2000 Federal Register, 41917; Centralized Library: U.S. Fish and Wildlife Service

[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]
[DOCID:fr07jy00-17]

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DEPARTMENT OF THE INTERIOR

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.

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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
fw1grasshopper@r1.fws.gov.
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.

SUPPLEMENTARY INFORMATION:

Background

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
parkland.
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
species.
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
identical.
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.

Methods

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
habitat.
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
consultation.
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
restrictions;
(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-
6243).

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
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 benefits of designation will outweigh any benefits of
exclusion;
(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
costs).
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
HCPs:
(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
boundaries;
(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
proposal.

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
funding.

(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.

Takings

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.

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 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
basis.
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).

Author

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:

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. 17.11(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
threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
INSECTS

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

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

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.
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[GRAPHIC] [TIFF OMITTED] TP07JY00.000

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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]
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