[Federal Register: October 24, 2001 (Volume 66, Number 206)]
[Proposed Rules]               
[Page 53756-53768]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG92

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat pursuant to the Endangered Species Act of 
1973, as amended (Act), for Thlaspi californicum (Kneeland Prairie 
penny-cress). Approximately 30 hectares (74 acres) in Humboldt County, 
California, are proposed for designation as critical habitat. If this 
proposal is made final, section 7 of the Act requires Federal agencies 
to ensure that any actions they fund, authorize, or carry out do not 
result in the destruction or adverse modification of critical habitat. 
Section 4 of the Act requires us to consider economic and other 
relevant impacts when specifying any particular area as critical 
    We solicit data and comments from the public on all aspects of this 
proposal, including data on economic and other impacts of the 
designation. We may revise this proposal prior to final designation to 
incorporate or address new information received during the comment 

DATES: We will accept comments until December 24, 2001. Public hearing 
requests must be received by December 10, 2001.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information to the Project 
Leader, Arcata Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 1655 Heindon Road, Arcata, California 95521.
    2. You may also send comments by electronic mail (e-mail) to 
FW1_kneelandpennycress@fws.gov. See the Public Comments Solicited 
section below for file format and other information about electronic 
    3. You may hand-deliver comments to our Arcata Fish and Wildlife 
Office at the address given above.
    Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 

[[Page 53757]]

FOR FURTHER INFORMATION CONTACT: Bruce Halstead, Project Leader, Arcata 
Fish and Wildlife Office, U.S. Fish and Wildlife Service, 1655 Heindon 
Road, Arcata, California 95521 (telephone 707/822-7201; facsimile 707/



    Thlaspi californicum (Kneeland Prairie penny-cress) is a perennial 
member of the mustard family (Brassicaceae). The species grows from 9.5 
to 12.5 centimeters (3.7 to 4.9 inches) tall with a basal cluster of 
green to purplish, sparsely toothed leaves. Leaves borne along the stem 
are sessile (without a stalk) with entire to toothed margins. The white 
flowers have strongly ascending flower stalks. Thlaspi californicum 
flowers from April to June. The fruit is a sharply pointed silicle (a 
short fruit typically no more than two to three times longer than 
wide), and is elliptic to obovate, without wings, and with an ascending 
    Serano Watson (1882) first described Thlaspi californicum based on 
a collection made by Volney Rattan from among rocks at Kneeland Prairie 
at 760 meters (m) (2,500 feet (ft)) elevation. Jepson (1925) later 
referred to it as T. alpestre var. californicum. Munz (1959) referred 
to the taxon as T. glaucum var. hesperium; however, he segregated it as 
T. californicum in his supplement (Munz 1968). Holmgren (1971) assigned 
the name Thlaspi montanum var. californicum. Finally, the taxon was 
returned to T. californicum in the current Jepson Manual (Hickman 1993; 
Rollins 1993).
    Thlaspi californicum is endemic to serpentine soils in Kneeland 
Prairie, located in the outer north coast range of Humboldt County, 
California. Serpentine soils are derived from ultramafic rocks (rocks 
with unusually large amounts of magnesium and iron). The entire known 
distribution of T. californicum occurs on Ashfield Ridge at elevations 
ranging from 792 to 841 m (2,600 to 2,760 ft).
    Plant communities in Kneeland Prairie include the following: 
California annual and introduced perennial grasslands; seasonal and 
perennial wetlands; and mixed oak/Douglas-fir woodlands (SHN 1997). 
Boulder outcrops in Kneeland Prairie form scattered knobs that protrude 
out of the grasslands. The majority of these outcrops are volcanic rock 
types such as greenstone pillow basalt, basalt, tuff, or agglomerates 
(State of California 1975). Along Ashfield Ridge and nearby side 
ridges, many of the outcrops are serpentine (State of California 1975). 
The serpentine outcrops exhibit a distinctive flora compared to the 
surrounding grassland (SHN 2001). In addition to Thlaspi californicum, 
serpentine outcrops on Ashfield Ridge support the following two special 
interest plants, both considered as rare by the California Native Plant 
Society: Fritillaria purdyi (Purdy's fritillary) and Astragalus 
rattanii (Rattan's milk-vetch) (SHN 1997).
    Little is known about the reproductive biology of Thlaspi 
californicum. Some members of the genus, such as T. montanum, are known 
to be outbreeding, while others, such as T. alpestre, are primarily 
self-pollinating (Holmgren 1971). Due to its very close taxonomic 
relationship to T. montanum, T. californicum is almost certainly an 
outbreeder. The principal pollinators are believed to be generalist 
bees and/or flies (SHN 2001).
    The only known occurrence of Thlaspi californicum includes five 
relatively distinct groups of plants all located within 300 m (980 ft) 
of each other. The area occupied by the species is divided by the 
Kneeland Airport and Mountain View Road. We do not know if genetic 
interchange occurs between plants in these separate groups; therefore, 
the five areas will be referred to as individual colonies. The location 
was described as consisting of three colonies in 1990 (Imper 1990; SHN 
2001); a fourth colony was discovered in 1999 (SHN 2001), and one 
additional colony in 2001 (SHN 2001).
    In 1997, the largest colony was estimated at 10,840 plants (SHN 
1997); this estimate was later corrected to 9,919 plants (SHN 2001). 
The sizes of the other two colonies known in 1997 were 140 and 40 
plants (SHN 1997); therefore, the total revised estimate in 1997 was 
10,099 plants. In 2001, the total number of Thlaspi californicum plants 
was estimated at approximately 5,293 (SHN 2001), with 5,142 plants at 
the largest colony, and 90 plants, 30 plants, 16 plants, and 15 plants 
at the four smaller colonies. These data suggest the total number of 
plants has declined by about 48 percent since 1997, even though two new 
small colonies have been discovered (SHN 2001).
    Historically, several land use activities may have altered the 
distribution and abundance of Thlaspi californicum colonies. These 
activities included construction of the county road in the 1800s 
(currently Mountain View Road), the Kneeland Airport in 1964, and the 
California Department of Forestry & Fire Protection (CDFFP) helitack 
base in 1980. Prior to 1964, suitable habitat for T. californicum on 
Ashfield Ridge consisted of two serpentine patches (1.9 hectares (ha) 
(4.7 acres (ac)) and 0.6 ha (1.4 ac)) and scattered smaller patches of 
0.01 ha (0.02 ac) to 0.2 ha (0.6 ac) in size. The two larger serpentine 
outcrops formed a semi-continuous ridgetop exposure covering more than 
2.4 ha (6 ac), extending in an east-west direction along the top of the 
ridge in the area now occupied by the airstrip, county road, and 
helitack base (SHN 2001).
    Construction of the county road, airstrip, and helitack base 
fragmented the two largest patches of suitable habitat into four 
relatively isolated patches. The construction also reduced the total 
available habitat by approximately 50 percent. No data are available on 
the distribution or number of individuals prior to this habitat 
alteration. However, anecdotal evidence indicates that prior to this 
habitat loss these colonies occupied more area or formed one large 
colony. The impacts on population or community processes from this 
habitat loss and possible population reduction are unknown. In general, 
smaller serpentine outcrops are known to support fewer native species 
and more exotic species (Wolf and Harrison 2001). Smaller outcrops may 
also be more vulnerable to recreational impacts, trampling, and 
modification of the unique serpentine soil chemistry as a result of 
enrichment from the surrounding meadow system (SHN 2001). All of these 
factors, in addition to a reduction and/or fragmentation of the site, 
increase the likelihood of extinction.
    In 2001, all the known colonies occupied an estimated 0.3 ha (0.8 
ac), divided among the five colonies as follows: 0.29 ha (0.72 acre); 
0.02 ha (0.05 ac); 0.008 ha (0.02 ac); 0.004 ha (0.01 ac); and 0.002 ha 
(0.005 ac). The five known colonies occur on three separate serpentine 
outcrops, but currently occupy only about 29 percent of the suitable 
habitat on these three outcrops (total area 1.1 ha (2.8 ac)). In 
addition to the three occupied outcrops, fourteen unoccupied serpentine 
outcrops occur on Ashfield Ridge, ranging in size from 0.01 ha (0.02 
ac) to 0.2 ha (0.6 ac) (combined area of 0.9 ha (2.2 ac)). The 
distances between the outcrops range from 10 m to 85 m (33 ft to 279 
ft). All of these patches are located within 400 m (1,312 ft) of the 
largest T. californicum colony. Serpentine soils contiguous with and in 
the vicinity of the colonies are the most likely to support T. 
californicum in the future.
    Historic records for Thlaspi californicum refer to Kneeland Prairie 
and Ashfield Ridge as site locations (Watson 1882; Holmgren 1971). Over 

[[Page 53758]]

percent of the serpentine soils in Kneeland Prairie occur on Ashfield 
Ridge. Two additional small serpentine outcrops are located on a ridge 
approximately 4.8 kilometers (km) (3 miles (mi)) southwest of Ashfield 
Ridge (State of California 1975). We do not have any historic records 
to show that these two outcrops were once occupied by T. californicum 
or current records to indicate that they are occupied. The next nearest 
known serpentine outcrops to Kneeland Prairie occur approximately 6.4 
km (4 mi) southeast of Ashfield Ridge at Iaqua Buttes. The serpentine 
at Iaqua Buttes supports the more widespread T. montanum. No evidence 
of T. californicum or intergradation between T. californicum and T. 
montanum was observed during surveys at the Iaqua Buttes site in 2001 
(SHN 2001). Thlaspi montanum also occurs on serpentine soils in the 
vicinity of Horse Mountain approximately 24 km (15 mi) northeast of 
Ashfield Ridge (SHN 2001). Evidence that the historic range of T. 
californicum ever extended beyond Kneeland Prairie does not currently 
exist (SHN 2001).

Previous Federal Action

    Federal Government actions for Thlaspi californicum began when we 
published an updated notice of review (NOR) for plants on December 15, 
1980 (45 FR 82480). This notice included T. californicum (referred to 
as T. montanum var. californicum) as a category 2 candidate. Category 2 
candidates were those taxa for which data in our possession indicated 
listing might be appropriate, but for which additional biological 
information was needed to support a proposed rule. On November 28, 
1983, we published a supplement to the 1980 NOR (48 FR 53640) as well 
as the subsequent revision on September 27, 1985 (50 FR 39526) which 
included T. m. var. californicum as a category 2 candidate.
    We published revised NORs on February 21, 1990 (55 FR 6184) and 
September 30, 1993 (58 FR 511440). In both notices, we included Thlaspi 
montanum var. californicum as a category 1 candidate. Category 1 
candidates are those taxa for which we have on file sufficient 
information on biological vulnerability and threats to support 
preparation of listing proposals, but issuance of the proposed rules 
are precluded by other pending listing proposals of higher priority. In 
our February 28, 1996, Federal Register Notice of Review of Plant and 
Animal Taxa that are Candidates for Listing as Endangered or Threatened 
Species (CNOR) (61 FR 7595), we discontinued designation of multiple 
categories of candidates. Only those taxa meeting the definition of 
former category 1 are now considered candidates for listing. Thlaspi 
montanum var. californicum was included as a candidate species in the 
February 28, 1996, notice. Our September 19, 1997, CNOR (62 FR 49397) 
included T. californicum as a candidate for listing.
    On February 12, 1998 (63 FR 7112), we published a proposal to list 
Thlaspi californicum as endangered. Our October 25, 1999, CNOR (64 FR 
57533) included T. californicum as a taxon proposed for listing as 
endangered. The final rule listing T. californicum as an endangered 
species was published on February 9, 2000 (65 FR 6332).
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. Our 
regulations (50 CFR 424.12(a)(1)) state that designation of critical 
habitat is not prudent when one or both of the following situations 
exist: (1) the species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of threat to the species; or (2) such designation of critical 
habitat would not be beneficial to the species. At the time Thlaspi 
californicum was proposed, we determined that designation of critical 
habitat for T. californicum was not prudent because of a concern that 
publication of precise maps and descriptions of critical habitat in the 
Federal Register could increase the vulnerability of this species to 
incidents of collection and vandalism. We also indicated that 
designation of critical habitat was not prudent because we believed it 
would not provide any additional benefit beyond that provided through 
listing as endangered.
    A series of court decisions for a variety of species overturned our 
determinations that designation of critical habitat would not be 
prudent (e.g., Natural Resources Defense Council v. U.S. Department of 
the Interior 113 F. 3d 1121 (9th Cri. 1997); Conservation Council for 
Hawaii v. Babbitt, 2 F. Supp. 2d 1280 (D. Hawaii 1998)). Based on the 
standards applied in those judicial opinions, we reexamined the 
question of whether designation of critical habitat for Thlaspi 
californicum was prudent. At the time T. californicum was listed, we 
found that designation of critical habitat was prudent.
    On June 17, 1999, our failure to issue final rules for listing 
Thlaspi californicum and nine other plant species as endangered or 
threatened, and our failure to make a final critical habitat 
determination for the 10 species was challenged in Southwest Center for 
Biological Diversity and California Native Plant Society v. Babbitt 
(Case No. C99-2992 (N.D.Cal.)). On May 19, 2000, the U.S. District 
Court for the Northern District of California issued an order setting 
the timetable for the promulgation of the critical habitat 
designations. We agreed to complete the proposed critical habitat 
designations for the 10 species by September 30, 2001. However, in mid-
September 2001, plaintiffs agreed to a brief extension of this due date 
until October 19, 2001. We will make our final critical habitat 
determinations no later than May 1, 2002.

Critical Habitat

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

[[Page 53759]]

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


    As required by the Act and regulations (section 4(b)(2) and 50 CFR 
424.12) we used the best available scientific information in 
determining which areas are essential for the conservation of Thlaspi 
californicum. This information included data from the following 
sources: 1993 United States Geological Survey (USGS) 1:24,000 scale 
3.75' infrared color digital orthophotographic quarter quadrangle 
images; geologic map of the Van Duzen River Basin (State of California 
1975); 1962 panchromatic 1:12,000 scale aerial photograph HCN-222-17; 
ownership parcels from the Humboldt County Planning Department, updated 
as of August 2000; recent biological surveys and reports; and 
discussions with botanical experts. We also conducted or contracted for 
site visits, either cursory or more extensive, at locations on private 
lands where access had been obtained, on State lands managed by CDFFP, 
and on public lands managed by Six Rivers National Forest and the 
Bureau of Land Management, including Iaqua Buttes and Board Camp 

Primary Constituent Elements

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

Criteria Used To Identify Critical Habitat

    In our delineation of the critical habitat unit, we selected areas 
to provide for the conservation of Thlaspi californicum at the only 
location it is known to occur. Adult individuals of the species are 
currently only growing on approximately 0.3 ha (0.8 ac) of land on 
Ashfield Ridge in Kneeland Prairie. However, the area essential for the 
conservation of the species is not restricted solely to the area where 
the plant is physically visible. It must include an area large enough 
to maintain the ecological functions upon

[[Page 53760]]

which the species depends (e.g., the hydrologic and edaphic 
    We first mapped all the known T. californicum occurrences. Due to 
the historic loss and fragmentation of the largest patches of suitable 
habitat, we also mapped all suitable habitat in proximity to the known 
occurrences. Maintaining the number and distribution of serpentine 
outcrops on Ashfield Ridge will help to ensure the long-term viability 
of T. californicum, as high-quality habitat patches in close proximity 
to a source population which have the highest likelihood of future 
occupancy (Murphy et al. 1990). Protection of these outcrops will 
provide a range in habitat conditions, for example, moisture 
availability, temperature, and wind exposure, which will optimize the 
opportunities for recolonization or expansion and reduce the likelihood 
of extinction due to stochastic events. They will also provide 
protection of undetected T. californicum colonies and seed banks.
    We also mapped grasslands and oak woodlands surrounding the 
serpentine outcrops. These areas provide connectivity between all 
serpentine outcrops; maintain the hydrologic and edaphic integrity of 
the serpentine sites; and support biological agents of pollination and 
seed dispersal deemed necessary for the conservation of the species. 
Inclusion of the grasslands and oak woodlands will also minimize 
impacts to the serpentine outcrops resulting from external peripheral 
influences, such as erosion, grazing, or the spread of exotic species.
    At this time, we do not propose to designate as critical habitat 
any serpentine outcrops within Kneeland Prairie, other than the 
outcrops on Ashfield Ridge. Serpentine outcrops not located on Ashfield 
Ridge, however, may also be necessary for the conservation of Thlaspi 
californicum. Since T. californicum has an extremely restricted range, 
establishment at new locations may be necessary to provide insurance 
against stochastic events. A draft recovery plan for this species has 
not been completed. The recovery plan may provide additional guidance 
regarding areas essential for the conservation of the species. If 
necessary, we will reexamine our critical habitat designation after 
completion of the recovery plan.
    We considered ownership status in proposing areas as critical 
habitat. Thlaspi californicum is known only to occur on State, county, 
and private lands. We could not depend on Federal lands for critical 
habitat designation because we are not currently aware of any Federal 
lands occupied by this taxon. We are not aware of any Tribal lands in 
or near our proposed critical habitat unit for T. californicum. 
However, should we learn of any Tribal lands in the vicinity of the 
critical habitat designation subsequent to this proposal, we will 
coordinate with the Tribes before making a final determination as to 
whether any Tribal lands should be included as critical habitat for T. 
    We used a geographic information system (GIS) to facilitate the 
identification of proposed critical habitat. We used information from 
recent biological surveys and reports; discussions with botanical 
experts; and locations of serpentine soils to create GIS data layers. 
The serpentine soil sites were derived from a geologic map, infrared 
color digital orthophotos, and global positioning system data collected 
in the field during 2000 and 2001. These data layers were created on a 
base of 1:24,000 scale USGS 3.75' infrared color digital 
orthophotographic quarter quadrangle images. We used the data layers to 
map the primary constituent elements. We defined the boundaries for the 
proposed critical habitat unit by overlaying this map with a 100-m 
Universal Transverse Mercator (UTM) North American Datum of 1927 
(NAD27) grid and removing all NAD27 grid cells that did not contain the 
primary constituent elements.
    In selecting areas of proposed critical habitat, we attempted to 
avoid developed areas and other lands unlikely to contribute to the 
conservation of Thlaspi californicum. However, we did not map the 
critical habitat unit in sufficient detail to exclude all such areas. 
Existing features and structures within the critical habitat unit 
boundary, such as buildings, roads, airports, and other paved areas 
will not contain one or more of the primary constituent elements. 
Federal actions limited to these areas, therefore, would not trigger a 
section 7 consultation, unless they affect the species and/or primary 
constituent elements in adjacent critical habitat.

Special Management Considerations

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

Proposed Critical Habitat Designation

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

[[Page 53761]]

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

Effects of Critical Habitat Designation

Section 7  Consultation

    Habitat is often dynamic, and populations may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, all should understand that critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the applicable prohibitions of section 9, as determined on 
the basis of the best available information at the time of the action. 
If Thlaspi californicum is discovered outside of the designated 
critical habitat area, it is possible that federally funded or assisted 
projects affecting plants outside of the designated critical habitat 
area may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires Federal 
agencies to confer with the Service on any actions that are likely to 
result in the destruction or adverse modification of critical habitat. 
In our regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``* * * a direct or indirect alteration that 
appreciably diminishes the value of critical habitat for both the 
survival and recovery of a listed species. Such alterations include, 
but are not limited to, alterations adversely modifying any of those 
physical or biological features that were the basis for determining the 
habitat to be critical.'' Aside from the added protection that may be 
provided under section 7, the Act does not provide other forms of 
protection to lands designated as critical habitat. Because 
consultation under section 7 of the Act does not apply to activities on 
private or other non-Federal lands that do not involve a Federal nexus, 
critical habitat designation would not afford any additional 
protections under the Act against such activities.
    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, permit, or carry 
out do not destroy or adversely modify critical habitat to the extent 
that the action appreciably diminishes the value of the critical 
habitat for the survival and recovery of the species. Individuals, 
organizations, States, local governments, and other non-Federal 
entities are affected by the designation of critical habitat only if 
their actions occur on Federal lands, require a Federal permit, 
license, or other authorization, or involve Federal funding.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened, and with respect to its 
critical habitat, if any is designated or proposed. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires 
Federal agencies to confer with us on any action that is likely to 
jeopardize the continued existence of a proposed species or result in 
destruction or adverse modification of proposed critical habitat. 
Conference reports provide conservation recommendations to assist 
Federal agencies in eliminating conflicts that may be caused by their 
proposed action(s). The conservation measures 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 actions they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation we 
would ensure that the permitted actions do not jeopardize the species 
or destroy or adversely modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. 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 

[[Page 53762]]

has been completed, if those actions may affect designated critical 
habitat, or adversely modify or destroy proposed critical habitat.
    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)).
    If Thlaspi californicum is discovered on Federal lands, those 
activities on Federal lands that may affect Thlaspi californicum or its 
critical habitat would require a section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as a permit from the Army Corps of Engineers under section 404 of the 
Clean Water Act, a section 10(a)(1)(B) permit from the Service, or some 
other Federal action, including funding (e.g., Federal Housing 
Administration or Federal Emergency Management Agency), will also 
continue to be subject to the section 7 consultation process. Federal 
actions not affecting listed species or critical habitat and actions on 
non-Federal and private lands that are not federally funded, 
authorized, or permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to evaluate briefly and 
describe within any proposed or final regulation that designates 
critical habitat those activities involving a Federal action that may 
adversely modify such habitat or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat are those that appreciably reduce the value of critical habitat 
for both the survival and recovery of Thlaspi californicum. We note 
that such activities may also jeopardize the continued existence of the 
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of the species' survival and 
recovery. Actions likely to ``destroy or adversely modify'' critical 
habitat are those that would appreciably reduce the value of critical 
habitat for the survival and recovery of the listed species.
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to destroy or adversely modify 
critical habitat would almost always result in jeopardy to the species 
concerned, particularly when the area of the proposed action is 
occupied by the species concerned. Designation of critical habitat in 
areas occupied by Thlaspi californicum is not likely to result in a 
regulatory burden above that already in place due to the presence of 
the listed species. Designation of critical habitat in areas not 
occupied by T. californicum may result in an additional regulatory 
burden when a Federal nexus exists.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may directly or indirectly destroy or adversely modify 
critical habitat include, but are not limited to:
    (1) Ground disturbance of serpentine outcrops and grassland and oak 
woodland areas, including but not limited to, grading, ripping, 
tilling, and paving;
    (2) Alteration of serpentine outcrops, including but not limited 
to, removal of boulders, mining, and quarrying;
    (3) Removing, destroying, or altering vegetation in the critical 
habitat unit, including but not limited to inappropriately managed 
livestock grazing, clearing, introducing or encouraging the spread of 
nonnative species, recreational activities, and maintaining an 
unnatural fire regime either through fire suppression or prescribed 
fires that are too frequent or poorly timed;
    (4) Hydrologic changes or other activities that alter surface 
drainage patterns resulting in erosion of serpentine outcrops or 
adjacent areas, including but not limited to water diversion, 
groundwater pumping, irrigation, and erosion control;
    (5) Construction or maintenance activities that destroy or degrade 
critical habitat, including but not limited to road building, building 
construction, airport expansion, drilling, and culvert maintenance or 
    (6) Application or runoff of pesticides, herbicides, fertilizers, 
or other chemical or biological agents; and
    (7) Emergency response and clean-up of fuel or other contaminant 
    Designation of critical habitat could affect the following agencies 
and/or actions: development on private, State, or county lands 
requiring permits or funding from Federal agencies, such as the U.S. 
Army Corps of Engineers, the Department of Housing and Urban 
Development, the Federal Aviation Administration, or the Federal 
Highway Administration; construction of communication sites licensed by 
the Federal Communications Commission; and authorization of Federal 
grants or loans. These actions would be subject to the section 7 
process. Where federally listed wildlife species occur on private lands 
proposed for development, any habitat conservation plans submitted by 
the applicant to secure a permit to take according to section 
10(a)(1)(B) of the Act would be subject to the section 7 consultation 
    If you have questions regarding whether specific activities will 
likely constitute adverse modification of critical habitat, contact the 
Project Leader, Arcata Fish and Wildlife Office (see ADDRESSES 
section). Requests for copies of the regulations on listed wildlife, 
and inquiries about prohibitions and permits may be addressed to the 
U.S. Fish and Wildlife Service, Region 1, Division of Endangered 
Species, 911 NE 11th Avenue, Portland, Oregon 97232-4181 (503/231-6131, 
facsimile 503/231-6243).

Relationship to Habitat Conservation Plans and Other Planning 

    Currently, no habitat conservation plans (HCPs) exist that include 
Thlaspi californicum as a covered species. However, we believe that, in 
most instances, the benefits of excluding HCPs from critical habitat 
designations will outweigh the benefits of including them. In the event 
that future HCPs covering T. californicum are developed within the 
boundaries of the designated critical habitat, we will work with 
applicants to ensure that the HCPs provide for protection and 
management of habitat areas essential for the conservation of this 
species. This will be accomplished by either directing development and 
habitat modification to nonessential areas, or appropriately modifying 
activities within essential habitat areas so that such activities will 
not adversely modify the primary constituent elements. The HCP 
development process would provide an opportunity for more intensive 
data collection and analysis regarding the use of particular habitat 
areas by T. californicum. The process would also enable us to conduct 
detailed evaluations of the importance of such lands to the long-term 
survival of the species in the context of constructing a biologically 
configured system of

[[Page 53763]]

interlinked habitat blocks. We will also provide technical assistance 
and work closely with applicants throughout the development of any 
future HCPs to identify lands essential for the long-term conservation 
of T. californicum and appropriate management for those lands. The take 
minimization and mitigation measures provided under such HCPs would be 
expected to protect the essential habitat lands proposed as critical 
habitat in this rule.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species concerned. We 
will conduct an analysis of the economic impacts of designating these 
areas as critical habitat prior to a final determination. When 
completed, we will announce the availability of the draft economic 
analysis with a notice in the Federal Register, and we will open a 30-
day public comment period on the draft economic analysis and proposed 
rule at that time.

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. We seek comments concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act, including 
whether the benefit of designation will outweigh any threats to the 
species due to designation;
    (2) Specific information on the amount and distribution of Thlaspi 
californicum habitat, and what habitat is essential to 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 or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families;
    (5) Economic and other values associated with designating critical 
habitat for T. californicum such as those derived from non-consumptive 
uses (e.g., hiking, camping, bird-watching, enhanced watershed 
protection, improved air quality, increased soil retention, ``existence 
values'', and reductions in administrative costs); and
    (6) Whether our approach to critical habitat designation could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concern and comments.
    If you wish to comment on this proposed rule, you may submit your 
comments and materials by any one of several methods (see ADDRESSES). 
Please submit electronic mail comments as an ASCII file and avoid the 
use of special characters and any form of encryption. Please also 
include ``Attn: 1018-AG92'' and your name and return address in your 
electronic message. Please note that the electronic address 
FW1_kneelandpennycress@.fws.gov will be closed out at the termination 
of the public comment period. If you do not receive a confirmation from 
the system that we have received your electronic message, contact us 
directly by calling our Arcata Fish and Wildlife Office at phone number 
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. In some circumstances, we would withhold 
from the rulemaking record a respondent's identity, as allowable by 
law. If you wish us to withhold your name and/or address, you must 
state this prominently at the beginning of your comment. However, we 
will not consider anonymous comments. To the extent consistent with 
applicable law, we will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety. Comments and materials 
received will be available for public inspection, by appointment, 
during normal business hours at the above address.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will solicit the expert opinions of three appropriate and 
independent specialists regarding this proposed rule. The purpose of 
such review is to ensure listing decisions are 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 listing and 
designation of critical habitat.
    We will consider all comments and information received during the 
public comment period on this proposed rule during preparation of a 
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 for public hearings must be made within 45 days 
of the date of publication of this proposal within the Federal 
Register. 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 before 
the first hearing is held.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical jargon that interferes with the clarity? (3) Does the format 
of the proposed rule (grouping and order of the sections, use of 
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the 
description of the notice in the SUPPLEMENTARY INFORMATION section of 
the preamble helpful in understanding the proposed rule? What else 
could we do to make this proposed rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to the Field Supervisor, Arcata Fish and 
Wildlife Office (see ADDRESSES).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 

[[Page 53764]]

rule and was reviewed by the Office of Management and Budget (OMB) in 
accordance with the four criteria discussed below. We are preparing a 
draft analysis of this proposed action, which will be available for 
public comment, to determine the economic consequences of designating 
the specific areas as critical habitat. The availability of the draft 
economic analysis will be announced in the Federal Register so that it 
is available for public review and comments.
    (a) While we will prepare an economic analysis to assist us in 
considering whether areas would be excluded pursuant to section 4 of 
the Act, we do not believe this rule will have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local or tribal 
communities. Therefore, we do not believe a cost benefit and economic 
analysis pursuant to EO 12866 is required.
    Thlaspi californicum was listed as endangered on February 9, 2000. 
As needed, we will conduct, formal and informal section 7 consultations 
with other Federal agencies to ensure that their actions will not 
jeopardize the continued existence of Thlaspi californicum. Under the 
Act, critical habitat may not be adversely modified by a Federal agency 
action; critical habitat does not impose any restrictions on non-
Federal persons unless they are conducting activities funded or 
otherwise sponsored or permitted by a Federal agency. Section 7 of the 
Act requires Federal agencies to ensure that they do not jeopardize the 
continued existence of the species. Based on our experience with the 
species and its needs, we believe that any Federal action or authorized 
action that could potentially cause an adverse modification of the 
proposed critical habitat would currently be considered as jeopardy to 
the species under the Act in areas occupied by the species.
    Accordingly, we do not expect the designation of occupied areas as 
critical habitat to have any incremental impacts on what actions may or 
may not be conducted by Federal agencies or non-Federal persons that 
receive Federal authorization or funding. The designation of areas as 
critical habitat where section 7 consultations would not have occurred 
but for the critical habitat designation, may have impacts on what 
actions may or may not be conducted by Federal agencies or non-Federal 
persons who receive Federal authorization or funding that are not 
attributable to the species listing. We will evaluate any impact 
through our economic analysis (under section 4 of the Act: see Economic 
Analysis section of this rule). Non-federal persons who do not have a 
Federal sponsorship of their actions are not restricted by the 
designation of critical habitat.
    (b) This rule is not expected to create inconsistencies with other 
agencies' actions. As discussed above, Federal agencies have been 
required to ensure that their actions do not jeopardize the continued 
existence of Thlaspi californicum since its listing in 2000. The 
prohibition against adverse modification of critical habitat is 
expected to impose few, if any, additional restrictions to those that 
currently exist in the proposed critical habitat on currently occupied 
lands. We will evaluate any impact of designating areas where section 7 
consultations would not have occurred but for the critical habitat 
designation through our economic analysis. Because of the potential for 
impacts on other Federal agency activities, we will continue to review 
this proposed action for any inconsistencies with other Federal 
agencies' actions.
    (c) This proposed rule, if made final, is not expected to 
significantly affect entitlements, grants, user fees, loan programs, or 
the rights and obligations of their recipients. Federal agencies are 
currently required to ensure that their activities do not jeopardize 
the continued existence of the species, and, as discussed above, we do 
not anticipate that the adverse modification prohibition resulting from 
critical habitat designation will have any incremental effects in areas 
of occupied habitat on any Federal entitlement, grant, or loan 
programs. This conclusion is based on the small acreage and number of 
entities affected by this proposal. We will evaluate any impact of 
designating areas where section 7 consultations would not have occurred 
but for the critical habitat designation through our economic analysis.
    (d) OMB has determined that this rule may raise novel legal or 
policy issues and, as a result, this rule has undergone OMB review.

 Table 2.--Impacts of Thlaspi californicum Listing and Critical Habitat
                                   Activities            activities
  Categories of activities    potentially affected  potentially affected
                               by species listing   by  critical habitat
                                      only             designation \1\
Federal Activities            Activities conducted  Activities
 Potentially Affected \2\.     by the Army Corps     identified in
                               of Engineers, the     column one by these
                               Federal Aviation      Federal Agencies in
                               Administration, the   designated areas
                               Department of         where section 7
                               Housing and Urban     consultations would
                               Development, and      not have occurred
                               any other Federal     but for the
                               Agencies,             critical habitat
                               including, but not    designation.
                               limited to,
                               construction, road
                               hydrologic changes
                               or other activities
                               that alter surface
                               drainage patterns,
                               application, and
                               activities that
                               would destroy
                               habitat for this
                               species or
                               decrease habitat
                               value or quality
                               through indirect
                               effects (e.g., edge
                               effects, invasion
                               of exotic plants or
                               animals, or
Private or other non-Federal  Activities that       Funding,
 Activities Potentially        require a Federal     authorization, or
 Affected \3\.                 action (permit,       permitting actions
                               authorization, or     by Federal Agencies
                               funding) and may      in designated areas
                               remove or destroy     where section 7
                               habitat for Thlaspi   consultations would
                               californicum by       not have occurred
                               mechanical,           but for the
                               chemical, or other    critical habitat
                               means or              designation.
                               decrease habitat
                               value or quality
                               through indirect
                               effects (e.g., edge
                               effects, invasion
                               of exotic plants,
                               fragmentation of
\1\ This column represents activities potentially affected by the
  critical habitat designation in addition to those activities
  potentially affected by listing the species.
\2\ Activities initiated by a Federal agency.
\3\ Activities initiated by a private or other non-Federal entity that
  may need Federal authorization or funding.

[[Page 53765]]

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 Act (SBREFA) of 
1996), whenever an agency is required to publish a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effects of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA amended the Regulatory 
Flexibility Act to require Federal agencies to provide a statement of 
the factual basis for certifying that rule will not have a significant 
economic effect on a substantial number of small entities. The 
following discussion explains our determination.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies; non-Federal activities are 
not affected by the designation if they lack any Federal nexus. In 
areas occupied by Thlaspi californicum, Federal agencies funding, 
permitting, or implementing activities are already required, through 
consultation with us under section 7 of the Act, to avoid jeopardizing 
the continued existence of Thlaspi californicum. If this critical 
habitat designation is finalized, Federal agencies also must ensure, 
also through consultation with us, that their activities do not destroy 
or adversely modify designated critical habitat. However, for the 
reasons discussed above, we do not believe this will result in any 
additional regulatory burden on Federal agencies or their applicants.
    In unoccupied areas, or areas of uncertain occupancy, designation 
of critical habitat could trigger additional review of Federal 
activities under section 7 of the Act, and may result in additional 
requirements on Federal activities to avoid destroying or adversely 
modifying critical habitat. However, outside the existing developed 
areas, land use on the majority of the proposed critical habitat 
consists of homesteading, grazing, and unforested lands surrounding 
timber lands. The likelihood of future development in these areas is 
low, although the airport may expand in the future. Any development 
that lacked Federal involvement would not be affected by the critical 
habitat designation. Should a federally funded, permitted, or 
implemented project be proposed that may affect designated critical 
habitat, we will work with the Federal action agency and any applicant, 
through section 7 consultation, to identify ways to implement the 
proposed project while minimizing or avoiding any adverse effect to the 
species or critical habitat. In our experience, the vast majority of 
such projects can be successfully implemented with at most minor 
changes that avoid significant economic impacts to project proponents. 
In addition, the area proposed as critical habitat is small, less than 
75 acres, and we have identified fewer than a half-dozen landowners. 
The scale of the designation ensures that the ``substantial number of 
small entities'' threshold of the Regulatory Flexibility Act will not 
be met.
    Therefore, we are certifying that the proposed designation of 
critical habitat for Thlaspi californicum is not expected to have a 
significant adverse impact on a substantial number of small entities. 
Thus, an initial flexibility analysis is not required.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
Although this rule is a significant regulatory action under Executive 
Order 12866, it is not expected to significantly affect energy 
supplies, distribution, or use. Therefore, this action is not a 
significant energy action and no Statement of Energy Effects is 

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule, as proposed, will not ``significantly or uniquely'' 
affect small governments. A Small Government Agency Plan is not 
required. Small governments will not be affected unless they propose an 
action requiring Federal funds, permits, or other authorization. Any 
such activity will require that the Federal agency ensure that the 
action will not adversely modify or destroy designated critical 
    (b) This rule, as proposed, will not produce a Federal mandate on 
State, local, or tribal governments or the private sector of $100 
million or greater in any year; that is, it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act. The 
designation of critical habitat imposes no obligations on State or 
local governments.


    In accordance with Executive Order 12630, this proposed rule does 
not have significant takings implications, and a takings implication 
assessment is not required. This rule would not take private property. 
As discussed above, the designation of critical habitat affects only 
Federal agency actions; it does not provide additional protection for 
the species on non-Federal lands or regarding actions that lack any 
Federal involvement. Furthermore, the Act provides mechanisms, through 
section 7 consultation, to resolve apparent conflicts between proposed 
Federal actions, including Federal funding or permitting of actions on 
private land, and the conservation of the species, including avoiding 
the destruction or adverse modification of designated critical habitat. 
While we have not conducted any formal consultations on Thlaspi 
californicum since its listing, and we are not aware of any upcoming or 
proposed projects that would require consultation, we recognize that 
such Federal projects that also affect private property may be proposed 
in the future. We fully expect that, through section 7 consultation, 
such projects can be implemented consistent with both the conservation 
of the species; therefore, this rule would not result in a takings.


    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior policy, we 
requested information from, and coordinated development of this 
critical habitat designation with, appropriate State resource agencies 
in California. The designation of critical habitat in areas currently 
occupied by Thlaspi californicum imposes no additional restrictions to 
those currently in place and, therefore, has little incremental impact 
on State and local governments and their activities. The designations 
may have some benefit to these governments in that the areas essential 
to the conservation of these species are more clearly defined, and the 
primary constituent elements of the habitat necessary to the survival 
of the species are identified. While this definition and identification 
does not alter where and what federally sponsored activities may occur, 
it may assist these local governments in long-range planning

[[Page 53766]]

(rather than waiting for case-by-case section 7 consultation to occur).

Civil Justice Reform

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

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose record-keeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor and a person is not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations With Native American Tribal 
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, we readily 
acknowledge our responsibility to communicate meaningfully with 
federally recognized Tribes on a government-to-government basis. We 
have determined that there are no Tribal lands essential for the 
conservation of Thlaspi californicum because they do not support the 
species, nor do they provide essential habitat. Therefore, critical 
habitat for Thlaspi californicum has not been designated on Tribal 

References Cited

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


    The author of this proposed rule is Robin Hamlin (see ADDRESSES 

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, and 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:


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

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

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

Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

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

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

                       *                *                 *                 *                *                 *                 *

    3. In Sec. 17.96, as proposed to be amended at 65 FR 66865, 
November 7, 2000, add critical habitat for the Kneeland Prairie penny-
cress (Thlaspi californicum) under paragraph (b) by adding an entry for 
Thlaspi californicum in alphabetical order under Brassicaceae to read 
as follows:

Sec. 17.96  Critical habitat--plants.

* * * * *
    (b) Single-species critical habitat--flowering plants.
Family Brassicaceae: Thlaspi californicum (Kneeland Prairie penny-
    1. A critical habitat unit is depicted for Humboldt County, 
California, on the map below.
    2. The primary constituent elements of critical habitat for Thlaspi 
californicum are the habitat components that provide:
    (i) Thin rocky soils that have developed on exposures of serpentine 
    (ii) Plant communities that support a relatively sparse assemblage 
of serpentine indicator, or facultative-serpentine indicator species, 
including various native forbs and grasses, but not trees or shrubs, 
such that competition for space and water (both above and below ground) 
and light is reduced, compared to the surrounding habitats. Known 
associated species include the following: Festuca rubra (red fescue), 
Koeleria macrantha (junegrass), Elymus glaucus (blue wildrye), 
Eriophyllum lanatum (woolly sunflower), Lomatium macrocarpum (large-
fruited lomatium), and Viola hallii (Hall's violet);
    (iii) Serpentine substrates that contain 15 percent or greater (by 
surface area) of exposed gravels, cobbles, or larger rock fragments, 
which may contribute to alteration of factors of microclimate, 
including surface drainage and moisture availability, exposure to wind 
and sun, and temperature; and

[[Page 53767]]

    (iv) Prairie grasslands and oak woodlands located within 30 m (100 
ft) of the serpentine outcrop area on Ashfield Ridge. Protection of 
these habitats is essential to the conservation of the Thlaspi 
californicum in that it will provide connectivity among the serpentine 
sites, help to maintain the hydrologic and edaphic integrity of the 
serpentine sites, and support populations of pollinators and seed 
dispersal organisms.
    3. Existing features and structures within the boundaries of mapped 
critical habitat units, such as buildings, roads, airports, and other 
paved areas will not contain one or more of the primary constituent 
elements. Federal actions limited to those areas, therefore, would not 
trigger a section 7 consultation, unless they affect the species and/or 
primary constituent elements in adjacent critical habitat.
    4. Critical habitat unit. Humboldt County, California. From 
U.S.G.S. 1:24,000 scale Iaqua Buttes quadrangle, land bounded by the 
following UTM Zone 10 NAD27 coordinate pairs (East, North): 
421700,4507300; 422100,4507800; 422100,4507300; 422200,4507600; 
421600,4507400; 421700,4507900; 421700,4507800; 421900,4507900

    Note: Map follows:


[[Page 53768]]


* * * * *

    Dated: October 17, 2001.
Joseph E. Doddridge,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-26711 Filed 10-23-01; 8:45 am]