2010 Federal Register, 75 FR 16404; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: April 1, 2010 (Volume 75, Number 62)]
[Proposed Rules]
[Page 16404-16421]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01ap10-30]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[Docket No. FWS-R8-ES-2009-0078]
[MO 99210-0-0009-B4]

50 CFR Part 17

RIN 1018-AW53

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
revise designated critical habitat for the Lane Mountain milk-vetch
(Astragalus jaegerianus) under the Endangered Species Act of 1973, as
amended (Act). The previous final rule designated 0 acres (ac) (0
hectares (ha)) of critical habitat and was published in the Federal
Register on April 8, 2005. We now propose to designate approximately
16,156 ac (6,538 ha) of land located in the Mojave Desert in San
Bernardino County, California, which, if finalized as proposed, would
result in an increase of approximately 16,156 ac (6,538 ha).

DATES: We will accept comments until June 1, 2010. We must receive
requests for public hearings, in writing, at the address shown in the
FOR FURTHER INFORMATION CONTACT section by May 17, 2010.

ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments to Docket No. [FWS-R8-
ES-2009-0078].
U.S. mail or hand-delivery: Public Comments Processing,
Attn: [FWS-R8-ES-2009-0078]; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Diane Noda, Field Supervisor, 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) 644-3958. If you use a telecommunications device for the deaf
(TDD), call the Federal Information Relay Service (FIRS) at (800) 877-
8339.

[[Page 16405]]

SUPPLEMENTARY INFORMATION:

Public Comments

We intend any final action resulting from this proposal to be based
on the best scientific and commercial data available and be as accurate
and as effective as possible. Therefore, we request comments or
information from the public, other governmental agencies, Tribes, the
scientific community, industry, or other interested parties concerning
this proposed rule. We particularly seek comments concerning:
(1) The reasons why we should or should not revise the designation
of habitat as ``critical habitat'' under section 4 of the Endangered
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.),
including whether there are threats to the species from human activity,
the degree of which can be expected to increase due to the designation,
and whether that increase in threat outweighs the benefit of
designation such that the designation of critical habitat is not
prudent.
(2) Specific information on:
The amount and distribution of Astragalus jaegerianus
habitat included in this proposed revised rule;
What areas within the geographic area occupied by the
species at the time of listing contain features essential to the
conservation of the species and why; and
What areas outside the geographical area occupied by the
species at the time of listing are essential for the conservation of
the species and why.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation. We are particularly interested in any impacts on small
entities, and the benefits of including or excluding areas that exhibit
these impacts;
(5) Comments or information that may assist us in identifying or
clarifying the primary constituent elements;
(6) How the proposed revised critical habitat boundaries could be
refined to more closely circumscribe the landscapes identified as
essential;
(7) Information on the currently predicted effects of climate
change on Astragalus jaegerianus and its habitat;
(8) Any foreseeable impacts on energy supplies, distribution, and
use resulting from the proposed revised designation and, in particular,
any impacts on electricity production, and the benefits of including or
excluding any particular areas that exhibit these impacts; and
(9) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Our final determination concerning critical habitat for Astragalus
jaegerianus will take into consideration all written comments we
receive during the comment period, including comments from peer
reviewers, comments we receive during a public hearing, should one be
requested, and any additional information we receive during the 60-day
comment period. All comments will be included in the public record for
this rulemaking. On the basis of peer reviewer and public comments, we
may, during the development of our final determination, find that areas
within the proposed designation do not meet the definition of critical
habitat, that some modifications to the described boundaries are
appropriate, or that areas may or may not be appropriate for exclusion
under section 4(b)(2) of the Act.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If your written
comments provide personal identifying information, you may request at
the top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy comments on http://www.regulations.gov. Please
include sufficient information with your comment to allow us to verify
any scientific or commercial data you submit.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
You may obtain copies of the proposed revised rule by mail from the
Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT)
or by visiting the Federal eRulemaking Portal at http://
www.regulations.gov.

Background

It is our intent to discuss only those topics directly relevant to
the revised designation of critical habitat in this proposed rule.
Additional information on the Lane Mountain milk-vetch may also be
found in the final listing rule published in the Federal Register on
October 6, 1998 (63 FR 53596) and the previous proposed critical
habitat of April 6, 2004 (69 FR 18018). These documents are available
on the Ventura Fish and Wildlife Office website at http://www.fws.gov/
ventura.

Species Description

Astragalus jaegerianus is a member of the pea family (Fabaceae),
and has a range restricted to a portion of the west Mojave Desert that
is north of Barstow, in San Bernardino County, California. The plant is
an herbaceous perennial that typically dies back at the end of each
growing season, and persists through the dry season 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 found growing within the canopy of a
host shrub. Like other species of Astragalus, the roots of Astragalus
jaegerianus contain nodules that fix nitrogen. Gibson et al. (1998, p.
81) 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.
jaegerianus.

Life History

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, p. 2).
Blooming typically occurs in April and May. However, if climatic
conditions are unfavorable, the plants may desiccate (dry out) prior to
flowering or setting seed. Therefore, substantial contributions to the
seed bank 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, p. 5). In the field, seeds that do not germinate during
the subsequent year become part of the seed bank. Seed germination
rates

[[Page 16406]]

in the field may resemble the low germination rate of 5 percent that is
observed in germination trials of unscarified (outer cover is not
broken) seed (Sharifi in litt. 2004, p. 1).
Seeds collected from Astragalus jaegerianus range in size from
.000053 ounces (1.5 milligrams) to .000764 ounces (5.0 milligrams) in
weight (Sharifi in litt. 2003, p. 5). The relatively large size of
these seeds, compared to those of many desert annual species, makes
them an attractive food source to ants and other large insects, small
mammals, and birds (Brown et al. 1979, p. 203). 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 coppices
(mounds).
Limited observations on Astragalus jaegerianus pollinators were
carried out in 2003 (Kearns 2003, pp. 9-16), 2004, and 2005 (Hopkins
2005, p. 1). Kearns made observations at two plants in one population
for 7 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, p. 12), and will fly up to 0.6 mile (1 kilometer (km)) away from
their nest; although if floral resources are abundant, they will
decrease their flight distances accordingly (Yanega, pers. comm. 2003).
Kearns (2003) found that the Anthidium individuals he inspected carried
pollen primarily from phacelia (Phacelia distans) (82 percent of
individuals) and A. jaegerianus (64 percent of individuals). 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
Astragalus jaegerianus flowers set seed, while only 5 percent of
nonpollinated flowers set seed (Sharifi pers. comm. 2004).
In a study conducted in 2004 and 2005, Hopkins collected three bee
species observed on the flowers of Astragalus jaegerianus. Yanega
identified the three bee species as Osmia laisulcata, Anthidium
emarginatum, and Anthidium dammersi, all of which belong to the
megachilid family. Hopkins also observed two species of flies
associated with Astragalus jaegerianus flowers. However, Hopkins
concluded that the common hoverfly (Eupeodes volucris) and bee fly
(Lordotus albidus) were not effective pollinators of A. jaegerianus
flowers (Hopkins 2005, p. 1).
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 A.
jaegerianus to survive occasional dry years, while longer periods of
drought might be endured by remaining dormant (Beatley in Bagley 1999,
p. 2). 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, p. 1).
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 possible low seed
germination rates discussed earlier, several other observations
contribute to this assertion. 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, despite careful observation, 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, p. 36). 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).

Geographical Area Occupied at the Time of Listing

At the time of listing, Astragalus jaegerianus was known to occur
in four geographically distinct areas, referred to as Brinkman Wash,
Montana Mine, Paradise Wash, and Coolgardie. The species was found from
a fifth area, referred to as Goldstone in 2001. Based on what we
understand about the lifespan of the species, we infer that the
Goldstone area was also occupied at the time of listing (see below).

Current Distribution

After the early collections in 1939 and 1941, the plant was not
collected again until 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, pp. 10-13; Brandt et al. 1993, p. 4; Prigge 2000a, p. 6) in
surveys sponsored by the Department of the Army (Army). Surveys in 1999
established that the Brinkman Wash and Montana Mine sites together
support one large spatially contiguous population (Prigge et al. 2000a,
p. 7), and thus these areas are now considered one population. In 1992,
the southernmost and now considered the third population was found 9
miles (mi) (14 kilometers (km)) to the south, on Coolgardie Mesa, a few
miles west of Lane Mountain. This site closely approximates the
location of the type locality (the location where a type specimen
originated) as described by Edmund C. Jaeger (1940, p. 119).
Extensive surveys funded by the Army were conducted in 2001 (Charis
2002, pp. 1-85). The 2001 surveys contributed greatly to our knowledge
of the overall distribution and abundance of Astragalus jaegerianus in
the three populations (Brinkman Wash-Montana Mine, Paradise Wash, and
Coolgardie). In addition, a fourth population was located during these
surveys on Army lands within the bounds of the National Training Center
at Fort Irwin (NTC) 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 information on population distribution included
in this proposed rule is taken from the Army survey report (Charis
2002, pp. 1-85).
Individuals of Astragalus jaegerianus are concentrated in four
geographically distinct areas. In this rule, a population refers to a
concentration of A. jaegerianus individuals, a 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 (32-kilometer) 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 Army lands including a portion leased to
NASA; the Brinkman

[[Page 16407]]

Wash-Montana Mine population occurs entirely on Army lands; the
Paradise Wash population occurs primarily on Army lands, with a small
portion of the remaining population occurring on Bureau of Land
Management (Bureau) lands intermixed with private lands along the
southwestern fringe of the population; the Coolgardie population occurs
primarily on Bureau-managed lands and to a lesser extent lands owned by
the Army, with a number of small privately owned parcels scattered
within.
Based on the information available, including historic records and
current location information, there is nothing to suggest that
Astragalus jaegerianus was more widespread prior to listing than the
currently-known distribution. The Army surveys in 2001 (Charis 2002, p.
17) 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) northwest of the known distribution (Silverman in litt. 2003). None
of these surveys have resulted in the location of any other
populations.

Habitat

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, p. 35). 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 (within 30 feet
(ft) (10 meters (m))) than in the surrounding landscape (Brandt et al.
1997, p. 8). At the Montana Mine site, highly weathered granite bedrock
was reached within 2 inches (6 centimeters (cm)) of the soil surface
near A. jaegerianus plants (Fahnestock 1999, p. 3). The topography
where A. jaegerianus most frequently occurs is on low ridges and rocky
low hills where bedrock is exposed or near the surface and the soils
are coarse or sandy (Prigge 2000b, p. 5; Charis 2002, p. 35). Most of
the individuals found to date occur between 3,100 and 4,200 ft (945 and
1,280 m) in elevation (Charis 2002, p. 40). At lower 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, p. 6; Charis 2002, p. 40). Prigge (pers.
comm. 2003) examined and found no relationship between the abundance
and distribution of A. jaegerianus and levels of micronutrients or
heavy metals, such as selenium, in the soil.
At the broad landscape level, the plant community within which
Astragalus jaegerianus occurs can be described as Mojave mixed woody
scrub (Holland 1986 p. 13), Mojave creosote bush scrub (Cheatham and
Haller 1975, p. 2; Thorne 1976, p. 23; Holland 1986, p. 13), or
creosote bush series (Sawyer and Keeler-Wolf 1995, p. 144). These broad
descriptions, however, are not sufficiently detailed to be 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 detailed, and thus very useful in
describing the particular plant community within which A. jaegerianus
grows. Common to all four sites is the remarkably high diversity of
desert shrub species, although 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 sometimes found growing
within dead shrubs, and are rarely observed on bare ground. Host shrubs
may be important in providing appropriate microhabitat conditions for
A.jaegerianus seed germination and seedling establishment (Charis 2003,
p. 25).
At the Brinkman-Montana Mine site, Prigge et al. (2000b, p. 6)
showed that the difference between the relative frequency of use of
host shrub species by Astragalus jaegerianus and the relative 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 ssp.
polifolium, Ericameria cooperi var. cooperi, Ephedra nevadensis,
Salazaria mexicana) accounted for 75 percent of the host shrub records.
Some relatively frequent shrubs had an extremely low frequency of
occurrence as a host. These included Larrea tridentata, Krameria
erecta, Psorothamnus arborescens var. minutifolius, Lepidium fremontii,
and Lycium cooperi (Charis 2001, p. 41).

Population Characteristics

The cumulative total number of Astragalus jaegerianus individuals
found from all surveys to date is approximately 5,800 (Charis 2002, p.
34). 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 numbers of individuals observed during the
surveys 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, p.
36). 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 climatic
conditions (particularly a heavy rainfall during October or November)
that are infrequent and unpredictable (Beatley 1974, p. 860; Kearns
2003, p. 5; Prigge, pers. comm. 2003).

Reasons for Decline and Threats

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 the NTC
and its future training expansion lands (see New Information Since the
Time of Listing section below), and the lack of regulatory mechanisms
that would offer formal protection for the species or its habitat.
Stochastic extinction (extinction

[[Page 16408]]

from random natural events) resulting from flooding (that could wash
substantial amounts of the seedbank into unsuitable habitat), prolonged
drought (that could reduce the abundance of viable seed in the
seedbank), or unforeseen events including wildfire, wildfire
suppression activities, or pipeline breaks or repairs were also of
concern.

New Information Since the Time of Listing

Survey information

Surveys conducted in 2001 (Charis 2002, pp. 1-85) increased our
understanding of the distribution of the species. The areal extent of
the three populations that were previously known was found to be much
greater, 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.

Army land transfers and management

A substantial change in land management occurred since the time of
listing. On January 11, 2002, the Fort Irwin Military Lands Withdrawal
Act of 2001 (Public Law 107-107) was signed into law. This legislation
withdrew approximately 110,000 acres (ac) (44,516 hectares (ha)) of
land, formerly managed by the Bureau, for military use and management
by the Army at the NTC. Subsequent surveys and Geographic Information
System (GIS) analysis indicated that the expansion area was actually
118,674 ac (48,026 ha).
As part of their Integrated Natural Resources Management Plan
(INRMP) responsibilities, the Army established 40 study plots in 2005
to study the demographics of Astragalus jaegerianus and reports
annually to the Service. Ten study plots were established in each of
the four populations. Information summarized from the 2008 annual
monitoring report indicates that the total number of A. jaegerianus
plants observed above-ground within the plots has decreased since 2005
(Hessing 2008, pp. 2-6). Study plot surveys in 2005 documented 224
individuals. In 2006 the total number of individual plants increased to
230. In 2007, the total number of plants observed in the study plots
was 4 plants; drought conditions are suspected to be the cause of
decreased numbers observed above-ground. In 2008 the observed
population total rose to 123 plants. Fourteen of the 123 plants (11.4
percent) were new recruits (new individuals from seeds) in 2008; this
was correlated with increased rainfall that resulted in the germination
of new individuals as well as the reappearance of older, established
individuals that had gone dormant during the previous years of drought.
In 2009, the total number of living plants observed in the study plots
was 124 plants. Eleven of these plants were new plants that had not
been observed or tagged previously (Hessing 2009, p. 3). Long-term
recruitment into the population is expected to be less, because of
seedling and juvenile mortality. For example, only 35 percent of the
new recruits in 2006 plants survived until 2008 (Hessing 2008, pp. 2-
6).
Population demography studies conducted at permanent survey plots
showed that Astragalus jaegerianus populations at the Montana Mine and
Goldstone sites are failing to recruit new plants into those
populations as a result of low seedling survival and perhaps a depleted
seed bank (Sharifi et al. 2009, p. 10). Additionally, recruitment is
probably episodic and requires two or more uncommon conditions such as:
A large seed bank, precipitation greater than 200 mm and frequently
spaced (approximately four times a month), and a subsequent wet year or
summer precipitation (Sharifi et al. 2009, p. 10). Recent genetic
analysis of A. jaegerianus showed that the species exhibits low levels
of genetic variation likely due to its small population size and
restricted geographical range (over a 20-mi long (32-km) area) (Walker
and Metcalf 2009, p. 18).
Three of the four populations of Astragalus jaegerianus (Goldstone,
Brinkman Wash-Montana Mine, and Paradise Wash populations) occur almost
entirely on Army lands at the NTC. The Army established two
conservation areas for A. jaegerianus in 2005. The first conservation
area, referred to as the Goldstone Conservation Area, comprises 2,470
ac (1,000 ha) at the Goldstone site where the Goldstone population
occurs and encompasses almost the entire population. The second
conservation area, referred to as Paradise Valley Conservation Area,
comprises 4,302 ac (1,741 ha) along the southwestern boundary of the
NTC where the Paradise Wash population occurs. A portion of the
Brinkman Wash-Montana Mine population occurs on a site designated as a
``no-dig zone'' by the Army; while not as protective as a conservation
area, the no-dig zone limits the extent of ground disturbance, and
hence disturbance to the habitat of Astragalus jaegerianus. Therefore,
of the three populations on the NTC lands, all of one and a portion of
a second are on sites that have been designated as conservation areas,
and a portion of a third population is on a site designated as a no-dig
zone.

Bureau land transfers and management

As discussed above under ``Army land transfers and management,''
approximately 118,674 ac (48,026 ha) of lands, primarily Bureau lands,
were transferred to the Army in 2002. This transfer included lands that
support a large portion of the population of Astragalus jaegerianus at
Brinkman Wash-Montana Mine and almost all the Astragalus jaegerianus
population at Paradise Wash. The Bureau continues to have jurisdiction
on lands that support the Astragalus jaegerianus population at
Coolgardie.
In 2005, the Bureau amended the California Desert Conservation Area
plan with respect to the management of approximately 3,300,000 ac
(1,335,477 ha) of Bureau lands in the western Mojave Desert. As part of
the plan amendment of the CDCA, the Bureau established two Areas of
Critical Environmental Concern (ACEC) for Astragalus jaegerianus. The
first ACEC, referred to as the West Paradise Conservation Area,
comprises 1,243 ac (503 ha), and is contiguous with the Army's Paradise
Valley Conservation Area along the southwestern boundary of the NTC.
This area was previously designated as land-use class L by the Bureau,
which denotes limited use. The second ACEC is the Coolgardie Mesa
Conservation Area (CMCA); it comprises approximately 13,354 ac (5,404
ha) at the Coolgardie site. This area was previously designated as
land-use class M by the Bureau, which denotes moderate use. Under the
plan amendments to the CDCA, both conservation areas are now managed to
maintain habitat for A. jaegerianus with the following management
prescriptions: Implement a minerals withdrawal and notify claimholders
of the presence of A. jaegerianus, prohibit grazing, issue no permits
that allow take of this species, require a 5-to-1 mitigation ratio for
land-disturbing projects, acquire private lands to the extent feasible,
and limit total ground disturbance to 1 percent of the conservation
areas.
Since 2005, Congress and the Department of Interior supported the
use of public lands for alternative energy development, including
passage of the Energy Policy Act of 2005. The purpose of the act is to
encourage energy efficiency and conservation,

[[Page 16409]]

promote alternative and renewable energy sources, reduce our dependence
on foreign sources of energy, and increase domestic production in an
environmentally responsible way. Stepdown orders address more
specifically how to implement the Energy Policy Act of 2005 (for
example, Order No. 3283 (DOI 2009a pp. 1-2) and Order No. 3285 (DOI
2009b pp. 1-3)). In addition, the Bureau has issued its own guidelines
for implementing these policies and orders on Bureau lands. In 2008,
the Bureau issued IM 2009-043, the Wind Energy Development Policy,
which includes guidelines for the development of wind energy projects
within designated ACEC areas (Bureau 2008, p. 2). In accordance with
these guidelines, the Bureau will not issue right-of-way authorizations
for wind energy development in ACECs when wind energy development is
incompatible with specific resource values. Since 2005, the Bureau has
received two applications to install meteorological monitoring towers
adjacent to Astragalus jaegerianus habitat on Coolgardie Mesa. These
applications were denied due to concerns over habitat alteration and
potential impacts to A. jaegerianus. The Bureau worked with the
applicants to relocate these two wind energy projects outside of the
ACECs designated for A. jaegerianus (Trost 2009), thereby avoiding
impacts to A. jaegerianus while pursuing alternative energy
development.

Previous Federal Action

The final rule listing Astragalus 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 at the time of listing 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. 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 reconsidered its
decision and determined that it was prudent to propose critical habitat
for the species. 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 date for issuance of the proposed
critical habitat designation for A. jaegerianus to April 1, 2004, and
the final designation to April 1, 2005.
On April 6, 2004 (69 FR 18018), we published a proposed critical
habitat designation that included 29,522 ac (11,947 ha) in 4 units in
San Bernardino County, California. On April 8, 2005 (70 FR 18220), we
published our final designation of critical habitat for Astragalus
jaegerianus. Because we excluded all proposed acreage from the
designation, the final designation included zero (0) acres (0
hectares).
On December 19, 2007, the 2005 critical habitat determination was
challenged by the Center for Biological Diversity (Center for
Biological Diversity v. United States Fish and Wildlife Service et al.,
Case No. CV-07-08221-JFW-JCRx). In a settlement agreement accepted by
the court on June 27, 2008, we agreed to reconsider the critical
habitat designation for A. jaegerianus. The settlement stipulated that
we submit a proposed revised critical habitat rule for A. jaegerianus
to the Federal Register for publication on or before April 1, 2010, and
submit a final revised determination on the proposed critical habitat
rule to the Federal Register for publication on or before April 1,
2011. This revised proposed rule complies with the June 27, 2008, court
order.

Critical Habitat

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical 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
(a) essential to the conservation of the species, and
(b) that may require special management considerations or
protection; and
(2) Specific areas outside the geographical 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, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring any
endangered species or threatened species to the point at which the
measures provided under the Act are no longer necessary. Such methods
and procedures include, but are not limited to, all activities
associated with scientific resources management such as research,
census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping and transplantation, and in the
extraordinary case where population pressures within a given ecosystem
cannot otherwise be relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to discretionary actions carried out,
funded, or authorized by a Federal agency. Section 7(a)(2) of the Act
requires consultation on Federal actions that may affect critical
habitat. The designation of critical habitat does not affect land
ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
private landowners. Where a landowner seeks or requests Federal agency
funding or authorization of an activity that may affect a listed
species or critical habitat, the consultation requirements of section
7(a)(2) would apply, but even in the event of a destruction or adverse
modification finding, the landowner's obligation is not to restore or
recover the species, but to implement reasonable and prudent
alternatives to avoid destruction or adverse modification of critical
habitat.
To be included in a critical habitat designation, habitat within
the geographical area occupied by the species at the time it was listed
must contain the physical and biological features that are essential to
the conservation of the species. Areas containing the essential
physical and biological features are identified, to the extent known
using the best scientific data available, as the habitat areas that
provide essential life cycle needs of the species; that is, areas on
which are found the primary constituent elements laid out in the
appropriate quantity and spatial arrangement essential to the
conservation of the species. Habitat within the geographical area
occupied by the species at the time of listing that contains features
essential to the conservation of the species meets the definition of
critical habitat only if these features may require special management
considerations or protection. Under the Act and the regulations at 50
CFR 424.12, we can designate critical habitat in areas outside the
geographical area occupied by the species at the time it is listed

[[Page 16410]]

only when we determine that the best available scientific data
demonstrate that the designation of those areas is essential for the
conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our ``Policy on Information Standards Under the Endangered
Species Act'' (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality
Guidelines, provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific
data available. They require our biologists, to the extent consistent
with the Act and with the use of the best scientific data available, to
use primary and original sources of information as the basis for
recommendations to designate critical habitat.
When we determine which areas to propose as revised critical
habitat, our primary source of information is generally the information
developed during the listing process for the species and any previous
designation of critical habitat. Additional information sources may
include the recovery plan and 5-year reviews for the species, articles
in peer-reviewed journals, conservation plans developed by States and
counties, scientific status surveys and studies, biological
assessments, or other unpublished materials and expert opinion or
personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. In particular, we recognize that climate change may cause
changes in the arrangement of occupied habitat patches. Current climate
change predictions for terrestrial areas in the Northern Hemisphere
indicate warmer air temperatures, more intense precipitation events,
and increased summer continental drying (Field et al. 1999, pp. 1-3;
Hayhoe et al. 2004, p. 12422; Cayan et al. 2005, p. 6;
Intergovernmental Panel on Climate Change 2007, p. 11; Cayan et al.
2009, p. xi). However, predictions of climatic conditions for smaller
subregions such as California remain uncertain. It is unknown at this
time if climate change in California will result in a warmer trend with
localized drying, higher precipitation events, or other effects. Thus,
the information currently available on the effects of global climate
change and increasing temperatures does not make sufficiently precise
estimates of the location and magnitude of the effects. Nor are we
currently aware of any climate change information specific to the
habitat of Astragalus jaegerianus that would indicate what areas may
become important to the species in the future. Therefore, we are unable
to determine what additional areas, if any, may be appropriate to
include in the proposed revised critical habitat for this species to
respond to potential effects of climate change; however, we
specifically request information from the public on the currently
predicted effects of climate change on A. jaegerianus and its habitat.
Additionally, we recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated critical habitat area is unimportant or
may not be required for recovery of the species.
Areas that support populations of Astragalus jaegerianus, but are
outside the critical habitat designation, may continue to be subject to
conservation actions we implement under section 7(a)(1) of the Act.
They are also subject to the regulatory protections afforded by the
section 7(a)(2) jeopardy prohibition, as determined on the basis of the
best available information at the time of the agency action. Federally
funded or permitted 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 (HCPs), section 7 consultations, or other
species conservation planning efforts if new information available to
these planning efforts calls for a different outcome.

Methods

As required by section 4(b) of the Act and 50 CFR 424.12, we used
the best scientific information available in determining which areas
within the geographic area occupied by the species at the time of
listing contain the features essential to the conservation of
Astragalus jaegerianus, and which areas outside the geographic area
occupied at the time of listing are essential for the conservation of
the species. We reviewed information used to prepare the 2004 proposed
critical habitat rule (69 FR 18018); the 5-year review (Service 2008,
pp. 1-21); published peer-reviewed articles; 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, pp. 1-85); additional
information provided by the Army, the Bureau, and other interested
parties; and discussions with botanical experts. We also conducted site
visits to all three units that are being proposed for designation.
The long-term probability of the survival and recovery of
Astragalus jaegerianus is dependent upon: The protection of existing
population sites; the maintenance of ecologic functions within these
sites, including connectivity within and between populations in close
geographic proximity to one another (to facilitate pollinator activity
and seed dispersal mechanisms); and keeping these areas free of major
ground-disturbing activities. The areas we are proposing to designate
as critical habitat provide all of the features essential for the
conservation of A. jaegerianus.
In our delineation of the proposed critical habitat units, we
initially selected areas to provide for the conservation of Astragalus
jaegerianus at the four population sites where it is known to occur. As
discussed under the section on Distribution, at the time of listing, A.
jaegerianus was known to occur from Brinkman Wash and Montana Mine
(these two sites subsequently determined to be contiguous and thus
considered one population), Paradise Wash, and Coolgardie; due to our
understanding of the lifespan of the species, we also conclude that the
Goldstone site was occupied at the time of listing even though this was
not confirmed until three years subsequent to listing. All four sites
are important because A. 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 vulnerable to extinction (see previous
rules (69 FR 18018 and 70 FR 18220) and Keith 1998, p. 1080; Gilpin and
Soule 1986, p. 33). 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 best available information
and the size of the unit.
Of principle importance in the process of delineating the proposed
critical habitat units are data in a

[[Page 16411]]

geographic information system (GIS) format provided by the Army,
depicting the results of Army field surveys for Astragalus jaegerianus
conducted in 2001 (Charis 2002, pp. 1-85). 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,
pp. 1-85).
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, pp. 1-85) based on the presence of
documented individuals. 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 jaegerianus individuals that are
part of these populations, but were not noted during surveys. The basis
for determining that these additional land areas are occupied is as
follows: (1) This habitat has the appropriate elevational range, and
includes the granitic soils and plant communities that support host
plants required by A. jaegerianus; (2) botanists involved in the Army
surveys stated that ``the estimate of [A. jaegerianus] distribution is
a minimum'' (SAIC 2003, pp. 1-2), and that additional individuals of A.
jaegerianus most likely occurred on the fringes of the MCPs (SAIC 2003,
pp. 1-2); (3) 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; (4) 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); and (5) 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) distance around the MCPs.
We next removed areas on the margins of the resultant polygons
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 MCP and a cirque-shaped sliver from the central portion of
the southern boundary of the Brinkman-Montana MCP.
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 polygons. We chose to bridge the
gap between the two polygons by incorporating the intervening habitat
that is within the geographic area occupied by the species between the
Goldstone and Brinkman-Montana polygons into a single critical habitat
unit, called the Goldstone-Brinkman 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 jagerianus requires; there were no obvious
physical 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.
Granitic soil and the plant community in the intervening area between
the two polygons also provide habitat for the pollinators that visit A.
jaegerianus flowers, habitat for seed dispersers (birds, small mammals,
and large insects) that carry seed between the coppices of suitable
host shrubs, and the area functions 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 5,497-ac (2,225-ha) MCP,
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 or
providing connectivity to any other known population of Astragalus
jaegerianus.
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 that are unlikely to contribute to
the conservation of the species at issue. 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
Astragalus 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
altered such 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 under the Act, 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(b), in determining which areas occupied at the time of
listing to propose as critical habitat, we consider the physical and
biological features 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:
1. Space for individual and population growth and for normal
behavior;
2. Food, water, air, light, minerals, or other nutritional or
physiological requirements;
3. Cover or shelter;

[[Page 16412]]

4. Sites for breeding, reproduction, or rearing (or development) of
offspring; and
5. Habitats that are protected from disturbance or are
representative of the historic, geographical, and ecological
distributions of a species.
The appropriate quantity and spatial arrangement of the principal
biological or physical features within the defined area essential to
the conservation of the species compromise the ``primary constituent
elements'' (PCEs) of critical habitat. As defined by our implementing
regulations at 50 CFR 424.12(b), these primary constituent elements may
include, but are not limited to, features such as roost sites, nesting
grounds, spawning sites, feeding sites, seasonal wetlands or drylands,
water quality and quantity, host species or plant pollinators,
geological formations, vegetation types, tides, and specific soil
types.
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
revised critical habitat is designed to provide sufficient habitat to
maintain self-sustaining populations of A. jaegerianus throughout its
range and to provide those habitat components essential for the
conservation of the species. The proposed revised critical habitat: (1)
provides for individual and population growth, including sites for
germination, pollination, reproduction, pollen and seed dispersal, and
seed banks; (2) provides sites for the host plants that provide
structural support for A.jaegerianus; (3) includes intervening areas
that allow gene flow and provide connectivity or linkage within
segments of the larger population; and (4) includes areas that provide
basic requirements for growth, such as water, light, and minerals.
Annual distribution of Astragalus jaegerianus varies due to a
variety of factors. Some of the factors associated with the observed
and actual distribution of this species include the following: The
degree to which germination requirements of scarification and moisture
are met within a germination time frame for the species; the
distribution of the seed bank in the soils; and the existence of
favorable climatic conditions in a particular year. Therefore,
including habitat surrounding the known populations outward for a
distance of 0.25 mi (0.4 km) would ensure inclusion of most of the
population.
Based on our current knowledge, the primary constituent elements of
critical habitat for Astragalus jaegerianus consist of:
(1) Shallow soils at elevations between 3,100 and 4,200 ft (945 to
1,280 m) derived primarily from Jurassic or Cretaceous granitic
bedrock, and less frequently on soils derived from diorite or gabbroid
bedrock, or on granitic soils overlain by scattered rhyolitic cobble,
gravel, and sand.
(2) Host shrubs at elevations between 3,100 and 4,200 ft (945 to
1,280 m). The primary host shrubs are 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 communities.
Special Management Considerations or Protection
The term critical habitat is defined in section 3(5)(A) of the Act
as geographic areas on which are found those physical or biological
features essential to the conservation of the species and which may
require special management considerations or protection. Accordingly,
when designating critical habitat, we assess whether the primary
constituent elements within the areas occupied at the time of listing
may require special management considerations or protection. Although
the determination that special management may be required is not a
prerequisite to designating critical habitat in areas essential to the
conservation of the species that were unoccupied at the time of
listing, all areas being proposed as critical habitat require some
level of management to address current and future threats to Astragalus
jaegerianus, to maintain or enhance the physical and biological
features essential to its conservation, and to ensure the recovery and
survival of the species.
A detailed discussion of threats affecting the physical and
biological features essential to the conservation of Astragalus
jaegerianus, and that may require special management considerations or
protection, can be found in the previous proposed critical habitat of
April 6, 2004 (69 FR 18018), and the 5-year review (Service 2008, pp.
1-21). In summary, these threats include surface mining, off-highway
vehicle recreation, military training activities competition with
nonnative species, and habitat fragmentation. In addition, the Bureau
has received interest from wind energy companies that are seeking sites
for wind energy development.
The areas proposed for designation as revised critical habitat will
require some level of management to address the current and future
threats to Astragalus jaegerianus and to maintain the physical and
biological features essential to the conservation of the species. In
units that were occupied at the time of listing and are currently
occupied, special management will be needed to ensure that designated
habitat is able to provide areas for germination, pollination,
reproduction, and sites for the host plants that provide structural
support for A. jaegerianus; intervening areas that allow gene flow and
provide connectivity or linkage within segments of the larger
population; and areas that provide basic requirements for growth, such
as water, light, and minerals.
There will be impacts from military activities on Astragalus
jaegerianus and its habitat at NTC. We will not discuss the impacts any
further, because areas where A. jaegerianus occurs on NTC are being
exempted. Army-owned lands in the Paradise and Coolgardie units are not
part of the NTC. The lands were purchased for A. jaegerianus
conservation and will not be impacted by military activities.
The designation of critical habitat does not imply that lands
outside of critical habitat do not play an important role in the
conservation of Astragalus jaegerianus. Activities with a Federal nexus
that may affect those areas outside of critical habitat, such as
development, surface mining, agricultural, military, and road
construction activities, are still subject to review under section 7 of
the Act if they may affect A. jaegerianus. The prohibitions of section
9 of the Act applicable to plants also continue to apply both inside
and outside of designated critical habitat. With respect to plants,
section 9 of the Act includes among its prohibitions the import or
export of listed species, the removal to possession or malicious damage
or destruction of species on areas under Federal jurisdiction, or the
removal, damage or destruction of species in violation of State law (16
U.S.C. Sec. 1538(a)(2)).
Criteria Used to Identify Critical Habitat
Using the best scientific and commercial data available as required
by section 4(b)(1)(A) of the Act, we identified those areas to propose
for revised designation as critical habitat that, within the
geographical area occupied by the species at the time of listing (see
``Geographical Range Occupied at the Time of Listing'' section),
possess those physical and biological features essential to the
conservation of Astragalus jaegerianus and which may require special

[[Page 16413]]

management considerations or protection. We also considered the area
outside the geographical area occupied by the species at the time of
listing for any areas that are essential for the conservation of A.
jaegerianus. The material we used included the 1998 final listing rule
(63 FR 53596), the 2004 proposed critical habitat rule (69 FR 18018),
data in reports submitted during section 7 consultations and by
biologists holding section 10(a)(1)(A) recovery permits, research
published in peer-reviewed articles and presented in academic theses
and agency reports, the 5-year review (Service 2008, pp. 1-21), Army
surveys of 2001 (Charis 2002, pp. 1-85), and regional GIS coverages. We
analyzed this information to develop criteria for identifying areas
that contain the PCEs in the appropriate quantity and spatial
arrangement essential to the conservation of the Astragalus jaegerianus
that may require special management considerations or protection, or
that are essential for the conservation of A. jaegerianus. Extensive
surveys funded by the Army were conducted in 2001 (Charis 2002). The
2001 surveys were conducted under optimal growing conditions for the
species and contributed greatly to our knowledge of the overall
distribution and abundance of A. jaegerianus. We believe the survey
results capture the fullest expression of A. jaegerianus and provide an
accurate representation of habitat occupied by the species.
We are proposing to designate all habitat occupied by Astragalus
jaegerianus during the extensive Army surveys conducted in 2001.
Because the species is long lived and the surveys were conducted under
optimal conditions, we believe the species was growing in all potential
habitat for the species.
Summary of Changes from Previously Proposed Critical Habitat
In our proposed revised critical habitat rules, we typically
provide a Summary of Changes that compares the proposed revised
critical habitat designation with the previously designated critical
habitat. However, we designated zero (0) acres (0 hectares) in our
previous designation. Therefore, we are also providing comparison
between the previously proposed critical habitat designation from April
6, 2004 (69 FR 18018), and the current proposed revised critical
habitat designation The current proposed revision compares with the
previous proposed designation as follows:
(1) In 2004 we proposed 9,627 ac (3,896 ha) of Bureau lands and
4,427 ac (1,792 ha) of private lands. Currently we are proposing 9,888
ac (4,002 ha) of Bureau lands and 2,899 ac (1,169 ha) of private lands.
(2) In 2004 we proposed 211 ac (85 ha) of lands inaccurately
identified as State Lands. Currently we are not including, through
exemption, 211 ac (85 ha) of the NTC lands covered under the Army's
INRMP. The land was inaccurately identified as State Lands in our 2004
proposed critical habitat rule.
(3) Currently we are proposing 1,282 ac (519 ha) of lands that
were formerly in private ownership but have been acquired by the
Department of the Defense for the purposes of conservation of
Astragalus jaegerianus. These lands are not contiguous with the NTC and
are not covered under the Army's INRMP.
(4) Currently we are not including through exemption 16,462 ac
(6,662 ha) of the NTC lands covered under the Army's INRMP.
Below is a table that compares the acreage by land ownership
included in the previous proposed critical habitat designation and the
previous final critical habitat designation with what we are proposing
in this proposed revised critical habitat designation.

Table 1: Comparison of acreages included in 2004 proposed critical habitat rule, 2005 final critical habitat
rule, and 2010 proposed revised critical habitat rule.
----------------------------------------------------------------------------------------------------------------
2005 final revision to
2004 proposed the critical habitat 2010 revised proposed
Name of critical habitat unit designation of critical designation (63 FR designation of critical
habitat (69 FR 18018) 53596) habitat
----------------------------------------------------------------------------------------------------------------
Goldstone-Brinkman 9,906 ac (4,008 ha) Excluded0 ac (0 ha) 10,394 ac (4,206 ha)
exempted due to INRMP
on NTC lands
----------------------------------------------------------------------------------------------------------------
Paradise 6,828 ac (2,763 ha) Excluded0 ac (0 ha) A portion exempted due
to INRMP on NTC lands,
6,068 ac (2,456 ha); a
portion included 964
ac (390 ha)
----------------------------------------------------------------------------------------------------------------
Coolgardie 12,788 ac (5,175 ha) Excluded0 ac (0 ha) 13,105 ac (5,303 ha)
included
----------------------------------------------------------------------------------------------------------------
Totals 29,522 ac (11,947 ha) 0 ac (0 ha) 14,069 ac (5,693 ha)
----------------------------------------------------------------------------------------------------------------

Proposed Revised Critical Habitat Designation
The proposed revised critical habitat areas described below
constitute our best assessment at this time of the areas needed for the
species' conservation. The two units 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, were occupied at
the time of listing, are currently occupied, and contain the primary
constituent elements that sustain Astragalus jaegerianus. We are
exempting the previously proposed Goldstone-Brinkman unit and a large
portion of the previously proposed Paradise unit (from the 2004
proposed critical habitat rule) because NTC now has an approved INRMP.
Please see discussion in Exemptions section below for a description of
the importance of these exempted areas to A. jaegerianus.
Paradise Unit:
The Paradise unit consists of approximately 7,032 ac (2,846 ha). We
are proposing critical habitat for Astragalus jaegerianus on 964 ac
(390 ha). Of this, 318 ac (129 ha) is Army-owned land adjacent to the
NTC (off Fort Irwin), 237 ac (96 ha) is privately owned land located
adjacent to the NTC, and approximately 409 ac (166 ha) is on adjacent
Federal lands managed by the Bureau. The remaining 6,068 acres (2456
ha) within this unit are on Army lands at NTC subject to the INRMP and
have been exempted as discussed below, in the Exemptions section.
As part of the plan amendments to the CDCA, the Bureau in 2005
designated an area of approximately 1,000 ac (405 ha) as part of the
West Paradise Valley Conservation Area (See section on Bureau land
transfers and management above for a description of current management
of this ACEC). It generally overlaps with the 964 ac (390 ha) being

[[Page 16414]]

proposed here for critical habitat. The boundary of the West Paradise
Valley Conservation Area encompasses some Army lands not on NTC and
some private inholdings. This unit is important because it supports a
portion of 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 (PCE 1) and host shrubs (PCE 2) that are necessary for
the growth, reproduction, and establishment of A. jaegerianus
individuals. These granitic soils and host shrubs 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 the soils provide sites for long-term storage
for seedbank of A. jaegerianus.
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) and other plant species that may take over habitat for
the species; habitat fragmentation that detrimentally affects plant-
host plant and plant-pollinator interactions (i.e., composition and
structure of the desert scrub community), leading to a decline in
species reproduction and increasing susceptibility to nonnative plant
invasion; and 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, composition and
structure of the plant community may be altered by the spread of
nonnative plants, and 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.
Coolgardie Unit:
The Coolgardie unit consists of approximately 13,105 ac (5,303 ha),
primarily on Federal lands managed by the Bureau. The proposed
Coolgardie critical habitat unit overlaps to a great extent with the
Bureau's Coolgardie Mesa Conservation Area (CMCA) (See section on
Bureau land transfers and management above for a description of current
management of the CMCA). Of this acreage, approximately 9,479 ac (3,836
ha) are managed by the Bureau, and approximately 964 ac (390 ha) were
formerly in private ownership, but have been acquired by the Army for
the purposes of conservation of Astragalus jaegerianus since 2005.
These lands are not contiguous with the NTC and are not covered under
the Army's INRMP. Parcels of private land are scattered throughout this
unit and total approximately 2,662 ac (1,077 ha). Some of these parcels
may be acquired by the Bureau and added to the CMCA. This unit supports
one of only four populations of A. jaegerianus. In 2001, surveyors
observed 2,014 plants in this population.
The land within this unit supports the granitic soils (PCE 1) and
host shrubs (PCE 2) that are necessary for the growth, reproduction,
and establishment of Astragalus jaegerianus individuals. It should be
noted that the proposed critical habitat does not include the ``donut
hole'' in the center of the unit, where granitic soils are absent.
Within the proposed unit, the granitic soils and host shrubs (1)
provide habitat for the pollinators that visit A. jaegerianus flowers
and result in the production of seed; (2) provide habitat for seed
dispersers (birds, small mammals, and large insects) that carry seed
between the coppices of suitable host shrubs; and (3) provide for long-
term seedbank storage for A. jaegerianus.
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) and other plant species that may take over habitat for
the species; habitat fragmentation that detrimentally affects plant-
host plant and plant-pollinator interactions (composition and structure
of the desert scrub community), leading to a decline in species
reproduction and increasing susceptibility to nonnative 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 habitat conditions (e.g., decreases in plant cover, and
increases in nonnative 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
nonnative species have been introduced into the area. We anticipate
that in the future, habitat fragmentation may increase, and composition
and structure of the plant community may be altered by the continued
spread of nonnative plants. Due to increased recreational pressure,
off-road vehicle use has increased in the past 4 years. All of these
threats would render the habitat less suitable for A. jaegerianus, and
special management may be needed to address them.

Table 2. Approximate areas, given in acres (ac)\1\ and hectares (ha), of proposed critical habitat for Astragalus jaegerianus by land ownership.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bureau of Land State Lands
Unit Name Army lands (Federal) Management (Federal) Commission Private lands Totals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Paradise 318 ac(129 ha) 409 ac(166 ha) 0 ac(0 ha) 237 ac(96 ha) 964 ac (390 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Coolgardie 964 ac(390 ha) 9,479 ac (3,836 ha) 0 ac(0 ha) 2,662 ac (1,077 ha) 13,105 ac (5,303 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Totals 1,282 ac(519 ha) 9,888 ac (4,002 ha) 0 ac(0 ha) 2,899 ac (1,173 ha) 14,069 ac(5,693ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 Consultation

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. Decisions by the
Fifth and Ninth Circuit Courts of Appeal have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish

[[Page 16415]]

and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra Club v.
U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442F (5th Cir.
2001)), and we do not rely on this regulatory definition when analyzing
whether an action is likely to destroy or adversely modify critical
habitat. Under the statutory provisions of the Act, we determine
destruction or adverse modification on the basis of whether, with
implementation of the proposed Federal action, the affected critical
habitat would remain functional (or retain the current ability for the
PCEs to be functionally established) to serve its intended conservation
role for the species.
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
endangered or threatened and with respect to its critical habitat, if
any is proposed or designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with
us on any action that is likely to jeopardize the continued existence
of a species proposed for listing or result in destruction or adverse
modification of proposed critical habitat. This is a procedural
requirement only, as any conservation recommendations in a conference
report or opinion are strictly advisory. However, once proposed species
become listed, or proposed critical habitat is designated as final, the
full prohibitions of section 7(a)(2) of the Act apply to any Federal
action. The primary utility of the conference procedures is to maximize
the opportunity for a Federal agency to adequately consider proposed
species and critical habitat and avoid potential delays in implementing
their proposed action as a result of the section 7(a)(2) compliance
process, should those species be listed or the critical habitat
designated.
Conference reports provide conservation recommendations to assist
the action agency in eliminating conflicts with the proposed species or
proposed critical habitat that may be caused by the proposed action. We
may issue a formal conference report if requested by a Federal agency.
Formal conference reports on proposed critical habitat contain an
opinion that is prepared according to 50 CFR 402.14, as if critical
habitat were designated. We may adopt the formal conference report as
the biological opinion when the critical habitat is designated, if no
substantial new information or changes in the action alter the content
of the opinion (see 50 CFR 402.10(d)). The conservation recommendations
in a conference report are advisory.
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.
As a result of this consultation, we document compliance with the
requirements of section 7(a)(2) of the Act through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
If 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
habitat.
Federal activities that may affect Astragalus jaegerianus or its
designated critical habitat will require section 7(a)(2) consultation
under the Act. Activities on State, Tribal, local, or private lands
requiring a Federal permit (such as a permit from the U.S. Army Corps
of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
et seq.) or a permit under section 10 of the Act from the Service or
involving some other Federal action (such as funding from the Federal
Highway Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) will also be subject to the section
7(a)(2) consultation process. Federal actions not affecting listed
species or critical habitat, and actions on State, Tribal, local, or
private lands that are not federally funded, authorized, or permitted,
do not require section 7(a)(2) consultations.
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 not covered by an INRMP;
(2) Activities of the Bureau of Land Management on its lands or
lands under its jurisdiction;
(3) Activities of the Federal Energy Regulatory Commission (FERC);
(4) 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
(5) Habitat restoration projects on private lands receiving
funding from Federal agencies, such as from the Natural Resources
Conservation Service.
As discussed previously in this rule, we completed consultation
with both the Army and the Bureau on activities that are being proposed
on their lands. We consulted with the Army on its proposed addition of
training lands on the NTC (Charis 2003; Service 2005). We also
consulted with the Bureau as the lead Federal agency on the plan
amendments to the CDCA plan (Bureau 2005; Service 2005).
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, under 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 Paradise

[[Page 16416]]

and population of the species. 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. However, there may be
activities proposed for private lands that either need to be completed
prior to the approval of the HCP, or there may be a proposed activity
that is not covered by the HCP, and therefore may require a separate
habitat conservation plan.
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 FOR FURTHER INFORMATION CONTACT 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, Pacific
Southwest Region, 2800 Cottage Way, Suite W-2606, Sacramento, CA 95825-
1846 (telephone (916) 414-6464; facsimile (916) 414-6486).

Application of the Jeopardy and Adverse Modification Standard

Jeopardy Standard

Currently, the Service applies an analytical framework for
Astragalus jaegerianus jeopardy analyses that relies heavily on the
importance of known populations to the species' survival and recovery.
The section 7(a)(2) of the Act analysis is focused not only on these
populations but also on the habitat conditions necessary to support
them.
The jeopardy analysis usually expresses the survival and recovery
needs of Astragalus jaegerianus in a qualitative fashion without making
distinctions between what is necessary for survival and what is
necessary for recovery. Generally, the jeopardy analysis focuses on the
range-wide statuses of A. jaegerianus, the factors responsible for that
condition, and what is necessary for the species to survive and
recover. An emphasis is also placed on characterizing the conditions of
A. jaegerianus in the area affected by the proposed Federal action and
the role of affected populations in the survival and recovery of A.
jaegerianus. That context is then used to determine the significance of
adverse and beneficial effects of the proposed Federal action and any
cumulative effects for purposes of making the jeopardy determination.

Adverse Modification Standard

The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or would retain its current ability
for the PCEs to be functionally established. Activities that may
destroy or adversely modify critical habitat are those that alter the
physical and biological features, or other conservation role and
function of the affected designated area, to an extent that appreciably
reduces the conservation value of critical habitat for Astragalus
jaegerianus. Generally, the conservation role of A. jaegerianus
critical habitat units is to support viable core populations and areas
that maintain connectivity between core area populations.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, 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 may also jeopardize the continued existence of the species.
Activities that, when carried out, funded, or authorized by a
Federal agency, may directly or indirectly affect critical habitat and,
therefore, should result in consultation for Astragalus jaegerianus
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 that support host shrubs, including but not
limited to livestock grazing, clearing, discing, 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.

Exemptions

Application of Section 4(a)(3) of the Act

The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Endangered Species Act to limit areas eligible
for designation as critical habitat. Specifically, section
4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides:
``The Secretary shall not designate as critical habitat any lands or
other geographical areas owned or controlled by the Department of
Defense, or designated for its use, that are subject to an integrated
natural resources management plan (INRMP) prepared under section 101 of
the Sikes Improvement Act of 1997 (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.''
The Sikes Act required each military installation that includes
land and water suitable for the conservation and management of natural
resources to complete, by November 17, 2001, an INRMP. An INRMP
integrates implementation of the military mission of the installation
with stewardship of the natural resources found on the base. Each INRMP
includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management, fish and wildlife
habitat enhancement or modification, wetland protection, enhancement,
and restoration where necessary to support fish and wildlife, and
enforcement of applicable natural resource laws.
Army lands within the boundaries of the NTC at Fort Irwin are
subject to an INRMP for 2006-2011 (NTC 2005), which includes management
guidelines for Astragalus jaegerianus. The Service will monitor the
status of the INRMP to assure that it adequately addresses management
guidelines for Astragalus jaegerianus prior to the completion of the
final critical habitat rule. As part of the Army's consultation on the
proposed expansion of training lands at

[[Page 16417]]

NTC (Service 2005), the Army established a 4,300-ac (1,740-ha) East
Paradise Conservation Area on NTC. This area contains approximately 80
percent of the East Paradise population of A. jaegerianus. The Army
established a 3,700-ac (1497-ha) Brinkman Wash Restricted Access Area
(no-dig zone) on NTC. This area contains 1,872 ac (758 ha) of A.
jaegerianus habitat and approximately 51 percent of the Montana Mine
population of A. jaegerianus. The Army also maintains the 2,471-ac
(1,000-ha) Goldstone Conservation Area. The Army's INRMP management
guidelines provide a benefit to A. jaegerianus by prohibiting off-road
activity. The Army will reduce threats to A. jaegerianus caused by dust
through the application of soil binders. They will also collect and
store site-specific seed from host plants to restore closed routes and
other disturbed areas with A. jaegerianus habitat. Contingent on funds,
the Army will perform intensive nonnative species control and
eradication efforts at conservation areas if such species are found
there.
In the previous 2004 proposed designation (69 FR 18018), the Army
had not yet completed its INRMP and, therefore, was not exempted under
section 4(a)(3)(B) of the Act. However, the Army was excluded under
section 4(b)(2) of the Act for reasons of national security, and
because existing management plans provided a benefit to Astragalus
jaegerianus. The Army's INRMP was approved in 2006, and includes
management actions that the Secretary has determined benefit A.
jaegerianus. With our current exemption of all areas within the Army's
NTC (see ``Relationships to Sections 4(a)(3) of the Act'' section), the
entire Goldstone-Brinkman unit has been exempted from proposed
designation as revised critical habitat. Similarly, almost all (6,068
acres (2456 ha) of 7,032 ac (2,846 ha)) of the Paradise Unit on NTC has
been exempted from proposed designation as revised critical habitat.
Army lands outside the NTC are not subject to the INRMP and therefore
not exempted.

Exclusions

Application of Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary must
designate and revise critical habitat on the basis of the best
available scientific data after taking into consideration the economic
impact, national security impact, and any other relevant impact of
specifying any particular area as critical habitat. The Secretary may
exclude an area from critical habitat if he determines that the
benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat, unless he determines, based on
the best scientific data available, that the failure to designate such
area as critical habitat will result in the extinction of the species.
In making that determination, the legislative history is clear that the
Secretary has broad discretion regarding which factor(s) to use and how
much weight to give to any factor.
Under section 4(b)(2) of the Act, we consider all relevant
impacts, including economic impacts. In compliance with section 4(b)(2)
of the Act, we are preparing a new analysis of the economic impacts of
this proposed revision to critical habitat for Astragalus jaegerianus
to evaluate the potential economic impact of the proposed revised
designation. 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://
www.regulations.gov, or from the Ventura Fish and Wildlife office
directly (see FOR FURTHER INFORMATION CONTACT). During the development
of the final revised designation, we will consider economic impacts,
public comments, and other new information. Certain areas may be
excluded from the final critical habitat designation under section
4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.
At this time, we are not proposing any specific exclusions of
areas from critical habitat under section 4(b)(2) of the Act for
Astragalus jaegerianus. We will consider any available information
about areas covered by conservation or management plans that we should
consider for exclusion from the designation under section 4(b)(2) of
the Act, including whether the benefit of exclusion of those lands
would outweigh the benefits of their inclusion. For example, we
consider whether there are conservation partnerships that would be
encouraged or discouraged by designation of, or exclusion from,
critical habitat in an area. In addition, we look at the presence of
Tribal lands or Tribal Trust resources that might be affected, and
consider the government-to-government relationship of the United States
with the Tribal entities. We also consider any social impacts that
might occur because of the designation.

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 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
proposal.

Public Hearings

The 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 FOR
FURTHER INFORMATION CONTACT 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.

Required Determinations

Regulatory Planning and Review - Executive Order 12866

The Office of Management and Budget (OMB) determines whether this
rule is significant under Executive Order (E.O.) 12866. OMB bases its
determination upon the following four criteria:
(1) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(2) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(3) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(4) Whether the rule raises novel legal or policy issues.
At this time, we do not believe that the rule would have an annual
effect on the economy of $100 million or more or affect the economy in
a material way. We base this on information provided in the economic
analysis that was prepared

[[Page 16418]]

for the previous proposed critical habitat designation in 2004
(Industrial Economics 2005). In that economic analysis, the
predesignation costs (from the time of listing, 1998 to 2004) ranged
from $2.23 to $2.75 million, and the annualized (over 20 years)
postdesignation costs ranged from $351,000 to $787,000 at a 3-percent
discount rate. However, we will be conducting a new economic analysis
in conjunction with this revised proposed designation.

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 (RFA) 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 RFA to require agencies to provide a
statement of factual basis for certifying that the rule will not have a
significant economic impact on a substantial number of small entities.
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 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.
An analysis of the economic impacts of the 2004 proposed critical
habitat designation was made available to the public on December 8,
2004 (69 FR 70971). In that analysis, we summarized that the estimated
predesignation costs ranged from $1.58 million to $2.1 million. These
costs were associated primarily with two major conservation efforts:
those taken by the Army to plan for and implement conservation actions
at Fort Irwin, and those taken by the BLM to plan for, and implement,
conservation actions within the framework of the West Mojave Plan. The
total post-designation costs were estimated to range from $5.84 million
to $13.01 million. These estimated costs were associated primarily with
land management activities and project-related surveys and monitoring
associated with the conservation of Astragalus jaegerianus over a 20-
year time period. Note that although zero (0) acres of critical habitat
were designated in the previous final rule in 2005, some of these
estimated costs have been borne by the Army and BLM since then for
activities related to the conservation of A. jaegerianus.
We do not anticipate significant impacts to small entities as a
result of this rulemaking. Of the approximately 14,069 acres proposed
for critical habitat for Astragalus jaegerianus, approximately 1,282
acres are on Army lands but outside the boundaries of the NTC, about
9,888 acres are lands managed by the Bureau, and 2,899 acres are
privately owned. The prospective costs associated with conservation
measures for A. jaegerianus are a result of multiple causative factors,
including implementation of conservation measures proposed as parts of
the Army's NTC expansion plan and the Bureau's CDCA plan amendments.
Conservation measures associated with A. jaegerianus are not expected
to result in appreciable reduction of either mining or dual-sport
activities in the area.

Energy Supply, Distribution, or Use - Executive Order 13211

On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) 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. However, we will further
evaluate this issue as we conduct our economic analysis, and review and
revise this assessment as warranted.

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:
(1) This proposed rule will not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
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). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or [T]ribal governments,'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and [T]ribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding,'' and the
State, local, or Tribal governments ``lack authority'' to adjust
accordingly. At the time of enactment, these entitlement programs were:
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational Rehabilitation State Grants; Foster
Care, Adoption Assistance, and Independent Living; Family Support
Welfare Services; and Child Support Enforcement. ``Federal private
sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies

[[Page 16419]]

must ensure that their actions do not destroy or adversely modify
critical habitat under section 7. While non-Federal entities that
receive Federal funding, assistance, or permits, or that otherwise
require approval or authorization from a Federal agency for an action,
may be indirectly impacted by the designation of critical habitat, the
legally binding duty to avoid destruction or adverse modification of
critical habitat rests squarely on the Federal agency. Furthermore, to
the extent that non-Federal entities are indirectly impacted because
they receive Federal assistance or participate in a voluntary Federal
aid program, the Unfunded Mandates Reform Act would not apply, nor
would critical habitat shift the costs of the large entitlement
programs listed above onto State governments.
(2) This proposed rule will not ``significantly or uniquely''
affect small governments. A Small Government Agency Plan is not
required. State lands will not be proposed. 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.

Takings - Executive Order 12630

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 revised rule. Once the economic
analysis is available, we will review and revise this preliminary
assessment as warranted.

Federalism - Executive Order 13132

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 revised 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 information 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 - Executive Order 12988

In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor has determined that this proposed
revised rule does not unduly burden the judicial system and that it
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. This proposed revision 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 jaegerianus.

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

This proposed rule does not contain new or revised information
collection that requires approval by OMB under the Paperwork Reduction
Act of 1995. 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

It is our position that, outside the jurisdiction of the Circuit
Court of the United States for the Tenth Circuit, we do not need to
prepare environmental analyses as defined by NEPA in connection with
designating critical habitat under the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This assertion was upheld by the
Circuit Court of the United States for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).

Clarity of the Rule

We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.

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), E.O. 13175, and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We have determined that
there are no Tribal lands essential for the conservation of 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 is available at
http://www.regulations.gov and upon request

[[Page 16420]]

from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT section).

Author

The primary authors of this proposed rule are the staff of the
Ventura Fish and Wildlife Office.

List of Subjects in 50 CFR part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

2. In Sec. 17.96(a), revise critical habitat for Astragalus
jaegerianus under Family Fabaceae to read as follows:

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 map 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 does not include manmade structures
(including, but not limited to, buildings, aqueducts, runways, roads,
and other paved areas) and the land on which they are located existing
within the legal boundaries on the effective date of this rule and not
containing one or more of the primary constituent elements.
(4) Critical habitat map units. These critical habitat units were
mapped using Universal Transverse Mercator, Zone 10, North American
Datum 1983 (UTM NAD 83) coordinates. These coordinates establish the
vertices and endpoints of the boundaries of the units.
(5) Note: Map of Paradise and Coolgardie Critical Habitat Units
for Astragalus jaegerianus follows:
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[[Page 16421]]

[GRAPHIC] [TIFF OMITTED] TP01AP10.000

(6) Paradise Unit, San Bernadino County, CA [Description of unit
location to be inserted here.]
(7) Coolgardie Unit, San Bernadino County, CA [Description of unit
location to be inserted here.]
* * * * *

Dated: March 18, 2010
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-7117 Filed 3-31-10; 8:45 am]
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