2002 Federal Register, 67 FR 41669; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: June 19, 2002 (Volume 67, Number 118)]
[Proposed Rules]
[Page 41669-41683]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jn02-19]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG93

Endangered and Threatened Wildlife and Plants; Critical Habitat
Designation for Sidalcea keckii (Keck's checkermallow)

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
designate critical habitat pursuant to the Endangered Species Act of
1973 as amended (Act), for Sidalcea keckii (Keck's checkermallow).
Approximately 438 hectares (ha) (1,085 acres (ac)) are proposed in
California, consisting of three separate units: one unit in Fresno
County, 206 ha (510 ac), and two units in Tulare County, one of 86 ha
(213 ac) and one of 146 ha (362 ac).
Critical habitat receives protection from destruction or adverse
modification through required consultation under section 7 of the Act
with regard to actions carried out, funded, or authorized by a Federal
agency. Section 4 of the Act requires us to consider economic and other
relevant impacts when specifying any particular area as critical
habitat.
We solicit data and comments from the public on all aspects of this
proposal, including data on economic and other impacts of the
designation, and our approaches for handling any future habitat
conservation plans. We may revise this proposal prior to final
designation to incorporate or address new information received during
the comment period.

DATES: We will accept comments until August 19, 2002. Public hearing
requests must be received by August 5, 2002.

ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of several methods:
You may submit written comments and information or hand-deliver
comments to the Field Supervisor, Sacramento Fish and Wildlife Office,
U.S. Fish and Wildlife Service, 2800 Cottage Way, Suite W-2605,
Sacramento, CA 95825.
You may also send comments by electronic mail (e-mail) to
fw1kecks_checkermallow@fws.gov. See the Public Comments Solicited
section below for file format and other information about electronic
filing.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.

FOR FURTHER INFORMATION CONTACT: Glen Tarr or Susan Moore, U.S. Fish
and Wildlife Service (telephone 916/414-6600; facsimile 916/414-6710).

SUPPLEMENTARY INFORMATION:

Background

Sidalcea keckii (Keck's checkermallow) is an annual herb of the
mallow family (Malvaceae). The species grows 15 to 33 centimeters (cm)
(6 to 13 inches (in)) tall, with slender, erect stems that are hairy
along their entire length. Leaves towards the base of the plant have a
roughly circular outline, and seven to nine shallow lobes arranged
somewhat like the fingers of a hand (palmate). Leaves farther up the
plant have fewer lobes which are more deeply divided. Both types of
leaves also have irregular serrations at their margins forming
``teeth.'' The plant flowers in April and early May, producing five
petalled flowers that are either solid pink or pink with a maroon
center. Petals are 1 to 2 cm (0.4 to 0.8 in) long, and are often
shallowly notched at their outermost margins. Below the petals is a
smaller calyx (cuplike structure) formed by five narrow green sepals
(modified leaves). Each sepal is 8 to 11 millimeters (mm) (0.3 to 0.4
in) long, and has a maroon line running down its center. Below the
calyx are bracts (modified leaflike structures), which are much shorter
than the sepals and are either undivided or divided into two threadlike
lobes. Sidalcea keckii is distinguished from other members of its genus
by the maroon lines on its sepals, its much shorter bracts, and by
stems which are hairy along their entire length (Kirkpatrick 1992;
Shevock 1992; Hill 1993).
Sidalcea keckii fruit consist of four to five wedge-shaped sections
arranged in a disk. The sections measure 3 to 4 mm (0.1 to 0.2 in)
across, and each contains a single seed (Abrams 1951; Hill 1993; Cypher
1998). Sections mature and separate in May, but their methods of
dispersal, other than gravity, are currently unknown (Cypher 1998).
Also unknown are the seeds' requirements for germination (sprouting) in
the wild,

[[Page 41670]]

their typical germination dates, and how long the seeds remain viable
in the soil. Based on other Malvaceae species, and on recent
observations of extreme yearly fluctuations in numbers of above-ground
plants, it is likely that S. keckii seeds remain viable for several
years and form a persistent soil seed bank (W. Moise as in Ellen
Cypher, Endangered Species Recovery Program, California State
University, in litt., 1999; S. Hill, Illinois Natural History Survey,
pers. comm., 2002 ). Persistent seed banks consist of all the viable
seeds left ungerminated in the soil longer than a single growing
season, and typically extend over a much greater area than the
observable above-ground plants (Given 1994). The number and location of
standing plants in a population with a persistent seed bank may vary
annually due to a number of factors, including the amount and timing of
rainfall, temperature, soil conditions, and the extent and nature of
the seed bank. As the depository from which each new generation of
plants must grow, such seed banks are extremely important for an annual
species' long-term survival in an area, and may maintain a population
through years in which few or no above-ground plants can grow or
survive (Baskin and Baskin 1978).
The primary pollinators of Sidalcea keckii are unknown, but two
related California species of Sidalcea (S.oregana ssp. spicata and S.
malviflora ssp. malviflora) are pollinated primarily by various species
and families of solitary bees, bumble bees, and bee flies (Ashman and
Stanton 1991; Graff 1999). Many bees of the solitary bee genus Diadasia
specialize in collecting pollen solely from members of the Malvaceae
family (Service 1998).
Sidalcea keckii is endemic to California and grows in relatively
open areas on grassy slopes of the Sierra foothills in Fresno and
Tulare counties. It is associated with serpentine soils (Kirkpatrick
1992; Cypher 1998), which are unusually low in nutrients and high in
heavy metals. These soil properties tend to restrict the growth of many
competing plants (Brooks 1987). As with many serpentine species, S.
keckii appears to compete poorly with densely growing non-native annual
grasses (Stebbins 1992; Weiss 1999).
The primary reason so much remains unknown about Sidalcea keckii is
that after botanists first collected samples from a site near White
River, Tulare County in 1935, 1938, and 1939 (Wiggins 1940; California
Natural Diversity Database (CNDDB) 2001), it was not collected or
observed by botanists again for over 50 years. A possible reason for
this includes the somewhat vague description of the White River site
(Wiggins 1940). Searches at the site may also simply have been
conducted during poor years when few above-ground plants had germinated
from the seed bank (S. Hill, in litt., 1997). Now that botanists have a
better understanding of what constitutes appropriate habitat for the
species, based on the discovery of additional sites (see below), it is
possible that future surveys may relocate S. keckii at the White River
site. Initial visits to the site have already identified areas of
likely habitat (John Stebbins, Herbarium Curator, California State
University, pers. comm., 2002).
Sidalcea keckii was presumed extinct until it was rediscovered in
1992 at a site near Mine Hill in Tulare County (Stebbins 1992). The
Mine Hill population contained about 60 plants growing on private land
around a serpentine rock outcrop on 20 to 40 percent slopes at about
229 meters (m) (750 feet (ft)) elevation. Associated plants included
Achyrachaena mollis (blow-wives), Bromus madritensis ssp. rubens (red
brome), Lepidium nitidum (shining peppergrass), Senecio vulgaris
(common groundsel), Plantago erecta (California plantain), and Silene
gallica (windmill pink) (Kirkpatrick 1992; Cypher 1998). This
population has not been resurveyed since 1992 due to the withdrawal of
permission by the landowner (E. Cypher, pers. comm., 2001).
Using habitat information from the Mine Hill site, botanists
resurveyed a location in the Piedra area of Fresno County where
Sidalcea keckii had been documented in 1939, and rediscovered the
population in 1998 (Service 1997; CNDDB 2001). This population spans a
mix of private and Federal land, much of which has since been purchased
by Sierra Foothill Conservancy (SFC) to provide a reserve for the plant
(SFC 2001). Although initially only 217 plants were found at the site
(Service 2000), subsequent surveys have found 500 to 1,000 plants in 8
separate patches ranging in elevation from 183 to 305 m (600 to 1,000
ft) (Cypher 1998; Chuck Peck, SFC, in litt., 2002). Associated plants
at this site include Bromus hordeaceus (soft chess), Dichelostemma
capitatum (blue dicks), Gilia tricolor (bird's eye gilia), Trileleia
ixioides (pretty face), Trileleia laxa (Ithuriel's spear), Asclepias
sp. (milkweed), and Madia sp. (tarweed) (Cypher 1998).
Sidalcea keckii is threatened by urban development, competition
from non-native grasses, agricultural land conversion, and random
events (S. Hill, pers. comm., 2002; C. Peck, in litt., 2002; Service
2000). Cattle grazing at the current level does not appear to be
detrimental, and may reduce encroachment by non-native grasses (C.
Peck, in litt., 2002; Weiss 1999), however, cattle damage S. keckii
directly by eating and trampling it, and unmanaged increases in grazing
during months of flowering or seed maturation could pose a threat
(Cypher 1998). The plant's low population numbers, particularly at Mine
Hill, leave it vulnerable to random environmental events such as
extreme weather, disease, or insect infestations (Shaffer 1981, 1987;
Menges 1991). The isolation of S. keckii populations exacerbates these
vulnerabilities by reducing the likelihood of recolonization of
extirpated populations. Inbreeding depression and loss of genetic
variability may also be causes for concern in such small isolated
populations (Ellstrand and Elam 1993).

Previous Federal Action

Federal action on Sidalcea keckii began when the Secretary of the
Smithsonian Institution, as directed by section 12 of the Act, prepared
a report on those native U.S. plants considered to be endangered,
threatened, or extinct in the United States. This report (House Doc.
No. 94-51) was presented to Congress on January 9, 1975, and included
S. keckii as a threatened species. On July 1, 1975, we published a
notice in the Federal Register (40 FR 27823) accepting the report as a
petition within the context of section 4(c)(2) (now section 4(b)(3)) of
the Act and of our intention to review the status of the plant taxa
named in the report. On June 16, 1976, we published a proposed rule in
the Federal Register (41 FR 24523) determining approximately 1,700
vascular plant species to be endangered pursuant to section 4 of the
Act. Sidalcea keckii was not included on this initial list.
We addressed the remaining plants from the Smithsonian report in a
subsequent Notice of Review (Notice) on December 15, 1980 (45 FR
82479). In that Notice, we determined Sidalcea keckii to be a category
1 candidate species, which we defined as a species for which we had
enough information on biological vulnerability and threats to support
preparation of a listing proposal. We published updates of the plant
candidate lists in Notices of Review dated September 27, 1985 (50 FR
39526), February 21, 1990 (55 FR 6184), and September 30, 1993 (58 FR
51144), each time maintaining S. keckii as category 1 species. In the
Notice of Review published February 28, 1996 (61 FR 7596), we
discontinued the use of different categories of candidates, and

[[Page 41671]]

defined ``candidate species'' as those meeting the definition of former
category 1. We maintained S. keckii as a candidate species in that
Notice, as well as in subsequent Notices published September 19, 1997
(62 FR 49398), and October 25, 1999 (64 FR 57533).
On July 28, 1997, we published a proposed rule to list Sidalcea
keckii as an endangered species under the Act (62 FR 40325). On June
17, 1999, our failure to issue a final rule and to make a critical
habitat determination for S. keckii was challenged in Southwest Center
for Biological Diversity, et al., v. U.S. Fish and Wildlife Service, et
al. (N.D. Cal) (Case No. C99-2992 CRB). On February 16, 2000, we
published a final rule listing S. keckii as an endangered species (65
FR 7757). A May 22, 2000, court order, based on a joint stipulation
with the plaintiffs, required us to complete the proposed critical
habitat designation by September 30, 2001. The court extended the
deadline to propose critical habitat for this species, based on a
further settlement agreement reached by the parties. In a consent
decree issued October 2, 2001, the court required us to publish a
proposed critical habitat designation for S. keckii and certain other
species by June 10, 2002, and to issue a final critical habitat
designation for the species by March 10, 2003 (Center for Biological
Diversity, et al., v. Gale Norton, et al. (D.D.C.) (Case. No. Civ. 01-
2063)).

Critical Habitat

Section 3 of the Act defines critical habitat as--(i) 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 (I) essential to the conservation of
the species and (II) that may require special management considerations
or protection; and (ii) specific areas outside the geographic area
occupied by a species at the time it is listed, upon a determination
that such areas are essential for the conservation of the species.
``Conservation'' means the use of all methods and procedures that are
necessary to bring an endangered or a threatened species to the point
at which listing under the Act is no longer necessary.
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 conferences on
Federal actions that are likely to result in the destruction or adverse
modification of proposed critical habitat. 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 regulatory protections under the Act.
Critical habitat also provides non-regulatory benefits to the
species by informing the public and private sectors of areas that are
important for species recovery and where conservation actions would be
most effective. Designation of critical habitat can help focus
conservation activities for a listed species by identifying areas that
contain the physical and biological features essential for the
conservation of that species, and can alert the public as well as land-
managing agencies to the importance of those areas. Critical habitat
also identifies areas that may require special management
considerations or protection, and may help provide protection to areas
where significant threats to the species have been identified, by
helping people to avoid causing accidental damage to such areas.
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 and using
the best scientific and commercial data available, habitat areas that
provide at least one of the physical or biological features essential
to the conservation of the species (primary constituent elements, as
defined at 50 CFR 424.12(b)). Section 3(5)(C) of the Act states that
not all areas that can be occupied by a species should be designated as
critical habitat unless the Secretary determines that all such areas
are essential to the conservation of the species. Our regulations (50
CFR 424.12(e)) also state that, ``The Secretary shall designate as
critical habitat areas outside the geographic area presently occupied
by the species only when a designation limited to its present range
would be inadequate to ensure the conservation of the species.''
Section 4(b)(2) of the Act requires that we take into consideration
the economic impact, and any other relevant impact, of specifying any
particular area as critical habitat. We may exclude areas from critical
habitat designation when the benefits of exclusion outweigh the
benefits of including the areas within critical habitat, provided the
exclusion will not result in extinction of the species.
Our Policy on Information Standards Under the Endangered Species
Act, published on July 1, 1994 (59 FR 34271), provides criteria,
establishes procedures, and provides guidance to ensure that our
decisions represent the best scientific and commercial data available.
It requires that our biologists, to the extent consistent with the Act
and with the use of the best scientific and commercial data available,
use primary and original sources of information as the basis for
recommendations to designate critical habitat. When determining which
areas are critical habitat, a primary source of information should be
the listing rule 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 or other unpublished
materials.
Section 4 of the Act requires that we designate critical habitat
based on what we know at the time of designation. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery. Areas
that support newly discovered populations in the future, but are
outside the critical habitat designation will continue to be subject to
conservation actions implemented under section 7(a)(1) of the Act and
to the regulatory protections afforded by the section 7(a)(2) jeopardy
standard and the section 9 prohibitions, as determined on the basis of
the best available information at the time of the action. Federally
funded or assisted projects affecting listed species outside their
designated critical habitat areas may still result in jeopardy findings
in some cases. Similarly, critical habitat designations made on the
basis of the best available information at the time of designation will
not control the direction and substance of future recovery plans,
habitat conservation plans, or other species conservation planning
efforts if new information available to these planning efforts calls
for a different outcome.

Methods

As required by section 4(b)(2) of the Act and regulations at 50 CFR
424.12,

[[Page 41672]]

we used the best scientific information available to determine areas
that contain the physical and biological features that are essential
for the conservation of Sidalcea keckii. This included information from
our own documents on S. keckii and related species; the CNDDB (2001);
peer-reviewed journal articles and book excerpts regarding S. keckii
and related species, or regarding more generalized issues of
conservation biology; unpublished biological documents regarding S.
keckii or related species; site visits, and discussions with botanical
experts.
We compared geological and ecological characteristics of the
various locations of the plant by using information from the above
sources as well as geographic information systems (GIS) coverages of
Sidalcea keckii population locations (CNDDB 2001); soil survey maps
(U.S. Soil Conservation Service (SCS) 1971, 1982; U.S. Department of
Agriculture, Natural Resource Conservation Service (NRCS) 2001); aerial
photographs (CNES/SPOT Image Corporation (SPOT) 2001); topological
features (United States Geological Survey (USGS) 1990); features of
underlying rock (California Department of Conservation (CDC) 2000) and
vegetation cover (USGS 1990). We also examined geological maps not
available on GIS (California Division of Mines and Geology (CDMG) 1991,
1992).
The Piedra and Mine Hill proposed critical habitat units are
occupied by both above-ground plants and seed banks, depending on the
time of year (i.e., plants are not observable above-ground all year).
Although above-ground plants have not been observed on the White River
unit since the 1930s, a complete survey has not been done due to the
lack of access to lands in private ownership. ``Occupied'' is defined
here as an any area with above-ground Sidalcea keckii plants or a S.
keckii seed bank of indefinite boundary. Current surveys need not have
identified above-ground individuals for the area to be considered
occupied because plants may still exist at the site as part of the seed
bank (Given 1994). All occupied sites contain some or all of the
primary constituent elements and are essential to the conservation of
the species, as described below.
Each of the critical habitat units likely includes areas that are
unoccupied by Sidalcea keckii. ``Unoccupied'' is defined here as an
area that contains no above-ground S. keckii plants and that is
unlikely to contain a viable seed bank. Determining the specific areas
that this taxon occupies is difficult because, depending on the climate
and the natural variations in habitat conditions, the extent of the
distributions may either shrink and disappear, or if there is a
residual seed bank present, enlarge and cover a more extensive area.
Because it is logistically difficult to determine how extensive the
seed bank is at any particular site and because above-ground plants may
or may not be present in all patches within a site every year, we
cannot quantify in any meaningful way what proportion of each critical
habitat unit may actually be occupied by S. keckii. Therefore, patches
of unoccupied habitat are probably interspersed with patches of
occupied habitat in each unit. The inclusion of unoccupied habitat in
our critical habitat units reflects the dynamic nature of the habitat
and the life history characteristics of this taxon. Unoccupied areas
provide areas into which populations might expand, provide connectivity
or linkage between colonies within a unit, and support populations of
pollinators and seed dispersal organisms. Both occupied and unoccupied
areas that are proposed as critical habitat are essential to the
conservation of the species.

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 germination or seed dispersal; and habitats that are
protected from disturbance or are representative of the historic
geographical and ecological distributions of a species.
Much of what is known about the specific physical and biological
requirements of Sidalcea keckii is described in the Background section
of this proposed rule. The proposed critical habitat is designed to
provide sufficient habitat to maintain self-sustaining populations of
S. keckii throughout its range and to provide those habitat components
essential for the conservation of the species. These habitat components
provide for: (1) Individual and population growth, including sites for
germination, pollination, reproduction, pollen and seed dispersal, and
seed dormancy; (2) areas that allow gene flow and provide connectivity
or linkage within larger populations; (3) areas that provide basic
requirements for growth, such as water, light, and minerals; and (4)
areas that support populations of pollinators and seed dispersal
organisms.
We believe the long-term conservation of Sidalcea keckii is
dependent upon the protection of existing population sites and the
maintenance of ecological functions within these sites, including
connectivity between colonies (i.e., groups of plants within sites)
within close geographic proximity to facilitate pollinator activity and
seed dispersal. The areas we are designating as critical habitat
provide some or all of the habitat components essential for the
conservation of S. keckii. Based on the best available information at
this time, the primary constituent elements of critical habitat for S.
keckii are:
(1) Minimally shaded annual grasslands in the Sierra foothills
containing open patches in which competing vegetation is relatively
sparse; and
(2) Serpentine soils, or other soils which tend to restrict
competing vegetation.

Criteria Used to Identify Critical Habitat

We identified critical habitat areas essential to the conservation
of Sidalcea keckii in the three primary locations where it currently
occcurs or has been known to occur: the Piedra area of Fresno County,
the Mine Hill area of Tulare County, and near White River in Tulare
County. We are proposing to designate sufficient critical habitat at
each site to maintain self-sustaining populations of S. keckii at each
of these locations.
We are including the White River site in our proposal, despite the
fact that Sidalcea keckii has not been documented there in recent
years. The White River population is the type location where the plant
was originally discovered and contains the primary constituent elements
that would support the species. It is one of the extremely few
locations where S. keckii has ever been observed and may be occupied by
a seed bank. We have evidence from the Piedra site, where S. keckii was
undocumented from 1939 until its rediscovery in 1998 (Cypher 1998;
CNDDB 2001), that such rediscoveries are possible for S. keckii. The
Piedra site supports the largest known S. keckii population, with 500
to 1,000 plants when last surveyed (Cypher 1998). Even if the species
is not rediscovered at the White River site, we still believe the site
is essential to the conservation of the species because it is the most

[[Page 41673]]

appropriate site for a reintroduction to occur. The combination of
limited range, few populations, and restricted habitat makes S. keckii
susceptible to extinction or extirpation due to random events, such as
fire, disease, or other occurrences (Shaffer 1981, 1987; Primack 1993,
Meffe and Carroll 1994). Such events are a concern when the number of
populations or geographic distribution of a species are severely
limited, as is the case with S. keckii. Establishment of a third
location for S. keckii is likely to prove important in reducing the
risk of extinction due to such catastrophic events.
Despite the association of Sidalcea keckii with serpentine soils
(Kirkpatrick 1992; Cypher 1998), only a portion of S. keckii plants at
the Piedra site grow on soil identified by SCS maps as being serpentine
derived (the soil: Fancher extremely stony loam) (SCS 1971; NRCS 2001).
Other patches at Piedra, as well as the type locality White River
population, grow on what SCS maps indicate are Cibo clays, while the
Mine Hill population of S. keckii grows in an area mapped as Coarsegold
rock outcrop complex (NRCS 2001). Neither of these latter two soil
types normally derive from serpentine rock (SCS 1971, 1982), although
the underlying geology may contain it. Geologic maps, for example, show
the Cibo soils of the Piedra population straddling an arm of underlying
serpentine rock (CDMG 1991; CDC 2000). The soils may, therefore, in
fact be derived from such rock or include pockets of soil derived from
such rock, or the amount of serpentine rock may be too small to be
mapped (E. Russell, NRCS, pers. comm., 2002). Available geologic maps
fail to show any serpentine rock in the vicinity of the type locality
White River population (CDMG 1992; Jennings 1977; CDC 2000). However,
Cibo soils have an intrinsic tendency to dry out, harden, and form deep
cracks during the summer which can discourage the growth of some plants
(E. Russell, pers. comm., 2002). Hence, these soils would limit
vegetation competition in favor of S. keckii.
Based on available soils and geologic maps, the Coarsegold soils of
the Mine Hill population do not overlie serpentine rock, nor are they
intrinsically restrictive to plant growth (CDMG 1991; Jennings 1977;
SCS 1982; CDC 2000; E. Russell, pers. comm., 2002). The botanists who
discovered the population, however, characterized the site as a
``serpentine rock outcrop'' (Kirkpatrick 1992). Although geologic maps
do not list serpentine rock at the site itself, they do show it within
a mile to the northeast and southwest (CDMG 1991; Jennings 1977; CDC
2000). The site itself sits over ``precenazoic metasedimentary and
metavolcanic rocks of great variety'' (Jennings 1977). Hence, it
appears likely that the site consists of a pocket habitat of serpentine
soil which was too small to be mapped (E. Russell, pers. comm., 2002).
SCS soil maps tend to list only the dominant soil type in an area.
Other such pocket habitats may exist within the same combination of
soil and underlying rock.

Mapping

We delineated the proposed critical habitat units by creating data
layers in a GIS format. First, we identified the locations of the
Sidalcea keckii populations using information from the CNDDB (2001),
and published and unpublished documents from those who located the
known populations (Kirkpatrick 1992; Stebbins 1992). In the case of the
Piedra population, where S. keckii grew in more than one patch, we
identified the locations and approximate dimensions of the various
patches as well, based on information provided by SFC (C. Peck, in
litt., 2002). We mapped populations or patch locations from all sites
on USGS 7.5' quadrangle topological maps (USGS 1990) to obtain
information on elevation, slope, and recognizable surface features. We
then used soil survey maps (NRCS 2001) to restrict potential critical
habitat to the boundaries of the basic soil types on which the
populations grow. In areas where the presence of S. keckii could not be
explained by the properties of the mapped soil type alone (such as the
Coarsegold soils at the Mine Hill location), we mapped critical habitat
boundaries to the same underlying rock type as at the population site
(CDC 2000). We then used recent aerial photos (SPOT 2001), topological
maps (USGS 1990), and discussions with experts familiar with the areas
(Rosalie Faubion, U.S. Bureau of Reclamation (BOR), pers. comm., 2002;
Chuck Peck, Sierra Foothill Conservancy, pers. comm., 2002) to
eliminate large contiguous areas which were noticeably more overgrown
or which were not grassland and, therefore, not suitable habitat for
the species.
In order to provide determinable legal descriptions of the critical
habitat boundaries, we then used an overlayed 100 meter grid to
establish Universal Transverse Mercator (UTM) North American Datum of
1983 (NAD 83) coordinates which, when connected, provided the critical
habitat unit boundaries. We include the legal description for each unit
in the Proposed Regulation Promulgation section, below.
In designating critical habitat, we made an effort to avoid
developed areas, such as housing developments and agricultural fields,
that are unlikely to contribute to the conservation of Sidalcea keckii.
However, we did not map critical habitat in sufficient detail to
exclude all developed areas, or other lands unlikely to contain the
primary constituent elements essential for the conservation of S.
keckii. Areas within the boundaries of the mapped units, such as
buildings, roads, parking lots, railroads, airport runways and other
paved areas, lawns, and other urban landscaped 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 of the
Act consultation, unless they affect the species or primary constituent
elements in adjacent critical habitat.

Proposed Critical Habitat Designation

Lands proposed for critical habitat designation are under private
and Federal jurisdiction. The approximate areas of proposed critical
habitat by land ownership are shown in Table 1.

Table 1.--Approximate Areas in Hectares (ha) and Acres (ac) of Proposed Critical Habitat for Sidalcea keckii by Land Ownership.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit Federal State Private Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Piedra............................. 3 ha (7ac) 0 203 ha (503 ac) 206 ha (510 ac)
2. Mine Hill.......................... 0 0 86 ha (213 ac) 86 ha (213 ac)
3. White River........................ 0 0 146 ha (362 ac) 146 ha (362 ac)
-----------------------------------------------------------------------------------------------------------------
Totals............................ 3 ha (7ac) 0 435 ha (1,078 ac) 438 ha (1,085 ac)
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 41674]]

The proposed critical habitat areas constitute our best assessment
at this time of the areas that are essential for the conservation of
Sidalcea keckii. The three critical habitat units include the only two
locations where S. keckii has been observed since the 1930's and the
type locality, which may be occupied by a seed bank, and is the most
appropriate location to consider for reintroduction. A brief
description of each critical habitat unit is given below:

Unit 1: Piedra

Unit 1 is on the western slopes of Tivy Mountain in the Piedra area
of southern Fresno County. It contains 206 ha (510 ac), of which 203 ha
(503 ac) are privately owned and 3 ha (7 ac) managed by the BOR (R.
Faubion, pers. comm., 2002). Of the privately owned land, 77 ha (189
ac) of proposed critical habitat is on the Tivy Mountain Reserve which
is owned by SFC and established for the conservation of Sidalcea keckii
and other rare plants. SFC uses managed grazing as a tool to reduce
competing non-native grasses from S. keckii sites, and monitors the
plant as well (SFC 2001). Another 6.5 ha (16 ac) of this unit occurs on
a conservation easement held by SFC on privately owned land adjacent to
the reserve.
In 1998, surveys coordinated by the BOR found 500 to 1,000 plants
in the area (Cypher 1998). Surveys conducted in 2000 and 2001 by the
SFC found eight separate patches of Sidalcea keckii growing on both
Fancher and Cibo soils (C. Peck, in litt., 2002). Fancher soils are
generally serpentine derived, while Cibo soils generally are not (SCS
1971). An arm of ultramafic (serpentine) rock underlies almost the
entire area (CDC 2000), although not all of the known S. keckii patches
are located within the known extent of the serpentine substrate.
This unit is important to the conservation of the species because
it is one of the two sites at which the species has been observed since
the 1930's. When the number of populations or geographic distribution
of a species are severely limited, as is the case when plants have only
been observed recently at two locations, possible extinction or
extirpation due to random events become a concern. Examples of random
events that are a concern include fire and disease (Shaffer 1981, 1987;
Primack 1993, Meffe and Carroll 1994). This unit is also important
because it includes the most northerly location known for S. keckii and
the only location where above-ground plants with maroon-centered
flowers have been documented (Cypher 1998).

Unit 2: Mine Hill

Unit 2 is about 3 km (2 mi) south of Success Dam and 5 km (3 mi)
east of Porterville in Tulare County and contains 86 ha (213 ac), all
of which are on privately owned land. Unit 2 encompasses a single known
patch of Sidalcea keckii, which contained approximately 60 plants when
last surveyed in 1992. At the request of the landowner, it has not been
surveyed since that time. Although the Coarsegold rock outcrop soils of
the area are best suited to rangeland (SCS 1982), which is the current
use of the area, the site is zoned for mobile home development (Roberto
Brady, Tulare County Planning Department, pers. comm., 1997).
This unit is important to the conservation of the species because
it is one of the two known locations where Sidalcea keckii plants have
been observed since the 1930's. As is the case with Unit 1, when the
number of populations or geographic distribution of a species are
severely limited, possible extinction or extirpation due to random
events become a concern. Examples of random events that are a concern
include fire and disease (Shaffer 1981, 1987; Primack 1993, Meffe and
Carroll 1994).

Unit 3: White River

Unit 3 is located near the town of White River in southern Tulare
County. It contains 146 ha (362 ac), all of which is private land. Unit
3 contains the ``type'' location, specimens from which were used to
first describe the species in 1940 (Wiggins 1940). This site is the
only one not closely associated with serpentine rock, but contains the
primary constituent elements that would support the species. This may
be due to the presence of currently unknown and unmapped serpentine
areas, or it may be due to an increased ability to compete on non-
serpentine Cibo soils.
As noted above, the White River site is one of the extremely few
locations where Sidalcea keckii has ever been observed and may be
occupied by a seed bank. Sidalcea keckii plants may still occur here,
but none have been documented recently. Even if the species is not
rediscovered at the White River site, we believe the site is essential
to the conservation of the species. Because S. keckii has been observed
at the site, it is the most appropriate site at which a reintroduction
might be attempted. The combination of small range, few populations,
and restricted habitat makes S. keckii susceptible to extinction or
extirpation from a significant portion of its range due to random
events, such as fire, disease, or other occurrences (Shaffer 1981,
1987; Primack 1993, Meffe and Carroll 1994). Such events are a concern
when the number of populations or geographic distribution of a species
are severely limited, as is the case with S. keckii. Establishment of a
third location for S. keckii is likely to be an important component in
reducing the risk of extinction due to such catastrophic events. This
location also represents the southernmost extent of the known
historical range of the species.

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, permit, or carry
out do not destroy or adversely modify critical habitat. Destruction or
adverse modification of critical habitat occurs when a Federal action
directly or indirectly alters critical habitat to the extent it
appreciably diminishes the value of critical habitat for the
conservation of the species. Individuals, organizations, States, local
governments, and other non-Federal entities are affected by the
designation of critical habitat only if their actions occur on Federal
lands, require a Federal permit, license, or other authorization, or
involve Federal funding.
Section 7(a) of the Act requires Federal agencies, 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 species proposed for listing,
or result in destruction or adverse modification of proposed critical
habitat. Conference reports provide conservation recommendations to
assist the action agency in eliminating conflicts that may be caused by
the proposed action. The conservation measures in a conference report
are advisory.
We may issue a formal conference report, if requested by the
Federal action agency. Formal conference reports include an opinion
that is prepared according to 50 CFR 402.14, as if the species was
listed or critical habitat designated. We may adopt the formal

[[Page 41675]]

conference report as the biological opinion when the species is listed
or critical habitat designated, if no substantial new information or
changes in the action alter the content of the opinion (50 CFR
402.10(d)).
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. Through this consultation, the
Federal action agency would ensure that the permitted actions do not
destroy or adversely modify 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 likelihood of jeopardizing the continued
existence of listed species, or resulting in the destruction or adverse
modification of critical habitat. Reasonable and prudent alternatives
can vary from slight project modification to extensive redesign or
relocation of the project.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions under certain
circumstances, including instances where critical habitat is
subsequently designated and the Federal agency has retained
discretionary involvement, or control has been retained, or is
authorized by law. Consequently, some Federal agencies may request
reinitiation of consultation or conference with us on actions for which
formal consultations has been completed, if those actions may affect
designated critical habitat or adversely modify or destroy proposed
critical habitat.
Activities that may affect Sidalcea keckii or its critical habitat
will require section 7 of the Act consultation. Activities on private
lands that require a permit from a Federal agency, such as a permit
from the U.S. Army Corps of Engineers (Corps) under section 404 of the
Clean Water Act (33 U.S.C. 1344 et seq.), a section 10(a)(1)(B) of the
Act permit from the Service, or any other activity requiring Federal
action (i.e., funding or authorization from the Federal Highways
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 lands that are not federally funded, authorized, or
permitted do not require section 7 consultation. Not all of the areas
within these units are capable of supporting S. keckii or its primary
constituent elements, and such areas would not be subject to section 7
consultation.
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 ensures that actions funded,
authorized, or carried out by Federal agencies are not likely to
jeopardize the continued existence of a listed species, or destroy or
adversely modify 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 recovery of the listed species.
Common to both definitions is an appreciable detrimental effect on
the 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 species is present in the area of the
proposed action. When the species is present in an area, designation of
critical habitat for Sidalcea keckii is not likely to result in
regulatory requirements above those already in place due to the
presence of the listed species. When the species is not present in an
area, designation of critical habitat for S. keckii may result in an
additional regulatory burden when a Federal nexus exists.
Section 4(b)(8) of the Act requires us to evaluate briefly and
describe, in any proposed or final regulation that designates critical
habitat, those activities involving a Federal action that may adversely
modify such habitat or that may be affected by such designation.
Activities that may destroy or adversely modify critical habitat would
be those that alter the primary constituent elements to the extent that
the value of critical habitat for the conservation of Sidalcea keckii
is appreciably reduced. We note that such activities may also
jeopardize the continued existence of the species.
Activities that, when carried out, funded, or authorized by a
Federal agency may directly or indirectly destroy or adversely modify
critical habitat for Sidalcea keckii include, but are not limited to:
(1) Ground disturbances which destroy or degrade primary
constituent elements of the plant (e.g., clearing, tilling, grading,
construction, road building, mining, etc);
(2) Activities that directly or indirectly affect Sidalcea keckii
plants (e.g., herbicide application and off-road vehicle use that could
degrade the habitat on which the species depends, incompatible
introductions of non-native herbivores, incompatible grazing management
during times when S. keckii is producing flowers or seeds, etc.);
(3) Encouraging the growth of Sidalcea keckii competitors (e.g.,
widespread fertilizer application); and
(4) Activities which significantly degrade or destroy Sidalcea
keckii pollinator populations (e.g., pesticide applications).
If you have questions regarding whether specific activities will
constitute destruction or adverse modification of critical habitat,
contact the Field Supervisor, Sacramento 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, Branch
of Endangered Species, 911 NE. 11th Ave., Portland, OR 97232 (telephone
503/231-2063; facsimile 503/231-6243).

Relationship to Habitat Conservation Plans and Other Planning
Efforts

Currently, no habitat conservation plans (HCPs) exist that include
Sidalcea keckii as a covered species. In the event that future HCPs
covering S. keckii are developed within the boundaries of 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

[[Page 41676]]

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 S. keckii. 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 system of interlinked habitat blocks configured to
promote the conservation of the species through application of the
principles of conservation biology.
We will 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 S. keckii and
appropriate management for those lands. Furthermore, we will complete
intra-Service consultation on our issuance of section 10(a)(1)(B)
permits for these HCPs to ensure permit issuance will not destroy or
adversely modify critical habitat.

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.
We will conduct an analysis of the economic impacts of designating
these proposed 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 public comment period on the draft economic analysis and
the 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 particularly 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 benefits of designation will outweigh any threats to the
species due to designation;
(2) Specific information on the amount and distribution of Sidalcea
keckii and its habitat, and which habitat is essential to the
conservation of this 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 Sidalcea keckii 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, you may submit your comments and materials
concerning this proposal by any one of several methods: (1) You may
submit written comments and information to the Field Supervisor at the
address provided in the ADDRESSES section above; (2) You may also
comment via the electronic mail (e-mail) to
fw1kecks_checkermallow@fws.gov. Please submit e-mail comments as an
ASCII file avoiding the use of special characters and any form of
encryption. Please also include ``Attn: [1018-AG93] and your name and
return address in your e-mail message.'' If you do not receive a
confirmation from the system that we have received your e-mail message,
contact us directly by calling our Sacramento Fish and Wildlife Office
at phone number 916-414-6600. Please note that the Internet address
``fw1kecks_checkermallow@fws.gov'' will be closed out at the
termination of the public comment period; and (3) You may hand-deliver
comments to our Sacramento office (see ADDRESSES section above).
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 at least 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 designation of
critical habitat.
We will consider all comments and information received during the
60-day comment period on this proposed rule during preparation of a
final rulemaking. Accordingly, the final decision may differ from this
proposal.

Public Hearing

The Act provides for one or more public hearings on this proposal,
if requested. Requests for public hearings must be made at least 15
days prior to the close of the public comment period. We will schedule
public hearings on this proposal, if any are requested, and announce
the dates, times, and places of those hearings in the Federal Register
and local newspapers at least 15 days prior to the first hearing.

Clarity of the Rule

Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as

[[Page 41677]]

the following: (1) Are the requirements in the proposed rule clearly
stated? (2) Does the proposed rule contain technical language or jargon
that interferes with the clarity? (3) Does the format of the proposed
rule (grouping and order of 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? (5) What else could we do to make the
notice easier to understand?
Send a copy of any comments that concern how we could make this
notice easier to understand to: Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street, NW, Washington,
DC 20240. You may e-mail your comments to this address:
Exsec@ios.doi.gov.

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order 12866, this document is a
significant rule and was reviewed by the Office of Management and
Budget (OMB). The Service is preparing a draft economic analysis of
this proposed action. The Service will use this analysis to meet the
requirement of section 4(b)(2) of the ESA to determine the economic
consequences of designating the specific areas as critical habitat and
excluding any area from critical habitat if it is determined that the
benefits of such exclusion outweigh the benefits of specifying such
areas as part of the critical habitat, unless failure to designate such
area as critical habitat will lead to the extinction of Sidalcea
keckii. This analysis will be available for public comment before
finalizing this designation. The availability of the draft economic
analysis will be announced in the Federal Register.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

This discussion is based upon the information regarding potential
economic impact that is available to the Service at this time. This
assessment of economic effect may be modified prior to final rulemaking
based upon development and review of the economic analysis being
prepared pursuant to section 4(b)(2) of the ESA and E.O. 12866. This
analysis is for the purposes of compliance with the Regulatory
Flexibility Act and does not reflect the position of the Service on the
type of economic analysis required by New Mexico Cattle Growers Assn.
v. U.S. Fish & Wildlife Service 248 F.3d 1277 (10th Cir. 2001).
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 (RFA) to require Federal agencies to provide a
statement of the factual basis for certifying that the rule will not
have a significant economic effect on a substantial number of small
entities. SBREFA also amended the RFA to require a certification
statement. We are hereby certifying that this proposed rule will not
have a significant effect on a substantial number of small entities.
The following discussion explains our rationale for making this
assertion.
According to the Small Business Administration (http://www.sba.gov/
size/), small entities include small organizations, such as independent
non-profit organizations, and small governmental jurisdictions,
including school boards and city and town governments that serve fewer
than 50,000 residents, as well as small businesses. Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, 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. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
In determining whether this rule could ``significantly affect a
substantial number of small entities'', the economic analysis first
determined whether critical habitat could potentially affect a
``substantial number'' of small entities in counties supporting
critical habitat areas. While SBREFA does not explicitly define
``substantial number,'' the Small Business Administration, as well as
other Federal agencies, have interpreted this to represent an impact on
20 percent or greater of the number of small entities in any industry.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies. Some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
critical habitat designation.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies, non-Federal activities are
not affected by the designation if they lack a Federal nexus. In areas
occupied by Sidalcea keckii, 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 S. keckii. 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 is
agricultural, such as livestock grazing and farming. 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

[[Page 41678]]

changes that avoid significant economic impacts to project proponents.
In general, two different mechanisms in section 7 consultations
could lead to additional regulatory requirements for one small
business, on average, that may be required to consult with us each year
regarding their project's impact on Sidalcea keckii and its habitat.
First, if we conclude, in a biological opinion, that a proposed action
is likely to jeopardize the continued existence of a species or
adversely modify its critical habitat, we can offer ``reasonable and
prudent alternatives.'' Reasonable and prudent alternatives are
alternative actions that can be implemented in a manner consistent with
the scope of the Federal agency's legal authority and jurisdiction,
that are economically and technologically feasible, and that would
avoid jeopardizing the continued existence of listed species or
resulting in adverse modification of critical habitat. A Federal agency
and an applicant may elect to implement a reasonable and prudent
alternative associated with a biological opinion that has found
jeopardy or adverse modification of critical habitat. An agency or
applicant could alternatively choose to seek an exemption from the
requirements of the Act or proceed without implementing the reasonable
and prudent alternative. However, unless an exemption were obtained,
the Federal agency or applicant would be at risk of violating section
7(a)(2) of the Act if it chose to proceed without implementing the
reasonable and prudent alternatives.
Secondly, if we find that a proposed action is not likely to
jeopardize the continued existence of a listed animal species, we may
identify reasonable and prudent measures designed to minimize the
amount or extent of take and require the Federal agency or applicant to
implement such measures through non-discretionary terms and conditions.
We may also identify discretionary conservation recommendations
designed to minimize or avoid the adverse effects of a proposed action
on listed species or critical habitat, help implement recovery plans,
or to develop information that could contribute to the recovery of the
species.
Based on our experience with consultations pursuant to section 7 of
the Act for all listed species, virtually all projects--including those
that, in their initial proposed form, would result in jeopardy or
adverse modification determinations in section 7 consultations-can be
implemented successfully with, at most, the adoption of reasonable and
prudent alternatives. These measures, by definition, must be
economically feasible and within the scope of authority of the Federal
agency involved in the consultation. As we have a very limited
consultation history for Sidalcea keckii, we can only describe the
general kinds of actions that may be identified in future reasonable
and prudent alternatives. The kinds of actions that may be included if
future reasonable and prudent alternatives become necessary, include
conservation set-asides, management of competing non-native species,
restoration of degraded habitat, construction of protective fencing,
and regular monitoring. These are based on our understanding of the
needs of the species and the threats it faces, as described in the
final listing rule and this proposed critical habitat designation.
It is likely that a developer could modify a project or take
measures to protect Sidalcea keckii. Based on the types of
modifications and measures that have been implemented in the past for
plant species, a developer may take such steps as installing fencing or
re-aligning the project to avoid sensitive areas. The cost for
implementing these measures for one project is expected to be of the
same order of magnitude as the total cost of the consultation process,
i.e., approximately $10,000. It should be noted that developers likely
would already be required to undertake such measures due to regulations
under the California Environmental Quality Act. These measures are not
likely to result in a significant economic impact to project
proponents.
In summary, we have considered whether this rule would result in a
significant economic effect on a substantial number of small entities.
We have determined, for the above reasons, that it will not affect a
substantial number of small entities. Furthermore, we believe that the
potential compliance costs for the remaining number of small entities
that may be affected by this rule will not be significant. Therefore,
we are certifying that the proposed designation of critical habitat for
Sidalcea keckii 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 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 proposed
rule is a significant regulatory action under Executive Order 12866, it
is not expected to significantly affect energy supplies, distribution,
or use. Therefore, this action is not a significant energy action and
no Statement of Energy Effects is required.

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

The Service will use the economic analysis to evaluate consistency
with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.).

Takings

In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing to designate approximately 438 ha (1,085 ac) of lands in
Fresno and Tulare counties, California as critical habitat for Sidalcea
keckii in a takings implication assessment. This preliminary assessment
concludes that this proposed rule does not pose significant takings
implications. However, we have not yet completed the economic analysis
for this proposed rule. Once the economic analysis is available, we
will review and revise this preliminary assessment as warranted.

Federalism

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
proposed critical habitat designation with, appropriate State resource
agencies in California. The designation of critical habitat in areas
currently occupied by Sidalcea keckii imposes no additional
restrictions to those currently in place and, therefore, has little
incremental impact on State and local governments and their activities.
The designation of critical habitat in unoccupied areas may require
section 7 of the Act consultation on non-Federal lands (where a Federal
nexus occurs) that might otherwise not have occurred. However, there
will be little additional impact on State and local governments and
their activities because all but one of the proposed critical habitat
areas are occupied. The designation may have some benefit to these
governments in that the areas essential to the conservation of the
species are more clearly defined, and the primary constituent elements
of the habitat necessary to the survival of the species are identified.
While this definition and identification does not alter where and what
federally sponsored activities may

[[Page 41679]]

occur, it may assist these local governments in long-range planning,
rather than waiting for case-by-case section 7 consultations to occur.

Civil Justice Reform

In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor has determined that this rule does
not unduly burden the judicial system and meets 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 Sidalcea
keckii.

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

This rule does not contain any new collections of information that
require OMB approval under the Paperwork Reduction Act. This rule will
not impose new 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 determination 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), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. The proposed critical
habitat for Sidalcea keckii does not contain any Tribal lands or lands
that we have identified as impacting Tribal trust resources.

References Cited

A complete list of all references cited in this proposed rule is
available upon request from the Sacramento Fish and Wildlife Office
(see ADDRESSES section).

Author

The primary author of this notice is Glen Tarr, Sacramento Fish and
Wildlife Office (see ADDRESSES section).

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. 17.12(h) revise the entry for ``Sidalcea keckii,'' under
``FLOWERING PLANTS,'' to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

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

* * * * * * *
Sidalcea keckii................. Keck's U.S.A. (CA)....... Malvaceae--Mallow. E 685 17.96(b) NA
checkermallow.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. In Sec. 17.96, as proposed to be amended at 65 FR 66865,
November 7, 2000, amend paragraph (b) by adding an entry for Sidalcea
keckii in alphabetical order under Family Malvaceae to read as follows:

Sec. 17.96 Critical habitat--plants.

* * * * *
(b) * * *

Family Malvaceae: Sidalcea keckii (Keck's checkermallow)
(1) Critical habitat units are depicted for Fresno and Tulare
counties, California, on the maps below.
(2) The primary constituent elements of critical habitat for
Sidalcea keckii are the habitat components that provide:
(i) Minimally shaded annual grasslands in the Sierra foothills
containing open patches in which competing vegetation is relatively
sparse; and
(ii) Serpentine soils, or other soils which tend to restrict
competing vegetation.
(iii) Existing man-made features and structures, such as buildings,
roads, railroads, airports, other paved areas, lawns, and other urban
landscaped areas, do not contain one or more of the primary constituent
elements. Federal actions limited to those areas, therefore, would not
trigger a consultation under section 7 of the Act unless they may
affect the species and/or primary constituent elements in adjacent
critical habitat.
(3) Critical Habitat Map Units.
(i) Data layers defining map units were created on a base of USGS
7.5' quadrangles, and proposed critical habitat units were then mapped
using Universal Transverse Mercator (UTM) coordinates.
(ii) Critical Habitat Map Units--Index Map Follows:
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[GRAPHIC] [TIFF OMITTED] TP19JN02.002

(4) Map Unit 1: Piedra Unit, Fresno County, California
(i) From USGS 1:24,000 quadrangle maps Piedra, and Pine Flat Dam,
California; land bounded by the following UTM11 NAD83 coordinates
(E,N): 288300, 4074700; 288200, 4074700; 287700, 4074900; 287000,
4075600; 287400, 4076100; 287500, 4076300; 287500, 4076700; 287800,
4077000; 288000, 4077100; 288400, 4076900; 288400, 4076600; 288500,
4076300; 288300, 4075800; 288200, 4075700; 288300, 4075300; 288200,
4075100; 288100, 4075100; 288000, 4075000; 288300, 4075000; 288300,
4074700.
(ii) Map Unit 1 Map Follows:

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[GRAPHIC] [TIFF OMITTED] TP19JN02.003

(5) Map Unit 2: Mine Hill Unit, Tulare County, California
(i) From USGS 1:24,000 quadrangle Success Dam, California; land
bounded by the following UTM11 NAD83 coordinates (E,N): 326600,
3988600; 326500, 3988600; 326200, 3988900; 326100, 3989100; 326200,
3989200; 326200, 3989300; 326300, 3989400; 326500, 3989400; 326500,
3989500; 326700, 3989600; 327300, 3989600; 327400, 3989500; 327400,
3989300; 327200, 3989000; 327100, 3988900; 326700, 3988700; 326600,
3988600.
(ii) Map Unit 2 Map Follows:

[[Page 41682]]

[GRAPHIC] [TIFF OMITTED] TP19JN02.004

(6) Map Unit 3: White River Unit, Tulare County, California
(i) From USGS 1:24,000 quadrangle maps White River, California;
land bounded by the following UTM11 NAD83 coordinates (E,N): 334800,
3963600; 334100, 3963800; 333900, 3964100; 333900, 3964200; 333800,
3964500; 333800, 3964700; 334000, 3964800; 334400, 3964500; 334500,
3964500; 334700, 3964600; 334900, 3964800; 335100, 3964800; 335300,
3964900; 335400, 3964700; 335300, 3964600; 335300, 3964500; 335400,
3964400; 335500, 3964400; 335500, 3964100; 335200, 3963800; 334800,
3963600.
(ii) Map Unit 3 Map Follows:

[[Page 41683]]

[GRAPHIC] [TIFF OMITTED] TP19JN02.005

* * * * *

Dated: June 13, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-15430 Filed 6-18-02; 8:45 am]
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