[Federal Register: July 7, 2000 (Volume 65, Number 131)]
[Proposed Rules]               
[Page 41917-41929]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG28

Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the Zayante Band-Winged Grasshopper

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose 
designation of critical habitat for the Zayante band-winged grasshopper 
(Trimerotropis infantilis) under the Endangered Species Act of 1973, as 
amended (Act). We propose designation of critical habitat within an 
approximately 4,230-hectare (10,560-acre) area occupied by the Zayante 
band-winged grasshopper in Santa Cruz County, California.
    Critical habitat identifies specific areas that are essential to 
the conservation of a listed species, and that may require special 
management considerations or protection. The primary elements of 
critical habitat for the Zayante band-winged grasshopper are those 
habitat components that are essential for the primary physical and 
biological needs of the species. These needs include: food, water, 
sunlight, air, minerals and other nutritional or physiological needs; 
cover or shelter; sites for breeding and reproduction and dispersal; 
protection from disturbance; and habitat that is representative of the 
historical geographic and ecological distribution of the Zayante band-
winged grasshopper.
    If this proposed rule is made final, section 7 of the Act would 
prohibit destruction or adverse modification of critical habitat by any 
activity funded, authorized, or carried out by any Federal agency. 
Section 4 of the Act requires us to consider economic and other impacts 
of specifying any particular area as critical habitat. We solicit data 
and comments from the public on all aspects of this proposal, including 
data on the economic and other impacts of the designation. We may 
revise this proposal to incorporate or address new information received 
during the comment period.

DATES: We will accept comments from all interested parties until 
September 5, 2000. Public hearing requests must be received by August 
21, 2000.

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 Field 
Supervisor, U.S. Fish and Wildlife Service, Ventura Fish and Wildlife 
Office, 2493 Portola Road, Suite B, Ventura, California 93003.
    2. You may hand-deliver written comments to our Ventura Office, 
2493 Portola Road, Suite B, Ventura, California.
    3. You may send comments by electronic mail (e-mail) to 
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Ventura Fish and Wildlife Office.

FOR FURTHER INFORMATION CONTACT: Diane Noda, Field Supervisor, Ventura 
Fish and Wildlife Office, 805/644-1766.



    The Zayante band-winged grasshopper (Trimerotropis infantilis), 
Order Orthoptera and Family Acrididae, was first described from near 
Mount Hermon in the Santa Cruz Mountains, Santa Cruz County, 
California, in 1984 (Rentz and Weissman 1984). The body and forewings 
of the Zayante band-winged grasshopper are pale gray to light brown 
with dark cross-bands on the forewings. The basal area of the hindwings 
is pale yellow with a faint thin band. The hind tibiae (lower legs) are 
blue, and the eyes have bands around them. Males range in length from 
13.7 to 17.2 millimeters (mm) (0.54

[[Page 41918]]

to 0.68 inches (in.)); females are larger, ranging in length from 19.7 
to 21.6 mm (0.78 to 0.85 in.) (Otte 1984; Rentz and Weissman 1984). The 
Zayante band-winged grasshopper is most similar in appearance to T. 
occulans and T. koebelei; neither of these species is known from the 
Santa Cruz Mountains (Otte 1984; Rentz and Weissman 1984). 
Trimerotropis thalassica and T. pallidipennis pallidipennis have been 
observed in the vicinity of Zayante band-winged grasshopper, but are 
morphologically distinct from it and appear to prefer different 
microhabitats (Rentz and Weissman 1984; Arnold 1999a,b).
    The flight season for adult Zayante band-winged grasshopper extends 
from late May through October with peak activity during July and August 
(White, in litt. 1993; Morgan, in litt. 1994; Arnold 1999a,b). 
Specimens have been collected as late as November 4 (Arnold 1999a). 
When flushed, individuals generally fly 1 to 2 meters (m) (3 to 7 feet 
(ft)), producing a buzzing sound while in flight (Rentz and Weissman 
1984). Band-winged grasshoppers often alight on bare ground, and are 
conspicuous in flight because of the color of the hind wings and the 
buzzing sound made by the wings (Borror et al. 1976). No additional 
information on the life cycle of this species is available.
    The Zayante band-winged grasshopper is known only from Santa Cruz 
County, California. The species was described in 1984 from specimens 
collected in 1977 on sparsely vegetated sandy soil above the Olympia 
Sand Quarry. Between 1989 and 1994, Zayante band-winged grasshoppers 
were found at 10 of 39 sites sampled during two independent surveys 
near the communities of Ben Lomond, Felton, Mount Hermon, Zayante, and 
Scotts Valley, California (Hovore 1996; USFWS 1998).
    Little is known of the historical distribution of the species. A 
review of museum specimens yielded Zayante band-winged grasshoppers 
from ``Santa Cruz Mountains, no date'', ``Alma, 1928'', ``Felton, 
1959'', and ``Santa Cruz, 1941'' (Rentz and Weissman 1984). No 
subsequent collections have been recorded that substantiate the 
existence of a population in the vicinity of Alma. Furthermore, the 
town of Alma is currently beneath a reservoir, and the cited specimens 
cannot be located in the listed depository for verification ( D. 
Weissman, California Academy of Sciences, pers. comm. 1994, 2000). 
Therefore, because no specific location or habitat descriptions 
accompanied these historic specimens, they were not considered in our 
assessment of the current range and status of the species.
    The Zayante band-winged grasshopper occurs in association with the 
Zayante soil series (USDA Soil Conservation Service 1980). The Zayante 
soils in the vicinity of the communities of Ben Lomond, Felton, Mount 
Hermon, Zayante, and Scotts Valley are dominated by maritime coast 
range ponderosa pine (Pinus ponderosa) forest and northern maritime 
chaparral (Griffin 1964; Holland 1986). The distributions of these two 
plant communities overlap to form a complex and intergrading mosaic of 
communities variously referred to as ponderosa sand parkland, ponderosa 
pine sand hills, and silver-leafed manzanita (Arctostaphylos silvicola) 
mixed chaparral. These communities are collectively referred to as 
``Zayante sand hills habitat'' and harbor a diversity of rare and 
endemic plant species (Thomas 1961; Griffin 1964; Morgan 1983). A 
unique habitat within the Zayante sand hills is sand parkland, 
characterized by sparsely vegetated, sandstone-dominated ridges, and 
saddles that support scattered ponderosa pines and a wide array of 
annual and perennial herbs and grasses.
    The role of landscape-level processes, including hydrology, seed 
dispersal, succession, fire, and other disturbances, in forming Zayante 
sand hills habitats is poorly understood. Historically, the Zayante 
sand hills included a continually changing pattern of habitat patches, 
each with specific disturbance histories, sizes, and species 
compositions. At any one time, patches of all possible stages of 
succession may be present (Lee 1994). Populations of the Zayante band-
winged grasshopper evolved within this dynamic landscape and most 
likely are adapted to disturbance and change.
    The habitat of the Zayante band-winged grasshopper was originally 
described as ``sandy substrate sparsely covered with Lotus and grasses 
at the base of pines'' (Rentz and Weissman 1984). All of the locations 
where grasshoppers were found during surveys completed between 1989 and 
1994 were on Zayante soils. The habitat at these sites was consistently 
described as a sparsely vegetated sandy substrate or sand parkland 
(White, in litt. 1993; Morgan, in litt. 1994). In 1997, at the time of 
the listing of this species, all of its known locations occurred within 
7 discrete areas of sand parkland habitat as characterized by Lee 
(1994). Recent studies indicated that the Zayante band-winged 
grasshopper occurs primarily in early successional sand parkland with 
widely scattered tree and shrub cover, extensive areas of bare or 
sparsely vegetated ground, loose sand, and relatively flat relief 
(Hovore 1996; Arnold 1999a, b). However, Zayante band-winged 
grasshoppers have also recently been observed in areas with a well-
developed ground cover and in areas with sparse chaparral mixed with 
patches of grasses and forbs (Hovore 1996; Arnold 1999a, b), indicating 
that Zayante band-winged grasshoppers are not restricted solely to sand 
    The primary threat to the Zayante band-winged grasshopper is loss 
of habitat. Historically, approximately 2,533 ha (6,265 ac) of Zayante 
sand hills habitat occurred in Santa Cruz County. Over 40 percent of 
the Zayante sand hills habitat, and 60 percent of the sand parkland 
within that habitat, is estimated to have been lost or altered due to 
human activities. These activities include: sand mining, urban 
development, recreational activities, and agriculture (Marangio and 
Morgan 1987; Lee 1994; R. Morgan, pers. comm. 1992). Approximately 200 
to 240 hectares (ha) (500 to 600 acres (ac)) of sand parkland existed 
historically (Marangio and Morgan 1987). By 1986, only 100 ha (250 ac) 
of sand parkland remained intact (Marangio and Morgan 1987). By 1992, 
sand parkland was reportedly reduced to only 40 ha (100 ac) (Morgan, 
pers. comm. 1992). A more recent assessment revised that estimate up to 
78 ha (193 ac), largely because of identification and inclusion of 
additional, lower-quality sand parkland (Lee 1994).
    The disruption of natural landscape-level processes may also be 
resulting in shifts in plant communities, which has reduced the extent 
and quality of habitat available for the Zayante band-winged 
grasshopper. For example, active suppression of fire has resulted in 
the encroachment of mixed evergreen forest into ponderosa pine forest 
(Marangio 1985). Increase shading from the mixed evergreen forest 
appears to restrict the use of areas by the Zayante band-winged 
grasshopper and results in lower population numbers (Sculley, USFWS, 
pers. observation 1999). Historically, fires would have burned in this 
area and resulted in areas with more exposure to sunlight. In addition, 
nonnative plant species, including Portuguese broom (Cystisus striatus) 
and sea fig (Carpobrotus chilensis), are out-competing native species 
and encroaching on sites occupied by the Zayante band-winged 
grasshopper (Rigney 1999). Pesticides and over-collection are also 
recognized as potential threats to the Zayante band-winged grasshopper 
(USFWS 1998).

[[Page 41919]]

Previous Federal Action

    On July 16, 1992, Dr. David Weissman, of the California Academy of 
Sciences, petitioned us to list the Zayante band-winged grasshopper as 
an endangered species. During our status review of the Zayante band-
winged grasshopper, we examined the available literature and data on 
the species' life history, ecology, locality records, and range. 
Sources of information on the status of and threats to the Zayante 
band-winged grasshopper included reports supplied by proponents of the 
listing, plans supplied by reviewing agencies for development projects, 
and published and unpublished data from scientists with expertise on 
the species and its habitat needs.
    On May 10, 1994, we published a proposed rule in the Federal 
Register (59 FR 24112) to list the Zayante band-winged grasshopper and 
two other insect species as endangered. The proposed rule constituted 
the final finding for the petitioned actions for the Zayante band-
winged grasshopper in accordance with section 4(b)(3)(B)(ii) of the 
Act. Publication of the proposed rule opened a 60-day public comment 
period through July 11, 1994, to allow submission of new and additional 
information on the species and written comments from the public. We 
held a public hearing on July 18, 1994, in Santa Cruz, California, that 
included presentations of oral testimony and written comments. We 
published a notice on September 1, 1994 (59 FR 45254) reopening the 
public comment period through October 31, 1994, to allow submission of 
additional comments and information concerning the proposed rule.
    Using information received during the cited public comment periods, 
we published a final rule on January 24, 1997 (62 FR 3616), determining 
the Zayante band-winged grasshopper and Mount Hermon June beetle 
(Polyphylla barbata), both occurring within the Zayante sand hills 
habitat, to be endangered species. At the time of listing, we concluded 
that designation of critical habitat for the Zayante band-winged 
grasshopper was not prudent because such designation would not benefit 
the species since all known populations of the species occur on non-
Federal lands where Federal involvement in land-use activities would 
not generally occur. On September 30, 1997, we made a draft recovery 
plan for the Zayante band-winged grasshopper, Mount Hermon June beetle, 
and three plants (Ben Lomond spineflower (Chorizanthe pungens var. 
hartwegiana), Ben Lomond wallflower (Erysimum teretifolium), and Scotts 
Valley spineflower (Chorizanthe robusta var. hartwegii)) available for 
public comment (62 FR 51126). We published the final recovery plan in 
September 1998.
    On March 4, 1999, the Southwest Center for Biological Diversity, 
the Center for Biological Diversity, and Christians Caring for Creation 
filed a lawsuit in the Northern District Court of California against 
the U.S. Fish and Wildlife Service and Bruce Babbitt, Secretary of the 
Department of the Interior, for failure to designate critical habitat 
for seven species: the Alameda whipsnake (Masticophis lateralis 
euryxanthus), the Zayante band-winged grasshopper, the Morro 
shoulderband snail (Helminthoglypta walkeriana), the arroyo 
southwestern toad (Bufo microscaphus californicus), the San Bernardino 
kangaroo rat (Dipodomys merriami parvus), the spectacled eider 
(Somateria fischeri), and the Steller's eider (Polysticta stelleri) 
(Southwest Center for Biological Diversity v. U.S. Fish and Wildlife, 
CIV 99-1003 MMC). On November 5, 1999, William Alsup, U.S. District 
Judge, dismissed the plaintiffs' lawsuit according to a settlement 
agreement entered into by the parties. Publication of this proposed 
rule is consistent with that settlement agreement.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management consideration 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon determination that 
such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered species or a threatened species to the 
point at which listing under the Act is no longer necessary.
    Section 4(b)(2) of the Act requires that we base critical habitat 
proposals upon the best scientific and commercial data available, after 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. We may 
exclude areas from critical habitat designation when the benefits of 
exclusion outweigh the benefits of including the areas within critical 
habitat, provided the exclusion will not result in extinction of the 
    Designation of critical habitat can help focus conservation 
activities for a listed species by identifying areas that contain the 
physical and biological features that are essential for conservation of 
that species. Designation of critical habitat alerts the public as well 
as land-managing agencies to the importance of these areas.
    Critical habitat also identifies areas that may require special 
management considerations or protection, and may provide protection to 
areas where significant threats to the species have been identified. 
Critical habitat receives protection from destruction or adverse 
modification through required consultation under section 7 of the Act 
with regard to actions carried out, funded, or authorized by a Federal 
agency. Section 7 also requires conferences on Federal actions that are 
likely to result in the adverse modification or destruction of proposed 
critical habitat. Aside from the protection that may be provided under 
section 7, the Act does not provide other forms of protection to lands 
designated as critical habitat.
    Section 7(a)(2) of the Act requires Federal agencies to consult 
with us to ensure that any action they authorize, fund, or carry out is 
not likely to jeopardize the continued existence of a threatened or 
endangered species, or result in the destruction or adverse 
modification of critical habitat. In 50 CFR 402.02, ``jeopardize the 
continued existence'' (of a species) is defined as engaging in an 
activity likely to result in an appreciable reduction in the likelihood 
of survival and recovery of a listed species. ``Destruction or adverse 
modification'' (of critical habitat) is defined as a direct or indirect 
alteration that appreciably diminishes the value of critical habitat 
for the survival and recovery of the listed species for which critical 
habitat was designated. Thus, the definitions of ``jeopardy'' to the 
species and ``adverse modification'' of critical habitat are nearly 
    Designating critical habitat does not, in itself, lead to recovery 
of a listed species. Designation does not create a management plan, 
establish numerical population goals, prescribe specific management 
actions (inside or outside of critical habitat), or directly affect 
areas not designated as critical habitat. Specific management 
recommendations for areas designated as critical habitat are most 
appropriately addressed in recovery, conservation and management plans, 
and through section 7 consultations and section 10 permits.

[[Page 41920]]

    This critical habitat designation identifies an area that has 
features that are essential to the conservation of the Zayante band-
winged grasshopper and that may require special management 
considerations or protection. The proposed critical habitat contains a 
mosaic of habitats that provide breeding, foraging, sheltering, and 
living spaces for the grasshopper.


    In determining areas that are essential to conserve the Zayante 
band-winged grasshopper, we included data from research and surveys 
published in peer-reviewed articles and unpublished reports, data 
submitted by biologists holding section 10(a)(1)(A) recovery permits, 
data from monitoring reports required for incidental take permits under 
section 10(a)(1)(B) of the Act, soil maps, and the recovery criteria 
outlined in the recovery plan (USFWS 1998). The area we are proposing 
to designate as critical habitat currently provides those habitat 
components essential for the primary biological needs of the Zayante 
band-winged grasshopper, as defined by the primary constituent 
elements, and maintains the ecosystem functions.

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 are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features (primary constituent elements) that 
are essential to the conservation of the species. These include, but 
are not limited to, space for individual and population growth and for 
normal behavior; food, water, air, light, minerals, and other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, rearing (or development) of offspring; 
protection from disturbance; and habitats that are representative of 
the historic geographical and ecological distributions of a species.
    The primary constituent elements for the Zayante band-winged 
grasshopper are those physical and biological features that provide 
conditions that are essential for the primary biological needs of 
thermoregulation, foraging, sheltering, reproduction, and dispersal. 
The primary constituent elements are: (a) The presence of Zayante 
soils, (b) the occurrence of Zayante sand hills habitat and the 
associated plant species, and (c) certain microhabitat conditions, 
including areas that receive large amounts of sunlight, widely 
scattered tree and shrub cover, bare or sparsely vegetated ground, and 
loose sand (Arnold 1999a, b). Zayante sand hills habitat is often 
characterized by plant species associated with ponderosa pine sand 
parkland and/or silverleaf manzanita mixed chaparral as described by 
Marangio (1985) and Lee (1994). Plant species that may occur within the 
boundaries include, but are not limited to: ponderosa pine, silver-
leafed manzanita, California lilac (Ceonothus sp.), Adenostoma sp., 
yerba santa (Eriodictyon sp.), sandwort (Minuartia sp.), pussypaws 
(Calyptridium umbellatum), monkeyflower (Mimulus rattanii), miniature 
lupine (Lupinis bicolor), gilia (Gilia tenuiflora), California aster 
(Lessingia filaginifolia), Ben Lomond buckwheat (Eriogonum nudum ssp. 
decurrens), Ben Lomond wallflower, and Ben Lomond spineflower (Lee 
1984; USFWS 1998; McGraw in litt. 1999). Of these plant species, Ben 
Lomond wallflower and Ben Lomond spineflower are also federally 
endangered and are addressed within the same recovery plan as the 
Zayante band-winged grasshopper and the Mount Hermon June beetle.
    Areas where surveys for Zayante band-winged grasshopper have not 
been conducted, but are adjacent or contiguous with known occupied 
habitat, are also essential to the species. Not only is there a 
potential that these areas contain grasshoppers, the areas are 
necessary because they: (1) Provide and maintain the ecosystem 
functions, including, but not limited to, hydrologic processes, 
succession, seed dispersal, and natural disturbance regimes, necessary 
to support populations of the Zayante band-winged grasshopper; (2) 
provide a means of connecting occupied areas so that the deleterious 
effects of isolation are minimized; and (3) increase the area available 
to the species in case of localized, random catastrophic events, thus 
decreasing the potential for extirpation of populations. As 
successional changes occur over time, these adjacent areas will also 
provide the grasshopper with suitable habitat.

Criteria Used To Identify Critical Habitat

    In an effort to identify areas essential for the conservation of 
the species, we evaluated information on Zayante soils, plant 
communities associated with these soils, and the distribution, life 
history, and habitat requirements of the Zayante band-winged 
grasshopper. Using a geographic information system (GIS), maps of the 
Zayante soil series were generated. We determined that published maps 
of the Zayante soil series were imprecise for our needs and did not 
always account for gradients between soil types. Therefore, a 60-m 
(200-ft) zone was mapped around the soils to account for possible 
inaccuracies in the current maps. We arrived at a 60-m zone based on 
recommendations by the Natural Resources Conservation Service (NRCS), 
the agency familiar with the techniques used to map soils and the 
distribution of Zayante soils (R. Casale, NRCS, USDA, pers comm. 2000).
    Next, the known locations of the Zayante band-winged grasshopper 
were overlaid on the map of Zayante soil series. Areas considered 
occupied by the grasshopper, and included within the boundaries of 
critical habitat, are areas where grasshoppers have been located and 
areas with Zayante soils that were adjacent to or contiguous with known 
locations of the grasshopper. These contiguous and adjacent areas were 
included in order to create patches large enough in size to maintain 
ecosystem functions and to connect habitat patches into a larger area 
so that populations do not become isolated and localized random or 
catastrophic events do not cause smaller populations to be extirpated. 
Over time, as succession occurs and vegetation encroaches on areas 
currently inhabited by the Zayante band-winged grasshopper, populations 
may disperse into these adjacent patches of habitat.
    We considered sites identified in the recovery plan as important 
for the recovery of the Zayante band-winged grasshopper. While recovery 
units were not specifically described, the recovery plan recommends 
protecting the 7 discrete areas of sand parkland (Lee 1994), containing 
the 10 sites occupied by the species, as one criterion for down-listing 
to threatened status. These seven areas were included within the 
boundaries of the proposed critical habitat. Additional areas were also 
included that have the constituent elements for the species, because 
new information about the range, distribution, and habitat requirements 
of the Zayante band-winged grasshopper indicates that the species 
occupies areas that are outside of these seven discrete areas and that 
are not considered sand parkland. Furthermore, sand hills habitat 
adjacent and contiguous with these seven areas is essential to maintain 
landscape level processes.
    We determined that approximately 3,620 ha (8,700 ac) of Zayante 
soils are scattered throughout Santa Cruz County. The soils occur from 
west of the community of Bonny Doon east to Corralitos, and from the 
northern portion of Wilder Ranch State Park

[[Page 41921]]

north to the communities of Boulder Creek, Lompico, and Zayante. 
Several patches are also located near the City of Scotts Valley. The 
largest cluster of these soils occurs between Highways 9 and 17, 
surrounding the communities of Scotts Valley, Zayante, Lompico, Ben 
Lomond, Felton, and Mount Hermon. Surveyors of the Zayante band-winged 
grasshopper have focused their efforts in this region, and, at present, 
all of the known locations of this species are from this region. 
Zayante soils located in the eastern portion of Santa Cruz County in 
the vicinity of Corralitos do not support vegetation characteristic of 
the Zayante sand hills habitat.
    We excluded from the proposed critical habitat areas that have not 
been surveyed for the Zayante band-winged grasshopper and that are not 
part of a continuous corridor of Zayante soils that include known 
localities of the grasshopper. Although these areas have been excluded, 
we recognize that they may still include habitat presently or 
historically occupied by the Zayante band-winged grasshopper. In 
addition, these unsurveyed areas may include habitat appropriate for 
introduction of Zayante band-winged grasshoppers in the future. If we 
determine that areas outside of the boundaries of the designated 
critical habitat are important for the conservation of this species, we 
may propose these additional areas as critical habitat in the future.
    We defined the boundaries for the proposed critical habitat using 
township, range, and section numbers from the public land survey. We 
propose to designate approximately 4,230 ha (10,560 ac) of land as 
critical habitat for the Zayante band-winged grasshopper. Of this area, 
1,600 ha (3,950 ac) are lands with Zayante soils and sand hills 
habitat. The remaining 2,630 ha (6,610 ac) of critical habitat are 
areas that either support the processes necessary to maintain ecosystem 
functions and required habitat conditions or were included due to 
insufficient mapping detail (as described below).
    We did not map critical habitat in sufficient detail to exclude all 
developed areas such as towns, housing developments, and other similar 
lands. Areas of existing features and structures within the unit 
boundaries, such as buildings, roads, aqueducts, railroads, airports, 
and paved areas, do not contain one or more of the primary constituent 
elements and do not support the processes necessary to maintain the 
required ecosystem functions. Federal actions limited to these areas, 
therefore, would not trigger a section 7 consultation, unless they 
affect the species and/or the primary constituent elements in adjacent 
critical habitat.
    We also considered the existing status of lands in designating 
areas as critical habitat. Section 10(a) of the Act authorizes us to 
issue permits for the take of listed species incidental to otherwise 
lawful activities. An incidental take permit application must be 
supported by a Habitat Conservation Plan (HCP) that identifies 
conservation measures that the permittee agrees to implement for the 
species to minimize and mitigate the impacts of the requested 
incidental take. Non-Federal lands that are covered by an existing 
operative HCP and executed implementation agreement (IA) for the 
Zayante band-winged grasshopper under section 10(a)(1)(B) of the Act 
receive special management and protection under the terms of the HCP/IA 
and are therefore not proposed for inclusion in critical habitat since 
they do not meet the definition of critical habitat as defined by 
section 3(5) of the Act.
    We expect that critical habitat may be used as a tool to help 
identify areas within the range of the Zayante band-winged grasshopper 
that are essential for the conservation of the species. Critical 
habitat designation is not intended to discourage the development of 
HCPs for such areas on non-Federal lands. To the contrary, we consider 
HCPs to be one of the most important methods through which non-Federal 
landowners can help conserve listed species while resolving potential 
land-use conflicts. We provide technical assistance and work closely 
with applicants throughout the development of HCPs to help identify 
special management considerations for listed species. We intend that 
HCPs provide a package of protection and management measures sufficient 
to address the conservation needs of the species.

Proposed Critical Habitat Designation

    The approximate area encompassing proposed critical habitat within 
Santa Cruz County by land ownership is shown in Table 1. The proposed 
critical habitat includes Zayante band-winged grasshopper habitat 
throughout the existing known range of the species. Land proposed for 
critical habitat is under private, local government, and State 
ownership, and is described within one unit. A brief description of 
this unit is presented below.

   Table 1.--Approximate Area Within Santa Cruz County Encompassing Proposed Critical Habitat In hectares (ha)
                                         (acres (ac)) by land ownership

            County               Federal Land     Local/State Land        Private Land            Total \1\
Santa Cruz...................  N/A............  250 ha                3,980 ha              4,230 ha
                                                (610 ac)              (9,950 ac)            (10,560 ac)
\1\ Area estimates reflect critical habitat unit boundaries, not the extent of the primary constituent elements
  within the unit.

Proposed Critical Habitat Unit

    The Proposed Critical Habitat Unit (Unit) encompasses approximately 
4,230 ha (10,560 ac) between Highways 9 and 17. Most of the lands 
designated as critical occur from the southeastern portion of Henry 
Cowell Redwoods State Park west to the City of Scotts Valley and north 
to the communities of Ben Lomond, Lompico, and Zayante. A small area 
proposed for critical habitat is located east of Zayante in the 
vicinity of Weston Road.
    Public lands that occur in this Unit include approximately 130 ha 
(310 ac) in Henry Cowell Redwoods State Park, owned and managed by the 
California Department of Parks and Recreation, and all of Quail Hollow 
Park (120 ha (300 ac)), jointly owned and managed by the County of 
Santa Cruz and the California Department of Fish and Game. Areas 
covered in the Revised Habitat Conservation Plan for Quail Hollow 
Quarry (Graniterock 1998) and the Habitat Conservation Plan for Hanson 
Aggregates' Felton Plant (Hanson Aggregates 1999) have been excluded 
from designation as critical habitat. See section ``Relationship to 
Habitat Conservation Plans'' for further discussion of these plans.

Effects of Critical Habitat Designation

Section 7  Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out do 
not destroy or

[[Page 41922]]

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 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 the agency in eliminating 
conflicts that may be caused by the proposed action. The conservation 
recommendations in a conference report are advisory.
    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 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 (action agency) 
must enter into consultation with us. Through this consultation, we 
would ensure that the permitted actions do not destroy or adversely 
modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Director 
believes would avoid the likelihood of jeopardizing the continued 
existence of listed species and 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 
    Activities on private or State lands requiring a permit from a 
Federal agency or some other Federal action, including funding (e.g., 
Federal Highway Administration, Federal Aviation Administration, or 
Federal Emergency Management Agency), will also be subject to the 
section 7 consultation process. Federal actions not affecting listed 
species or critical habitat and actions on non-Federal lands that are 
not federally funded, authorized, or permitted do not require section 7 
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may adversely 
modify such habitat, or that may be affected by such designation. 
Activities that may destroy or adversely modify critical habitat 
include those that alter the primary constituent elements to an extent 
that the value of critical habitat for both the survival and recovery 
of the Zayante band-winged grasshopper is appreciably reduced. We note 
that such activities may also jeopardize the continued existence of the 
species. Activities that, when carried out, funded, or authorized by a 
Federal agency, may destroy or adversely modify critical habitat 
include, but are not limited to:
    (1) Excavating, compacting, grading, or discing of soil, and 
vegetation removal;
    (2) Violations of grading, mining, or construction permits within 
critical habitat;
    (3) Recreational activities that crush and remove vegetation or 
compact soils, including off-trail hiking, horse riding, and off-road 
motorized and non-motorized vehicular use in critical habitat;
    (4) Application of pesticides within critical habitat beyond the 
boundaries of maintained lawns and gardens or in violation of label 
    (5) Activities that could lead to the introduction of exotic 
species into critical habitat; and
    (6) Activities that cause erosion of soils in critical habitat.
    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 critical habitat of the listed species. 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. In those cases, the ramifications of 
its designation are few or none. Designation of critical habitat for 
the Zayante band-winged grasshopper is not likely to result in a 
regulatory burden above that already in place due to the presence of 
the listed species. We believe that designation of critical habitat 
would have little effect on Federal agencies because no proposed 
critical habitat occurs on Federal lands, and we are not aware of any 
federally funded or federally permitted actions planned to take place 
in critical habitat.

[[Page 41923]]

Relationship to Habitat Conservation Plans

    Two HCPs have been completed within the range of the Zayante band-
winged grasshopper. Both HCPs are for sand mining operations and both 
provide take authorization for the Zayante band-winged grasshopper. The 
Revised Habitat Conservation Plan for the Quail Hollow Quarry owned and 
operated by Granite Rock Company provides for the permanent protection 
and management of three conservation areas known to be occupied by the 
Zayante band-winged grasshopper and that total 26.3 ha (65.8 ac) in 
area (Granite Rock 1998). The Habitat Conservation Plan for the Felton 
Plant owned and operated by Hanson Aggregates provides for the 
permanent protection and management of two habitat set-asides known to 
be occupied by the Zayante band-winged grasshopper and that total 8.5 
ha (21.3 ac) in area (Hanson Aggregates 1999). In addition, both HCPs 
provide minimization measures to reduce the potential impacts of the 
sand-mining operations on the Zayante band-winged grasshopper. Because 
the habitat for the Zayante band-winged grasshopper preserved in the 
conservation areas is managed for the benefit of this species, there 
are no additional management considerations or protections required for 
those lands covered under the HCP. Therefore, we have determined that 
non-Federal lands within approved HCP planning areas for the Zayante 
band-winged grasshopper do not meet the definition of critical habitat 
in the Act, and we are not proposing designation of such lands as 
critical habitat.
    Habitat conservation plans that may be developed in the future will 
be intended to provide for protection and management of habitat areas 
essential for the conservation of the Zayante band-winged grasshopper, 
while directing development and habitat modification to nonessential 
areas of lower habitat value. The HCP development process provides an 
opportunity for more intensive data collection and analysis regarding 
the use of particular habitat areas by the grasshopper. The process 
also enables 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 interlinked habitat 
blocks. We fully expect that HCPs undertaken by local jurisdictions 
(e.g., cities and counties) and other parties will identify, protect, 
and provide appropriate management for those specific lands within the 
boundaries of the plans that are essential for the long-term 
conservation of the species. We believe and fully expect that our 
analyses of these proposed HCPs and proposed permits under section 7 
will show that covered activities carried out in accordance with the 
provisions of the HCPs and permits will not result in destruction or 
adverse modification of critical habitat. We are soliciting comments on 
whether future approval of HCPs and issuance of section 10(a)(1)(B) 
permits for the Zayante band-winged grasshopper should trigger revision 
of designated critical habitat to exclude lands within the HCP area 
and, if so, by what mechanism (see Public Comments Solicited section).
    If you have questions regarding whether specific activities will 
constitute adverse modification of critical habitat, contact the Field 
Supervisor, Ventura Fish and Wildlife Office (see ADDRESSES section). 
Requests for copies of the regulations on listed wildlife, and 
inquiries about prohibitions and permits may be addressed to the U.S. 
Fish and Wildlife Service, Branch of Endangered Species, 911 N.E. 11th 
Ave, Portland, OR 97232 (telephone 503/231-2063; facsimile 503/231-

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 designating these areas as critical 
habitat. We cannot exclude such areas from critical habitat when the 
exclusion will result in the extinction of the species. 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 reopen the comment period 
30 days at that time to accept comments on the economic analysis or 
further comments on the proposed rule.

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 particularly seek comments 
    (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 benefits of designation will outweigh any benefits of 
    (2) Specific information on the amount and distribution of habitat 
for the Zayante band-winged grasshopper, and what habitat is essential 
to the conservation of the species and why;
    (3) Land use practices 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, especially, any impacts on 
small entities or families; and,
    (5) Economic and other values associated with designating critical 
habitat for the Zayante band-winged grasshopper, 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 
    In this proposed rule, we do not propose to designate critical 
habitat on non-Federal lands within the boundaries of an existing 
approved HCP with an executed IA for the Zayante band-winged 
grasshopper approved under section 10(a)(1)(B) of the Act on or before 
the date of the final rule designating critical habitat for the 
grasshopper. We believe that, since an existing HCP provides for long-
term commitments to conserve the species and areas essential to the 
conservation of the Zayante band-winged grasshopper, such areas do not 
meet the definition of critical habitat because they do not need 
special management considerations or protection. However, we are 
specifically soliciting comments on the appropriateness of this 
approach, and on the following or other alternative approaches for 
critical habitat designation in areas covered by existing approved 
    (1) Designate critical habitat without regard to existing HCP 
boundaries and allow the section 7 consultation process on the issuance 
of the incidental take permit to ensure that any take we authorized 
will not destroy or adversely modify critical habitat; and
    (2) Designate reserves, preserves, and other conservation lands 
identified by approved HCPs, on the premise that they encompass areas 
that are essential to conservation of the species within the HCP area 
and that will continue to

[[Page 41924]]

require special management protection in the future. Under this 
approach, all other lands covered by existing approved HCPs where 
incidental take for the Zayante band-winged grasshopper is authorized 
under a legally operative permit pursuant to section 10(a)(1)(B) of the 
Act would be excluded from critical habitat.
    The amount of critical habitat we designate for the Zayante band-
winged grasshopper in a final rule may either increase or decrease, 
depending upon which approach we adopt for dealing with designation in 
areas of existing approved HCPs.
    In addition, we invite comments on the following or other 
approaches for addressing critical habitat within the boundaries of 
future approved HCPs upon issuance of section 10(a)(1)(B) permits for 
the Zayante band-winged grasshopper:
    (1) Retain critical habitat designation within the HCP boundaries 
and use the section 7 consultation process on the issuance of the 
incidental take permit to ensure that any take we authorize will not 
destroy or adversely modify critical habitat;
    (2) Revise the critical habitat designation upon approval of the 
HCP and issuance of the section 10(a)(1)(B) permit to retain only 
preserve areas, on the premise that they encompass areas essential for 
the conservation of the species within the HCP area and require special 
management and protection in the future. Assuming that we conclude, at 
the time an HCP is approved and the associated incidental take permit 
is issued, that the plan protects those areas essential to the 
conservation of the Zayante band-winged grasshopper we would revise the 
critical habitat designation to exclude areas outside the reserves, 
preserves, or other conservation lands established under the plan. 
Consistent with our listing program priorities, we would publish a 
proposed rule in the Federal Register to revise the critical habitat 
    (3) As in (2) above, retain only preserve lands within the critical 
habitat designation, on the premise that they encompass areas essential 
for conservation of the species within the HCP area and require special 
management and protection in the future. However, under this approach, 
the exclusion of areas outside the preserve lands from critical habitat 
would occur automatically upon issuance of the incidental take permit. 
The public would be notified and have the opportunity to comment on the 
boundaries of the preserve lands and the revision of designated 
critical habitat during the public review and comment process for HCP 
approval and permitting;
    (4) Remove designated critical habitat entirely from within the 
boundaries of an HCP when the plan is approved (including preserve 
lands), on the premise that the HCP establishes long-term commitments 
to conserve the species, and no further special management or 
protection is required. Consistent with our listing program priorities, 
we would publish a proposed rule in the Federal Register to revise the 
critical habitat boundaries; or
    (5) Remove designated critical habitat entirely from within the 
boundaries of an HCP when the plan is approved (including preserve 
lands), on the premise that the HCP establishes long-term commitments 
to conserve the species, and no additional special management or 
protection is required. This exclusion from critical habitat would 
occur automatically upon issuance of the incidental take permit. The 
public would be notified and have the opportunity to comment on the 
revision of designated critical habitat during the public notification 
process for HCP approval and permitting.
    If comments are submitted electronically, please submit them in 
ASCII file format and avoid the use of special characters and 
encryption. Please include Attn: RIN 1018-AG28 and your name and return 
address in your e-mail message. If you do not receive a confirmation 
from the system that we have received your e-mail message, contact us 
directly by calling our Ventura Fish and Wildlife Office at phone 
number 805/644-1766.
    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. 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.

Peer Review

    In accordance with our policy published in the Federal Register on 
July 1, 1994 (59 FR 34270), we will seek the expert opinions of at 
least 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 designation of critical habitat.
    We will consider all comments and information received during the 
60-day comment period on this proposed rule during preparation of a 
final rulemaking. Accordingly, the final decision may differ from this 

Public Hearings

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

Clarity of the Rule

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

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule and has been reviewed by the Office of Management and 
Budget (OMB), under Executive Order 12866.
    (a) This rule will not have an annual economic effect of $100 
million or more or adversely affect an economic sector, productivity, 
jobs, the environment, or

[[Page 41925]]

other units of government. The Zayante band-winged grasshopper was 
listed as an endangered species in 1997. In fiscal years 1997 through 
1999, we received no requests for consultation from other Federal 
agencies to ensure that their actions would not jeopardize the 
continued existence of the Zayante band-winged grasshopper.
    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 (Table 2). Section 7 requires Federal agencies to ensure that 
they do not jeopardize the continued existence of the species. Based 
upon our experience with the species and its needs, we conclude 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'' under the Act. Accordingly, the 
designation of critical habitat does not 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. Non-
Federal persons that do not have a Federal ``sponsorship'' of their 
actions are not restricted by the designation of critical habitat 
(however, they continue to be bound by the provisions of the Act 
concerning take of the species).

          Table 2.--Impacts of Zayante Band-Winged Grasshopper Listing and Critical Habitat Designation
                                                                               Additional Activities Potentially
     Categories of activities           Activities potentially affected by        Affected by Critical Habitat
                                             species listing only \1\                    Designation\1\
Federal Activities Potentially      None (there is no Federal land within the  None.
 Affected \2\.                       range of the species).
Private or other non-Federal        Activities that require a Federal action   None.
 Activities Potentially Affected     (permit, authorization, or funding) and
 \3\.                                may remove or destroy Zayante band-
                                     winged grasshopper habitat by
                                     mechanical, chemical, or other means
                                     (e.g., grading, overgrazing,
                                     construction, road building, herbicide
                                     application, recreational use) or
                                     appreciably decrease habitat value or
                                     quality through indirect effects (e.g.,
                                     edge effects, invasion of exotic plants
                                     or animals, fragmentation of habitat).
\1\ These columns represent 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

    (b) This rule will not 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 
the Zayante band-winged grasshopper since the listing in 1997. The 
prohibition against adverse modification of critical habitat is not 
expected to impose any additional restrictions to those that currently 
exist in the proposed critical habitat. However, we will continue to 
review this proposed action for any inconsistencies with other Federal 
agency actions.
    (c) This rule will not materially 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 critical habitat. We expect little 
effect given that there are no Federal lands designated as critical 
habitat, and no Federal nexuses for lands designated as critical 
habitat have been identified at this time.
    (d) This rule will not raise novel legal or policy issues. The 
proposed rule follows the requirements for determining critical habitat 
contained in the Endangered Species Act.

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

    In the economic analysis (under section 4 of the Act), we will 
determine whether designation of critical habitat will have a 
significant effect on a substantial number of small entities. As 
discussed under Regulatory Planning and Review above, this rule is not 
expected to result in any restrictions in addition to those currently 
in existence for areas of critical habitat. As indicated on Table 1 
(see Proposed Critical Habitat Designation section), we propose 
designation of property owned by State and local governments and 
private property and identify the types of Federal actions or 
authorized activities that are of potential concern. If these 
activities are sponsored by Federal agencies, they may be carried out 
by small entities (as defined by the Regulatory Flexibility Act) 
through contract, grant, permit, or other Federal authorization. As 
discussed above, these actions are currently required to comply with 
the listing protections of the Act, and the designation of critical 
habitat is not anticipated to have any additional effects on these 
activities in areas of critical habitat. For actions on non-Federal 
property that do not have a Federal connection (such as funding or 
authorization), the current restrictions concerning take of the species 
remain in effect, and this rule will have no additional restrictions.

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

    In the economic analysis, we will determine whether designation of 
critical habitat will cause (a) any effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions in the economic analysis, or (c) any significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. As discussed above, we anticipate that the 
designation of critical habitat will not have any additional effects on 
these activities in areas of critical habitat.

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 will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that any programs 
having Federal funds, permits

[[Page 41926]]

or other authorized activities must ensure that their actions will not 
adversely affect the critical habitat. However, as discussed above, 
these actions are currently subject to equivalent restrictions through 
the listing protections of the species, and no further restrictions are 
anticipated to result from critical habitat designation.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year, that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The designation of 
critical habitat imposes no obligations on State or local governments.


    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. As discussed above, the designation of critical habitat 
affects only Federal agency actions. The rule will not increase or 
decrease the current restrictions on private property concerning take 
of the Zayante band-winged grasshopper. Due to current public knowledge 
of the species protection, the prohibition against take of the species 
both within and outside of the designated areas, and the fact that 
critical habitat provides no incremental restrictions, we do not 
anticipate that property values will be affected by the critical 
habitat designation. Additionally, critical habitat designation does 
not preclude development of habitat conservation plans and issuance of 
incidental take permits. Landowners in areas that are included in the 
designated critical habitat will continue to have opportunity to 
utilize their property in ways consistent with the survival of the 
Zayante band-winged grasshopper.


    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 and Department of 
Commerce policy, the Service requested information from and coordinated 
development of this critical habitat proposal with appropriate State 
resource agencies in California. We will continue to coordinate any 
future designation of critical habitat for the Zayante band-winged 
grasshopper with the appropriate State agencies. The designation of 
critical habitat in areas currently occupied by the Zayante band-winged 
grasshopper imposes no additional restrictions to those currently in 
place and, therefore, has little incremental impact on State and local 
governments and their activities. The designation may have some benefit 
to these governments in that the areas essential to the conservation of 
the species are more clearly defined, and the primary constituent 
elements of the habitat necessary to the survival of the species are 
specifically identified. While making this definition and 
identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We designate critical habitat in accordance with the 
provisions of the Act, and plan public hearings on the proposed 
designation during the comment period. 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 the Zayante band-winged grasshopper.

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

    This rule does not contain any information collection requirements 
for which Office of Management and Budget approval under the Paperwork 
Reduction Act is required. An Agency may not conduct or sponsor, and a 
person is not required to respond to a collection of information unless 
it displays a valid OMB Control Number.

National Environmental Policy Act

    We have determined that 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 Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

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) and 512 DM 2, we understand that Federally 
recognized Tribes must be related to on a Government-to-Government 
    We have determined that no Tribal lands are essential for the 
conservation of the Zayante band-winged grasshopper because they do not 
support populations or suitable habitat. Therefore, we are not 
proposing to designate critical habitat for the Zayante band-winged 
grasshopper on Tribal lands.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Ventura Fish and Wildlife Office (see 
ADDRESSES section).


    The primary author of this notice is Colleen Sculley, Ventura Fish 
and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    For the reasons given in the preamble, we propose to amend 50 CFR 
part 17 as set forth below:


    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. 17.11(h) revise the entry for ``grasshopper, Zayante 
band-winged'' under ``Insects'' to read as follows:

Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 41927]]

                         Species                                                            Vertebrate
----------------------------------------------------------                                  population
                                                                   Historic range              where        Status     When    Critical   Special rules
            Common name                Scientific name                                     endangered or              listed   habitat

                   *                  *                  *                  *                  *                  *                  *

                   *                  *                  *                  *                  *                  *                  *
Grasshopper, Zayante band-winged..  Trimerotropis          U.S.A. (CA)..................             NA          E       605   17.95(i)  NA

                   *                  *                  *                  *                  *                  *                  *

    3. Amend Sec. 17.95(i) by adding critical habitat for the Zayante 
band-winged grasshopper (Trimerotropis infantilis), in the same 
alphabetical order as the species occurs in Sec. 17.11(h).

Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.
* * * * *
    ZAYANTE BAND-WINGED GRASSHOPPER (Trimerotropis infantilis)

    1. The unit of critical habitat is depicted for Santa Cruz 
County, California, on the map below.

[[Page 41928]]



[[Page 41929]]

    2. Within this area, the primary constituent elements for the 
Zayante band-winged grasshopper are those physical and biological 
elements that provide conditions that are essential for the primary 
biological needs of thermoregulation, foraging, sheltering, 
reproduction, and dispersal. The primary constituent elements are: 
(a) the presence of Zayante soils, (b) the occurrence of Zayante 
sand hills habitat and the associated plant species, and (c) certain 
microhabitat conditions, including areas that receive large amounts 
of sunlight, widely scattered tree and shrub cover, bare or sparsely 
vegetated ground, and loose sand. Zayante sand hills habitat is 
characterized by plant species associated with ponderosa pine sand 
parkland and/or silverleaf manzanita mixed chaparral. Plant species 
that may occur within the boundaries include, but are not limited 
to: ponderosa pine (Pinus ponderosa), silver-leafed manzanita 
(Arctostaphylos silvicola), California lilac (Ceonothus sp.), 
Adenostoma sp., yerba santa (Eriodictyon sp.), sandwort (Minuartia 
sp.), pussypaws (Calyptridium umbellatum), Ben Lomond spineflower 
(Erysimum teretifolium), monkeyflower (Mimulus rattanii), miniature 
lupine (Lupinis bicolor), gilia (Gilia tenuiflora), California aster 
(Lessingia filaginifolia), Ben Lomond buckwheat (Eriogonum nudum 
ssp. decurrens), and Ben Lomond spineflower (Chorizanthe pungens 
var. hartwegiana).
    3. Critical habitat does not include existing developed sites 
consisting of buildings, roads, aquaducts, railroads, airports, 
paved areas, and similar features and structures.
    Santa Cruz County, California. Boundaries are based upon the 
Public Land Survey System. Within the historical boundaries of the 
Land Grants of Zayanta, San Augustin, La Carbonera, and Canada Del 
Rincon En El Rio San Lorenzo De Santa Cruz, boundaries are based 
upon section lines that are extensions to the Public Land Survey 
System developed by the California Department of Forestry and 
obtained by the Service from the State of California's Stephen P. 
Teale Data Center. Township and Range numbering is derived from the 
Mount Diablo Base and Meridian. The following lands located within 
Santa Cruz County are being proposed for critical habitat: T.9 S., 
R.1 W., SE\1/4\ sec. 31; T.9 S., R.2 W., SE\1/4\ sec. 33, E\1/2\ 
sec. 34, SW\1/4\ sec 35, S\1/2\ sec 3; T.10 S., R1 W., W\1/2\ sec. 
6; T.10 S., R.2 W., sec. 1, S\1/2\ NW\1/4\ sec. 2, sec. 3, W\1/2\ 
sec. 4, W\1/2\ sec 9, sec. 10, sec. 11, sec. 13, sec. 14, N\1/2\ 
SE\1/4\ sec. 15, NE\1/4\ sec. 22, secs. 23-26, N\1/2\ sec. 35, sec 
36, excluding all lands covered under the Revised Habitat 
Conservation Plan for the Quail Hollow Quarry and the Habitat 
Conservation Plan for the Hanson Aggregates' Felton Plant.

    Dated: June 28, 2000.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-17259 Filed 7-6-00; 8:45 am]