide an opportunity for more intensive
data collection and analysis regarding the use of particular habitat
areas by T. californicum. The process would also enable us to conduct
detailed evaluations of the importance of such lands to the long-term
survival of the species in the context of constructing a biologically
configured system of

[[Page 53763]]

interlinked habitat blocks. We will also provide technical assistance
and work closely with applicants throughout the development of any
future HCPs to identify lands essential for the long-term conservation
of T. californicum and appropriate management for those lands. The take
minimization and mitigation measures provided under such HCPs would be
expected to protect the essential habitat lands proposed as critical
habitat in this rule.

Economic Analysis

Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial information
available, and to consider the economic and other relevant impacts of
designating a particular area as critical habitat. We may exclude areas
from critical habitat upon a determination that the benefits of such
exclusions outweigh the benefits of specifying such areas as critical
habitat. We cannot exclude such areas from critical habitat when such
exclusion will result in the extinction of the species concerned. We
will conduct an analysis of the economic impacts of designating these
areas as critical habitat prior to a final determination. When
completed, we will announce the availability of the draft economic
analysis with a notice in the Federal Register, and we will open a 30-
day public comment period on the draft economic analysis and proposed
rule at that time.

Public Comments Solicited

We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we solicit
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule. We seek comments concerning:
(1) The reasons why any habitat should or should not be determined
to be critical habitat as provided by section 4 of the Act, including
whether the benefit of designation will outweigh any threats to the
species due to designation;
(2) Specific information on the amount and distribution of Thlaspi
californicum habitat, and what habitat is essential to 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 or other impacts resulting from the
proposed designation of critical habitat, in particular, any impacts on
small entities or families;
(5) Economic and other values associated with designating critical
habitat for T. californicum such as those derived from non-consumptive
uses (e.g., hiking, camping, bird-watching, enhanced watershed
protection, improved air quality, increased soil retention, ``existence
values'', and reductions in administrative costs); and
(6) Whether our approach to critical habitat designation could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concern and comments.
If you wish to comment on this proposed rule, you may submit your
comments and materials by any one of several methods (see ADDRESSES).
Please submit electronic mail comments as an ASCII file and avoid the
use of special characters and any form of encryption. Please also
include ``Attn: 1018-AG92'' and your name and return address in your
electronic message. Please note that the electronic address
FW1_kneelandpennycress@.fws.gov will be closed out at the termination
of the public comment period. If you do not receive a confirmation from
the system that we have received your electronic message, contact us
directly by calling our Arcata Fish and Wildlife Office at phone number
707/822-7201.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record, which we will honor to
the extent allowable by law. In some circumstances, we would withhold
from the rulemaking record a respondent's identity, as allowable by
law. If you wish us to withhold your name and/or address, you must
state this prominently at the beginning of your comment. However, we
will not consider anonymous comments. To the extent consistent with
applicable law, we will make all submissions from organizations or
businesses, and from individuals identifying themselves as
representatives or officials of organizations or businesses, available
for public inspection in their entirety. Comments and materials
received will be available for public inspection, by appointment,
during normal business hours at the above address.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR
34270), we will solicit the expert opinions of three appropriate and
independent specialists regarding this proposed rule. The purpose of
such review is to ensure listing decisions are 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 listing and
designation of critical habitat.
We will consider all comments and information received during the
public comment period on this proposed rule during preparation of a
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 for public hearings must be made within 45 days
of the date of publication of this proposal within the Federal
Register. 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 before
the first hearing is held.

Clarity of the Rule

Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
technical jargon that interferes with the clarity? (3) Does the format
of the proposed rule (grouping and order of the sections, use of
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the
description of the notice in the SUPPLEMENTARY INFORMATION section of
the preamble helpful in understanding the proposed rule? What else
could we do to make this proposed rule easier to understand?
Send a copy of any comments that concern how we could make this
rule easier to understand to the Field Supervisor, Arcata Fish and
Wildlife Office (see ADDRESSES).

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order 12866, this document is a
significant

[[Page 53764]]

rule and was reviewed by the Office of Management and Budget (OMB) in
accordance with the four criteria discussed below. We are preparing a
draft analysis of this proposed action, which will be available for
public comment, to determine the economic consequences of designating
the specific areas as critical habitat. The availability of the draft
economic analysis will be announced in the Federal Register so that it
is available for public review and comments.
(a) While we will prepare an economic analysis to assist us in
considering whether areas would be excluded pursuant to section 4 of
the Act, we do not believe this rule will have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local or tribal
communities. Therefore, we do not believe a cost benefit and economic
analysis pursuant to EO 12866 is required.
Thlaspi californicum was listed as endangered on February 9, 2000.
As needed, we will conduct, formal and informal section 7 consultations
with other Federal agencies to ensure that their actions will not
jeopardize the continued existence of Thlaspi californicum. Under the
Act, critical habitat may not be adversely modified by a Federal agency
action; critical habitat does not impose any restrictions on non-
Federal persons unless they are conducting activities funded or
otherwise sponsored or permitted by a Federal agency. Section 7 of the
Act requires Federal agencies to ensure that they do not jeopardize the
continued existence of the species. Based on our experience with the
species and its needs, we believe that any Federal action or authorized
action that could potentially cause an adverse modification of the
proposed critical habitat would currently be considered as jeopardy to
the species under the Act in areas occupied by the species.
Accordingly, we do not expect the designation of occupied areas as
critical habitat to have any incremental impacts on what actions may or
may not be conducted by Federal agencies or non-Federal persons that
receive Federal authorization or funding. The designation of areas as
critical habitat where section 7 consultations would not have occurred
but for the critical habitat designation, may have impacts on what
actions may or may not be conducted by Federal agencies or non-Federal
persons who receive Federal authorization or funding that are not
attributable to the species listing. We will evaluate any impact
through our economic analysis (under section 4 of the Act: see Economic
Analysis section of this rule). Non-federal persons who do not have a
Federal sponsorship of their actions are not restricted by the
designation of critical habitat.
(b) This rule is not expected to create inconsistencies with other
agencies' actions. As discussed above, Federal agencies have been
required to ensure that their actions do not jeopardize the continued
existence of Thlaspi californicum since its listing in 2000. The
prohibition against adverse modification of critical habitat is
expected to impose few, if any, additional restrictions to those that
currently exist in the proposed critical habitat on currently occupied
lands. We will evaluate any impact of designating areas where section 7
consultations would not have occurred but for the critical habitat
designation through our economic analysis. Because of the potential for
impacts on other Federal agency activities, we will continue to review
this proposed action for any inconsistencies with other Federal
agencies' actions.
(c) This proposed rule, if made final, is not expected to
significantly affect entitlements, grants, user fees, loan programs, or
the rights and obligations of their recipients. Federal agencies are
currently required to ensure that their activities do not jeopardize
the continued existence of the species, and, as discussed above, we do
not anticipate that the adverse modification prohibition resulting from
critical habitat designation will have any incremental effects in areas
of occupied habitat on any Federal entitlement, grant, or loan
programs. This conclusion is based on the small acreage and number of
entities affected by this proposal. We will evaluate any impact of
designating areas where section 7 consultations would not have occurred
but for the critical habitat designation through our economic analysis.
(d) OMB has determined that this rule may raise novel legal or
policy issues and, as a result, this rule has undergone OMB review.

Table 2.--Impacts of Thlaspi californicum Listing and Critical Habitat
Designation
------------------------------------------------------------------------
Additional
Activities activities
Categories of activities potentially affected potentially affected
by species listing by critical habitat
only designation \1\
------------------------------------------------------------------------
Federal Activities Activities conducted Activities
Potentially Affected \2\. by the Army Corps identified in
of Engineers, the column one by these
Federal Aviation Federal Agencies in
Administration, the designated areas
Department of where section 7
Housing and Urban consultations would
Development, and not have occurred
any other Federal but for the
Agencies, critical habitat
including, but not designation.
limited to,
grading,
construction, road
building,
hydrologic changes
or other activities
that alter surface
drainage patterns,
herbicide
application, and
recreational
activities that
would destroy
habitat for this
species or
appreciably
decrease habitat
value or quality
through indirect
effects (e.g., edge
effects, invasion
of exotic plants or
animals, or
fragmentation).
Private or other non-Federal Activities that Funding,
Activities Potentially require a Federal authorization, or
Affected \3\. action (permit, permitting actions
authorization, or by Federal Agencies
funding) and may in designated areas
remove or destroy where section 7
habitat for Thlaspi consultations would
californicum by not have occurred
mechanical, but for the
chemical, or other critical habitat
means or designation.
appreciably
decrease habitat
value or quality
through indirect
effects (e.g., edge
effects, invasion
of exotic plants,
fragmentation of
habitat).
------------------------------------------------------------------------
\1\ This column represents activities potentially affected by the
critical habitat designation in addition to those activities
potentially affected by listing the species.
\2\ Activities initiated by a Federal agency.
\3\ Activities initiated by a private or other non-Federal entity that
may need Federal authorization or funding.

[[Page 53765]]

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 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 to require Federal agencies to provide a statement of
the factual basis for certifying that rule will not have a significant
economic effect on a substantial number of small entities. The
following discussion explains our determination.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies; non-Federal activities are
not affected by the designation if they lack any Federal nexus. In
areas occupied by Thlaspi californicum, Federal agencies funding,
permitting, or implementing activities are already required, through
consultation with us under section 7 of the Act, to avoid jeopardizing
the continued existence of Thlaspi californicum. If this critical
habitat designation is finalized, Federal agencies also must ensure,
also through consultation with us, that their activities do not destroy
or adversely modify designated critical habitat. However, for the
reasons discussed above, we do not believe this will result in any
additional regulatory burden on Federal agencies or their applicants.
In unoccupied areas, or areas of uncertain occupancy, designation
of critical habitat could trigger additional review of Federal
activities under section 7 of the Act, and may result in additional
requirements on Federal activities to avoid destroying or adversely
modifying critical habitat. However, outside the existing developed
areas, land use on the majority of the proposed critical habitat
consists of homesteading, grazing, and unforested lands surrounding
timber lands. The likelihood of future development in these areas is
low, although the airport may expand in the future. Any development
that lacked Federal involvement would not be affected by the critical
habitat designation. Should a federally funded, permitted, or
implemented project be proposed that may affect designated critical
habitat, we will work with the Federal action agency and any applicant,
through section 7 consultation, to identify ways to implement the
proposed project while minimizing or avoiding any adverse effect to the
species or critical habitat. In our experience, the vast majority of
such projects can be successfully implemented with at most minor
changes that avoid significant economic impacts to project proponents.
In addition, the area proposed as critical habitat is small, less than
75 acres, and we have identified fewer than a half-dozen landowners.
The scale of the designation ensures that the ``substantial number of
small entities'' threshold of the Regulatory Flexibility Act will not
be met.
Therefore, we are certifying that the proposed designation of
critical habitat for Thlaspi californicum is not expected to have a
significant adverse impact on a substantial number of small entities.
Thus, an initial flexibility analysis is not required.

Executive Order 13211

On May 18, 2001, the President issued an Executive Order (E.O.
13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
Although this rule is a significant regulatory action under Executive
Order 12866, it is not expected to significantly affect energy
supplies, distribution, or use. Therefore, this action is not a
significant energy action and no Statement of Energy Effects is
required.

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

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) This rule, as proposed, will not ``significantly or uniquely''
affect small governments. A Small Government Agency Plan is not
required. Small governments will not be affected unless they propose an
action requiring Federal funds, permits, or other authorization. Any
such activity will require that the Federal agency ensure that the
action will not adversely modify or destroy designated critical
habitat.
(b) This rule, as proposed, will not produce a Federal mandate on
State, local, or tribal governments or the private sector of $100
million or greater in any year; that is, it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act. The
designation of critical habitat imposes no obligations on State or
local governments.

Takings

In accordance with Executive Order 12630, this proposed rule does
not have significant takings implications, and a takings implication
assessment is not required. This rule would not take private property.
As discussed above, the designation of critical habitat affects only
Federal agency actions; it does not provide additional protection for
the species on non-Federal lands or regarding actions that lack any
Federal involvement. Furthermore, the Act provides mechanisms, through
section 7 consultation, to resolve apparent conflicts between proposed
Federal actions, including Federal funding or permitting of actions on
private land, and the conservation of the species, including avoiding
the destruction or adverse modification of designated critical habitat.
While we have not conducted any formal consultations on Thlaspi
californicum since its listing, and we are not aware of any upcoming or
proposed projects that would require consultation, we recognize that
such Federal projects that also affect private property may be proposed
in the future. We fully expect that, through section 7 consultation,
such projects can be implemented consistent with both the conservation
of the species; therefore, this rule would not result in a takings.

Federalism

In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior policy, we
requested information from, and coordinated development of this
critical habitat designation with, appropriate State resource agencies
in California. The designation of critical habitat in areas currently
occupied by Thlaspi californicum imposes no additional restrictions to
those currently in place and, therefore, has little incremental impact
on State and local governments and their activities. The designations
may have some benefit to these governments in that the areas essential
to the conservation of these species are more clearly defined, and the
primary constituent elements of the habitat necessary to the survival
of the species are identified. While this definition and identification
does not alter where and what federally sponsored activities may occur,
it may assist these local governments in long-range planning

[[Page 53766]]

(rather than waiting for case-by-case section 7 consultation to occur).

Civil Justice Reform

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

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

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

National Environmental Policy Act

We have determined we do not need to prepare an Environmental
Assessment and/or an Environmental Impact Statement as defined by the
National Environmental Policy Act of 1969 in connection with
regulations adopted pursuant to section 4(a) of the Endangered Species
Act, as amended. We published a notice outlining our reason for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This proposed rule does not constitute a major Federal action
significantly affecting the quality of the human environment.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations With Native American Tribal
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, we readily
acknowledge our responsibility to communicate meaningfully with
federally recognized Tribes on a government-to-government basis. We
have determined that there are no Tribal lands essential for the
conservation of Thlaspi californicum because they do not support the
species, nor do they provide essential habitat. Therefore, critical
habitat for Thlaspi californicum has not been designated on Tribal
lands.

References Cited

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

Author

The author of this proposed rule is Robin Hamlin (see ADDRESSES
section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

2. In Sec. 17.12(h) revise the entry for Thlaspi californicum under
``FLOWERING PLANTS'' to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
------------------------------------------------------ Historic range Family Status When listed Critical habitat Special
Scientific name Common name rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants

* * * * * * *
Thlaspi californicum............ Kneeland Prairie U.S.A. (CA)....... Brassicaceae--Must E 684 17.96(b) NA
penny-cress. ard.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. In Sec. 17.96, as proposed to be amended at 65 FR 66865,
November 7, 2000, add critical habitat for the Kneeland Prairie penny-
cress (Thlaspi californicum) under paragraph (b) by adding an entry for
Thlaspi californicum in alphabetical order under Brassicaceae to read
as follows:

Sec. 17.96 Critical habitat--plants.

* * * * *
(b) Single-species critical habitat--flowering plants.
Family Brassicaceae: Thlaspi californicum (Kneeland Prairie penny-
cress)
1. A critical habitat unit is depicted for Humboldt County,
California, on the map below.
2. The primary constituent elements of critical habitat for Thlaspi
californicum are the habitat components that provide:
(i) Thin rocky soils that have developed on exposures of serpentine
substrates;
(ii) Plant communities that support a relatively sparse assemblage
of serpentine indicator, or facultative-serpentine indicator species,
including various native forbs and grasses, but not trees or shrubs,
such that competition for space and water (both above and below ground)
and light is reduced, compared to the surrounding habitats. Known
associated species include the following: Festuca rubra (red fescue),
Koeleria macrantha (junegrass), Elymus glaucus (blue wildrye),
Eriophyllum lanatum (woolly sunflower), Lomatium macrocarpum (large-
fruited lomatium), and Viola hallii (Hall's violet);
(iii) Serpentine substrates that contain 15 percent or greater (by
surface area) of exposed gravels, cobbles, or larger rock fragments,
which may contribute to alteration of factors of microclimate,
including surface drainage and moisture availability, exposure to wind
and sun, and temperature; and

[[Page 53767]]

(iv) Prairie grasslands and oak woodlands located within 30 m (100
ft) of the serpentine outcrop area on Ashfield Ridge. Protection of
these habitats is essential to the conservation of the Thlaspi
californicum in that it will provide connectivity among the serpentine
sites, help to maintain the hydrologic and edaphic integrity of the
serpentine sites, and support populations of pollinators and seed
dispersal organisms.
3. Existing features and structures within the boundaries of mapped
critical habitat units, such as buildings, roads, airports, and other
paved areas will not contain one or more of the primary constituent
elements. Federal actions limited to those areas, therefore, would not
trigger a section 7 consultation, unless they affect the species and/or
primary constituent elements in adjacent critical habitat.
4. Critical habitat unit. Humboldt County, California. From
U.S.G.S. 1:24,000 scale Iaqua Buttes quadrangle, land bounded by the
following UTM Zone 10 NAD27 coordinate pairs (East, North):
421700,4507300; 422100,4507800; 422100,4507300; 422200,4507600;
421600,4507400; 421700,4507900; 421700,4507800; 421900,4507900

Note: Map follows:

BILLING CODE 4310-55-P

[[Page 53768]]

[GRAPHIC] [TIFF OMITTED] TP24OC01.000

* * * * *

Dated: October 17, 2001.
Joseph E. Doddridge,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-26711 Filed 10-23-01; 8:45 am]
BILLING CODE 4310-55-C