[Federal Register: April 6, 2004 (Volume 69, Number 66)]
[Proposed Rules]               
[Page 18018-18035]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI78

Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for Astragalus jaegerianus (Lane 
Mountain milk-vetch)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate 
critical habitat pursuant to the Endangered Species Act of 1973, as 
amended (Act), for Astragalus jaegerianus (Lane Mountain milk-vetch). 
Approximately 29,522 acres (ac) (11,947 (ha)) of land fall within the 
boundaries of the proposed critical habitat designation. Proposed 
critical habitat is located in the Mojave Desert in San Bernardino 
County, California.
    Critical habitat identifies specific areas that are essential to 
the conservation of a listed species, and that may require special 
management considerations or protection. If this proposal is made 
final, section 7(a)(2) of the Act requires that Federal agencies ensure 
that actions they fund, authorize, or carry out are not likely to 
result in the destruction or adverse modification of critical habitat. 
The regulatory effect of the critical habitat designation does not 
extend beyond those activities funded, permitted, or carried out by 
Federal agencies. State or private actions, with no Federal 
involvement, are not affected.
    Section 4 of the Act requires us to consider economic, national 
security, and other relevant impacts when specifying any particular 
area as critical habitat. We will conduct an analysis of the economic 
impacts of designating these areas, in a manner that is consistent with 
the ruling of the 10th Circuit Court of Appeals in N.M. Cattle Growers 
Assn v. USFWS. We hereby solicit data and comments from the public on 
all aspects of this proposal, including data on economic and other 
impacts of the designation. We may revise this proposal prior to final 
designation to incorporate or address new information received during 
the comment period.

DATES: We will accept comments until June 7, 2004. Public hearing 
requests must be received by May 21, 2004.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information to the Field 
Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 2493 Portola Road, Suite B, Ventura, CA, 93003.
    2. You may also send comments by electronic mail (e-mail) to 
FW1Lanemv@r1.fws.gov. In the event that our internet connection is not 

functional, please submit your comments by the alternate methods 
mentioned above.
    3. You may hand-deliver comments to our Ventura Fish and Wildlife 
Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, 
Ventura, CA 93003.
    All comments and materials received, as well as supporting 
documentation used in preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Connie Rutherford, Ventura Fish and 
Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, 
Suite B, Ventura, CA 93003 (telephone (805) 644-1766; facsimile (805) 


[[Page 18019]]

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Endangered Species Act, the Service 
has found that the designation of statutory critical habitat provides 
little additional protection to most listed species, while consuming 
significant amounts of available conservation resources. The Service's 
present system for designating critical habitat has evolved since its 
original statutory prescription into a process that provides little 
real conservation benefit, is driven by litigation and the courts 
rather than biology, limits our ability to fully evaluate the science 
involved, consumes enormous agency resources, and imposes huge social 
and economic costs. The Service believes that additional agency 
discretion would allow our focus to return to those actions that 
provide the greatest benefit to the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the ESA can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 445 species or 36 percent 
of the 1,244 listed species in the United States under the jurisdiction 
of the Service have designated critical habitat. We address the habitat 
needs of all 1,244 listed species through conservation mechanisms such 
as listing, section 7 consultations, the section 4 recovery planning 
process, the section 9 protective prohibitions of unauthorized take, 
section 6 funding to the States, and the section 10 incidental take 
permit process. The Service believes that it is these measures that may 
make the difference between extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with NEPA, 
all are part of the cost of critical habitat designation. None of these 
costs result in any benefit to the species that is not already afforded 
by the protections of the Act enumerated earlier, and they directly 
reduce the funds available for direct and tangible conservation 

Public Comments Solicited

    We intend any final action resulting from this proposal to be as 
accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act, including 
whether the benefit of designation will outweigh any threats to the 
species due to designation, specifically, any lands being considered 
under a conservation plan;
    (2) With specific reference to the recent amendments to sections 
4(b)(2) of the Act, we request information regarding impacts to 
national security associated with proposed designation of critical 
    (3) Specific information on the amount and distribution of 
Astragalus jaegerianus habitat, and what habitat is essential to the 
conservation of the species and why;
    (4) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (5) Any foreseeable economic or other potential impacts resulting 
from the proposed designation--in particular, any impacts on small 
entities; and
    (6) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). In the event that our internet connection is not functional, 
please submit your comments by the alternate methods mentioned above. 
Please submit Internet comments in ASCII file format and avoid the use 
of special characters or any form of encryption. Please also include 
``Attn: [RIN 1018-AI78]'' in your e-mail subject header and your name 
and return address in the body of your message. If you do not receive a 
confirmation from the system that we have received your Internet 
message, contact us directly by calling our Ventura Fish and Wildlife 
Office at phone number 805-644-1766. Please note that the Internet 
address ``FW1Lanemv@r1.fws.gov'' will be closed out at the termination 
of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or

[[Page 18020]]

address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 


    We listed Astragalus jaegerianus (Lane Mountain milk-vetch) as 
threatened on October 6, 1998 (63 FR 53596) due to threats of 
increasing habitat loss and degradation. It is our intent, in this 
proposed rule, to reiterate and discuss only those topics directly 
relevant to the development and designation of critical habitat or 
relevant information obtained since the final listing. Please refer to 
our final listing rule for a more detailed discussion of the plant's 
taxonomic history and physical description.
    Astragalus jaegerianus (Lane Mountain milk-vetch) is a member of 
the pea family (Fabaceae) that is restricted in its range to a portion 
of the west Mojave Desert that is north of Barstow, in San Bernardino 
County, California. The plant overwinters as a taproot. The stems often 
grow in a zigzag pattern, usually up through low bushes, referred to in 
this proposed rule as host shrubs.
    This species can be considered a hemicryptophyte (partially 
hidden), because it is usually often found growing within the canopy of 
a host shrub. Like other species of Astragalus, the roots of A. 
jaegerianus contain nodules that fix nitrogen. Gibson et al. (1998) 
postulate that A. jaegerianus may have a mutually beneficial 
relationship with the host shrub, wherein the host shrub provides 
trellis-like support for A. jaegerianus, and benefits from higher 
levels of soil nitrogen derived from the litter and roots of A. 
    Presumably, as with other perennial species in the Mojave Desert, 
the plant begins regrowth in the late fall or winter, once sufficient 
soil moisture is available. Individuals go dormant in the late spring 
or summer when soil moisture has been depleted (Bagley 1999). Blooming 
typically occurs in April and May. However, if climatic conditions are 
unfavorable, the plants may dessicate prior to flowering or setting 
seed. Therefore, substantial contributions to the seedbank may occur 
primarily in climatically favorable years.
    Production of pods and the number of seeds per pod can be highly 
variable, both in the field and in greenhouse conditions. Seed pods can 
contain as many as 18 seeds, but more typically 4 to 14 seeds (Sharifi 
et al. 2003). In the field, seeds that do not germinate during the 
subsequent year become part of the seed bank. Seed germination rates in 
the field may resemble the low germination rate of 5 percent that is 
observed in germination trials of unscarified (outer cover is broken) 
seed (Sharifi in litt. 2004).
    Seeds collected from Astragalus jaegerianus range in size from 1.5 
to over 5.0 milligrams in weight (Sharifi in litt. 2003). The 
relatively large size of these seed compared to many desert annual 
species would make them an attractive food source to ants and other 
large insects, small mammals, and birds (Brown et al. 1979). These 
animal species would also be the most likely vectors to disperse A. 
jaegerianus seeds within and between populations. Sharifi (pers. comm. 
2004) confirmed the presence of A. jaegerianus seeds within native ant 
    Limited observations on Astragalus jaegerianus pollinators were 
carried out in 2003 (Kearns 2003). Observations were made on two plants 
in one population for seven days. Although 30 different insect species 
were observed visiting flowers in the area, only 4 visited A. 
jaegerianus flowers. The most frequent pollinator was Anthidium 
dammersi, a solitary bee in the megachilid family (Megachilidae). 
Anthidium dammersi occurs in the Mojave and Colorado deserts of 
California, Nevada, and Arizona (Kearns 2003), and will fly up to 0.6 
mi (1 km) away from their nest; although if floral resources are 
abundant, they will decrease their flight distances accordingly (Doug 
Yanega, University of California Riverside, pers. comm. 2003). Kearns 
(2003) found that the Anthidium individuals he inspected carried pollen 
primarily from phacelia (Phacelia distans) (82 percent of individuals) 
and Astragalus jaegerianus (64 percent). The three occasional visitors 
to A. jaegerianus were a hover fly (Eupeodes volucris), a large 
anthophrid bee (Anthophora sp.), and the white-lined sphinx moth (Hyles 
lineata). The extent to which Astragalus jaegerianus relies on these 
and other pollinators to achieve seed set is not yet known. However, in 
a greenhouse experiment, 25 percent of pollinated A. jaegerianus 
flowers set seed, while only 5 percent of nonpollinated flowers set 
seed (Sharifi pers. comm. 2004).
    Although the aboveground portion of the plant dies back each year, 
individuals of Astragalus jaegerianus persist as a perennial rootstock 
through the dry season. The perennial rootstock may also allow 
Astragalus jaegerianus to survive occasional dry years, while longer 
periods of drought might be endured by remaining dormant (Beatley in 
Bagley 1999). In another federally listed species, Osterhout milk-vetch 
(Astragalus osterhoutii), which occurs in sagebrush steppe habitat in 
Colorado, individuals have remained dormant for up to 4 years (Dawson 
in litt. 1999).
    Although a substantial Astragalus jaegerianus seedbank most likely 
exists, establishment of new individuals may not occur with great 
frequency, and may pose a large bottleneck for the continued 
persistence of the species. In addition to the low seed germination 
rates discussed earlier, several other observations contribute to this 
theory. First, we have some indication that individuals may have a long 
life span; in one long-term plot, individuals have been tracked for a 
period of 13 years. Out of a total of 9 individuals, 1 has persisted 
over a period of 13 years, 1 has persisted 12 years, 1 has persisted 10 
years, 1 has persisted 6 years, 1 has persisted 5 years, and 2 have 
persisted 3 years (Rutherford in litt. 2004). Secondly, very few 
seedlings have been observed. During the extensive surveys of 2001, 
approximately 2 percent of the 4,964 individuals observed were thought 
to be seedlings (Charis 2002). However, the actual number of seedlings 
may have been even lower, because resprouts from established 
individuals were most likely mistaken for seedlings (Sharifi pers. 
comm. 2004). Because the population of Astragalus jaegerianus in any 
given year is comprised primarily of established individuals, 
maintaining the seed bank ensures that the populations are replenished 
with new individuals.
    After the early collections in 1939 and 1941, the plant was not 
collected again until it was rediscovered in 1985 at the sites referred 
to as Brinkman Wash, Montana Mine, and Paradise Wash. Throughout the 
1990s, hundreds more plants were located in these areas (Lee and Ro 
Consulting Engineers 1986, Brandt et al. 1993, Prigge 2000a) in surveys 
sponsored by the Department of the Army's (Army) National Training 
Center at Fort Irwin (NTC). Surveys in 1999 established that the 
Brinkman Wash--Montana Mine site supports one large continuous 
population (Prigge et al. 2000a). In 1992, the third and southernmost 
population was found 9 mi (14 km) to the south, on Coolgardie Mesa, a 
few miles west of Lane

[[Page 18021]]

Mountain; this site closely approximates the type locality.
    Extensive surveys funded by the Army were conducted in 2001 (Charis 
2002). The 2001 surveys contributed greatly to our knowledge of the 
overall distribution and abundance of Astragalus jaegerianus in the 
three populations. In addition, a fourth population was located during 
these surveys on NTC lands in an area referred to as Goldstone. 
Approximately 20 percent of this population is on lands leased by the 
Army to the National Aeronautics and Space Administration (NASA) for 
tracking facilities. Much of the most recent information included in 
this proposed rule is taken from the Army survey report (Charis 2002).
    Individuals of Astragalus jaegerianus are concentrated in four 
geographically distinct areas. In this rule, a population refers to a 
concentration of Astragalus individuals, a population site refers to 
the land that supports the population, and a unit refers to specific 
sites that are being considered for critical habitat designation. The 
four populations of A. jaegerianus are arrayed more or less linearly 
along a 20-mile-long axis that trends in a northeasterly-to-
southwesterly direction. The names of the four populations, from 
northeast to southwest, and land ownership are as follows--the 
Goldstone population occurs on NTC, lands including a portion leased to 
NASA; the Brinkman Wash-Montana Mine population occurs entirely on NTC 
lands; the Paradise Wash population occurs primarily on Army lands, 
with a small portion of the remaining population occurring on Bureau 
lands intermixed with private lands along the southwestern fringe of 
the population; the Coolgardie population occurs primarily on Bureau-
managed lands, with a number of small privately owned parcels scattered 
    Based on the information available, including historic records and 
current location information, there is nothing to suggest that 
Astragalus jaegerianus was ever more widespread than currently known. 
The Army surveys in 2001 (Charis 2002) included reconnaissance surveys 
on habitat that appeared suitable but outside the known range of A. 
jaegerianus, including the Mount General area near Barstow and in the 
Alvord Mountains 20 mi (32 km) to the east. In addition, since 1996, 
rare plant surveys have been conducted on the Naval Air Weapons Station 
at China Lake 6 miles (4.8 km) to the northwest of the known 
distribution (Charis 2002; Silverman in litt. 2003). None of these 
other surveys have resulted in the location of any other populations.
    Astragalus jaegerianus is most frequently found on shallow soils 
derived from Jurassic or Cretaceous granitic bedrock. A small portion 
of the individuals located to date occur on soils derived from diorite 
or gabbroid bedrock (Charis 2002). In one location on the west side of 
the Coolgardie site, plants were found on granitic soils overlain by 
scattered rhyolitic cobble, gravel, and sand. Soils tend to be 
shallower immediately adjacent to milk-vetch plants than in the 
surrounding landscape; at the Montana Mine site, rotten, highly 
weathered granite bedrock was reached within 2 in (6 cm) of the soil 
surface near A. jaegerianus plants (Fahnestock 1999). The topography 
where A. jaegerianus most frequently occurs is on low ridges and rocky 
low hills where bedrock is exposed at or near the surface and the soils 
are coarse or sandy (Prigge 2000b; Charis 2002). Most of the 
individuals found to date occur between 3,100 and 4,200 feet (ft) (945 
to 1,280 meters (m)) in elevation (Charis 2002). At lower-lying 
elevations, the alluvial soils appear to be too fine to support A. 
jaegerianus, and at higher elevations the soils may not be developed 
enough to support A. jaegerianus (Prigge 2000b; Charis 2002).
    Prigge (pers. comm. 2003) examined and found no relationship 
between the abundance and distribution of Astragalus jaegerianus and 
levels of micronutrients or heavy metals, such as selenium, in the 
soil. Another focus of pending research will be on measuring 
transpiration rates and gas exchange rates for A. jaegerianus; these 
rates would be an indicator as to whether the taproots of A. 
jaegerianus are tapping into a water source stored within fractured 
granite bedrock, thus allowing it to utilize water not available to 
other plants within the community (Prigge et al. 2002).
    At the landscape level, the plant community within which Astragalus 
jaegerianus occurs can be described as Mojave mixed woody scrub 
(Holland 1998), Mojave creosote bush scrub (Holland 1988; Cheatham and 
Haller 1975; Thorne 1976), or creosote bush series (Sawyer and Keeler-
Wolf 1995). These broad descriptions, however, are lacking in detail 
that is useful in describing the communities where A. jaegerianus is 
found. While creosote bush (Larrea tridentata) is present in the 
landscape, its presence and abundance is not as extensive in the 
specific areas where A. jaegerianus occurs, presumably because these 
soils are shallower than optimal depth for creosote bush.
    Data gathered from the four sites that support Astragalus 
jaegerianus populations have been more useful in describing the plant 
community that A. jaegerianus grows in. Common to all four sites is the 
remarkably high diversity of desert shrub species, while the relative 
frequency of these species varies slightly from site to site. The shrub 
species that occur in the highest densities at A. jaegerianus sites 
include turpentine bush (Thamnosma montana), white bursage (Ambrosia 
dumosa), Mormon tea (Ephedra nevadensis), Cooper goldenbush (Ericameria 
cooperi var. cooperi), California buckwheat (Eriogonum fasciculatum 
var. polifolium), brittlebush (Encelia farinosa or E. actoni), desert 
aster (Xylorrhiza tortifolia), goldenheads (Acamptopappus 
spherocephalus), spiny hop-sage (Grayia spinosa), cheesebush 
(Hymenoclea salsola), winter fat (Kraschenninikovia lanata), and paper 
bag bush (Salazaria mexicana).
    Astragalus jaegerianus utilizes a variety of species as host 
shrubs. Individuals of A. jaegerianus are rarely observed on bare 
ground, and more frequently within dead shrubs, leading to speculation 
that the milk-vetch may have outlived its host shrub. Host shrubs may 
also be important in providing appropriate microhabitat conditions for 
A. jaegerianus seed germination and seedling establishment (Charis 
    At the Brinkman-Montana Mine site, Prigge et al. (2000b) showed 
that the difference between host shrub preference by Astragalus 
jaegerianus and the frequency with which these shrubs occurred in the 
plant community was statistically significant, indicating that some 
shrubs are more suitable as hosts than others. During Army surveys in 
2001, host shrubs were noted for 4,899 individuals of A. jaegerianus. 
Six shrub species (Thamnosma montana, Ambrosia dumosa, Eriogonum 
fasciculatum var. polifolium, Ericameria cooperi var. cooperi, Ephedra 
nevadensis) and dead shrubs accounted for 75 percent of the host shrub 
    The cumulative total number of Astragalus jaegerianus individuals 
found from all surveys to date is approximately 5,800 (Charis 2002). 
Charis (2002) attempted to extrapolate the total number of individuals 
by factoring in the amount of intervening suitable habitat between 
transects in confirmed occupied habitat, along with an 
``observability'' factor ranging from 30 percent to 70 percent; this 
results in estimations of the total number of individuals ranging from 
20,524 to 47,890. The actual number of individuals observed during the 

[[Page 18022]]

at the four population sites during the climatically favorable year of 
2001 are as follows--Goldstone, 555; Brinkman Wash-Montana Mine, 1,487; 
Paradise Wash, 1,667; Coolgardie, 2,014 (Charis 2002). Low numbers of 
individuals observed in prior and subsequent years (2000, 2002, and 
2003) suggest that this species may well follow the pattern of other 
perennial desert species that rely on favorable climatic conditions 
that do not occur with any predictable frequency (Beatley 1974, Kearns 
2003; B. Prigge, pers. comm. 2003).
    The longterm viability of Astragalus jaegerianus depends on 
numerous variables, including life history characteristics (e.g., 
longevity), population characteristics (e.g., rates of recruitment and 
mortality), and carrying capacity of the habitat. The need to maintain 
high-quality habitat for A. jaegerianus is important to its long-term 
persistence. Aside from the sandy granidiorite soils and the mixed 
desert scrub community which have been described in the previous 
sections, we believe that the other characteristics important to ensure 
the maintenance of the ecologic processes within A. jaegerianus habitat 
include habitat of sufficient size and quality to maintain pollinators; 
and habitat of sufficient size and quality to maintain seed dispersal 
    At the time Astragalus jaegerianus was listed as endangered in 
1998, threats to the species included dry wash mining, recreational 
off-highway vehicle use, military maneuvers on Army lands at NTC and 
NTC expansion lands, and the lack of regulatory mechanisms that would 
offer formal protection for the species or its habitat. Stochastic 
extinction (extinction from random natural events) is also a concern, 
and could result from such events as flooding (that could wash 
substantial amounts of the seedbank into unsuitable habitat), prolonged 
drought (that could reduce the abundance of viable seed in the seed 
bank), or unforeseen events including wildfire, wildfire suppression 
activities, or pipeline breaks or repairs.
    Since the final rule was published, new information concerning the 
status of Astragalus jaegerianus and the nature of its threats is 
available. The 2001 surveys have provided better information on the 
distribution of the species. The extent of the three populations that 
were previously known has been greatly expanded, and the fourth 
population (Goldstone) was discovered during these surveys. Also, the 
size of the populations as represented by the number of individuals 
that can be observed in a favorable climatic year is now known to be 
larger than was thought at the time of listing. In addition, a 
substantial change occurred in land management--on January 11, 2002, 
President George W. Bush signed the Fort Irwin Military Lands 
Withdrawal Act of 2001 (Pub. L. 107-107) into law. This legislation 
withdrew approximately 110,000 ac (44,516 ha) of land, formerly managed 
by the Bureau, for military use. Subsequent surveys and geographic 
information system (GIS) analysis indicated that the proposed expansion 
area covers 118,674 ac (48,026 ha). Military use of the withdrawn lands 
will not begin until compliance with the National Environmental Policy 
Act (NEPA) and a consultation pursuant to section 7(a)(2) of the Act 
with the Service have been completed.
    Two of the four populations of Astragalus jaegerianus (Brinkman 
Wash--Montana Mine, Paradise Wash populations) occur almost entirely on 
withdrawn lands within the NTC expansion. The Army is proposing to 
establish two conservation areas for A. jaegerianus. The first 
conservation area will comprise 2,470 ac (1,000 ha) at the Goldstone 
site. The second conservation area, referred to as Paradise Valley 
Conservation Area, will comprise 4,302 ac (1,741 ha) along the 
southwestern boundary of NTC. Therefore, all of one and a portion of a 
second population of the three populations on NTC lands are in areas 
that will be placed in conservation areas.
    Finally, since the early 1990s, the Bureau has acted as the lead 
agency in developing the West Mojave Plan (WMP); the planning area for 
this multiagency effort covers 9,360,000 ac (3,787,900 ha) of the 
western Mojave Desert. These lands include approximately 3,300,000 ac 
(1,335,477 ha) of lands administered by the Bureau, 3,000,000 ac 
(1,214,070 ha) of private lands, and 102,000 ac (41,278 ha) of State 
lands. The remaining lands lie within areas administered by the 
Department of Defense and National Park Service; these agencies are not 
formally part of the WMP. The draft environmental impact report/
statement (EIR/S) for the WMP was published in May 2003. As part of the 
Bureau's preferred alternative, they propose to establish two 
conservation areas for Astragalus jaegerianus. The first conservation 
area, referred to as the West Paradise Conservation Area, will comprise 
1,243 ac (503 ha), and will be contiguous with the Army's Paradise 
Valley Conservation Area along the southwestern boundary of NTC. This 
area is currently designated as land-use class L by the Bureau, which 
denotes limited use. The second is the Coolgardie Mesa Conservation 
Area (CMCA); it will comprise approximately 13,354 ac (5,404 ha) at the 
Coolgardie site. This area is currently designated as land-use class M 
by the Bureau, which denotes moderate use. Both conservation areas 
would be managed to maintain habitat for A. jaegerianus with the 
following proposed management prescriptions: Implement a minerals 
withdrawal, require a 5 to 1 mitigation ratio for land-disturbing 
projects, and limit total ground disturbance to 1 percent. Once the WMP 
is finalized, the County of San Bernardino will be the lead entity in 
preparing a draft Habitat Conservation Plan (HCP) that will address 
conservation measures that will be proposed for private lands within 
the area covered by the WMP.
    The Bureau has also recently completed a consultation with the 
Service for a route designation project in the western Mojave Desert 
area. The project includes a proposal to reduce the number of roads 
within the proposed CMCA that are designated as open to travel; other 
roads will be proposed for closure and restoration (Service 2003a).
    The impacts from military activities within the boundaries of NTC 
on Astragalus jaegerianus and its habitat will vary, depending on the 
type of terrain and the level and frequency of use. The Army (Charis 
2003) anticipates the following types of impacts--individuals of A. 
jaegerianus could be killed or damaged through direct contact with 
wheeled and tracked vehicles, construction, digging and earth-moving 
activities, temporary bivouacs, helicopter landings, the movement of 
soldiers on foot, and other activities in the project area. Habitat for 
A. jaegerianus could be affected by substantially reducing or 
eliminating host plants within the project area, soil erosion and 
compaction, and the loss of cryptobiotic soil crusts that help 
stabilize the soil surface and assist with water transport to plant 
roots. Army (Charis 2003) anticipates that in ``high-intensity'' use 
areas, up to 100 percent of individuals and habitat could be lost; in 
``moderate-intensity'' use areas, up to 60 percent of individuals could 
be lost; in ``low-intensity'' use areas, up to 20 percent of 
individuals and habitat could be lost; and in proposed conservation 
areas, the only loss of individuals or habitat expected to occur is 
from straying military vehicles or personnel. Windblown dust that has 
been loosened from the soil surface due to military activities may also 
affect A. jaegerianus by inhibiting photosynthesis and transpiration in 
individuals, altering suitable germination sites, and altering

[[Page 18023]]

the effectiveness of pollinator visits and of seed dispersal by 
wildlife species.
    Other nonmilitary activities may also occur within NTC. Recently, a 
fiber-optic cable was installed through the Goldstone population. 
Although the installation consisted of trenching through Astragalus 
jaegerianus habitat, no individuals were affected (Service 2003b). 
Other activities not related to military training, such as road 
construction or maintenance activities, may be also be proposed in the 
future by the Army.

Previous Federal Action

    The final rule listing A. jaegerianus as an endangered species was 
published on October 6, 1998 (63 FR 53596).
    On November 15, 2001, our decision not to designate critical 
habitat for Astragalus jaegerianus and seven other plant and wildlife 
species was challenged in Southwest Center for Biological Diversity and 
California Native Plant Society v. Norton (Case No. 01-CV-2101-IEG 
(S.D.Cal.). On July 1, 2002, the court ordered the Service to 
reconsider its not prudent determination, and propose critical habitat, 
if prudent, for the species by September 15, 2003, and a final critical 
habitat designation, if prudent, no later than September 15, 2004. 
However, the Service exhausted the funding appropriated by Congress to 
work on critical habitat designations in 2003 prior to completing the 
proposed rule. On September 8, 2003, the court issued an order 
extending the publication date of the proposed critical habitat 
designation for A. jaegerianus to April 1, 2004, and the final 
designation to April 1, 2005. In light of Natural Resources Defense 
Council v. U.S. Department of the Interior, 113 F.3d 1121 (9th Cir. 
1997), and the diminished threat of overcollection, the Service has 
reconsidered its decision and has determined that it is prudent to 
designate critical habitat for the species.

Critical Habitat

    Section 3(5)(A) of the Act defines critical habitat 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. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    The designation of critical habitat does not affect land ownership 
or establish a refuge, wilderness, reserve, preserve, or other 
conservation area. It does not allow government or public access to 
private lands. Under section 7 of the Act, Federal agencies must 
consult with us on activities they undertake, fund, or permit that may 
affect critical habitat and lead to its destruction or adverse 
modification. However, the Act prohibits unauthorized take of listed 
species and requires consultation for activities that may affect them, 
including habitat alterations, regardless of whether critical habitat 
has been designated. We have found that the designation of critical 
habitat provides little additional protection to most listed species.
    To be included in a critical habitat designation, habitat must be 
either a specific area within the geographic area occupied by the 
species on which are found those physical or biological features 
essential to the conservation of the species (primary constituent 
elements, as defined at 50 CFR 424.12(b)) and which may require special 
management considerations or protections, or be specific areas outside 
of the geographic area occupied by the species which are determined to 
be essential to the conservation of the species. Section 3(5)(C) of the 
Act states that not all areas that can be occupied by a species should 
be designated as critical habitat unless the Secretary determines that 
all such areas are essential to the conservation of the species. Our 
regulations (50 CFR 424.12(e)) also 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 
    Regulations at 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. When we designate critical 
habitat, we may not have the information necessary to identify all 
areas that are essential for the conservation of the species. 
Nevertheless, we are required to designate those areas we consider to 
be essential, using the best information available to us. Accordingly, 
we do not designate critical habitat in areas outside the geographic 
area occupied by the species unless the best available scientific and 
commercial data demonstrate that those areas are essential for the 
conservation needs of the species.
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic impact, the impact on national security, and any other 
relevant impact of specifying any particular area as critical habitat. 
We may exclude areas from critical habitat designation when the 
benefits of exclusion outweigh the benefits of including the areas 
within critical habitat, provided the exclusion will not result in 
extinction of the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. It requires our biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information should be the listing package for the species. Additional 
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties 
or other entities that develop HCPs, scientific status surveys and 
studies, biological assessments, or other unpublished materials and 
expert opinion or personal knowledge.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of what we know at the time of designation. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted

[[Page 18024]]

projects affecting listed species outside their designated critical 
habitat areas may still result in jeopardy findings in some cases. 
Similarly, critical habitat designations made on the basis of the best 
available information at the time of designation will not control the 
direction and substance of future recovery plans, habitat conservation 
plans, or other species conservation planning efforts if new 
information available to these planning efforts calls for a different 

Relationships to Sections 3(5)(A) and 4(b)(2) of the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species on which are 
found those physical and biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations or protection. As such, for an area to be 
designated as critical habitat for a species it must meet both 
provisions of the definition. In those cases where an area does not 
provide those physical and biological features essential to the 
conservation of the species, it has been our policy not to include them 
in designated critical habitat. Likewise, if we believe that an area 
determined to be biologically essential has an adequate conservation 
management plan that covers the species and provides for adaptive 
management sufficient to conserve the species, then special management 
and protection are not needed. Therefore, these areas do not meet the 
second provision of the definition and are also not proposed as 
critical habitat. Examples of conservation management plans that we 
consider when designating critical habitat include Habitat Conservation 
Plans (HCPs) for nonmilitary areas.
    Further, section 4(b)(2) of the Act states that critical habitat 
shall be designated, and revised on the basis of the best scientific 
data available after taking into consideration the economic impact, the 
impact on national security, and any other relevant impact of 
specifying any particular area as critical habitat. An area may be 
excluded from critical habitat if it is determined, following an 
analysis, that the benefits of such exclusion outweigh the benefits of 
specifying a particular area as critical habitat, unless the failure to 
designate such area as critical habitat will result in the extinction 
of the species. Consequently, we may exclude an area from designated 
critical habitat based on economic impacts, or other relevant impacts 
such as preservation of conservation partnerships and national 
    In our critical habitat designations we have used both the 
provisions outlined in sections 3(5)(A) and 4(b)(2) of the Act to 
evaluate those specific areas proposed for designation as critical 
habitat and those areas which are subsequently finalized (i.e., 
designated). We have applied the provisions of these sections of the 
Act to lands essential to the conservation of the subject species to 
evaluate and either exclude from final critical habitat or not include 
in proposed critical habitat. Lands in which we have either excluded 
from or not included in critical habitat based on those provisions 
include those covered by: (1) Legally operative HCPs that cover the 
species, and provide assurances that the conservation measures for the 
species will be implemented and effective; (2) draft HCPs that cover 
the species, have undergone public review and comment, and provide 
assurances that the conservation measures for the species will be 
implemented and effective (i.e., pending HCPs); (3) Tribal conservation 
plans that cover the species and provide assurances that the 
conservation measures for the species will be implemented and 
effective; (4) State conservation plans that provide assurances that 
the conservation measures for the species will be implemented and 
effective; and (5) Fish and Wildlife Service Comprehensive Conservation 
Plans that provide assurances that the conservation measures for the 
species will be implemented and effective.
    As discussed above, the Bureau is leading the development of the 
WMP; the WMP includes the federal action of amending the Bureau's 
California Desert Conservation Area Plan and the development of a 
habitat conservation plan for non-federal lands within the planning 
area. Conservation of A. jaegerianus is a key factor that is being 
considered in the development of the WMP. We have been providing 
technical assistance to the Bureau to ensure that the WMP provides for 
protection and management of habitat essential for the conservation of 
this species. In addition, the Bureau's proposed amendments to the 
California Desert Conservation Area Plan will be subject to 
consultation under section 7 of the Act. As part of the WMP, the Bureau 
is proposing to establish the Coolgardie Mesa and West Paradise 
Conservation Areas, to implement management actions that will 
contribute toward the conservation of the species, and to modify 
current activities within these areas so that such activities will not 
impair the conservation of the species. The County of San Bernardino is 
the lead agency for preparing the specific portion of the habitat 
conservation plan that would be in effect for this portion of the 
planning area. The habitat conservation plan may not contain specific 
measures to conserve A. jaegerianus on private lands; however, both 
components of the WMP target these lands for acquisition and subsequent 
management for the conservation of the species. We will conduct an 
economic analysis that includes potential economic effects of the 
actions proposed in the WMP, and we will consider the results of the 
economic analysis and the adequacy of the WMP in the conservation of A. 
jaegerianus in our final critical habitat determination.
    The Sikes Act Improvement Act of 1997 (Sikes Act) requires each 
military installation that includes land and water suitable for the 
conservation and management of natural resources to complete, by 
November 17, 2001, an Integrated Natural Resources Management Plan 
(INRMP). An INRMP integrates implementation of the military mission of 
the installation with stewardship of the natural resources found there. 
Each INRMP includes an assessment of the ecological needs on the 
installation, including the need to provide for the conservation of 
listed species; a statement of goals and priorities; a detailed 
description of management actions to be implemented to provide for 
these ecological needs; and a monitoring and adaptive management plan. 
We consult with the military on the development and implementation of 
INRMPs for installations with listed species.
    Section 318 of the fiscal year 2004 National Defense Authorization 
Act (Pub. L. 108-136) amended the Act to address the relationship of 
INRMPs to critical habitat. We are proposing to designate Army lands on 
NTC as critical habitat for Astragalus jaegerianus. Although NTC has an 
INRMP in place, it does not address A. jaegerianus and it does not 
include the withdrawn lands where much of the critical habitat for A. 
jaegerianus is located. The Army is amending its existing INRMP to 
address the conservation of A. jaegerianus throughout its lands, 
including the expansion area. However, we cannot exclude Army lands 
from this proposed critical habitat designation under this amendment to 
the Act because the amended INRMP has not been completed and we have 
not had the opportunity to determine if the INRMP provides a benefit to 
A. jaegerianus. We will consider the INRMP if it is completed prior to 
our final designation

[[Page 18025]]

of critical habitat, or at a later date, if the Service has sufficient 
funding to undertake a proposed withdrawal of critical habitat.
    Military lands may also be excluded from critical habitat 
designation based on section 4(b)(2) of the Act. As discussed above, an 
area may be excluded from critical habitat if it is determined, 
following an analysis of relevant impacts including the impact to 
national security, that the benefits of such exclusion outweigh the 
benefits of specifying a particular area as critical habitat, unless 
the failure to designate such area as critical habitat will result in 
the extinction of the species. Currently, the Army had proposed a 
combination of conservation measures and military training over A. 
jaegerianus sites. When we conduct the 4(b)(2) analysis prior to 
finalizing this designation, we will fully consider the final plans for 
the expansion areas, the economic analysis, and any comments received 
from the Army on this proposal.


    As required by the Act and regulations (section 4(b)(2) and 50 CFR 
424.12) we used the best scientific information available to determine 
areas that contain the physical and biological features that are 
essential for the survival and recovery of Astragalus jaegerianus. This 
information included data from our files that we used for listing the 
species; geologic maps (California Geologic Survey 1953), recent 
biological surveys and reports, particularly from the Army surveys of 
2001 (Charis 2002); additional information provided by the Army, the 
Bureau of Land Management, and other interested parties; and 
discussions with botanical experts. We also conducted multiple site 
visits to all three units that are being proposed for designation.
    The longterm probability of the survival and recovery of Astragalus 
jaegerianus is dependent upon the protection of existing population 
sites, and the maintenance of ecologic functions within these sites, 
including connectivity within and between populations within close 
geographic proximity to facilitate pollinator activity and seed 
dispersal mechanisms, and the ability to maintain these areas free of 
major ground-disturbing activities. The areas we are proposing to 
designate as critical habitat provide some or all of the habitat 
components essential for the conservation of A. jaegerianus.
    In our delineation of the critical habitat units, we selected areas 
to provide for the conservation of Astragalus jaegerianus at the four 
sites where it is known to occur. All four sites are essential because, 
as cited earlier, Astragalus jaegerianus exhibits life history 
attributes, including variable seed production, low germination rates, 
and habitat specificity in the form of a dependence on a co-occurring 
organism (host shrubs), that make it particularly vulnerable to 
extinction (Keith 1998, Gilpin and Soule 1986). We believe the proposed 
designation is of sufficient size to maintain landscape scale processes 
and to minimize the secondary impacts resulting from human occupancy 
and human activities occurring in adjacent areas. We mapped the units 
with a degree of precision commensurate with the available information, 
the size of the unit, and the time allotted to complete this proposal. 
We anticipate that the boundaries of the three mapping units may be 
refined based on additional information received during the public 
comment period.
    Of principle importance in the process of delineating the proposed 
critical habitat units are data in a geographic information system 
(GIS) format provided by the Army depicting the results of field 
surveys for Astragalus jaegerianus conducted in 2001 by the Army 
(Charis 2002). These data consisted of three files depicting the 
locations of transects that were surveyed for A. jaegerianus, the 
locations of A. jaegerianus individuals found during the surveys, and 
minimum convex polygons (MCP) calculated to represent the outer bounds 
of A. jaegerianus populations (Charis 2002).
    For mapping proposed critical habitat units, we proceeded through a 
multi-step process. First, we started with the MCPs that had been 
calculated by the Army (Charis 2002). We then expanded these boundaries 
outward from the edge of each of the 4 populations by a distance of 
0.25 mi (0.4 km). We did this to include Astragalus jaergerianus 
individuals that are part of these essential populations, but were not 
noted during surveys. The basis for determining that these additional 
land areas are occupied are as follows: (1) This habitat has the 
appropriate elevational range, and includes the Primary Constituent 
Elements (PCEs) (See Primary Constituent Elements section below), i.e. 
granitic soils, and plant communities that support host plants that A. 
jagerianus requires; (2) Botanists involved in the Army surveys stated 
that ``the estimate of [A. jagerianus] distribution is a minimum'' 
(SAIC 2003); and that additional individuals of A. jaegerianus most 
likely occurred on the fringes of the MCPs. (Wertenberger in litt. 
2003); (3) mapping errors during the 2001 surveys indicated that the 
location of individuals did not match up precisely with the location of 
the transect boundaries (Charis 2002); (4) limited surveys were 
conducted in 2003, and despite the unfavorable climatic conditions for 
A. jaegerianus, 13 additional individuals were located outside the MCPs 
(SAIC 2003). Three of the four areas where new plants were found were 
within the 0.25 mi (0.4 km) boundary; and (5) this 0.25 mi (0.4 km) 
distance is commensurate in scale with the distance between transects 
where individuals were found and the distance between individuals along 
one transect, and it is well within the distance that can be traversed 
by pollinators and seed dispersers.
    We next removed areas on the margins of the critical habitat units 
where we determined, by referring to digital raster graphic maps, the 
topography is either too steep or the elevation too high to support 
additional Astragalus jaegerianus individuals. This boundary 
modification involved editing the eastern and southeastern edge of the 
Coolgardie Unit and a cirque-shaped sliver from the central portion of 
the southern boundary of the Goldstone-Brinkman Unit.
    For the Goldstone and Brinkman-Montana populations, expansion of 
the MCP boundaries by 0.25 mi (0.4 km) left a narrow corridor (about 
0.125 mi (0.2 km)) between the revised population boundaries. We chose 
to bridge the gap between the two populations by incorporating the 
intervening habitat that is within the geographic area occupied by the 
species between the Goldstone and Brinkman-Montana populations and 
occupied as seed banks into a single critical habitat unit. We did this 
for several reasons: the intervening habitat between the two MCPs 
contains the PCEs with the appropriate elevational range, granitic 
soils, and plant communities (based on topographic maps, geologic maps, 
and aerial photos) that Astragalus jaegerianus requires, there were no 
obvious geographic barriers between the two MCPs; the distance between 
the two closest A. jaegerianus individuals across the gap of the two 
MCPs was smaller than the distance between individuals within the MCPs; 
and the distance between the two MCPs was small enough that it could be 
easily traversed by a pollinator with a potential flight distance of 
0.6 mi (1 km), or a seed disperser such as certain small mammals and 
birds. These granitic soils and plant community also provide habitat 
for the pollinators that visit A. jaegerianus flowers that results in 
the production of seed, habitat for seed

[[Page 18026]]

dispersers (birds, small mammals, and large insects) that carry seed 
between the coppices of suitable host shrubs, and as long-term storage 
for the soil seedbank of A. jaegerianus.
    For the Paradise population, we removed a small portion of habitat 
(47 ac (19 ha)) from the eastern edge of the MCP (5,497 ac (2,225 ha)), 
thereby eliminating a small cluster of three individuals and the 
surrounding suitable habitat from the proposed critical habitat unit. 
We did this for two reasons: the distance between this small cluster of 
three individuals and the other 1,487 individuals mapped within the MCP 
was greater than the distance between other clusters of individuals 
within the MCP, and this cluster of individuals was not adjacent to, or 
providing connectivity to, any other known population of A. 
    Finally, the boundaries of the critical habitat units were modified 
slightly in the process of creating the legal descriptions of the 
critical habitat units. This process consisted of overlaying the 
critical habitat units with grid lines spaced at 100-m intervals; the 
grid lines following the Universal Transverse Mercator (UTM) coordinate 
system ties to the North American Datum of 1927. Vertices defining the 
critical habitat boundary polygon were then moved to the closest vertex 
on the 100-m UTM grid lying inside of the critical habitat boundary. 
Vertices not necessary to define the shape of the boundary polygon were 
deleted. Changing the boundaries in this fashion serves two purposes: 
(1) It creates a list of coordinates that is easier for the public to 
use when looking at USGS 7.5 minute topographic maps and, (2) it 
minimizes the number of coordinates necessary to define the shapes of 
the critical habitat units.
    In selecting areas of proposed critical habitat, we typically make 
an effort to avoid developed areas, such as roads and buildings at 
NASA's Goldstone facilities, and that are unlikely to contribute to the 
conservation of Astragalus jaegerianus. However, we did not map 
critical habitat in sufficient detail to exclude patches of habitat 
within the larger areas being mapped that are unlikely to contain the 
primary constituent elements essential for the conservation of A. 
jaegerianus. Land within the boundaries of the mapped units upon which 
are located facilities, such as buildings, roads, parking lots, 
communication tower pads, and other paved areas, does not and will not 
contain any of the primary constituent elements. In addition, old 
mining sites where the soil profile and topography have been so altered 
that no native vegetation can grow also do not and will not contain any 
of the primary constituent elements. Federal actions limited to these 
areas, therefore, would not trigger a section 7 consultation, unless 
they affect the species and/or primary constituent elements in adjacent 
critical habitat.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we consider those physical and biological features (primary 
constituent elements) that are essential to the conservation of the 
species and that may require special management considerations or 
protection. These include, but are not limited to space for individual 
and population growth, and for normal behavior; food, water, air, 
light, minerals or other nutritional or physiological requirements; 
cover or shelter; sites for breeding, reproduction, or rearing of 
offspring, germination, or seed dispersal; and habitats that are 
protected from disturbance or are representative of the historic 
geographical and ecological distributions of a species.
    Much of what is known about the specific physical and biological 
requirements of Astragalus jaegerianus is described in the Background 
section of this proposal and in the final listing rule. The proposed 
critical habitat is designed to provide sufficient habitat to maintain 
self-sustaining populations of Astragalus jaegerianus throughout its 
range and to provide those habitat components essential for the 
conservation of the species. These habitat components provide for: (1) 
Individual and population growth, including sites for germination, 
pollination, reproduction, pollen and seed dispersal, and seed bank; 
(2) sites for the host plants that provide structural support for A. 
jaegerianus; (3) intervening areas that allow gene flow and provide 
connectivity or linkage within segments of the larger population; and 
(4) areas that provide basic requirements for growth, such as water, 
light, and minerals.
    The conservation of Astragalus jaegerianus is dependent upon a 
number of factors, including the protection and management of existing 
population sites and habitat and the maintenance of normal ecological 
functions within these sites, including connectivity between groups of 
plants within close geographic proximity to facilitate gene flow among 
the sites by pollinator activity and dispersal of seeds. Some of the 
factors associated with the observed and potential distribution of this 
species include the following: A portion of seeds will likely germinate 
if germination requirements of scarification and moisture are met 
within a germination time frame for the species; germination patterns 
likely reflect the distribution of the seed bank in the soils; and 
distribution patterns of standing plants may, in large part, reflect 
the distribution pattern of requisite climatic conditions for a 
particular year, while in other areas, standing plants may not be 
visible but persist as dormant taproots for a number of years. 
Including habitat surrounding the known populations outward for a 
distance of 0.25 mi (0.4 km) would ensure inclusion of most of the 
    Based on our knowledge to date, the primary constituent elements of 
critical habitat for Astragalus jaegerianus consist of:
    (1) Shallow soils (between 3,100 and 4,200 ft (945 to 1,280 m) in 
elevation) derived primarily from Jurassic or Cretaceous granitic 
bedrock, and less frequently on soils derived from diorite or gabbroid 
bedrock and at one location on granitic soils overlain by scattered 
rhyolitic cobble, gravel, and sand.
    (2) The host shrubs (between 3,100 and 4,200 ft (945 to 1,280 m) in 
elevation) within which Astragalus jaegerianus grows, most notably 
Thamnosma montana, Ambrosia dumosa, Eriogonum fasciculatum ssp. 
polifolium, Ericameria cooperi var. cooperi, Ephedra nevadensis, and 
Salazaria mexicana that are usually found in mixed desert shrub 
    We selected critical habitat areas to provide for the conservation 
of Astragalus jaegerianus at the only four sites where they are known 
to occur. We are not proposing any critical habitat units that do not 
contain plants.

Special Management Considerations

    Within the geographic area occupied by the species, for an area to 
be designated as critical habitat it must contain those physical or 
biological features essential to the conservation of the species that 
may require special management considerations or protection. The 
Goldstone-Brinkman unit may require special management considerations 
or protection due to the threats to the species and its habitat posed 
by invasions of non-native plants such as Sahara mustard (Brassica 
tournefortii) that may take over habitat for the species; habitat 
fragmentation that detrimentally affects plant-host plant (composition 
and structure of the desert scrub community) and plant-

[[Page 18027]]

pollinator interactions, leading to a decline in species reproduction 
and increasing susceptibility to non-native plant invasion; and 
vehicles that cause direct and indirect impacts, such as excessive 
dust, to the plant. Habitat for Astragalus jaegerianus in the 
Goldstone-Brinkman unit has been fragmented to a minor extent. We 
anticipate that in the future, habitat fragmentation will increase, 
that changes in composition and structure of the plant community may be 
altered by the spread of non-native plants, and that the direct and 
indirect effects of dust may increase. All of these threats would 
render the habitat less suitable for A. jaegerianus, and special 
management may be needed to address them. At this time, special 
management considerations under 3(5)(a) of the Act do warrant proposing 
this unit as critical habitat, but if circumstances change these areas 
may be designated in the final rule.
    The Paradise unit may require special management considerations or 
protection due to the threats to the species and its habitat posed by 
invasions of non-native plants such as Sahara mustard (Brassica 
tournefortii) that may take over habitat for the species; habitat 
fragmentation that detrimentally affects plant-host plant (composition 
and structure of the desert scrub community) and plant-pollinator 
interactions, leading to a decline in species reproduction and 
increasing susceptibility to non-native plant invasion; vehicles that 
cause direct and indirect impacts, such as excessive dust, to the 
plant. Habitat for Astragalus jaegerianus in the Paradise unit has been 
fragmented to a minor extent. We anticipate that in the future, habitat 
fragmentation may increase, that changes in composition and structure 
of the plant community may be altered by the spread of non-native 
plants, and that the direct and indirect effects of dust may increase. 
All of these threats would render the habitat less suitable for A. 
jaegerianus, and special management may be needed to address them. At 
this time, special management considerations under 3(5)(a) of the Act 
do warrant proposing this unit as critical habitat, but if 
circumstances change these areas may be designated in the final rule.
    The Coolgardie unit may require special management considerations 
or protection due to the threats to the species and its habitat posed 
by invasions of non-native plants such as Sahara mustard (Brassica 
tournefortii) that may take over habitat for the species; habitat 
fragmentation that detrimentally affects plant-host plant (composition 
and structure of the desert scrub community) and plant-pollinator 
interactions, leading to a decline in species reproduction and 
increasing susceptibility to non-native plant invasion; vehicles that 
cause direct and indirect impacts, such as excessive dust, to the 
plant; and limited mining activities that can lead to changes in 
essential habitat conditions (e.g., decreases in plant cover, and 
increases in non-native species). Habitat for Astragalus jaegerianus in 
the Coolgardie unit has been fragmented to a moderate extent from 
current and historical mining and from off-road vehicle use, and non-
native species have been introduced into the area. We anticipate that 
in the future, habitat fragmentation may increase, and that changes in 
composition and structure of the plant community may be altered by the 
continued spread of non-native plants. All of these threats would 
render the habitat less suitable for A. jaegerianus, and special 
management may be needed to address them. At this time, special 
management considerations under 3(5)(a) of the Act do warrant proposing 
this unit as critical habitat, but if circumstances change these areas 
may be designated in the final rule.

Proposed Critical Habitat Designation

    The proposed critical habitat areas described below constitute our 
best assessment at this time of the areas needed for the species' 
conservation. The three areas being proposed as critical habitat are 
all within an area that is north of the town of Barstow in the Mojave 
Desert in San Bernardino County, California, are currently occupied, 
and contain the primary constituent elements that sustain the 
Astragalus jaegerianus.
    The following general areas are proposed as critical habitat (see 
legal descriptions for exact critical habitat boundaries).

Unit 1: Goldstone-Brinkman

    Unit 1 consists of approximately 9,906 ac (4,008 ha), with 9,502 ac 
(3,845 ha) of the lands managed by the Army on NTC. Of the Army land, 
996 ac (403 ha) are leased to NASA (Goldstone Tracking Station). The 
Army is proposing to designate approximately 1,300 ac (526 ha) as the 
Goldstone Conservation Area. The rest of the unit consists of 211 ac 
(85 ha) of state land, and 193 ac (78 ha) of private land. This unit is 
essential because it supports two of the four populations of Astragalus 
jaegerianus--the Goldstone and Brinkman Wash--Montana Mine populations. 
In 2001 surveys, 555 and 1,487 individuals were observed, respectively, 
in these two populations. The land within this unit supports the PCEs 
for the species--granitic soils and plant community that are necessary 
for the growth, reproduction, and establishment of A. jaergerianus 
individuals. This unit also includes an essential narrow 0.125 mi (0.2 
km) corridor between the two populations that contains the appropriate 
granitic soils and plant community to support A. jaegerianus, and 
supports pollinators and seed dispersers between the two populations. 
This unit is the northeasternmost of the three units.

Unit 2: Paradise

    Unit 2 consists of approximately 6,828 ac (2,763 ha). Of this, 
5,755 ac (2,329 ha) is on Army lands on NTC, and approximately 466 ac 
(189 ha) on adjacent Federal lands managed by the Bureau of Land 
Management (Bureau). The Army is proposing to designate approximately 
4,800 ac (1,943 ha) of this site as the East Paradise Valley 
Conservation Area. The Bureau is also proposing to designate an area of 
approximately 1,000 ac (405 ha), which includes some private 
inholdings, at this site as part of the East Paradise Valley 
Conservation Area. This unit is essential because it supports the 
Paradise population, only one of four populations of Astragalus 
jaegerianus; in 2001 surveys, 1,667 individuals were observed in this 
population. The land within this unit supports the granitic soils and 
plant community that are necessary for the growth, reproduction, and 
establishment of A. jaegerianus individuals. These granitic soils and 
plant community also provide habitat for the pollinators that visit A. 
jaegerianus flowers that results in the production of seed, habitat for 
seed dispersers (birds, small mammals, and large insects) that carry 
seed between the coppices of suitable host shrubs, and as long-term 
storage for the soil seedbank of A. jaegerianus.

Unit 3: Coolgardie

    Unit 3 consists of approximately 12,788 ac (5,175 ha), primarily on 
Federal lands managed by the Bureau. Approximately the same amount of 
land (9,161 ac (3,707 ha)) is within the Bureau's proposed Coolgardie 
Mesa Conservation Area (CMCA) and overlaps to a great extent with the 
proposed Coolgardie critical habitat unit. Parcels of private land are 
scattered throughout this unit and total approximately 3,627 ac (1,467 
ha). Some portion of these parcels most likely will be acquired by the 
Bureau and added to the CMCA. This unit is essential because it 
supports one of only four populations of Astragalus jaegerianus. In 
2001 surveys,

[[Page 18028]]

2,014 plants were observed in this population. The land within this 
unit supports the granitic soils and plant community that are necessary 
for the growth, reproduction, and establishment of A. jaegerianus 
individuals; proposed critical habitat does not include the ``donut 
hole'' in the center of the unit, which does not contain the 
appropriate granitic soils. These granitic soils and plant community 
also provide habitat for the pollinators that visit A. jaegerianus 
flowers that results in the production of seed, habitat for seed 
dispersers (birds, small mammals, and large insects) that carry seed 
between the coppices of suitable host shrubs, and as long-term storage 
for the soil seedbank of A. jaegerianus.
    The approximate areas of proposed critical habitat by land 
ownership are shown in Table 1.

    Table 1.--Approximate Areas, Given in Acres (ac) \1\ and Hectares (ha) of Proposed Critical Habitat For Astragalus jaegerianus by Land Ownership
                                      Department of Defense      Bureau of Land           State lands
             Unit name                  lands  (Federal)      Management  (Federal)        commission           Private lands              Totals
1. Goldstone-Brinkman..............  9,502 ac (3,845 ha)...  0 ac (0 ha)...........  211 ac (85 ha).......  193 ac (78 ha).......  9,906 ac (4,008 ha)
2. Paradise........................  5,755 ac (2,329 ha)...  466 ac (189 ha).......  0 ac (0 ha)..........  607 ac (246 ha)......  6,828 ac (2,763 ha)
3. Coolgardie......................  0 ac (0 ha)...........  9,074 ac (3,672 ha)...  0 ac (0 ha)..........  3,714 ac (1503 ha)...  12,788 ac (5,175 ha)
    Totals.........................  15,257 ac (6,174 ha)..  9,627 ac (3,896 ha)...  211 ac (85 ha).......  4,427 ac (1,792 ha)..  29,522 ac (11,947 ha)

\1\ Approximate acres have been converted to hectares (1 ac = 0.4047 ha). Fractions of acres and hectares have been rounded to the nearest whole number.
  Totals are sums of units.

Effects of Critical Habitat Designation

    Section 7(a) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out do 
not destroy or adversely modify critical habitat to the extent that the 
action appreciably diminishes the value of the critical habitat for the 
survival and recovery of the species. Individuals, organizations, 
States, local governments, and other non-Federal entities are affected 
by the designation of critical habitat only if their actions occur on 
Federal lands, require a Federal permit, license, or other 
authorization, or involve Federal funding.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is designated or proposed. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) 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 action 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 the 
Federal action 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 designated. We may adopt the formal 
conference report as the biological opinion when the species is listed 
or critical habitat designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
    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 must enter into 
consultation with us. Through this consultation, we would ensure that 
the permitted actions do not destroy or adversely modify critical 
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid the destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated, and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may directly or indirectly affect critical habitat 
include, but are not limited to:
    (1) Activities that would disturb the upper layers of soil, 
including disturbance of the soil crust, soil compaction, soil 
displacement, and soil destabilization. These activities include, but 
are not limited to, livestock grazing, fire management, and 
recreational use that would include mechanical disturbance such as 
would occur with tracked vehicles, heavy-wheeled vehicles, off-highway 
vehicles (including motorcycles), and mining activities, such as ``club 
mining'' with drywashers and sluices.
    (2) Activities that appreciably degrade or destroy the native 
desert scrub communities, including but not limited to livestock 
grazing, clearing, discing,

[[Page 18029]]

fire management, and recreational use that would include mechanical 
disturbance such as would occur with tracked vehicles, heavy-wheeled 
vehicles, off-highway vehicles (including motorcycles), and mining 
activities such as ``club mining'' with drywashers and sluices.
    (3) The application or runoff of chemical or biological agents into 
the air, onto the soil, or onto native vegetation, including substances 
such as pesticides, herbicides, fertilizers, tackifiers, obscurants, 
and chemical fire retardants.
    Activities that may destroy or adversely modify critical habitat 
include those that alter the primary constituent elements to an extent 
that the value of critical habitat for both the survival and recovery 
of Astragalus jaegerianus is appreciably reduced. We note that such 
activities may also jeopardize the continued existence of the species.
    We recognize that the proposed designation of critical habitat may 
not include all of the habitat areas that may eventually be determined 
to be necessary for the recovery of the species. For this reason, we 
want to ensure that the public is aware that critical habitat 
designations do not signal that habitat outside the proposed 
designation is unimportant or may not be required for recovery. Areas 
outside the proposed critical habitat designation will continue to be 
subject to conservation actions that may be implemented under section 
7(a)(1) of the Act and to the regulatory protections afforded by the 
section 7(a)(2) jeopardy standard and the prohibitions of section 9 of 
the Act. Critical habitat designations made on the basis of the best 
available information at the time of designation will not control the 
direction and substance of future recovery plans, habitat conservation 
plans, or other species conservation planning efforts if new 
information available to these planning efforts calls for a different 
    Activities on Federal lands that may affect Astragalus jaegerianus 
or its critical habitat will require section 7 consultation. Activities 
on private or State lands requiring a permit from a Federal agency, 
such as a permit from the U.S. Army Corps of Engineers under section 
404 of the Clean Water Act or any other activity requiring Federal 
action (i.e., funding, authorization), will also continue to be subject 
to the section 7 consultation process. Federal actions not affecting 
listed species or critical habitat, and actions on non-Federal and 
private lands that are not federally funded, authorized, or permitted, 
do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to briefly describe and 
evaluate in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
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 
Astragalus jaegerianus is appreciably reduced. We note that such 
activities may also jeopardize the continued existence of the species.
    Designation of critical habitat could affect the following agencies 
and/or actions:
    (1) Military-related and construction activities of the Army on its 
lands or lands under its jurisdiction, including those lands leased to 
    (2) Activities of the Bureau of Land Management on its lands or 
lands under its jurisdiction;
    (3) The release or authorization of release of biological control 
agents by Federal agencies, including the Bureau of Land Management, 
the Army, and the U.S. Department of Agriculture; and
    (4) Habitat restoration projects on private lands receiving funding 
from Federal agencies, such as from the Natural Resources Conservation 
    As discussed previously in this rule, we are consulting with both 
the Army and the Bureau on activities that are being proposed on their 
lands. We are consulting with the Army on its proposed addition of 
training lands on NTC (Charis 2003). We are also consulting with the 
Bureau as the lead Federal agency for the proposed West Mojave Plan 
(Bureau 2003).
    Where federally listed wildlife species occur on private lands 
proposed for development, any habitat conservation plans submitted by 
the applicant to secure an incidental take permit, pursuant to section 
10(a)(1)(B) of the Act, would be subject to the section 7 consultation 
process. The Superior-Cronese Critical Habitat Unit for the desert 
tortoise (Gopherus agassizii), a species that is listed as threatened 
under the Act, overlaps in range with Astragalus jaegerianus in a 
portion of the Brinkman-Montana, Paradise, and Coolgardie populations 
of the species. Although we anticipate that most of the activities 
occurring on private lands within the range of A. jaegerianus will 
eventually be included under the umbrella of the HCP to be prepared by 
the County of San Bernardino, there may be activities proposed for 
private lands that either need to be completed prior to the approval of 
the WMP's HCP, or there may be a proposed activity that is not covered 
by the HCP, and therefore may require a separate habitat conservation 
    If you have questions regarding whether specific activities will 
likely constitute destruction or adverse modification of critical 
habitat, contact the Field Supervisor, Ventura Fish and Wildlife Office 
(see ADDRESSES section). Requests for copies of the regulations on 
listed wildlife and inquiries about prohibitions and permits may be 
addressed to the U.S. Fish and Wildlife Service, Portland Regional 
Office, 911 NE 11th Avenue, Portland, OR 97232 (telephone 503/231-6131; 
facsimile 503/231-6243).

Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act

    We have not excluded any lands from this proposed designation 
pursuant to sections 3(5)(A), 4(a)(3), and 4(b)(2) of the Act. Although 
the Bureau has published the draft EIR/S for the West Mojave Plan and 
we anticipate the final plan may be published in fall 2004, the 
attendant draft HCP has yet to be prepared. The proposed designation 
includes a portion of Fort Irwin, an Army installation. The Army has 
proposed to establish two conservation areas and an additional area 
that would be subject to light use (i.e., foot traffic only); however, 
the integrated natural resource management plan for this portion of the 
installation has not been finalized. We expect to work with the Army on 
the development of the integrated natural resource management plan for 
Fort Irwin in the coming months. We may consider excluding these lands 
from critical habitat in the final designation pursuant to these 
sections of the Act.

Economic Analysis

    An analysis of the economic impacts of proposing critical habitat 
for the Astragalus jaegerianus is being prepared. We will announce the 
availability of the draft economic analysis as soon as it is completed, 
at which time we will seek public review and comment. At that time, 
copies of the draft economic analysis will be available for downloading 
from the Internet at http://ventura.fws.gov, or by contacting the 

Ventura Fish and Wildlife Office directly (see ADDRESSES section).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will solicit the expert 
opinions of at least

[[Page 18030]]

three appropriate and independent specialists regarding this proposed 
rule. The purpose of such review is to ensure that our critical habitat 
designation is based on scientifically sound data, assumptions, and 
analyses. We will send these peer reviewers copies of this proposed 
rule immediately following publication in the Federal Register. We will 
invite these peer reviewers to comment, during the public comment 
period, on the specific assumptions and conclusions regarding the 
proposed designation of critical habitat.
    We will consider all comments and information received within the 
60-day comment period on this proposed rule as we prepare our final 
rulemaking. Accordingly, the final determination may differ from this 

Public Hearings

    The Endangered Species Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days of the date of publication of the proposal in the Federal 
Register. Such requests must be made in writing and be addressed to the 
Field Supervisor (see ADDRESSES section). We will schedule public 
hearings on this proposal, if any are requested, and announce the 
dates, times, and places of those hearings in the Federal Register and 
local newspapers at least 15 days prior to the first hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following--(1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical jargon that interferes with the clarity? (3) Does the format 
of the proposed rule (grouping and order of the sections, use of 
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the 
description of the notice in the SUPPLEMENTARY INFORMATION section of 
the preamble helpful in understanding the notice? (5) What else could 
we do to make this proposed rule easier to understand?
    Send a copy of any comments that concern how we could make this 
proposed rule easier to understand to--Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW., Washington, 
DC 20240. You may e-mail your comments to: Exsec@ios.doi.gov.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order (EO) 12866, this action was 
submitted to the Office of Management and Budget (OMB); however they 
declined to review the proposed rule. We will submit the final rule to 
OMB for their review. OMB makes the final determination under Executive 
Order 12866.

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. SBREFA amended the 
Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities. SBREFA also amended the Regulatory Flexibility Act to require 
a certification statement. Based on the information that is available 
to us at this time, we are certifying that this proposed designation of 
critical habitat will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our rationale.
    According to the Small Business Administration (SBA), small 
entities include small organizations, including any independent 
nonprofit organization that is not dominant in its field, and small 
governmental jurisdictions, including school boards and city and town 
governments that serve fewer than 50,000 residents, as well as small 
businesses. The SBA defines small businesses categorically and has 
provided standards for determining what constitutes a small business at 
13 CFR parts 121-201 (also found at http://www.sba.gov/size/), which 

the Regulatory Flexibility Act requires all Federal agencies to follow. 
To determine if potential economic impacts to these small entities are 
significant, we consider the types of activities that might trigger 
regulatory impacts under this rule as well as the types of project 
modifications that may result.
    The Regulatory Flexibility Act does not explicitly define either 
``substantial number'' or ``significant economic impact.'' 
Consequently, to assess whether a ``substantial number'' of small 
entities is affected by this designation, this analysis considers the 
relative number of small entities likely to be impacted in the area. 
Similarly, this analysis considers the relative cost of compliance on 
the revenues/profit margins of small entities in determining whether or 
not entities incur a ``significant economic impact.'' Only small 
entities that are expected to be directly affected by the designation 
are considered in this portion of the analysis. This approach is 
consistent with several judicial opinions related to the scope of the 
Regulatory Flexibility Act. (Mid-Tex Electric Co-Op, Inc. v. F.E.R.C. 
and American Trucking Associations, Inc. v. EPA).
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies; non-Federal activities are 
not affected by the designation if they lack a Federal nexus. In areas 
where the species is present, Federal agencies funding, permitting, or 
implementing activities are already required to avoid jeopardizing the 
continued existence of the Astragalus jaegerianus through consultation 
with us under section 7 of the Act. If this critical habitat 
designation is finalized, Federal agencies must also consult with us to 
ensure that their activities do not destroy or adversely modify 
designated critical habitat.
    Should a federally funded, permitted, or implemented project be 
proposed that may affect designated critical habitat, we will work with 
the Federal action agency and any applicant, through section 7 
consultation, to identify ways to implement the proposed project while 
minimizing or avoiding any adverse effect to the species or critical 
habitat. In our experience, the vast majority of such projects can be 
successfully implemented with at most minor changes that avoid 
significant economic impacts to project proponents.
    In the case of Astragalus jaegerianus, our review of the 
consultation history for this plant and other information currently 
available to us indicates that the proposed designation of critical 
habitat is not likely to have a significant impact on any small 
entities or classes of small entities. We could identify no small 
entities that would be affected by this designation. Therefore, we are 
certifying that the proposed designation of critical habitat for 

[[Page 18031]]

jaegerianus will not have a significant economic impact on a 
substantial number of small entities, and an initial regulatory 
flexibility analysis is not required. This determination will be 
revisited after the close of the comment period and revised, if 
necessary, in the final rule.
    As required under section 4(b)(2) of the Act, we will conduct an 
analysis of the potential economic impacts of this proposed critical 
habitat designation and will make that analysis available for public 
review and comment before finalizing this designation. However, court 
deadlines require us to publish this proposed rule before the economic 
analysis can be completed.
    This discussion is based upon the information regarding potential 
economic impact that is available to us at this time. This assessment 
of economic effects may be modified prior to final rulemaking based 
upon development and review of the draft economic analysis prepared 
pursuant to section 4(b)(2) of the ESA and Executive Order 12866. This 
analysis is for the purpose of compliance with the Regulatory 
Flexibility Act and does not reflect our position on the type of 
economic analysis required by New Mexico Cattle Growers Assn. v. U.S. 
Fish & Wildlife Service 248 F.3d 1277 (10th Cir. 2001).

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

    In the draft economic analysis, we will determine whether 
designation of critical habitat will cause (a) any effect on the 
economy of $100 million or more, (b) any increases in costs or prices 
for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions in the economic analysis, or 
(c) any significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of U.S.-based 
enterprises to compete with foreign-based enterprises.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This proposed rule to designate critical habitat for the Astragalus 
jaegerianus, as described above, is not expected to significantly 
affect energy supplies, distribution, or use. There are no transmission 
power lines identified on the proposed designated habitat, or energy 
extraction activities (Bureau of Land Management 1980). Therefore, this 
action is not a significant energy action and no Statement of Energy 
Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings.
    (a) Under the Unfunded Mandates Reform Act, if a rule will produce 
a Federal mandate of $100 million or greater in any one year, a 
statement must be prepared and a summary of that statement included in 
the rulemaking. In general, a Federal mandate is a provision in 
legislation, statute or regulation that would impose an enforceable 
duty upon State, local, tribal governments, or the private sector and 
includes both ``Federal intergovernmental mandates'' and ``Federal 
private sector mandates.'' These terms are defined in 2 U.S.C. 658(5)-
(7). If the economic analysis being prepared to analyze the economic 
impacts of this designation indicates that the rule will produce a 
Federal mandate of $100 million or more in any year, a statement will 
be prepared and this proposed rule will be supplemented with a summary 
of that statement published in the notice announcing availability of 
the proposed economic analysis.
    (b) This proposed rule will not ``significantly or uniquely'' 
affect small governments. A Small Government Agency Plan is not 
required. State lands constitute a very small amount, only 0.7%, of the 
total proposed designation. Given the distribution of this species, 
small governments will not be uniquely affected by this proposed rule. 
Small governments will not be affected at all unless they propose an 
action requiring Federal funds, permits, or other authorization. Any 
such activity will require that the involved Federal agency ensure that 
the action is not likely to adversely modify or destroy designated 
critical habitat. However, as discussed above, Federal agencies are 
currently required to ensure that any such activity is not likely to 
jeopardize the species, and no further regulatory impacts from this 
proposed designation of critical habitat are anticipated. We will 
examine any potential impacts to small governments in our economic 
analysis, and revise our determination if necessary.


    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 critical habitat for Astragalus jaegerianus. This 
preliminary assessment concludes that this proposed rule does not pose 
significant takings implications. However, we have not yet completed 
the economic analysis for this proposed rule. Once the economic 
analysis is available, we will review and revise this preliminary 
assessment as warranted.


    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. As discussed above, the designation of critical habitat in 
areas currently occupied by Astragalus jaegerianus would have little 
incremental impact on State and local governments and their activities. 
This is because the proposed critical habitat occurs to a great extent 
on Federal lands managed by the Department of Defense and the Bureau of 
Land Management, and less than 2 percent occurs on private lands that 
would involve State and local agencies.
    The proposed designation of critical habitat may have some benefit 
to State and local governments in that the areas essential to the 
conservation of these species are more clearly defined, and the primary 
constituent elements of the habitat necessary to the survival of the 
species are identified. While this definition and identification does 
not alter where and what federally sponsored activities may occur, it 
may assist these local governments in long-range planning rather than 
waiting for case-by-case section 7 consultation to occur.

Civil Justice Reform

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

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

    This proposed rule does not contain new or revised information 
collection for which OMB approval is required under the Paperwork 
Reduction Act.

[[Page 18032]]

Information collections associated with certain Act permits are covered 
by an existing OMB approval and are assigned clearance No. 1018-0094, 
Forms 3-200-55 and 3-200-56, with an expiration date of July 31, 2004. 
Detailed information for Act documentation appears at 50 CFR part 17. 
This rule will not impose recordkeeping or reporting requirements on 
State or local governments, individuals, businesses, or organizations. 
An agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations With Native American Tribal 
Governments'' (59 FR 22951) 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 Astragalus jaegerianus. Therefore, 
designation of critical habitat for A. jaegerianus has not been 
proposed on Tribal lands.

References Cited

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


    The primary author of this proposed rule is Constance Rutherford, 
Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 
Portola Road, Suite B, Ventura, California 93003 (805/644-1766).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, the Service hereby proposes to 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 ``Astragalus 
jaegerianus'' 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

                                                                      * * * * * * *
Astragalus jaegerianus...........  Lane Mountain milk-   U.S.A. (CA)........  Fabaceae---Pea.....  E                       647     17.96(a)           NA

                                                                      * * * * * * *

    3. In Sec.  17.96(a), add critical habitat for Astragalus 
jaegerianus, in alphabetical order under Family Fabaceae to read as 

Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
Family Fabaceae: Astragalus jaegerianus (Lane Mountain milk-vetch)
    (1) Critical habitat units are depicted for San Bernardino County, 
California, on the maps below.
    (2) Critical habitat consists of the mixed desert scrub community 
within the range of Astragalus jaegerianus that is characterized by the 
following primary constituent elements:
    (i) Shallow soils derived primarily from Jurassic or Cretaceous 
granitic bedrock, and less frequently soils derived from diorite or 
gabbroid bedrock and at one location granitic soils overlain by 
scattered rhyolitic cobble, gravel, and sand.
    (ii) The highly diverse mixed desert scrub community that includes 
the host shrubs within which Astragalus jaegerianus grows, most 
notably: Thamnosma montana, Ambrosia dumosa, Eriogonum fasciculatum 
ssp. polifolium, Ericameria cooperi var. cooperi, Ephedra nevadensis, 
and Salazaria mexicana.
    (3) Critical Habitat Map Units.
    (i) Map Unit 1: Goldstone-Brinkman.
    San Bernardino County, California. From USGS 1:24,000 quadrangle 
maps Paradise Range and Williams Well. Lands bounded by UTM zone 11 
NAD27 coordinates (E,N): 511200; 3897700: 511400; 3898100; 511600; 
3898400: 511800; 3898600: 515900; 3898600: 516400; 3898500: 516800; 
3898400: 516900; 3898300: 517300; 3898500: 517500; 3898600: 517600; 
3898700: 517500; 3899100: 517500; 3900100: 517600; 3900200: 518400; 
3900600: 519000; 3900600: 519600; 3900500: 520000; 3900300: 520200; 
3900100: 521400; 3898700: 521500; 3898500: 521500; 3898300: 521400; 
3897900: 521300; 3897800: 521100; 3897700: 519400; 3897700: 518600; 
3897800: 518400; 3897600: 518100; 3897400: 517900; 3897300: 517800; 
3897100: 517300; 3896600: 517400; 3896500: 517700; 3895900: 517700; 
3895300: 517600; 3894700: 517500; 3894500: 517400; 3894400: 517000; 
3894100: 516900; 3894000: 517300; 3893800: 517800; 3893500: 518100; 
3893300: 518200; 3893200: 518200; 3892900: 518000; 3892600: 517500; 
3892100: 517300; 3892100: 517100; 3892200: 516800; 3892400: 515800; 
3893100: 515600; 3893300: 515500; 3893200:

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514000; 3892200: 513600; 3892200: 512900; 3892600: 512500; 3893000: 
512400; 3893200: 512500; 3893800: 512600; 3894400: 512700; 3894900: 
512800; 3895000: 514400; 3896100: 514600; 3896200: 514700; 3896200: 
515000; 3896100: 515100; 3896600: 512800; 3896500: 511900; 3896600: 
511700; 3896700: 511400; 3897100: 511200; 3897400: returning to 511200; 
    (ii) Map Unit 2: Paradise.
    San Bernardino County, California. From USGS 1:24,000 quadrangle 
map Williams Well. Lands bounded by UTM zone 11 NAD27 coordinates 
(E,N): 504000; 3895000: 504400; 3895200: 505100; 3895500: 505800; 
3895500: 506200; 3895400: 506600; 3895300: 506800; 3895100: 507500; 
3893900: 507600; 3894000: 508400; 3894700: 508800; 3895000: 509300; 
3895400: 509500; 3895500: 509900; 3895500: 510000; 3895400: 510200; 
3895100: 510600; 3894400: 510700; 3894200: 510800; 3893900: 510900; 
3893500: 510900; 3893000: 510800; 3892500: 510500; 3891200: 510400; 
3891000: 510200; 3890800: 509700; 3890500: 507800; 3889400: 507600; 
3889300: 507500; 3889300: 507100; 3889400: 506700; 3889800: 506400; 
3890300: 506200; 3891000: 506000; 3891800: 505900; 3892200: 505600; 
3892400: 504900; 3892900: 504500; 3893300: 504300; 3893600: 503900; 
3894300: 503900; 3894800: returning to 504000; 3895000.
    (iii) Map Unit 3: Coolgardie.
    San Bernardino County, California. From USGS 1:24,000 quadrangle 
maps Lane Mountain and Mud Hills. Lands bounded by UTM zone 11 NAD27 
coordinates (E,N): 495800; 3884400: 496400; 3884800: 497200; 3885200: 
497400; 3885300: 497900; 3885500: 498300; 3885600: 499100; 3885700: 
500500; 3885900: 501200; 3886000: 502000; 3886100: 502700; 3886200: 
503400; 3886300: 503900; 3886200: 504400; 3886000: 504800; 3885800: 
505000; 3885700: 505100; 3885600: 505300; 3885400: 505400; 3885200: 
505100; 3884300: 505100; 3880800: 504900; 3880300: 504800; 3880100: 
504600; 3879700: 504400; 3879600: 503900; 3879400: 503500; 3879300: 
503000; 3879200: 502400; 3879100: 502100; 3879100: 502000; 3878900: 
502000; 3878800: 501900; 3878600: 501100; 3878500: 500400; 3878400: 
499700; 3878300: 499600; 3878300: 499300; 3878400: 498600; 3878600: 
498400; 3878800: 498100; 3879900: 498000; 3880300: 497800; 3881000: 
496300; 3881600: 496100; 3881800: 496000; 3882200: 495800; 3883000: 
495700; 3883500: 495600; 3883900: 495600; 3884000: returning to 495800; 
    Excluding: 498800; 3883700: 498900; 3883600: 499000; 3883400: 
499400; 3882600: 499500; 3882100: 499500; 3882000: 499600; 3881800: 
500000; 3881600: 500900; 3881100: 501400; 3880800: 501500; 3880800: 
502100; 3881000: 502000; 3881100: 501800; 3882400: 501800; 3882800: 
501700; 3882900: 501300; 3883400: 501000; 3883800: 500500; 3883800: 
499100; 3883900: returning to 498800; 3883700.
    (iv) Note: Maps for Units 1, 2, and 3 follow:

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[[Page 18035]]

    Dated: March 30, 2004.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-7695 Filed 4-5-04; 8:45 am]