2002 Federal Register, 67 FR 62897; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: October 9, 2002 (Volume 67, Number 196)]
[Rules and Regulations]
[Page 62897-62910]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09oc02-15]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG92

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat pursuant to the Endangered Species Act of 1973, as
amended (Act), for Thlaspi californicum (Kneeland Prairie penny-cress).
The critical habitat consists of one unit whose boundaries encompass a
total area of approximately 30 hectares (74 acres) in Humboldt County,
California. Section 7 of the Act requires Federal agencies to ensure
that any actions they fund, authorize, or carry out do not result in
the destruction or adverse modification of critical habitat. As
required by section 4 of the Act, we considered economic and other
relevant impacts prior to making a final decision on the size and
configuration of the critical habitat unit.

DATES: This rule is effective November 8, 2002.

ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule are available
for inspection, by appointment, during normal business hours at the
U.S. Fish and Wildlife Service Office, Arcata Fish and Wildlife Office,
1655 Heindon Road, Arcata, CA 95521.

FOR FURTHER INFORMATION CONTACT: Bruce Halstead, Project Leader, Arcata
Fish and Wildlife Office, at the above address (telephone 707/822-7201;
facsimile 707/822-8411).

SUPPLEMENTARY INFORMATION:

Background

Thlaspi californicum (Kneeland Prairie penny-cress) is a perennial
member of the mustard family (Brassicaceae). The species grows from 9.5
to 12.5 centimeters (3.7 to 4.9 inches) tall with a basal cluster of
green to purplish, sparsely toothed leaves. Leaves borne along the stem
are sessile (without a stalk) with entire to toothed margins. The white
flowers have strongly ascending flower stalks. Thlaspi californicum
flowers from April to June. The fruit is a sharply pointed silicle (a
short fruit typically no more than two to three times longer than
wide), and is elliptic to obovate, without wings, and with an ascending
stalk.
Serano Watson (1882) first described Thlaspi californicum based on
a collection made by Volney Rattan from among rocks at Kneeland Prairie
at 760 meters (m) (2,500 feet (ft)) elevation. Jepson (1925) later
referred to it as T. alpestre var. californicum. Munz (1959) referred
to the taxon as T. glaucum var. hesperium; however, he segregated it as
T. californicum in his supplement (Munz 1968). Holmgren (1971) assigned
the name Thlaspi montanum var. californicum. Finally, the taxon was
returned to T. californicum in the current Jepson Manual (Hickman 1993,
Rollins 1993).
Thlaspi californicum is endemic to serpentine soils in Kneeland
Prairie, located in the outer north coast range of Humboldt County,
California. Serpentine soils are derived from ultramafic rocks (rocks
with unusually large amounts of magnesium and iron). The entire known
distribution of T. californicum occurs on Ashfield Ridge at elevations
ranging from 792 to 841 m (2,600 to 2,760 ft).
Plant communities in Kneeland Prairie include the following:
California annual and introduced perennial grasslands; seasonal and
perennial wetlands; and mixed oak/Douglas-fir (Pseudotsuga menziesii)
woodlands (SHN 1997). Boulder outcrops in Kneeland Prairie form
scattered knobs that protrude out of the grasslands. The majority of
these outcrops are volcanic rock types such as greenstone pillow
basalt, basalt, tuff, or agglomerates (State of California 1975). Along
Ashfield Ridge and nearby side ridges, many of the outcrops are
serpentine (State of California 1975). The serpentine outcrops exhibit
a distinctive flora compared to the surrounding grassland (SHN 2001).
In addition to Thlaspi californicum, serpentine outcrops on Ashfield
Ridge support the following two special interest plants, both
considered as rare by the California

[[Page 62898]]

Native Plant Society: Fritillaria purdyi (Purdy's fritillary) and
Astragalus rattanii ssp. rattanii (Rattan's milk-vetch) (SHN 1997).
Little is known about the reproductive biology of Thlaspi
californicum. Some members of the genus, such as T. montanum, are known
to outbreed, while others, such as T. alpestre, primarily self-
pollinate (Holmgren 1971). Due to its very close taxonomic relationship
to T. montanum, T. californicum is almost certainly an outbreeder.
Generalist bees and flies are the assumed principal pollinators (SHN
2001).
The only known occurrence of Thlaspi californicum includes five
relatively distinct groups of plants all located within 300 m (980 ft)
of each other on three small patches of serpentine. The species
occupies an area which is fragmented by the Kneeland Airport and
Mountain View Road. We do not know if genetic interchange occurs
between plants in these separate groups; therefore, the five areas will
be referred to as individual colonies. The location was described as
consisting of three colonies in 1990 (Imper 1990, SHN 2001); a fourth
colony was discovered in 1999 (SHN 2001), and one additional colony in
2001 (SHN 2001).
In 1997, the largest colony contained an estimated 10,840 plants
(SHN 1997); this estimate was later corrected to 9,919 plants (SHN
2001). The sizes of the other two colonies known in 1997 were 140 and
40 plants (SHN 1997); therefore, the total revised estimate in 1997 was
10,099 plants. In 2001, the total number of Thlaspi californicum plants
was estimated at approximately 5,293 (SHN 2001), with 5,142 plants at
the largest colony, and 90 plants, 30 plants, 16 plants, and 15 plants
at the four smaller colonies. In 2002, the total number of plants was
estimated at approximately 8,954, with 8,851 plants at the largest
colony, and 114 plants, 41 plants, 25 plants, and 23 plants at the four
smaller colonies (Imper 2002). These data suggest a large annual
turnover in the population and downplay the significance of the
population decline noted between 1997 and 2001.
Historically, several land use activities probably altered the
distribution and abundance of Thlaspi californicum colonies. These
activities included construction of the county road in the 1800s
(currently Mountain View Road), the Kneeland Airport in 1964, and the
California Department of Forestry & Fire Protection (CDFFP) helitack
base in 1980. Prior to 1964, suitable habitat for T. californicum on
Ashfield Ridge consisted of two serpentine patches (1.9 hectares (ha)
(4.7 acres (ac)) and 0.6 ha (1.4 ac)) and scattered smaller patches of
0.01 ha (0.02 ac) to 0.2 ha (0.6 ac) in size. The two larger serpentine
outcrops formed a semi-continuous ridgetop exposure covering more than
2.4 ha (6 ac), extending in an east-west direction along the top of the
ridge in the area now occupied by the airstrip, county road, and
helitack base (SHN 2001).
Construction of the county road, airstrip, and helitack base
bisected and fragmented the two largest patches of suitable habitat
into four relatively isolated patches and also reduced the total
available habitat by approximately 50 percent. No data are available on
the distribution or number of individuals prior to this habitat
alteration. However, these colonies probably occupied a larger area or
formed one large colony prior to these construction activities, based
on anecdotal evidence. The impacts on population or community processes
from this habitat loss and possible population reduction are unknown.
In general, smaller serpentine outcrops support a higher number of
alien species (Harrison 1999). Smaller outcrops may also be more
vulnerable to recreational impacts, trampling, and modification of the
unique serpentine soil chemistry as a result of enrichment from the
surrounding meadow system (SHN 2001). Patch size influences fruit and
flower production in Calystegia collina (serpentine morning glory)
(Wolf and Harrison 2001). Small outcrops had fewer patches of
Calystegia collina, patches with relatively low densities of flowers,
and they attracted fewer insect visitors. These factors, in addition to
a reduction and/or fragmentation of the site, increase the likelihood
of extinction.
In 2001, all known colonies occupied an estimated 0.3 ha (0.8 ac),
divided among five colonies as follows: 0.29 ha (0.72 ac); 0.02 ha
(0.05 ac); 0.008 ha (0.02 ac); 0.004 ha (0.01 ac); and 0.002 ha (0.005
ac). The five known colonies occur on three separate serpentine
outcrops, but they currently occupy only about 29 percent of the
suitable habitat on these three outcrops (total area 1.1 ha (2.8 ac)).
In addition to the three occupied outcrops, fourteen unoccupied
serpentine outcrops occur on Ashfield Ridge, ranging in size from 0.01
ha (0.02 ac) to 0.2 ha (0.6 ac) (combined area of 0.9 ha (2.2 ac)). The
distances between the outcrops range from 10 m to 85 m (33 ft to 279
ft). These patches are located within 400 m (1,312 ft) of the largest
Thlaspi californicum colony. Serpentine soils contiguous with and in
the vicinity of the colonies are most likely to support T. californicum
in the future.
Historic records for Thlaspi californicum refer to Kneeland Prairie
and Ashfield Ridge as site locations (Watson 1882, Holmgren 1971). Over
99 percent of the serpentine soils in Kneeland Prairie occur on
Ashfield Ridge. Two additional small serpentine outcrops are located on
a ridge approximately 4.8 kilometers (km) (3 miles (mi)) southwest of
Ashfield Ridge (State of California 1975). No historic records exist to
show that T. californicum occupied these two outcrops. Similarly, no
current records exist to indicate that they are occupied.
The next nearest known serpentine outcrops to Kneeland Prairie
occur approximately 6.4 km (4 mi) southeast of Ashfield Ridge at Iaqua
Buttes. The serpentine outcrops at Iaqua Buttes support the more
widespread Thlaspi montanum var. montanum. No evidence of T.
californicum or intergradation between T. californicum and T. montanum
var. montanum was observed during surveys at the Iaqua Buttes site in
2001 (SHN 2001). T. montanum var. montanum also occurs on serpentine
soils in the vicinity of Horse Mountain approximately 24 km (15 mi)
northeast of Ashfield Ridge (SHN 2001). In 2001, serpentine outcrops on
the western edge of the Six Rivers National Forest were surveyed for T.
californicum. No populations of this species were located during these
field visits (Jennings 2001). Service personnel surveyed the largest
known serpentine exposure west of U.S. Highway 101 and south of Myers
Flat (vicinity of Cedar Flat) in 2002; this survey also produced
negative results. No evidence exists to show that the historic range of
T. californicum ever extended beyond Kneeland Prairie (SHN 2001).

Previous Federal Action

Federal Government actions for Thlaspi californicum began when we
published an updated notice of review (NOR) for plants on December 15,
1980 (45 FR 82480). This notice included T. californicum (referred to
as T. montanum var. californicum) as a category 2 candidate. Category 2
candidates were those taxa for which data in our possession indicated
listing might be appropriate, but for which additional biological
information was needed to support a proposed rule. On November 28,
1983, we published a supplement to the 1980 NOR (48 FR 53640) as well
as the subsequent revision on September 27, 1985 (50 FR 39526) which
included T. m. var. californicum as a category 2 candidate.

[[Page 62899]]

We published revised NORs on February 21, 1990 (55 FR 6184) and
September 30, 1993 (58 FR 511440). In both notices, we included Thlaspi
montanum var. californicum as a category 1 candidate. Category 1
candidates are taxa for which we have on file sufficient information on
biological vulnerability and threats to support preparation of listing
proposals, but issuance of the proposed rules are precluded by other
pending listing proposals of higher priority. In our February 28, 1996,
Federal Register Notice of Review of Plant and Animal Taxa that are
Candidates for Listing as Endangered or Threatened Species (CNOR) (61
FR 7595), we discontinued designation of multiple categories of
candidates. Only taxa meeting the definition of former category 1 are
now considered candidates for listing. T. montanum var. californicum
was included as a candidate species in the February 28, 1996, notice.
Our September 19, 1997, CNOR (62 FR 49397) included T. californicum as
a candidate for listing.
On February 12, 1998 (63 FR 7112), we published a proposal to list
Thlaspi californicum as endangered. Our October 25, 1999, CNOR (64 FR
57533) included T. californicum as a taxon proposed for listing as
endangered. The final rule listing T. californicum as an endangered
species was published on February 9, 2000 (65 FR 6332).
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
the species is determined to be endangered or threatened. Our
regulations (50 CFR 424.12(a)(1)) state that designation of critical
habitat is not prudent when one or both of the following situations
exist: (1) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of threat to the species; or (2) such designation of critical
habitat would not be beneficial to the species. At the time Thlaspi
californicum was proposed, we determined that designation of critical
habitat for T. californicum was not prudent because of a concern that
publication of precise maps and descriptions of critical habitat in the
Federal Register could increase the vulnerability of this species to
incidents of collection and vandalism. We also indicated that
designation of critical habitat was not prudent because we believed it
would not provide any additional benefit beyond that provided through
listing as endangered.
A series of court decisions for a variety of species overturned our
determinations that designation of critical habitat would not be
prudent (e.g., Natural Resources Defense Council v. U.S. Department of
the Interior 113 F. 3d 1121 (9th Cri. 1997); Conservation Council for
Hawaii v. Babbitt, 2 F. Supp. 2d 1280 (D. Hawaii 1998)). Based on the
standards applied in those judicial opinions, we reexamined the
question of whether designation of critical habitat for Thlaspi
californicum was prudent. At the time T. californicum was listed, we
found that designation of critical habitat was prudent.
On June 17, 1999, our failure to issue final rules for listing
Thlaspi californicum and nine other plant species as endangered or
threatened, and our failure to make a final critical habitat
determination for the 10 species was challenged in Southwest Center for
Biological Diversity and California Native Plant Society v. Babbitt
(Case No. C99-2992 (N.D.Cal.)). On May 19, 2000, the U.S. District
Court for the Northern District of California issued an order setting
the timetable for the promulgation of the critical habitat
designations. We agreed to complete the proposed critical habitat
designations for the 10 species by September 30, 2001. However, in mid-
September 2001, plaintiffs agreed to a brief extension of this due date
until October 19, 2001.
On October 24, 2001, we published a proposed rule to designate
critical habitat for Thlaspi californicum (66 FR 53756). The proposed
critical habitat consisted of one unit whose boundaries encompassed a
total area of approximately 30 ha (74 ac) in Humboldt County,
California. The public comment period was open for 60 days until
December 24, 2001. We did not receive any requests for public hearings
during the comment period, and we did not hold any public hearings. On
May 7, 2002, we published a notice announcing reopening of the public
comment period and availability of the draft economic analysis for the
proposed critical habitat designation for T. californicum (67 FR
30643). The comment period was open for an additional 30 days until
June 6, 2002. In mid-May 2002, the plaintiffs agreed to extend the
completion date of the final rule until September 30, 2002.

Summary of Comments and Recommendations

In the proposed rule published on October 24, 2001 (66 FR 53756),
we requested that all interested parties submit comments that might
contribute to the development of the final rule. The first comment
period closed on December 24, 2001 (66 FR 53756). Appropriate Federal
and State agencies, county governments, scientific organizations, and
other interested parties were contacted and requested to comment. An
announcement was posted on the Service website October 24, 2001, and an
article was published in the Times-Standard newspaper on October 29,
2001, inviting general public comment. We reopened the comment period
on May 7 to June 6, 2002, to allow for comments on the draft economic
analysis of the proposed critical habitat (67 FR 30643).
We received a total of seven written comments during the two
comment periods, including three from designated peer reviewers. Of the
four comments from private individuals, three opposed and one was
neutral on the proposed action. We reviewed all comments received for
substantive issues and new information regarding critical habitat and
Thlaspi californicum. Public comments are grouped into two general
issues relating specifically to (1) procedural and regulatory issues
and (2) biological issues. Comments have been incorporated directly
into the final rule or addressed in the following summary.

Issue 1: Procedural and Regulatory Issues

(1) Comment: Two commenters requested that all or a portion of
their lands be removed from the critical habitat designation.
Service Response: Section 4(b)(2) of the Act states ``The Secretary
shall designate critical habitat, and make revisions thereto, under
subsection (a)(3) on the basis of the best scientific data available
and after taking into consideration the economic impact, and any other
relevant impact, of specifying any particular area as critical
habitat.'' Absent a finding by us that the economic or other relevant
impacts of a critical habitat designation would outweigh the benefits
of designation, the Act does not provide for the exclusion from
critical habitat of private lands essential to the conservation of
listed species. The boundaries of the critical habitat unit were
delineated with a 100-m grid. We attempted to exclude areas from the
boundary that did not contain primary constituent elements; however, we
did not map the unit in sufficient detail to exclude all such areas.
The lands owned by one of the commenters (commenter A) is such an area.
This land, less than 2.5 ha (1 ac), is located in the northwest corner
of the unit boundary and does not contain any primary constituent
elements. Therefore, by definition this

[[Page 62900]]

commenter's land is not critical habitat. The other commenter's
(commenter B) land does contain primary constituent elements. We
believe that this parcel of land contains components essential to the
conservation of Thlaspi californicum because it includes one of the
fourteen unoccupied serpentine outcrops on Ashfield Ridge. We believe
that the designation of these lands (commenter B) in this final rule as
critical habitat outweigh the benefits of their exclusion from being
designated as critical habitat. The possible removal of these lands
from the designation is also addressed in the Exclusions Under Section
4(b)(2) section of this rule.
(2) Comment: One commenter was concerned about the impacts of the
designation on private landowners and wanted to know if private
landowners would be compensated for the loss of use of their lands
because of protective measures. Another noted generally that the
Constitution does not give plants rights over citizens.
Service Response: Designation of critical habitat, by itself, does
not require private landowners to undertake any management activities
or otherwise restrict the use of private lands. Critical habitat
applies only to actions carried out, funded, or permitted by the
Federal Government. The Act provides that Federal actions may not
destroy or adversely modify critical habitat. Critical habitat
designation will not affect any uses of private land unless actions on
the land are carried out, funded, or require authorization from the
Federal Government. If a Federal nexus does exist for a particular
activity on private lands, the activity may still proceed unless the
Service concludes that the action would destroy or adversely modify
critical habitat. In that event, the Act provides for the development
of reasonable and prudent alternatives to the proposed activity that
meet its intended purposes and would avoid the destruction or adverse
modification of critical habitat. Given the nature of activities
currently occurring on the designated private lands and likely to occur
in the future as described below, the likelihood of a future federal
nexus is remote and the likelihood of any future section 7 consultation
under the Act resulting in compensable restrictions on private land
uses is even more unlikely.

Issue 2: Biological Concerns

(1) Comment: One commenter questioned the information provided on
population numbers and whether Thlaspi californicum is growing in other
places.
Service Response: The current population sampling design involves a
complete count of plants in the four small colonies and uses a
statistical-based sampling protocol to estimate the number of plants in
the largest colony. In 2001 and 2002, surveys were conducted in an
attempt to locate new populations of Thlaspi californicum. These
surveys occurred in the following locations: (1) Iaqua Buttes which is
the nearest known serpentine outcrop to Kneeland Prairie; (2) suitable
habitat located on the Six Rivers National Forest within 16 km (10 mi)
north and south of the Kneeland Prairie site; and (3) the largest known
serpentine exposure west of U.S. Highway 101 and south of Myers Flat.
No new T. californicum sites were located during any of these surveys.
As stated by one of the peer reviewers, the data show that this plant
is restricted to one location on Ashfield Ridge.
(2) Comment: One peer reviewer suggested that the potential impacts
of herbivory should be addressed.
Service Response: Cattle grazing has occurred in Kneeland Prairie
for at least a century. The current level of grazing appears relatively
low. Unique serpentine soils in Kneeland Prairie support low total
plant cover (typically less than 40 percent) and do not support many of
the desirable forage species available in the prairie. Impacts of
cattle grazing are not quantified, but available evidence suggests they
are minimal at the current low stocking level. Recent data suggest that
herbivory by rabbits or other small mammals may be significant in some
colonies, but no quantitative data have yet been collected on the
magnitude of this impact.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited independent opinions from five knowledgeable
individuals with expertise in botany. Three of the five peer reviewers
provided comments that are summarized in the previous section and
incorporated in the final rule; all three reviewers supported the
proposal. None of the reviewers provided new information about the
biology or distribution of Thlaspi californicum or about additional
areas considered essential to its conservation.
One peer reviewer stated that the methods and criteria used in the
proposed rule are ``* * * sound in light of current conservation
biology theory and the information known about the taxonomy and ecology
of the species''. The reviewer also stated that the ``* * * inclusion
of unoccupied habitat * * * on the serpentine outcrops and adjunct
prairie is needed to ensure ecological functions of the species'' and
``the definition of primary constituent elements * * * is comprehensive
and well planned.''
A second peer reviewer stated that the ``proposed actions, were,
even without complete data, reasonable and based on solid scientific
assumptions.'' The reviewer recommended a monitoring strategy that
includes establishment of permanent plots and marking individuals. In
2002, we established permanent grids and mapped individual plants in
order to monitor life history and species composition.
The third peer reviewer suggested that herbivory on the known
population and the survey of potential habitat on Six Rivers National
Forest lands should be discussed. Discussions of these issues were
added to the final rule. The reviewer also stated that the ``* * *
inclusion of unoccupied habitat and primary constituent elements * *
*'' was supported by the literature.

Critical Habitat

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

[[Page 62901]]

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

Methods

As required by the Act and regulations (section 4(b)(2) and 50 CFR
424.12), we used the best available scientific information in
determining which areas were essential for the conservation of Thlaspi
californicum. This information included data from the following
sources: 1993 United States Geological Survey (USGS) 1:24,000 scale,
3.75', infrared, color digital, orthophotographic, quarter quadrangle
images; geologic map of the Van Duzen River Basin (State of California
1975); 1962 panchromatic, 1:12,000 scale, aerial photograph HCN-2 22-
17; ownership parcels from the Humboldt County Planning Department,
updated as of August 2000; recent biological surveys and reports; and
discussions with botanical experts. We also conducted or contracted for
site visits, either cursory or more extensive, at locations on private
lands where access was obtained, on State lands managed by CDFFP, and
on public lands managed by Six Rivers National Forest and the Bureau of
Land Management, including Iaqua Buttes and Board Camp Mountain.

Primary Constituent Elements

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

Criteria Used To Identify Critical Habitat

In our delineation of the critical habitat unit, we selected areas
to provide for the conservation of Thlaspi californicum at the only
location it is known to occur. Adult individuals of the species
currently only grow on approximately 0.3 ha (0.8 ac) of land on
Ashfield Ridge in Kneeland Prairie. However, the area essential for the
conservation of the species is not

[[Page 62902]]

restricted solely to the area where the plant is physically visible. It
must include an area large enough to maintain the ecological functions
upon which the species depends (e.g., the hydrologic and edaphic
conditions).
We first mapped all known Thlaspi californicum occurrences. Due to
the historic loss and fragmentation of the largest patches of suitable
habitat, we also mapped all suitable habitat in proximity to the known
occurrences. Maintaining the number and distribution of serpentine
outcrops on Ashfield Ridge will help to ensure the long-term viability
of T. californicum, as high-quality habitat patches in close proximity
to a source population have the highest likelihood of future occupancy
(Murphy et al. 1990). Protection of these outcrops will provide a range
of habitat conditions, for example, moisture availability, temperature,
and wind exposure, which will optimize the opportunities for
recolonization or expansion and reduce the likelihood of extinction due
to stochastic events. They will also protect undetected T. californicum
colonies and seed banks.
We also mapped grasslands and oak woodlands surrounding the
serpentine outcrops. These areas provide connectivity between all
serpentine outcrops; maintain the hydrologic and edaphic integrity of
the serpentine sites; and support biological agents of pollination and
seed dispersal necessary for the conservation of the species. Inclusion
of the grasslands and oak woodlands will also minimize impacts to
serpentine outcrops resulting from external peripheral influences, such
as erosion, grazing, or the spread of exotic species.
At this time, we are not designating as critical habitat any
serpentine outcrops within Kneeland Prairie, other than the outcrops on
Ashfield Ridge. A draft recovery plan is in preparation, which does not
call for establishment of Thlaspi californicum beyond Ashfield Ridge.
However, since T. californicum has an extremely restricted range,
establishment at new locations may be determined necessary to provide
insurance against stochastic events. In that case, critical habitat may
be reevaluated based on recommendations in the final recovery plan.
We considered ownership status in delineating areas as critical
habitat. Thlaspi californicum is known only to occur on State, county,
and private lands. We are not aware of any Tribal lands in or near our
designated critical habitat unit for T. californicum.
We used a geographic information system (GIS) to facilitate
identification of critical habitat areas. We used information from
recent biological surveys and reports; discussions with botanical
experts; and locations of serpentine soils to create GIS data layers.
Serpentine soil sites were derived from a geologic map, infrared color
digital orthophotos, and global positioning system data collected in
the field during 2000 and 2001. These data layers were created on a
base of 1:24,000 scale USGS 3.75', infrared, color digital,
orthophotographic, quarter quadrangle images. We used these data layers
to map the primary constituent elements. We defined boundaries of the
designated critical habitat unit by overlaying this map with a 100-m
Universal Transverse Mercator (UTM) North American Datum of 1927
(NAD27) grid and removing all NAD27 grid cells that did not contain the
primary constituent elements.
In selecting the critical habitat area, we attempted to avoid
developed areas and other lands unlikely to contribute to the
conservation of Thlaspi californicum. However, we did not map the
critical habitat unit in sufficient detail to exclude all such areas.
Existing features and structures within the critical habitat unit
boundary, such as buildings, roads, and other paved areas will not
contain one or more of the primary constituent elements and, hence, are
not considered critical habitat. Federal actions limited to these
areas, therefore, would not trigger a section 7 consultation, unless
they affect the species or primary constituent elements in adjacent
critical habitat.

Special Management Considerations or Protections

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

Critical Habitat Designation

The critical habitat area described below includes all the primary
constituent elements discussed above, and constitutes our best
assessment at this time of the areas needed for the species'
conservation. Critical habitat is designated for Thlaspi californicum
at the only location it is known to occur.
We are designating one unit of critical habitat, comprising 30 ha
(74 ac), surrounding Kneeland Airport and roughly bisected by Mountain
View Road. The unit includes all 5 known colonies and all other
serpentine outcrops in close proximity to the colonies. All of the
critical habitat unit for Thlaspi californicum is located on Ashfield
Ridge in Kneeland Prairie, Humboldt County, California. This ridge
separates the Van Duzen and Mad River basins near the community of
Kneeland in central Humboldt County.
The unit contains approximately 2 ha (5 ac) of serpentine soils.
Approximately 16 percent (0.3 ha (0.8 ac)) of the serpentine soils are
known to be occupied. However, undetected colonies may exist on the
serpentine soils within the unit. The approximate area, by land
ownership, of this unit is shown in Table 1. Approximately 5 percent (2
ha (4 ac)) of this area consists of State lands, while County lands
comprise approximately 11 percent (3 ha (8 ac)), and private lands
comprise approximately 84 percent (25 ha (62 ac)). No Federal lands are
within the critical habitat unit. This species is not known to occur or
to have occurred historically on Federal lands.

[[Page 62903]]

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

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, permit, or carry
out do not destroy or adversely modify critical habitat to the extent
that the action appreciably diminishes the value of the critical
habitat for the conservation 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 include an opinion that is prepared
according to 50 CFR 402.14, as if the species was listed or critical
habitat were designated. We may adopt the formal conference report as
the biological opinion when the species is listed or critical habitat
is designated, if no substantial new information or changes in the
action alter the content of the opinion (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, the
Federal action agency would ensure that the permitted actions do not
jeopardize the species or destroy or adversely modify critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide ``reasonable and prudent alternatives'' to the
project, if any are identifiable. Reasonable and prudent alternatives
are defined at 50 CFR 402.02 as alternative actions identified during
consultation that can be implemented in a manner consistent with the
intended purpose of the action, that are consistent with the scope of
the Federal agency's legal authority and jurisdiction, that are
economically and technologically feasible, and that the Director
believes would avoid destruction or adverse modification of critical
habitat. Reasonable and prudent alternatives can vary from slight
project modifications to extensive redesign or relocation of the
project.
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.
If Thlaspi californicum is discovered on Federal lands, those
activities on Federal lands that may affect T. californicum or its
critical habitat would require a section 7 consultation. Activities on
private or State lands requiring a permit from a Federal agency, such
as a permit from the Army Corps of Engineers under section 404 of the
Clean Water Act, a section 10(a)(1)(B) permit from the Service, or some
other Federal action, including funding (e.g., Federal Housing
Administration, Federal Aviation Administration (FAA), or Federal
Emergency Management Agency), will also continue to be subject to the
section 7 consultation process. Federal actions not affecting listed
species or critical habitat, as well as actions on non-Federal lands
that are not federally funded, authorized, or permitted will not
require section 7 of the Act consultations.
Section 4(b)(8) of the Act requires us to briefly describe and
evaluate 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 would
be those that alter the primary constituent elements to the extent that
the value of critical habitat for the conservation of Thlaspi
californicum 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
directly or indirectly destroy or adversely modify critical habitat
include, but are not limited to:
(1) Ground disturbance of serpentine outcrops and grassland and oak
woodland areas, including but not limited to grading, ripping, tilling,
and paving;
(2) Alteration of serpentine outcrops, including but not limited to
removal of boulders, mining, and quarrying;
(3) Removing, destroying, or altering vegetation in the critical
habitat unit,

[[Page 62904]]

including but not limited to inappropriately managed livestock grazing,
clearing, introducing or encouraging the spread of nonnative species,
recreational activities, and maintaining an unnatural fire regime
either through fire suppression or frequent and poorly timed prescribed
fires;
(4) Hydrologic changes or other activities that alter surface
drainage patterns resulting in erosion of serpentine outcrops or
adjacent areas, including but not limited to water diversion,
groundwater pumping, irrigation, and erosion control;
(5) Construction or maintenance activities that destroy or degrade
critical habitat, including but not limited to road building, building
construction, airport expansion, drilling, and culvert maintenance or
installation;
(6) Application or runoff of pesticides, herbicides, fertilizers,
or other chemical or biological agents; and
(7) Emergency response and clean-up of fuel or other contaminant
spills.
To properly understand the effects of critical habitat designation,
we must first compare the requirements pursuant to section 7 of the Act
for actions that may affect critical habitat with the requirements for
actions that may affect a listed species. Section 7 of the Act
prohibits actions funded, authorized, or carried out by Federal
agencies from jeopardizing the continued existence of a listed species
or destroying or adversely modifying the listed species' critical
habitat. Actions likely to ``jeopardize the continued existence'' of a
species are those that would appreciably reduce the likelihood of the
species' survival and recovery. Actions likely to ``destroy or
adversely modify'' critical habitat are those that would appreciably
reduce the value of critical habitat for the survival and recovery of
the listed species.
Common to both definitions is an appreciable detrimental effect on
the survival and recovery of a listed species. Given the similarity of
these definitions, actions likely to destroy or adversely modify
critical habitat would almost always result in jeopardy to the species
concerned, particularly when the area of the proposed action is
occupied by the species concerned. Designation of critical habitat in
areas occupied by Thlaspi californicum is not likely to result in a
regulatory burden above that already in place due to the presence of
the listed species. Designation of critical habitat in areas not
occupied by T. californicum may result in an additional regulatory
burden when a Federal nexus exists. However, we believe, and the
economic analysis discussed below illustrates, that the designation of
critical habitat is not likely to result in a significant regulatory
burden above that already in place due to the presence of the listed
species. Few additional consultations are likely to be conducted due to
the designation of critical habitat.
Designation of critical habitat could affect the following agencies
and/or actions: Development on private, State, or county lands
requiring permits or funding from Federal agencies, such as the U.S.
Army Corps of Engineers, the Department of Housing and Urban
Development, the FAA, or the Federal Highway Administration;
construction of communication sites licensed by the Federal
Communications Commission; and authorization of Federal grants or
loans. These actions would be subject to the section 7 process. Where
federally listed wildlife species occur on private lands proposed for
development, any habitat conservation plans submitted by the applicant
to secure a permit to take according to section 10(a)(1)(B) of the Act
would be subject to the section 7 consultation process.
If you have questions regarding whether specific activities would
constitute adverse modification of critical habitat, contact the
Project Leader, Arcata Fish and Wildlife Office (see ADDRESSES
section). Requests for copies of the regulations on listed wildlife,
and inquiries about prohibitions and permits may be addressed to the
U.S. Fish and Wildlife Service, Region 1, Division of Endangered
Species, 911 NE 11th Avenue, Portland, OR 97232-4181 (503/231-6131,
facsimile 503/231-6243).

Exclusions Under Section 4(b)(2)

Subsection 4(b)(2) of the Act allows us to exclude areas from the
critical habitat designation where the benefits of exclusion outweigh
the benefits of designation, provided the exclusion will not result in
extinction of the species. As discussed in this final rule and our
economic analysis for this rulemaking, we have determined that no
significant adverse economic effects will result from this critical
habitat designation. We believe the areas included in this designation
are essential for the conservation of Thlaspi californicum because they
protect the existing colonies, all suitable serpentine sites on
Ashfield Ridge, connectivity between the serpentine sites, and the
ecological functions upon which the species depends. We believe that
the designation of the lands in this final rule as critical habitat
outweigh the benefits of their exclusion from being designated as
critical habitat. Consequently, none of the proposed lands have been
excluded from the designation based on economic impacts or other
relevant factors pursuant to section 4(b)(2).

Relationship to Habitat Conservation Plans

No habitat conservation plans (HCPs) currently exist that include
Thlaspi californicum as a covered species. However, the designated
lands are covered lands in the Pacific Lumber Company's HCP. Section
10(a)(1)(B) 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 an HCP that identifies
conservation measures that the permittee agrees to implement for the
species to minimize and mitigate the impacts of the permitted
incidental take. Although ``take'' of listed plants is not prohibited
by the Act, listed plant species may also be covered in an HCP for
wildlife species.
In most instances, we believe that the benefits of excluding HCPs
from critical habitat designations will outweigh the benefits of
including them. In the event that future HCPs covering Thlaspi
californicum are developed within the boundaries of the designated
critical habitat, we will work with applicants to ensure that the HCPs
provide for protection and management of habitat areas essential for
the conservation of this species. This will be accomplished by either
directing development and habitat modification to nonessential areas,
or appropriately modifying activities within essential habitat areas so
that such activities will not adversely modify the primary constituent
elements. The HCP development process provides an opportunity for more
intensive data collection and analysis regarding the use of particular
habitat areas by T. californicum. 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 will
also provide technical assistance and work closely with applicants
throughout the development of any future HCPs to identify lands
essential for the long-term conservation of T. californicum.
Furthermore, we will complete intra-Service consultation on our
issuance of section 10(a)(1)(B) permits for these HCPs to ensure permit
issuance will not destroy or adversely modify critical habitat.

[[Page 62905]]

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. Following the
publication of the proposed critical habitat designation, a draft
economic analysis was prepared by Economic & Planning Systems, Inc. for
the Service. The draft analysis was made available for review on May 7,
2002 (67 FR 30643). The public comment on the draft analysis was open
until June 6, 2002, however, we did not receive any comments.
Our economic analysis evaluated the potential future effects
associated with the listing of Thlaspi californicum as an endangered
species, as well as potential effects of the critical habitat
designation above and beyond those regulatory and economic impacts
associated with listing. To quantify the proportion of total potential
economic impacts attributable to the critical habitat designation, the
analysis evaluated a ``without section 7'' baseline and compares it to
a ``with section 7'' scenario. The ``without section 7'' baseline
represents the level of protection currently afforded to the species
under the Act, absent section 7 protective measures, and includes
protections afforded by other Federal, State, and local laws such as
the California Environmental Quality Act. The ``with section 7''
scenario identifies land-use activities likely to involve a Federal
nexus that may affect the species or its designated critical habitat,
which accordingly may trigger future consultations under section 7 of
the Act.
Upon identifying section 7 impacts, the analysis proceeds to
consider the subset of impacts that can be attributed exclusively to
the critical habitat designation. The upper-bound estimate includes
both jeopardy and critical habitat impacts. The subset of section 7
impacts likely to be affected solely by the designation of critical
habitat represents the lower-bound estimate of the analysis. The
categories of potential costs considered in the analysis included costs
associated with: (1) Identifying the effect of the designation on a
particular parcel or land use activity (e.g., technical assistance,
section 7 consultations); and (2) modification to projects, activities,
or land uses resulting from the section 7 consultations.
The only reasonably foreseeable activity that will require
consultation is the County's proposed Kneeland Airport improvement
project. The analysis estimates economic costs for two possible
outcomes from this consultation. Both estimates conclude that the costs
are attributable co-extensively to the listing of Thlaspi californicum
due to the species limited distribution and suitable habitat. We are
not aware of any future activities on State or private lands included
in the designation would involve a Federal nexus.
Based on our economic analysis, we concluded that the designation
of critical habitat would result in little additional regulatory burden
or associated significant additional costs above and beyond those
attributable to the listing of Thlaspi californicum due to the limited
extent of the designation and the limited amount of reasonably
foreseeable activity with a Federal nexus in the area.
The economic analysis concludes that the only existing or
reasonably foreseeable activity that will require consultation is the
proposed Kneeland Airport improvement project. The most likely outcome
of the consultation would be approval of the proposal as presented or a
recommendation to implement minor project modifications. The precise
nature of any recommended project modifications is difficult to predict
in advance of the actual consultation, however, the economic analysis
estimates that the type of minor modification that may be associated
with a consultation may cost around $113,000. The analysis also
estimated the potential cost to the economy under the extreme
assumption that the improvement project was found to jeopardize the
species or adversely modify critical habitat and that the Service is
unable to identify any reasonable and prudent alternatives that would
allow the project to proceed in another form. Cost associated with this
scenario are estimated to range between $169,000 and $4.2 million
depending on how the County's chooses to address the airport
maintenance or whether or not they construct a replacement airport.
Because of T. californicum's extremely limited distribution and
small amount of available suitable habitat, it is assumed that the
Kneeland Airport improvement project would be subject to consultation
on potential impacts to the species, regardless of critical habitat
designation. Therefore, these potential costs are attributable co-
extensively to the listing of the Thlaspi californicum. The designation
of critical habitat is not expected to result in any significant
additional regulatory protection.
A copy of the final economic analysis and supporting documents are
included in our administrative record and may be obtained by contacting
the Arcata Fish and Wildlife Office (see ADDRESSES section). Copies of
the final economic analysis also are available on the Internet at
http://pacific.fws.gov/news/.

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), as OMB determined that this rule may raise novel legal or
policy issues. The Service prepared an economic analysis of this
action. The Service used this analysis to meet the requirement of
section 4(b)(2) of the Endangered Species Act to determine the economic
consequences of designating the specific areas as critical habitat. The
draft EA was made available for public comment, and we considered
comments on it during the preparation of this rule.

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

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. A ``substantial
number'' of small entities is more than 20 percent of those small
entities affected by the regulation, out of the total universe of small
entities in the industry or, if appropriate, industry segment. SBREFA
amended the Regulatory Flexibility Act (RFA) to require Federal
agencies to prepare a statement of the factual basis for certifying
that the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA also amended the RFA to
require a certification statement. For the reasons stated in the
proposed rule, in addition to the reasons stated below, we certify that
critical habitat designation for Thlaspi californicum will not have a
significant effect on a substantial number of small entities.
According to the Small Business Administration, small entities
include

[[Page 62906]]

small organizations, such as independent nonprofit organizations, and
small government jurisdictions, including school boards and city and
town governments that serve fewer than 50,000 residents, as well as
small businesses (13 CFR 121.201). Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts to
these small entities are significant, the Service considered the types
of activities that might trigger regulatory impacts under this rule as
well as the types of project modifications that may result. In general,
the term significant economic impact is meant to apply to a typical
small business firm's business operations.
To determine if the rule would affect a substantial number of small
entities, the Service considered the number of small entities affected
within particular types of economic activities (e.g., housing
development, grazing, oil and gas production, timber harvesting, etc.).
The Service applied the ``substantial number'' test individually to
each industry to determine if certification is appropriate. The area
designated as critical habitat is small, less than 30 ha (74 ac), and
we have identified fewer than a half-dozen landowners. The small scale
of the designation ensures that the ``substantial number of small
entities'' threshold of the Regulatory Flexibility Act will not be met.
The five primary landowners include the following: Humboldt County,
which owns Kneeland Airport and Mountain View Road; State of
California, which owns the Kneeland helictack base; Pacific Lumber
Company, and two private landowners.
The economic analysis identified the Kneeland Airport improvement
project as the activity most likely to be affected by this rulemaking.
The analysis estimated that a future section 7 consultation could cost
all involved parties a total of $20,300 and that likely mitigation
could cost about $113,000. Kneeland Airport is owned by Humboldt
County, which has a population of approximately 126,000. Because SBREFA
defines a ``small government jurisdiction'' as ``governments of cities,
counties * * * with a population of less than fifty thousand.'' (U.S.C.
601), Humboldt County was not considered a small entity for purposes of
this analysis, even though the analysis did consider the potential
effects of the airport improvement project. Similarly, the other
private landowners are not considered small businesses under the scope
of SBREFA.
The economic analysis did, however, consider whether the activities
of these landowners have any Federal involvement because designation of
critical habitat only affects activities conducted, funded, or
permitted by Federal agencies; non-Federal activities are not affected
by the designation. No Federal lands occur within the designated
critical habitat unit. Land use within the majority of the unit,
outside of the existing developed areas, consists of livestock grazing
and unforested lands surrounding timber lands. None of these activities
is likely to trigger a future section 7 consultation. The likelihood of
future development in these areas is low, with the exception of the
future airport expansion under consideration. If the proposed airport
expansion proceeds, the Federal Aviation Administration will likely be
required to consult with the Service under section 7 of the Act on
activities that agency funds, permits, or implements that may affect
Thlaspi californicum. With this critical habitat designation, the
Federal Aviation Administration will also be required to consult with
the Service if its activities may affect designated critical habitat.
However, the Service believes this will result in minimal additional
regulatory burden on the agency and its applicant or because
consultation would already be required due to the presence of the
listed species. Consultation to avoid the destruction or adverse
modification of critical habitat would be incorporated into the
existing consultation process and trigger only minimal additional
regulatory impacts beyond the duty to avoid jeopardizing the species
because of this species limited distribution and available habitat.
Should the airport expansion or another federally funded,
permitted, or implemented project be proposed that may affect
designated critical habitat, we will work with the Federal action
agency and any applicant, through section 7 consultation, to identify
ways to implement the proposed project while minimizing or avoiding any
adverse effect to the species or critical habitat. In our experience,
the vast majority of such projects can be successfully implemented with
at most minor changes that avoid significant economic impacts to
project proponents. The area designated as critical habitat is small,
less than 30 ha (74 ac), and we have identified fewer than a half-dozen
landowners. The scale of the designation ensures that the ``substantial
number of small entities'' threshold of the Regulatory Flexibility Act
will not be met.
Designation of critical habitat could result in an additional
economic burden on small entities due to the requirement to reinitiate
consultation for ongoing Federal activities. However, the Service is
unaware of any ongoing Federal activities that affect this species, and
since Thlaspi californicum was listed (2000), the Service has not
conducted any formal or informal consultations involving this species.
Therefore, we certify that the designation of critical habitat for
Thlaspi californicum will not have a significant economic impact on a
substantial number of small entities. A regulatory flexibility analysis
is not required.

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

As discussed above, this rule is not a major rule under 5 U.S.C.
804(2), the Small Business Regulatory Enforcement Fairness Act
(SBREFA). This final designation of critical habitat: (a) does not have
an annual effect on the economy of $100 million; (b) will not cause a
major increase in costs or prices for consumers, individual industries,
Federal, State, or local government agencies, or geographic regions;
and (c) does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. As
discussed in the draft economic analysis, no small entities as defined
by SBREFA will potentially be affected by the designation of critical
habitat.
Proposed and final rules designating critical habitat for listed
species are issued under the authority of the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.). Competition, employment,
investment, productivity, innovation, or the ability of U.S.-based
enterprises to compete with foreign-based enterprises are not affected
by this action and will not be affected by the final rule designating
critical habitat for this species. Therefore, we anticipate that this
final rule will not place significant additional burdens on any entity.

Executive Order 13211

On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply,

[[Page 62907]]

distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
Although this rule is a significant regulatory action under Executive
Order 12866, it is not expected to significantly affect energy
supplies, distribution, or use. Therefore, this action is not a
significant energy action and no Statement of Energy Effects is
required. The primary land uses within designated critical habitat
include small county airport facilities, CDFFP helitack base, grazing,
and unforested lands surrounding timber lands. Significant energy
production, supply, and distribution facilities are not included within
designated critical habitat. Therefore, this action does not represent
a significant action affecting energy production, supply, and
distribution facilities; and no Statement of Energy Effects is
required. Because of this species restricted range and the limited
amount of suitable habitat, any consultation required pursuant to
section 7 of the Act by a Federal agency undertaking an action in this
area would likely be triggered by the listing of the species and not
solely by this designation 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, as designated, will not ``significantly or
uniquely'' affect small governments. A Small Government Agency Plan is
not required. Small governments will only be affected to the extent
that they must ensure that any programs involving Federal funds,
permits or other authorized activities will not adversely affect the
critical habitat. In our economic analysis, we found the direct and
indirect costs associated with critical habitat designation to be small
in relation to any small governments potentially affected.
(b) This rule will not produce a Federal mandate on State, local,
or tribal governments or the private sector of $100 million or greater
in any year, that is, it is not a ``significant regulatory action''
under the Unfunded Mandates Reform Act.

Takings

In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating 30 ha (74 ac) of lands in Humboldt County, California, as
critical habitat for Thlaspi californicum. The takings implications
assessment concludes that this final designation of critical habitat
does not pose significant takings implications for lands within or
affected by the designation of critical habitat for T. californicum. A
copy of this assessment is available by contacting the Arcata Fish and
Wildlife Office (see ADDRESSES section).

Federalism

In accordance with Executive Order 13132, this rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policies, we requested information from, and coordinated
development of this critical habitat designation with, appropriate
State resource agencies in California. We will continue to coordinate
any future changes in the designation of critical habitat for Thlaspi
californicum with the appropriate State agencies. Since T. californicum
only occurs distributed over an extremely limited area, the designation
of critical habitat imposes few, if any, additional restrictions to
those currently in place and therefore has little incremental impact on
State and local governments and their activities. The designation may
provide 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
conservation of the species are specifically identified. While this
does not alter where and what federally sponsored activities may occur,
it may assist these local governments in long-range planning rather
than having to wait 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 this 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. The rule uses standard property descriptions and
identifies the primary constituent elements within the designated areas
to assist the public in understanding the habitat needs of Thlaspi
californicum.

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

This rule does not contain any new or revised information
collections for which Office of Management and Budget approval is
required under the Paperwork Reduction Act. Information collections
associated with Act permits are covered by an existing OMB approval,
and are assigned clearance No. 1018-0094, with an expiration date of
July 31, 2004. The Service may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless it
displays a currently valid OMB control number.

National Environmental Policy Act

The Service has determined that it does not need to prepare an
Environmental Assessment or an Environmental Impact Statement as
defined by the National Environmental Policy Act of 1969 (NEPA) in
connection with regulations adopted pursuant to section 4(a) of the
Endangered Species Act. The Service published a notice outlining its
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This final designation does not constitute a major
Federal action significantly affecting the quality of the human
environment.

Government-to-Government Relationship With Tribes

In accordance Secretarial Order 3206, ``American Indian Tribal
Rights, Federal-Tribal Trust Responsibilities and the Endangered
Species Act'' June 5, 1997), with the President's memorandum of April
29, 1994, ``Government-to-Government Relations with Native American
Tribal Governments'' (59 FR 22951), Executive Order 13175, and the
Department of the Interior's manual at 512 DM 2, we readily acknowledge
our responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We have determined that
there are no Tribal lands essential for the conservation of Thlaspi
californicum because they do not support the species, nor do they
provide essential habitat. Therefore, critical habitat for T.
californicum has not been designated on Tribal lands.

References Cited

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

Author

The primary author of this document is Robin Hamlin (see ADDRESSES
section).

[[Page 62908]]

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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

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

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
FLOWERING PLANTS

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

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

3. Amend Sec. 17.96(a) by adding an entry for Thlaspi californicum
in alphabetical order under Brassicaceae to read as follows:

Sec. 17.96 Critical habitat--plants.

(a) Flowering plants.
* * * * *
Family Brassicaceae: Thlaspi californicum (Kneeland Prairie penny-
cress)
(1) A critical habitat unit is depicted for Humboldt County,
California, on the map below.
(2) The primary constituent elements of critical habitat for
Thlaspi californicum are the habitat components that provide:
(i) Thin rocky soils that have developed on exposures of serpentine
substrates;
(ii) Plant communities that support a relatively sparse assemblage
of serpentine indicator, or facultative-serpentine indicator, species,
including various native forbs and grasses, but not trees or shrubs,
such that competition for space and water (both above and below ground)
and light is reduced, compared to the surrounding habitats. Known
associated species include the following: Festuca rubra (red fescue),
Koeleria macrantha (junegrass), Elymus glaucus (blue wildrye),
Eriophyllum lanatum (woolly sunflower), Lomatium macrocarpum (large-
fruited lomatium), and Viola hallii (Hall's violet);
(iii) Serpentine substrates that contain 15 percent or greater (by
surface area) of exposed gravels, cobbles, or larger rock fragments,
which may contribute to alteration of factors of microclimate,
including surface drainage and moisture availability, exposure to wind
and sun, and temperature; and
(iv) Prairie grasslands and oak woodlands located within 30 m (100
ft) of the serpentine outcrop area on Ashfield Ridge. Protection of
these habitats is essential to the conservation of Thlaspi californicum
in that it will provide connectivity among the serpentine sites, help
to maintain the hydrologic and edaphic integrity of the serpentine
sites, and support populations of pollinators and seed dispersal
organisms.
(3) Existing features and structures within the boundaries of
mapped critical habitat units, such as buildings, roads, airports, and
other paved areas will not contain one or more of the primary
constituent elements. Federal actions limited to those areas,
therefore, would not trigger a section 7 consultation, unless they
affect the species and/or primary constituent elements in adjacent
critical habitat.
(4) Critical habitat unit. Humboldt County, California.
(i) From USGS. 1:24,000 scale Iaqua Buttes quadrangle, land bounded
by the following UTM Zone 10 NAD27 coordinate pairs (East, North):
421800, 4507300; 422100, 4507800; 422100, 4507300; 422200, 4507600;
421700, 4507400; 421800, 4507500; 421600, 4507500; 421800, 4507900;
421800, 4507800; 421900, 4507900
(ii) Map follows:
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[GRAPHIC] [TIFF OMITTED] TR09OC02.002

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* * * * *

Dated: September 30, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-25371 Filed 10-8-02; 8:45 am]
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