[Federal Register: April 21, 2006 (Volume 71, Number 77)]
[Proposed Rules]               
[Page 20625-20636]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 20625]]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU11

Endangered and Threatened Wildlife and Plants; Proposed Special 
Rule Pursuant to Section 4(d) of the Endangered Species Act for the 
Pacific Coast Distinct Population Segment of the Western Snowy Plover

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
proposing special regulations under the authority of section 4(d) of 
the Endangered Species Act (Act) of 1973, as amended, that would 
promote the conservation of the Pacific Coast distinct population 
segment (DPS) of western snowy plover (Charadrius alexandrinus 
nivosus). We seek comment on our proposed rule from the public and 
other agencies, and welcome suggestions regarding the scope and 
implementation of a special 4(d) rule.

DATES: Information, suggestions, and comments must be received on or 
before June 20, 2006. Requests for formal public hearings must be 
received by May 22, 2006.

ADDRESSES: Data, information, comments, or questions concerning this 
notice may be sent to the Field Supervisor (Attn: WSP-4d), Arcata Fish 
and Wildlife Office, U.S. Fish and Wildlife Service, 1655 Heindon Road, 
Arcata, California 95521 (telephone: 707-822-7201; fax: 707-822-8411).

FOR FURTHER INFORMATION CONTACT: Amedee Brickey, Fish and Wildlife 
Biologist, Arcata Fish and Wildlife Office at the address above 
(telephone: 707-822-7201).



    The Pacific Coast population of the western snowy plover (Pacific 
Coast WSP) was listed under the Endangered Species Act (Act) of 1973, 
as amended (16 U.S.C. 1531 et seq.), as threatened on March 5, 1993 (58 
FR 12864). At the time of listing, the primary threat to the plover was 
the loss and degradation of habitat from human activities. Published 
concurrently in today's Federal Register is our 12-month finding on a 
petition to delist the Pacific Coast WSP. In that document, we 
determined that delisting of the Pacific Coast WSP was not warranted 
because it meets the criteria for discreteness and significance as 
outlined in our 1996 Policy Regarding the Recognition of Distinct 
Vertebrate Population Segments Under the Endangered Species Act (61 FR 
4722), and is still likely to become endangered within the foreseeable 
future throughout all or a significant portion of its range. Therefore, 
we determined that the Pacific Coast WSP Distinct Population Segment 
(DPS) should remain classified as a threatened species, because it is 
not extinct, it is not considered to be recovered, and the original 
data used for classification were not in error. However, our 12-month 
finding also concluded significant progress has been made toward 
recovery in a relatively short period (approximately 10 years), but 
that additional recovery actions are needed. This proposed rule under 
section 4(d) of the Act was developed to further support and enhance 
the conservation of the Pacific Coast WSP.

Summary of Recovery Progress

    A Notice of Availability for the Western Snowy Plover (Charadrius 
alexandrinus nivosus) Pacific Coast Population Draft Recovery Plan 
(Draft Recovery Plan) was published in the Federal Register on August 
14, 2001 (66 FR 42676). The Final Recovery Plan, currently under 
development, will provide the comprehensive strategy for the 
collaborative stewardship approach needed to recover and ultimately 
delist this distinct population segment (DPS). Implementation of this 
proposed rule would provide an incentive to habitat managers to 
participate in the recovery strategy outlined in the Draft Recovery 
Plan (66 FR 42676). Below we discuss the three recovery criteria 
presented in the Draft Recovery Plan, and our progress to date in 
fulfilling those criteria.

First Recovery Criterion (Parts A and B)

    Part A: Maintain for 10 years an average of 3,000 breeding adults 
distributed among 6 Recovery Units (RU) as follows: (RU-1) Washington 
and Oregon, 250 breeding adults; (RU-2) Del Norte to Mendocino 
Counties, California, 150 breeding adults; (RU-3) San Francisco Bay, 
California, 500 breeding adults; (RU-4) Sonoma to Monterey Counties, 
California, 400 breeding adults; (RU-5) San Luis Obispo to Ventura 
Counties, California, 1,200 breeding adults; and (RU-6) Los Angeles to 
San Diego Counties, California, 500 breeding adults.
    Status: Population estimates are developed by multiplying the 
number of adult plovers observed during breeding window surveys by a 
correction factor of 1.3, which adjusts the observed number to that of 
a known population. As a result, the current population estimate for 
the U.S. portion of the Pacific Coast WSP is approximately 2,300 based 
on the 2005 breeding window survey (Stenzel, in litt. 2004; Page, in 
litt. 2005; Jensen, in litt. 2006; Kelly, in litt. 2006).
    Not all Recovery Units are meeting their individual criteria. 
Recovery Units 1, 2, 3, and 6 are below their goals, while RU-4 and RU-
5 are currently meeting or exceeding their goals. Collectively, 
recovery of the Pacific Coast WSP within each of the six Recovery Units 
is necessary to maintain breeding population dynamics, ensure 
protection and appropriate management of wintering and migratory 
habitat, and ensure the long-term health and sustainability of the 
Pacific Coast WSP across its current range. Attainment of the 
population goals in two of the Recovery Units is encouraging, and we 
believe that the population increases are directly attributable to a 
reduction in threats through implementation of management actions by 
our partners, including the Department of Defense, Federal and State 
resource agencies, local governments, non-governmental entities, 
private land managers, and academic researchers.
    Part B: Implement monitoring of site-specific threats, incorporate 
management activities into management plans that ameliorate or 
eliminate those threats, and complete research necessary to modify 
management and monitoring actions.
    Status: Each Recovery Unit has achieved success in managing 
plovers, their habitat, and non-compatible activities, and each has 
experienced a resulting increase in plover numbers. Significant 
progress has been made to recover the Pacific Coast WSP, yet additional 
recovery actions are needed. We will continue to encourage and support 
our partners to implement recovery actions. Successful partnerships are 
essential to the recovery of this DPS.

Second Recovery Criterion

    Maintain a yearly average productivity of at least one fledged 
chick per male in each Recovery Unit in the last 5 years prior to 
    Status: Monitoring programs to assess this element have been 
implemented in the Monterey Bay Area and greater Humboldt County Area, 
California, and throughout coastal Oregon. Monitoring programs have not 
yet been developed for other portions of the Pacific Coast WSP's range. 
Monitoring has indicated that fledging success varies between

[[Page 20626]]

sites and between years. The monitoring program provides a mechanism to 
assess reproductive success over time (Colwell et al. 2005; Lauten et 
al. 2006).

Third Recovery Criterion

    Develop and implement mechanisms to assure long-term protection and 
management of breeding, wintering, and migration areas in order to 
maintain the subpopulation sizes and average productivity specified 
    Status: Some progress has also been made to achieve this element, 
including the policies enacted by California and Oregon State Parks, 
the Department of Defense (DOD), Bureau of Land Management (BLM), U.S. 
Forest Service (USFS), National Wildlife Refuge System (NWR), and 
multiple local governments to protect Pacific Coast WSP habitat. 
Progress includes the State of Oregon's efforts to develop a Habitat 
Conservation Plan (HCP) as part of an incidental take permit 
application, and California State Park's HCP development for San Luis 
Obispo County, California. Although take may be authorized for legal 
activities, conservation measures associated with the incidental take 
permits are believed to offset adverse affects, and will promote 
recovery. We will continue to support similar types of recovery actions 
through implementation of a special 4(d) rule.

Specific Recovery Strategies Currently Underway in Each of the Recovery 

RU-1 (Washington and Oregon)

    The USFS, BLM, and Willipa Bay NWR have cleared nonnative 
vegetation and recontoured beach sand dunes to provide western snowy 
plover breeding and wintering habitat. Restoration actions at Willipa 
Bay NWR, New River, the North Spit of Coos Bay, and the Overlook 
(Siuslaw National Forest) have all attracted breeding plovers. Oregon 
State Parks is in the process of developing a Statewide coastal HCP for 
plovers. Predator management, including the use of nest exclosures and 
sparing use of lethal trapping, resulted in a record reproductive year 
in 2003. Although not as successful as 2003, 2004 was also a very good 
reproductive year for snowy plovers in Oregon and Washington (see 
Figure 1 (Jensen in litt. 2005; Kelly in litt. 2005)). Washington State 
has seen plovers from California and Oregon become established as 
breeders, benefiting from the management successes to the south.


[[Page 20627]]


RU-2 (Del Norte, Humboldt, and Mendocino Counties, California)

    Although snowy plovers had been known along the Eel River gravel 
bars in Humboldt County, a post-listing breeding site was discovered in 
1995. That site has been the most productive plover breeding site 
within this Recovery Unit, and in California north of the San Francisco 
Bay. The California State Parks has been a leader with habitat 
restoration, monitoring, and the

[[Page 20628]]

use of symbolic fencing (temporary post and cable) to direct human use 
at the beach. Plovers nested at Manchester State Beach for the first 
time in 2003, and returned in 2004. A single plover nest was documented 
at Gold Bluffs Beach in 2004, which was the first since the early 
1980s. Humboldt County Parks has enacted a ``plover friendly'' 
ordinance to reduce impacts to breeding plovers. The BLM and the 
California Department of Fish and Game (CDF&G) also manage winter and 
breeding habitat, and have conducted habitat restoration and human 
disturbance management. The Humboldt State University and a private 
contractor conduct the majority of the monitoring and implementation of 
recovery actions within the unit in partnership with Federal, State, 
and local agencies.

RU-3 (San Francisco Bay (Napa, Alameda, Santa Clara, and San Mateo 
Counties), California)

    The Don Edwards-San Francisco Bay NWR has acquired lands and is 
working with the Cargill Salt Company to restore historic tidal salt 
marsh around San Francisco Bay. The CDF&G and the California Department 
of Transportation (Caltrans) also both manage plover habitat within the 
Recovery Unit. Monitoring is primarily conducted by San Francisco Bay 
NWR staff and the San Francisco Bay Bird Observatory. The San Francisco 
Bay NWR is a leader in plover management for the unit, and we expect 
plover numbers to increase as management measures are implemented.

RU-4 (Sonoma, Marin, San Mateo, Santa Cruz, and Monterey Counties, 

    The California State Parks and the Point Reyes Bird Observatory 
have developed some of the leading outreach tools that have been found 
to be effective rangewide. Both California State Parks and the Point 
Reyes Bird Observatory have worked cooperatively with the National Park 
Service (Golden Gate National Recreation Area and Point Reyes National 
Seashore), the Salinas River NWR, and the CDF&G to manage human use in 
plover wintering and breeding habitat adjacent to large population 
centers. The Salinas River NWR, along with California State Parks and 
Point Reyes Bird Observatory, has made significant achievements in 
habitat and predator management. Symbolic fencing, nest exclosures, 
lethal and nonlethal methods of predator control, and outreach 
techniques have all been pioneered within this Recovery Unit. Plovers 
had record reproductive success at Monterey Bay during 2003 (See Figure 
2 (Page in litt. 2005)).

[[Page 20629]]



RU-5 (San Luis Obispo, Santa Barbara, and Ventura Counties, California)

    This Recovery Unit manages the largest number of breeding and 
wintering plovers. The California State Parks and Vandenberg Air Force 
Base (AFB) are the primary managers within the unit. For the most part, 
plovers do not affect mission-related activities at Vandenberg AFB. 
Vandenberg AFB has increased its management measures since 2000, with a 
positive response in plover reproductive success. Management actions at 
Oceano Dunes State Vehicular Recreation Area have also bolstered the 
plover numbers. The California State Parks is developing an HCP for 
plovers for the San Luis Obispo District, including Oceano Dunes State

[[Page 20630]]

Vehicular Recreation Area. Unocal also has remediated impacts to 
plovers by restoring contaminated habitat.

RU-6 (Los Angeles, Orange, and San Diego Counties, California)

    Plovers in this Recovery Unit have lost significant habitat through 
development and recreational use. The management of some practices, 
such as beach raking, could allow for additional habitat within the 
unit. Southern California beaches are highly impacted due to intense 
human use. As a result, plovers are dispersed. The primary beach 
managers within the unit are the California State Parks and the 
military (Camp Pendleton, North Island Naval Air Station). The San 
Diego NWR complex manages plover habitat at the Tijuana Slough NWR and 
at salt ponds within San Diego Bay. Plovers have benefited from 
protective measures afforded California least terns (Sterna antillarum 
browni), including fencing and predator control. Predator and 
vegetation management at the Bolsa Chica lowlands has improved plover 
hatch rates at that site. Overall, plover reproductive numbers have 
remained fairly constant throughout the recovery unit, with some 
increases experienced during the last few years.
    The three recovery criteria (Service 2001) stated above define what 
is needed in order for the Pacific Coast WSP to be delisted, that is, 
when the DPS has recovered to the point where it no longer needs the 
protection of the Act. Delisting will be proposed when all Recovery 
Units meet their recovery criteria or threats have been adequately 
addressed. In the interim, however, we believe we have an opportunity 
to provide a mechanism through this rule pursuant to section 4(d) of 
the Act, which will encourage increased conservation efforts for the 
Pacific Coast WSP. This approach will recognize and reward successful 
conservation efforts in large portions of the range where Pacific Coast 
WSP have met recovery goals, and it will provide positive incentives to 
those land managers working in other parts of the range where recovery 
targets have not yet been achieved.

Proposed Special Rule

    Section 4(d) of the Act provides that when a species is listed as 
threatened, we are to issue such regulations as are necessary and 
advisable to provide for the conservation of the species. Our 
implementing regulations (50 CFR 17.31) for threatened wildlife 
generally incorporate the prohibitions of section 9 of the Act for 
endangered wildlife, except when a ``special rule'' promulgated 
pursuant to section 4(d) of the Act has been issued with respect to a 
particular threatened species. The prohibitions at 50 CFR 17.31 
generally make it illegal to import, export, take, possess, ship in 
interstate commerce, or sell a member of the species. The ``take'' that 
is prohibited includes harassing, harming, pursuing, hunting, shooting, 
wounding, killing, trapping, capturing, or collecting the wildlife, or 
attempting to do any of those things. A special rule for a specific 
threatened species would establish only those particular prohibitions 
that are necessary and advisable for its conservation. In such a case, 
the general prohibitions in 50 CFR 17.31 would not apply to that 
species, and instead, the special rule would define the specific take 
prohibitions and exceptions that would apply for that particular 
threatened species or DPS, which we consider necessary and appropriate 
to conserve the species.
    At the time the Pacific Coast WSP was listed as a threatened DPS in 
1993 (58 FR 12864), we did not promulgate a special section 4(d) rule, 
and as a result, all of the section 9 prohibitions, including the 
``take'' prohibitions, apply to the DPS. Subsequent to the listing of 
the Pacific Coast WSP, certain Federal, State, and County agencies, and 
some local governments (collectively referred to as the Jurisdictions) 
have implemented conservation measures for the Pacific Coast WSP, such 
that several areas are now meeting or exceeding their Recovery Unit 
population objectives identified in the Draft Recovery Plan (Service 
2001). We anticipate that the continued implementation of conservation 
measures by Jurisdictions throughout the range of the Pacific Coast WSP 
will likely result in additional areas meeting or exceeding their 
recovery goals in the future.
    We are proposing to issue this section 4(d) rule of the Act because 
we believe that the regulations are necessary and advisable to provide 
for the conservation of the species. This proposed special rule (1) 
will recognize the positive recovery efforts and accomplishments that 
have resulted in increased regulatory flexibility, (2) will provide an 
incentive to other land managers within the range of the Pacific Coast 
WSP to implement similar recovery measures in areas where Pacific Coast 
WSP numbers have not yet reached recovery targets, and (3) better 
enable the Service and other conservation entities to target their 
limited resources to areas where Pacific Coast WSP recovery needs are 
    Therefore, through this special rule under section 4(d) of the Act, 
we propose to replace the currently applicable blanket prohibition 
against incidental take of Pacific Coast WSP. The special rule would 
remove Section 9 prohibitions applicable to activities that occur 
within Counties where the County has met its Breeding Bird Management 
Goal specified in Table 1 below and has provided documentation of 
Pacific Coast WSP conservation activities to the Service. This 
documentation, which is described below, should be provided to the 
Service within six months of adoption of this rule. The removal of 
prohibitions will apply to the actions of individuals and local and 
state entities within a County which has met the requirements above.
    The conservation benefit of the 4(d) rule is (1) to encourage 
further recovery efforts for the Pacific Coast WSP, and (2) to more 
effectively target the regulatory and proactive powers of the Act to 
those areas in greatest need. Our goal is to recognize where existing 
conservation measures have resulted in population increases that meet 
recovery goals and to ensure the likelihood of those conservation 
measures expanding and continuing into the future. This 4(d) rule is 
also designed to encourage additional conservation measures in areas 
where recovery goals have not been met. Minor adverse impacts to the 
Pacific Coast WSP, consistent with provisions of a final 4(d) rule, if 
adopted, would not appreciably diminish the likelihood of survival and 
recovery of the DPS. The special 4(d) rule will exempt those Counties 
which have met recovery goals from the prohibition on take as long as 
populations remain above recovery goals.

Proposed Rule Application

    The activities we propose to be exempt under this special rule 
include most of the common recreational and commercial activities 
occurring within Pacific Coast WSP habitat, as well as activities that 
promote conservation, such as habitat restoration and certain research 
(see below for discussion of recovery permits under Section 10(a)(1)(A) 
of the Act). We propose that all activities in those Counties which 
have met their recovery goals be exempt from take prohibitions. 
However, intentional take of Pacific Coast WSP as defined by the Act 
will continue to be prohibited (16 U.S.C. Sec.  1532(19)) throughout 
the range of the plover regardless of whether recovery goals have been 
met in the County.
    Research/monitoring actions that relate to the status of the 
Pacific Coast WSP or its reproductive success would

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continue to be subject to the Service's Recovery Permit process under 
Section 10(a)(1)(A). Our rationale for permitting these research 
activities separate from this special 4(d) rule is that these 
activities will be tied to the Service's determination of the 
rangewide, Recovery Unit, and County status of the species. Continuing 
to regulate these activities under the Section 10(a)(1)(A) permit 
program allows us to maintain quality and consistency of data 
throughout the range of the Pacific Coast WSP.
    Because we are proposing, in part, that take exemptions under this 
special 4(d) rule be based on County breeding Pacific Coast WSP numbers 
(Breeding Bird Management Goals), we believe that the Service should 
retain oversight of how data are collected and applied to reduce actual 
or perceived conflicts between surveyors and use advocates. Therefore, 
we propose that this special rule apply only to activities that would 
not involve handling any life stage of Pacific Coast WSPs. The 
activities that would continue to require a permit under the section 
10(a)(1)(A) program include banding of adults or chicks, floating eggs 
to determine hatch dates, surveys to locate and monitor nests, and 
population surveys and censuses conducted during the breeding season.
    The Service believes that as long as Pacific Coast WSP numbers in 
certain areas have increased to recovery levels and local measures are 
in place to maintain those numbers, exempting otherwise lawful 
activities carried out by local citizens in these areas from the take 
prohibitions still promotes the conservation of the Pacific Coast WSP. 
The approach will increase local public support for Pacific Coast WSP 
recovery; it will provide an incentive to other Counties to implement 
conservation measures and to meet recovery goals; and it will enable 
the Service to focus limited staff and financial resources to those 
Counties where the Pacific Coast WSP recovery need is greatest.
    The ``documentation'' provided to the Service by a County should be 
a summary of what conservation measures have been carried out within 
that County and what is anticipated to occur in the future. This 
documentation may, but is not limited to, include existing Service-
approved plans or other approved Federal actions. It may include, but 
is not limited to, local ordinances, agreements or plans which may be 
already developed and implemented by entities within the County as well 
as actions taken by the County itself. For example, documentation 
provided to the Service by a County may include (a) management 
agreements or plans developed and implemented on State and/or Federal 
lands within the County such as Biological Opinions, Habitat 
Conservation Plans, Safe Harbor Agreements, Partners for Fish and 
Wildlife Agreements, and/or conservation agreements, (b) County 
ordinances that have been implemented to alleviate threats to Pacific 
Coast WSP, (c) other beneficial agreements, plans and/or actions taken 
by individuals or entities that protect the Pacific Coast WSP, and/or 
(d) other voluntary measures implemented within the County.
    We have chosen the County-level of government jurisdiction as the 
most appropriate measure for implementation of this special rule. The 
Pacific Coast WSP occurs along approximately 1,500 miles of coastline 
within the United States. Within this range there is a tremendous 
variety of ownership patterns, government jurisdictions, and land 
management challenges. Accordingly, governance at the County level 
seems the most appropriate and efficient level to implement the 
measures proposed in this rule. Counties are large enough to affect 
meaningful recovery actions, but they are not so small that 
coordination across the 1,500 mile range would strain the Service's 
limited staff resources. Also, the Service can organize Pacific Coast 
WSP monitoring data at the County level, which enables better tracking 
of Pacific Coast WSP recovery goals.
    As indicated in Table 1, some counties have Breeding Bird 
Management Goals of zero or which are ``unknown'' because targets will 
depend on the results of restoration activities (Service 2001). 
Counties with Breeding Bird Management Goals of zero support wintering 
Pacific Coast WSP (Service 2001). These Counties could take advantage 
of this 4(d) rule by providing documentation (see above) that 
management focusing on maintenance of wintering habitat for Pacific 
Coast WSP is occurring in the County. Counties with Breeding Bird 
Management Goals currently identified as ``unknown'' should also be 
able to take advantage of this 4(d) rule even though they currently do 
not have breeding bird management goals identified. These Counties can 
provide documentation (see above) to the Service that management 
addressing breeding and/or wintering plovers is occurring in the 

                            Table 1.--Breeding Bird Management Goals by Location \1\
                     Location                              Management goal breeding numbers (adult birds)
    Grays Harbor County...........................  38
    Pacific County................................  40
    Clatsop County................................  4
    Tillamook County..............................  32
    Lincoln County................................  4
    Lane County...................................  14
    Siltcoos River to Tenmile Crk. (Lane and        20
     Douglas Counties).
    Douglas County................................  4
    Umpqua River to Horsfall Beach (Douglas and     20
     Coos Counties).
    Coos County...................................  54
    Bandon St. Pk. to Floras Lk. (Coos and Curry    54
    Curry County..................................  16
    Del Norte County..............................  18
    Humboldt County...............................  162
    Mendocino County..............................  20
    Sonoma County.................................  10
    Marin County..................................  64

[[Page 20632]]

    San Francisco County *........................  0
    San Francisco Bay * (Napa, Alameda, Santa       Unknown lands in SF Bay are dependant on Tidal Salt Marsh
     Clara, and San Mateo Counties).                 restoration.
    San Mateo County (not SF Bay).................  34
    Santa Cruz County.............................  42
    Jetty Road to Mouth of Elkhorn Slough           54
     (Monterey and Santa Cruz Counties).
    Monterey County...............................  262
    San Luis Obispo (SLO) County..................  182
    Pismo Beach/Nipomo Dunes (SLO and Santa         350
     Barbara Counties).
    Santa Barbara County..........................  594
    Ventura County................................  374
    Los Angeles County *..........................  0
    Orange County.................................  50
    San Onofre Beach (Orange and San Diego          15
    San Diego County..............................  485
\1\ Adapted from Appendix B of the Pacific Coast WSP Draft Recovery Plan.
* Management goals for numbers of breeding birds are zero or unknown in the Draft Recovery Plan. Recovery
  efforts for these Counties should focus on wintering habitat.

    If this proposed rule is finalized, a County will apply for an 
exemption under the 4(d) rule by contacting the Service and providing 
documentation of the County's conservation efforts within six months. 
The Service will provide the most recent available survey information 
and work with the County to provide technical assistance as necessary 
when requested.
    The number of breeding adults within a County will be determined by 
the results of rangewide breeding season window surveys. Determination 
of whether a County qualifies for this special rule will be based on 
Breeding Bird Management Goals and will depend on that County meeting 
those Goals for two out of the five previous years. On an annual basis, 
the Service will determine County plover adult numbers by mid-December, 
thereby allowing entities to know their eligibility for 4(d) exemptions 
under this rule by January 1st of each year. Using two out of five 
years to qualify for exemptions allows for natural fluctuations in 
population dynamics. We believe that the qualifying criteria would 
ensure that the Pacific Coast WSP does not decline below regional 
recovery goals as a result of implementing this proposed rule. 
Additionally, we believe that the two out of five year criterion 
assures that there are healthy numbers of plovers before take 
exemptions could apply and maintains currently healthy populations. 
Once a County has qualified for the 4(d) exemptions under this rule, 
the exemptions will apply as long as the jurisdiction continues to meet 
its recovery population goals.
    We believe that this 4(d) rule would provide a conservation benefit 
to Pacific Coast WSP. We expect that it would increase and promote 
voluntary and cooperative efforts to conserve Pacific Coast WSP. We 
also expect that implementation of this special 4(d) rule for the 
Pacific Coast WSP would: (1) Recognize the positive conservation 
accomplishments that have improved the status of the species by 
offering take exemptions to landowners and managers within Counties 
that are meeting recovery goals, (2) remove inefficient or unnecessary 
Federal regulatory oversight in portions of the listed entity's range 
where recovery goals have been met and/or threats have been addressed, 
thus enabling limited management resources to be more efficiently 
targeted to other areas or conservation needs, and (3) serve as a 
positive incentive to beach managers and landowners to increase 
voluntary plover conservation in areas that have not yet met County 
Breeding Bird Management Goals.

Public Comments Solicited

    Comments and suggestions are invited from all interested parties. 
We are interested in knowing if the relevant jurisdictions are 
interested in the development of such special regulations. We request 
comments on whether we should propose special regulations that would 
provide the opportunity for County jurisdictions, through their 
authorities, to attain compliance under the Act to implement and 
enforce land and water management activities. In addition, we request 
specific information and comment from Federal and State agencies, local 
municipalities, and private individuals or organizations on the 
    (1) The types of activities we should address in a special rule;
    (2) Appropriate monitoring and reporting programs for covered 
    (3) Whether wintering habitat should be taken into account in a 
4(d) rule, and if so, how it should be addressed;
    (4) How areas without breeding bird goals identified in the Draft 
Recovery Plan, but which are important for wintering plovers, such as 
Los Angeles County, should be treated in the 4(d) rule;
    (5) What level of jurisdiction is the appropriate level at which 
such a special rule should be proposed;
    (6) If and how the Service should consider including within this 
special rule consideration for individual landowners who develop and 
implement management strategies within Counties that have not yet met 
plover population recovery goals, but that adequately address threats 
to the species; and
    (7) Whether using 2 out of the previous 5 years to assess whether a 
County has met its Breeding Bird Management Goals is appropriate;
    In summary, we welcome comments and suggestions on this proposed 
special 4(d) rule to customize the section 9 take prohibitions for 
those Counties that are meeting or exceeding their population 
objectives identified Table 1 above.

Public Hearing and Informational Meetings

    The Act provides for a public hearing on this proposal, if 
requested. Requests must be filed by the date specified in the DATES 
section above. Such requests must be made in writing and addressed

[[Page 20633]]

to the Field Supervisor (see ADDRESSES section).
    We will hold informal public informational meetings at coastal 
locations in Washington, Oregon, and California during the comment 
period for this proposal (see DATES section). The locations and dates 
of the informational meetings will be widely publicized in advance in 
the press. The locations and dates of these public informational 
meetings can also be obtained by contacting the Arcata Fish and 
Wildlife Office (see ADDRESSES section).

Peer Review

    Under our policy of peer review (59 FR 34270), we will obtain the 
expert opinions of at least three appropriate and independent 
specialists concerning appropriateness of exempting certain activities 
from take prohibitions where recovery goals have been met and the most 
efficient way to implement the measures proposed in this special rule.

Clarity of This Regulation

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

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, the 
Office of Management and Budget has determined that this rule is not a 
significant regulatory action. This rule would not have an annual 
economic impact of more than $100 million, or significantly affect any 
economic sector, productivity, jobs, the environment, or other units of 
government. This rule would reduce the regulatory burden of the listing 
of the Pacific Coast distinct population segment of the western snowy 
plover under the Act as a threatened species by providing certain 
exemptions to the section 9 prohibitions. These exemptions would reduce 
the economic costs of the listing by removing for certain activities in 
certain areas, the need for Section 10 compliance with the Act, and by 
reducing enforcement by resource agencies; therefore, the economic 
effect of the rule would benefit managing entities, taxpayers, and the 
economy. This effect would not, however, rise to the level of 
``significant'' under Executive Order 12866. This rule would not create 
inconsistencies with other Federal agencies' actions. Other Federal 
agencies would be mostly unaffected by this proposed rule. This rule 
would not materially affect entitlements, grants, user fees, loan 
programs, or the rights and obligations of their recipients. Because 
this rule would allow individuals to engage in otherwise prohibited 
activities without first obtaining individual authorization, the rule's 
impacts on affected individuals would be positive. This rule would not 
raise novel legal or policy issues. We have previously promulgated 
section 4(d) rules for other species.

Regulatory Flexibility Act

    We have determined that this rule would not have a significant 
economic effect on a substantial number of small entities as defined 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial 
regulatory flexibility analysis is not required, and a Small Entity 
Compliance Guide is not required. To assess the effects of the rule on 
small entities, the Service referred to the recent Final Economic 
Analysis conducted as a requirement to designating critical habitat for 
the Pacific Coast WSP (Industrial Economics, Inc. 2005). That analysis 
identified management of beach recreation as having the greatest impact 
to tourism and therefore small, local businesses. Exempting certain 
activities from the Act's take prohibitions would likely reduce 
management requirements in areas where Management Goals have been met. 
The Final Economic Analysis can be obtained from the Arcata Fish and 
Wildlife Office (see ADDRESSES section), or at the following Web site: 

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule would not have 
an annual effect on the economy of $100 million or more; would not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and would not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.
    The Service refers to the Final Economic Analysis (Industrial 
Economics, Inc. 2005) conducted as a requirement to designate critical 
habitat for the Pacific Coast WSP. That analysis determined that the 
majority of the costs associated with designation of critical habitat 
for the Pacific Coast WSP stem from management of recreational 
activities (i.e., managing habitat and minimizing incidental take 
associated with coastal activities). Reducing the regulatory oversight 
of beach-related recreational activities would benefit tourism and 
small businesses by promoting coastal use. Therefore, we believe that 
implementation of a special 4(d) rule that reduces the Service's 
regulatory involvement and promotes the continued conservation of the 
listed entity would likely have no effect, or a positive effect, on 
small local beachfront businesses. The analysis assumes that beach 
goers are more likely to not vacation in a coastal area with plover 
restrictions designed to avoid incidental take. Small beachfront 
businesses that depend on coastal tourism are therefore negatively 
impacted when beach users go somewhere else. Reducing the need to 
manage beaches as strictly as in the past due to the exemption of some 
forms of incidental take will reduce the likelihood tourists will go 
elsewhere, thereby improving conditions for small beachfront 

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, 
et seq.,) this rule would not impose an unfunded mandate on State, 
local, or tribal governments or the private sector of more than $100 
million per year. This rule would not have a significant or unique 
effect on State, local, or tribal governments or the private sector. A 
Small Government Agency Plan is not required.

[[Page 20634]]


    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. This rule modifies existing 
regulatory burdens to the public, by allowing individuals to have more 
freedom to pursue activities (i.e., legal beach driving) that impact 
the Pacific Coast WSP, without first obtaining individual authorization 
from the Service.


    In accordance with Executive Order 13132, this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism assessment. Implementation of a special 4(d) rule is 
expected to reduce Federal oversight associated with management of the 
Pacific Coast WSP by exempting specified forms of incidental take of 
plovers in areas where Breeding Bird Management Goals have been met, 
and where managing entities have entered into long-term management 
strategies. Exempting certain activities from the take prohibitions 
removes or reduces the need to comply with Section 10(a)(1)(B) of the 

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Executive Order.

Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR part 
1320 implement provisions of the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.). The OMB regulations at 5 CFR 1320.3(c) define a 
``collection of information'' as the obtaining of information by or for 
an agency by means of identical questions posed to, or identical 
reporting, recordkeeping, or disclosure requirements imposed on, 10 or 
more persons. Furthermore, 5 CFR 1320.3(c)(4) specifies that ``10 or 
more persons'' refers to the persons to whom a collection of 
information is addressed by the agency within any 12 month period. For 
purposes of this definition, employees of the Federal Government are 
not included. A Federal 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.
    This proposal does not contain any new collections of information 
that require OMB approval under the Paperwork Reduction Act. This rule 
refers to 10(a)(1)(A) recovery permits required for research and 
monitoring actions that relate to the status of the Pacific Coast WSP 
or its reproductive success. Our recovery permit applications are 
already approved by OMB under OMB control number 1018-0094, which 
expires September 30, 2007.

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 E.O. 13175, we have evaluated possible 
effects on federally recognized Indian Tribes. We have determined that, 
because no Indian trust resources occur within the range of the Pacific 
Coast WSP, this proposed rule would have no effect on federally 
recognized Indian Tribes.

Energy Supply, Distribution or Use (Executive Order 13211)

    We have evaluated this proposed rule in accordance with E.O. 13211 
and have determined that this rule would have no effect on energy 
supply, distribution, or use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    For the reasons stated in the preamble, the Service proposes to 
amend part 17, subpart 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.  17.11(h), revise the entry for the ``Plover, western 
snowy,'' under ``Birds,'' on the List of Endangered and Threatened 
Wildlife to read as follows:

Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

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

                                                                      * * * * * * *

                                                                      * * * * * * *
Plover, western snowy............  Charadrius            U.S.A. (AZ, CA, CO,  U.S.A. (CA, OR,      T                       493     17.95(b)     17.41(c)
                                    alexandrinus          KS, NM, NV, OK,      WA), Mexico
                                    nivosus.              OR, TX, UT, WA),     (within 50 miles
                                                          Mexico.              of Pacific coast).

                                                                      * * * * * * *

    3. Amend Sec.  17.41 by adding a new paragraph (c) to read as 

Sec.  17.41  Special rules--birds.

* * * * *
    (c) Western snowy plover (Charadrius alexandrinus nivosus), Pacific 
Coast Population.
    (1) Applicable prohibitions. All prohibitions and measures of 
Sec. Sec.  17.31 and Sec. Sec.  17.32 shall apply to any threatened 
Pacific Coast western snowy plover, except as noted in paragraphs 
(c)(4) and (c)(5) of this section.
    (2) How are various terms defined in this special rule? We define 
certain terms that specifically apply to the Pacific Coast Western 
Snowy Plover (Pacific Coast WSP) and this special rule as follows:
    (i) Breeding Bird Management Goal means the target number of 
breeding plovers by County, listed in the draft

[[Page 20635]]

Recovery Plan for the Pacific Coast WSP.
    (ii) Documentation provided to the Service by a County should be a 
summary of what conservation measures have been carried out within that 
County and what is anticipated to occur in the future. This 
documentation may include existing Service-approved plans or other 
approved Federal actions. It may include local ordinances, agreements 
or plans which may be already developed and implemented by entities 
within the County as well as actions taken by the County itself. For 
example, documentation provided to the Service by a County may include 
(a) management agreements or plans developed and implemented on State 
and/or Federal lands within the County such as Biological Opinions, 
Habitat Conservation Plans, Safe Harbor Agreements, Partners for Fish 
and Wildlife Agreements, and/or conservation agreements, (b) County 
ordinances that have been implemented to alleviate threats to Pacific 
Coast WSP, and/or (c) other beneficial agreements, plans and/or actions 
taken by individuals or entities that protect the Pacific Coast WSP.
    (3) What activities are exempted from threatened species permits by 
this rule? This rule exempts all activities in those Counties which 
have meet their recovery goals, subject to the conditions in paragraphs 
(c)(4) and (c)(5) of this section, in the habitat of the Pacific Coast 
population of the western snowy plover from the requirement for 
threatened species permits.
    (4) What activities continue to be subject to threatened species 
permits under this rule? Research/monitoring actions that relate to the 
status of the Pacific Coast western snowy plover or its reproductive 
success continue to be subject to the Service's Recovery Permit process 
under section 10(a)(1)(A) of the Endangered Species Act of 1973, as 
amended (16 U.S.C. 1531 et seq.) and our regulations at 50 CFR 17.22 
and 17.32. The activities that would continue to require a permit under 
the section 10(a)(1)(A) program include banding of adults or chicks, 
floating eggs to determine hatch dates, surveys to locate and monitor 
nests, and population surveys and censuses conducted during the 
breeding season. Intentional take of Pacific Coast WSP remains 
prohibited under the Endangered Species Act of 1973, as amended (16 
U.S.C. 1531 et seq.).
    (5) What must Pacific Coast western snowy plover jurisdictions do 
to be authorized under the special rule? A County (or other appropriate 
entity acting on behalf of a County and with County approval) is exempt 
from incidental take of Pacific Coast western snowy plover associated 
with activities listed in paragraph (c)(3) of this section, if:
    (i) The County has provided documentation to the Service that 
summarizes what conservation measures to benefit the Pacific Coast WSP 
have been carried out within the County and what is anticipated to 
occur in the future, and
    (ii) The County has met its Breeding Bird Management Goal as 
provided in the table in paragraph (c)(5)(ii)(A) of this section, for 
at least 2 years out of the most recent 5 years.
    (A) Table of Breeding Bird Management Goals By Location.

                  Location                              Management goal breeding numbers (adult birds)
    Grays Harbor County.....................  38
    Pacific County..........................  40
    Clatsop County..........................  4
    Tillamook County........................  32
    Lincoln County..........................  4
    Lane County.............................  14
    Siltcoos River to Tenmile Crk. (Lane and  20
     Douglas Counties).
    Douglas County..........................  4
    Umpqua River to Horsfall Beach (Douglas   20
     and Coos Counties).
    Coos County.............................  54
    Bandon St. Pk. To Floras Lk. (Coos and    54
     Curry Counties).
    Curry County............................  16
    Del Norte County........................  18
    Humboldt County.........................  162
    Mendocino County........................  20
    Sonoma County...........................  10
    Marin County............................  64
    San Francisco County *..................  0
    San Francisco Bay * (Napa, Alameda,       Unknown Lands in SF Bay are dependant on Tidal Salt Marsh
     Santa Clara, And San Mateo Counties).     restoration.
    San Mateo County (not SF Bay)...........  34
    Santa Cruz County.......................  42
    Jetty Road to Mouth of Elkhorn Slough     54
     (Monterey and Santa Cruz Counties).
    Monterey County.........................  262
    San Luis Obispo (SLO) County............  182
    Pismo Beach/Nipomo Dunes (SLO and Santa   350
     Barbara Counties).
    Santa Barbara County....................  594
    Ventura County..........................  374
    Los Angeles County *....................  0
    Orange County...........................  50
    San Onofre Beach (Orange and San Diego    15
    San Diego County........................  485

[[Page 20636]]

    (B) A County that has a Breeding Bird Management Goal of zero, as 
listed in the table in paragraph (c)(5)(ii)(A) of this section, may 
qualify for incidental take exemption for the activities listed in 
paragraph (c)(3) of this section by providing documentation to the 
Service that management focusing on maintenance of wintering habitat 
for Pacific Coast WSP is occurring in the County.
    (C) A County with a Breeding Bird Management Goal currently 
identified as ``unknown,'' as listed in the table in paragraph 
(c)(5)(ii)(A) of this section, may qualify for incidental take 
exemption for the activities listed in paragraph (c)(3) of this section 
by providing documentation to the Service that management addressing 
breeding and/or wintering plovers is occurring in the County.
    (D) A County's 4(d) incidental take exemption for the activities 
listed in paragraph (c)(3) of this section will apply for as long as 
Pacific Coast WSP populations remain above recovery goals.
    (6) How will the Service inform the public of annual Breeding Bird 
Management Goal numbers?
    (i) We will provide the most up-to-date information on Breeding 
Bird Management Goals on the Arcata Fish and Wildlife Office Web site 
at http://arcata.fws.gov/es/birds/ploverbreedingdata.htm. We will post 

the Breeding Bird Management Goals on the Web site prior to January 31 
of each year.
    (ii) Jurisdictions may also obtain Breeding Bird Management Goals 
by contacting the Arcata Fish and Wildlife Office at 1655 Heindon Road, 
Arcata, CA 95521; 707-822-7201 (voice); 707-822-8411 (fax).

    Dated: April 12, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish, Wildlife, and Parks.
[FR Doc. 06-3793 Filed 4-20-06; 8:45 am]