[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]



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-

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


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).



    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 
    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 
    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 
    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 
    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.


    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 
    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 
    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 
    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 
    (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 
    (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 
    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 

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 

[[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 
    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 
    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.


    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).


    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 

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 

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).


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

[[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:


    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) * * *

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

                                                                      * * * * * * *
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-
    (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 
    (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 
    (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:

[[Page 62909]]


[[Page 62910]]

* * * * *

    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]