[Federal Register Volume 76, Number 97 (Thursday, May 19, 2011)]
[Rules and Regulations]
[Pages 29107-29129]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12330]



[[Page 29107]]

Vol. 76

Thursday,

No. 97

May 19, 2011

Part IV





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Final Revised 
Designation of Critical Habitat for Astragalus Jaegerianus (Lane 
Mountain Milk-Vetch); Final Rule

Federal Register / Vol. 76, No. 97 / Thursday, May 19, 2011 / Rules 
and Regulations

[[Page 29108]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2009-0078; MO 99210-0-0009]
RIN 1018-AW53


Endangered and Threatened Wildlife and Plants; Final Revised 
Designation of Critical Habitat for Astragalus Jaegerianus (Lane 
Mountain Milk-Vetch)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating revised critical habitat for Astragalus jaegerianus (Lane 
Mountain milk-vetch) under the Endangered Species Act of 1973, as 
amended (Act). In total, approximately 14,069 acres (ac) (5,693 
hectares (ha)) of land in 2 units located in the Mojave Desert in San 
Bernardino County, California, fall within the boundaries of the 
revised critical habitat designation.

DATES: This rule becomes effective on June 20, 2011.

ADDRESSES: The final rule and the associated final economic analysis, 
and map of critical habitat are available on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2009-0078, and http://www.fws.gov/ventura/. Comments and materials received, as well as 
supporting documentation used in the preparation of this final rule, 
are available for public inspection, by appointment, during normal 
business hours, at the U.S. Fish and Wildlife Service, Ventura Fish and 
Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003; 
telephone 805-644-1766; facsimile 805-644-3958.

FOR FURTHER INFORMATION CONTACT: Diane Noda, Field Supervisor, U.S. 
Fish and Wildlife Service, Ventura Fish and Wildlife Office (see 
ADDRESSES). If you use a telecommunications device for the deaf (TDD), 
call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only those topics directly relevant to 
the development and designation of revised critical habitat for 
Astragalus jaegerianus under the Act (16 U.S.C. 1531 et seq.). For more 
information on the biology and ecology of A. jaegerianus, refer to the 
final listing rule published in the Federal Register on October 6, 1998 
(63 FR 53596), the previous proposed critical habitat that published in 
the Federal Register on April 6, 2004 (69 FR 18018), and the proposed 
revised designation of critical habitat that published in the Federal 
Register on April 1, 2010 (75 FR 16404). Information on the associated 
draft economic analysis (DEA) for the proposed rule to designate 
revised critical habitat was published in the Federal Register on 
November 3, 2010 (75 FR 67676).

Species Description, Life History, Distribution, Ecology, and Habitat

    We received no new information pertaining to the description, life 
history, or distribution of Astragalus jaegerianus following the 
proposed revised designation (April 1, 2010; 75 FR 16404). These 
subjects are summarized in the final listing rule that published in the 
Federal Register on October 6, 1998 (63 FR 53596), and the proposed 
revised designation of critical habitat that published in the Federal 
Register on April 1, 2010 (75 FR 16404). However, we did receive and 
analyze new information related to population dynamics, ecology, and 
habitat of A. jaegerianus primarily from two long-term monitoring 
reports (U.S. Army: Fort Irwin 2009, 2010) and from research recently 
conducted on the effects of long-term drought on A. jaegerianus and its 
host shrubs (Huggins et al. 2010). In addition, we are clarifying 
information on recent genetic studies that was briefly mentioned in the 
proposed revised critical habitat designation. This new information is 
described below.

New Information

Population Dynamics

    Two reports have become available since the proposed revised 
critical habitat designation was prepared. As part of their Integrated 
Natural Resources Management Plan (INRMP) responsibilities, the Army 
established 40 study plots in 2005 to study the demographics of 
Astragalus jaegerianus and submits annual monitoring reports to the 
Service. Ten study plots were established in each of the four 
populations of Astragalus jaegerianus. This species is an herbaceous 
perennial that typically dies back at the end of each growing season, 
and persists through the dry season as a taproot; this taproot may also 
allow A. jaegerianus to survive occasional dry years, while longer 
periods of drought might be endured by remaining dormant. ``Above-
ground'' refers to those individuals that can be observed each year on 
the basis of their herbaceous growth. Information summarized from the 
2010 annual monitoring report indicates that, while the total number of 
A. jaegerianus individuals observed above-ground within the plots has 
decreased compared to 2005 levels, the number of individuals has 
increased annually since 2007 (Hessing 2010, p. 4). Study plot surveys 
in 2005 documented 224 individuals; in 2007, the total number of 
individuals observed in the study plots was 4 plants; in 2010, the 
total number of individuals was 152. Of these 152 plants, 120 were 
individuals that were observed the previous year, 26 were new recruits, 
and 6 were resprouts.
    Another ongoing population demography study conducted at permanent 
survey plots at the Montana Mine and Goldstone sites showed that 
Astragalus jaegerianus populations have declined in number of 
individuals, and in 2009 are less than 13 percent of their population 
size in 1999 (Sharifi et al. 2010, p. 4). The rate of mortality has 
generally slowed in the last 2 years, although at one subplot, the rate 
has increased recently compared with earlier years. Little to no 
observed recruitment is thought to be the result of low seedling 
survival and a depleted seed bank (Sharifi et al. 2010, pp. 11-12). 
Recruitment is probably episodic and requires two or more uncommon 
conditions such as: A large seed bank, precipitation greater than 8 
inches (in) (200 millimeter (mm)) per year and frequently spaced (rain 
events approximately four times a month), and a subsequent wet year or 
summer precipitation (Sharifi et al. 2009, p. 10).

Ecology and Habitat

    Huggins et al. (2010) reported on changes in host shrub canopy over 
a time period from 1999 to 2009 in the same areas where populations 
have been monitored by Sharifi et al. (2010) (see above). A drought 
began in the Mojave Desert (and much of the western States) in 1999, 
according to various researchers (Cook et al. 2004, p. 1016; Breshears 
et al. 2005, p. 15144; Hereford et al. 2006, p. 19). Such droughts have 
been documented to result in population diebacks and drought pruning of 
perennial desert shrubs (for example, see Hamerlynck and McAuliffe 
2008). Host shrubs for Astragalus jaegerianus have been documented to 
have experienced a 10 percent decrease in volume and cover between 1999 
and 2009, and shrub mortality has been high (Huggins et al. 2010, pp. 
123-124). Such deterioration in shrub canopy cover results in increased 
ground temperature and light intensity within the host shrub, and

[[Page 29109]]

likely indirectly affects the establishment and survival of A. 
jaegerianus. This hypothesis was supported by the observation that 
survival of A. jaegerianus was higher in host shrubs with more intact 
canopies. The authors opine that continuing drought in the Mojave 
Desert will lead to local extirpations of this species (Huggins et al. 
2010, p. 127).

Genetics

    Recent genetic analysis of Astragalus jaegerianus using AFLP 
(amplification fragment length polymorphism) markers showed that the 
species exhibits levels of genetic variation that are more consistent 
with species that are geographically widespread with large populations 
and numerous individuals, with each population exhibiting a high level 
of genetic variation and significant population structure across the 
range of the species (Walker and Metcalf 2008, pp. 158-177). The 
observation of these results in A. jaegerianus, a species with a 
restricted range and few numbers of individuals, leads the authors to 
opine that the species has or is currently undergoing population 
contraction. In addition, the authors found that the level of genetic 
differentiation between the eastern half and the western half of the 
Coolgardie population was significant, and they recommended these two 
areas be recognized as separate populations.
    In summary, we have considered new information as described above, 
and have incorporated it into this rule; none of it has altered our 
analysis of how to designate critical habitat for this species. With 
respect to the recommendation that two populations of Astragalus 
jaegerianus be recognized on Coolgardie Mesa, we acknowledge that there 
may be two genetically distinct populations; however, because they are 
geographically contiguous, it does not alter our delineation of the 
critical habitat unit in this area.

Previous Federal Actions

    The final rule listing Astragalus jaegerianus as an endangered 
species was published on October 6, 1998 (63 FR 53596). On November 15, 
2001, our decision not to designate critical habitat for A. jaegerianus 
and seven other plant and wildlife species at the time of listing was 
challenged in Southwest Center for Biological Diversity and California 
Native Plant Society v. Norton (Case No. 01-CV-2101-IEG (S.D. Cal.). On 
July 1, 2002, the court ordered the Service to reconsider its not 
prudent determination, and propose critical habitat, if prudent, for 
the species by September 15, 2003, and issue a final critical habitat 
designation, if prudent, no later than September 15, 2004. In light of 
Natural Resources Defense Council v. U.S. Department of the Interior, 
113 F.3d 1121 (9th Cir. 1997), and the diminished threat of 
overcollection, the Service reconsidered its decision and determined 
that it was prudent to propose critical habitat for the species. 
However, the Service exhausted the funding appropriated by Congress to 
work on critical habitat designations in 2003 prior to completing the 
proposed rule. On September 8, 2003, the court issued an order 
extending the date for issuance of the proposed critical habitat 
designation for A. jaegerianus to April 1, 2004, and the final 
designation to April 1, 2005.
    On April 6, 2004 (69 FR 18018), we published a proposed critical 
habitat designation that included 29,522 ac (11,947 ha) in 4 units in 
San Bernardino County, California. On April 8, 2005 (70 FR 18220), we 
published our final designation of critical habitat for Astragalus 
jaegerianus. Because we excluded all proposed acreage from the 
designation, the final designation included zero (0) ac (0 ha).
    On December 19, 2007, the 2005 critical habitat determination was 
challenged by the Center for Biological Diversity (Center for 
Biological Diversity v. United States Fish and Wildlife Service et al., 
Case No. CV-07-08221-JFW-JCRx). In a settlement agreement accepted by 
the court on June 27, 2008, we agreed to reconsider the critical 
habitat designation for Astragalus jaegerianus. The settlement 
stipulated that we submit a proposed revised critical habitat rule for 
A. jaegerianus to the Federal Register for publication on or before 
April 1, 2010, and submit a final revised determination on the proposed 
critical habitat rule to the Federal Register for publication on or 
before April 1, 2011; the proposed critical habitat rule was published 
on April 1, 2010 (75 FR 16404). On November 3, 2010, the document 
making available the draft economic analysis and reopening the public 
comment period for the proposed revised critical habitat designation 
was published in the Federal Register (75 FR 67676). On December 28, 
2010, the court granted an extension for the submission of the final 
revised critical habitat determination to the Federal Register on or 
before May 16, 2011. This final revised critical habitat designation 
complies with the June 27, 2008, and December 28, 2010, court orders.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
revised designation of critical habitat for Astragalus jaegerianus 
during two comment periods. The first comment period associated with 
the publication of the proposed revised critical habitat designation 
(75 FR 16404) opened on April 1, 2010, and closed June 1, 2010. We also 
requested comments on the proposed revised critical habitat designation 
and associated draft economic analysis during a second comment period 
that opened November 3, 2010, and closed on December 3, 2010 (75 FR 
67676). We did not receive any requests for a public hearing. We also 
contacted appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed revised rule and draft economic analysis during these 
comment periods.
    During the first comment period, we received seven comment letters 
directly addressing the proposed revised critical habitat designation. 
During the second public comment period, we received 14 comment letters 
directly addressing the proposed revision of critical habitat for this 
species or the draft economic analysis; 1 of these consisted of an 
informal ``petition,'' with approximately 870 signatures, to the Bureau 
of Land Management (Bureau) regarding management of the Coolgardie 
area, and 1 of the comments was from a party that previously commented 
in the first comment period. All substantive information provided 
during comment periods has either been incorporated directly into this 
final determination or addressed below. Comments received were grouped 
into five general categories specifically relating to the proposed 
revised critical habitat designation for Astragalus jaegerianus, and 
are addressed in the following summary and incorporated into the final 
revised critical habitat designation as appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from four knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which it occurs, or conservation 
biology principles pertinent to the species. We received responses from 
one of the four peer reviewers.

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    We reviewed all comments received from the peer reviewer for 
substantive issues and new information regarding critical habitat for 
Astragalus jaegerianus. Peer reviewer comments are addressed in the 
following summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

    Comment 1: The peer reviewer noted that protection of existing 
habitat is essential because, as with other Astragalus taxa, this 
species may have very narrow habitat requirements, and translocation 
may have a low probability of long-term success. The reviewer also 
noted that the most frequent pollinator of A. jaegerianus, Anthidium 
dammersi, is a solitary bee that nests in the ground, likely in close 
proximity to A. jaegerianus plants. Ground-nesting bees are highly 
sensitive to activities that may compact soil, as the nests may be 
damaged or destroyed, such as may occur with off-highway vehicles 
(OHVs), military vehicles, construction or mining equipment, and 
livestock grazing. The reviewer concludes that the designation is 
scientifically sound and essential to protect the viability of A. 
jaegerianus populations.
    Our Response: We appreciate the peer reviewer's comments. As 
discussed in the Methods section below, we took into consideration all 
available information concerning habitat requirements, as well as the 
needs of pollinators and seed dispersers, in delineating critical 
habitat for this species.
    Comment 2: The peer reviewer commented that, because much of the 
genetic diversity in Astragalus jaegerianus is partitioned among 
populations, it is important to designate each of the [sites for] 
existing populations as critical habitat. We also received a comment 
from one of the researchers that conducted the genetic analysis (Walker 
and Metcalf 2008). He corrected our characterization of the results of 
the genetics analysis in the proposed revised critical habitat 
designation as follows: While DNA sequencing techniques detected no 
variation between individuals of A. jaegerianus, the use of AFLP 
genetic markers, which screen the whole genome, showed that genetic 
variation was high among the individuals tested. Even though the 
results are more typical of species that are geographically widespread 
with large populations and numerous individuals, the observation of 
these results in A. jaegerianus, a species with a restricted range and 
few individuals, leads the authors to opine that the species has or is 
currently undergoing population contraction (Walker and Metcalf 2008 p. 
172).
    Our Response: We appreciate the clarification on the results of the 
genetic analyses. We acknowledge the importance of maintaining genetic 
diversity within the species, and have designated all areas where 
Astragalus jaegerianus occurs as critical habitat, with the exception 
of those areas on Fort Irwin that have been exempted under 4(a)(3)(b) 
of the Act. Because all areas where the species occurs were already 
included in the proposed critical habitat designation, no changes were 
made based on the information obtained from the genetic studies.

Federal Agency Comments

    Comment 3: The Bureau provided an update on the status of lands 
conservation efforts within the Coolgardie and Paradise Areas of 
Critical Environmental Concern (ACECs), as per the prescriptions in the 
West Mojave Plan (WMP) (Bureau 2010, in litt.). In particular, they 
noted that:
     No project permits were issued in this area in 2010 
(Prescription (P) 26);
     No grazing has been authorized (P27);
     An additional 7 miles (mi) (11 kilometers (km)) of post 
and cable barrier fence was installed in 2010 and routes were reclaimed 
in the southwest corner of the Coolgardie ACEC and Rainbow Basin (P28), 
and route rehabilitation and signing will continue in 2011;
     The Department of Defense (DOD) intends to transfer 
management of lands they have acquired for conservation within the ACEC 
boundaries to the Bureau in 2011 (P29);
     Mining claimholders are being contacted to determine if 
any of these claims could be surrendered (P30); and
     The Bureau has installed post and cable fencing to prevent 
access to Coolgardie Mesa from Rainbow Basin (P31).

In addition, the Bureau reports that ranger patrols have increased in 
the Coolgardie Mesa area with additional funding provided by the DOD.
    Our Response: We appreciate receiving these comments and note the 
Bureau's continuing efforts to implement conservation measures for this 
species.

State Agency Comments

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' In 
2004, we contacted the California Department of Fish and Game (CDFG) 
concerning the previous 2004 proposed critical habitat designation; 
however, the agency chose not to submit comments on the proposed 
critical habitat designation for Astragalus jaegerianus. The State 
notified us that submitting comments on the proposed critical habitat 
designation was a low priority for them because they are participants 
in the WMP planning process, and have previously commented on the 
conservation measures that were proposed for A. jaegerianus in the 
draft WMP (CDFG 2003, in litt., pp. 71-72). Furthermore, many of the 
private parcels that would be subject to State environmental 
regulations have been or are being purchased by DOD and transferred to 
the Bureau for inclusion in the Coolgardie and Paradise ACECs. Because 
of this action, the State's concern over private lands issues has been 
greatly diminished in this area. We contacted the CDFG again in 2010 
concerning our most recent proposed revised critical habitat 
designation; the State provided no comments.

Public Comments

    Comment 4: One commenter was concerned that the public did not have 
adequate notification concerning the proposed revised critical habitat 
designation and that there should have been a meeting with all 
concerned parties.
    Our Response: The Service conducted outreach by notifying 
appropriate elected officials, local jurisdictions, interested parties, 
and members of the public that had been identified during the previous 
critical habitat designation process in 2004-2005. We also published a 
legal notice in the Barstow Dispatch on April 7, 2010, concerning the 
proposed revised critical habitat designation and the first open 
comment period; published a news release; and posted information on the 
Ventura Fish and Wildlife Office Web site as well as on 
www.Regulations.gov. The second comment period was similarly noticed by 
a news release and postings on our office's Web site and 
www.Regulations.gov. In addition, we received no requests for a public 
hearing from members of the public when the proposed revised critical 
habitat designation was published. We believe we have provided 
sufficient opportunity for public comment with two open comment periods 
totaling 90 days.
    Comment 5: Several commenters expressed concern over the amount of 
acreage that was being ``set aside'' and how this would affect the high 
desert community and their freedom to enjoy the desert. One commenter 
thought that

[[Page 29111]]

these lands could not be enjoyed by future generations because they are 
locked away from motorized travel.
    Our Response: As discussed in the Background of the Critical 
Habitat section of this rule, the designation of critical habitat does 
not affect land ownership or establish a refuge, wilderness, reserve, 
preserve, or other conservation area. Such designation does not allow 
the government or public to access private lands, or require 
implementation of restoration, recovery, or enhancement measures by 
private landowners. Designation of critical habitat only affects 
activities authorized, funded, or carried out by Federal agencies. Some 
kinds of activities are unlikely to have any Federal involvement, and 
so, will not be affected by critical habitat designation (see Effects 
of Critical Habitat Designation section below). We anticipate that the 
Bureau will continue to allow access to and manage vehicle use and 
other recreational activities within this area according to the 
provisions of the WMP amendment to the CDCA (California Desert 
Conservation Area) Plan. The critical habitat designation does not 
affect private lands or other non-Federal lands unless a Federal agency 
proposes to authorize, fund, or carry out an activity on those lands.
    Comment 6: One commenter questioned whether private landowners 
would be ``excluded'' from the area.
    Our Response: Private landowners are not excluded and may still 
access their lands that fall within a critical habitat designation. As 
discussed above, the designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area, and it does not alter, in any manner, 
landowners' access to their lands. In addition, it does not require 
private landowners to implement restoration, recovery, or enhancement 
measures. See Effects of Critical Habitat Designation section below and 
the 2010 DEA for additional information on the implications of critical 
habitat designation to private landowners.
    Comment 7: One commenter requested that we expand the habitat of 
Astragalus jaegerianus because it is the ``primary food of many species 
and has potential medical benefits for humans.''
    Our Response: We have designated all areas where Astragalus 
jaegerianus is known to exist outside of Fort Irwin as critical 
habitat. Based on numerous surveys, we do not expect to find additional 
occurrences outside of the designated area; also, given the species' 
specific ecological needs, we cannot reasonably expect to expand the 
area that it inhabits. The commenter did not provide information 
documenting the use of A. jaegerianus as a source of food or medicine, 
and at this time, we have no information to indicate that A. 
jaegerianus is the primary food of any species, although it may have 
some, as yet undetermined, medical value to humans.
    Comment 8: Several commenters noted that they enjoy panning for 
gold in the open desert or working small mining claims in the 
Coolgardie Mesa area and do not wish to see the area closed.
    Our Response: The designation of critical habitat for Astragalus 
jaegerianus will not result in closure of any areas. As we have noted 
previously, it will not affect non-Federal lands, unless a Federal 
agency is proposing to authorize, fund, or carry out an action on that 
land. Although the designation of critical habitat may require the 
Bureau to reassess its land use plans, recreational activities such as 
panning for gold are not expected to negatively affect land use within 
the area. Under the casual use provisions of the CDCA Plan, individuals 
may continue to pan for gold. In general, we do not expect that such 
use, which is conducted on a fairly small scale, will compromise the 
function of critical habitat for A. jaegerianus; consequently, at this 
time, we do not anticipate requesting that the Bureau reassess the 
provisions of the CDCA Plan with regard to this activity.
    Sites where mining claims have been worked previously are unlikely 
to support the primary constituent elements (PCEs) of critical habitat 
because they are typically located in pockets of deeper soils where 
Astragalus jaegerianus does not grow. Because Astragalus jaegerianus 
occurs only under specific habitat conditions, we expect that the 
Bureau is unlikely to alter the use of those claims.
    We note, however, that one of the purposes of the designation of 
critical habitat is to provide for the conservation of listed species. 
If we, or the Bureau, identified an area within critical habitat that 
contained the PCEs and was threatened by mining activities, we would 
work with the Bureau and claimants to attempt to conserve the critical 
habitat values of that area. After the close of the comment period for 
this rule, we received information that ``prybar mining'' had been 
observed at one site on Coolgardie Mesa adjacent to known Astragalus 
jaegerianus plants (Silverman 2011 in litt.). Unlike the traditional 
gold panning or drywash methods of mining, this method uses a prybar to 
break apart rock outcrops; such outcrops are found adjacent to shallow-
soiled areas where Astragalus jaegerianus grows. We have notified the 
Bureau regarding this information and will work with them to evaluate 
potential impacts to the species.
    Comment 9: One commenter notes that ``nothing lasts forever'' and 
that we should use our resources to ``recultivate'' rather than 
preserving our world as a museum.
    Our Response: We recognize that the natural world is one of change. 
Astragalus jaegerianus is, however, threatened by human activities and 
the designation of critical habitat is one tool we can use to reduce or 
eliminate those threats. Our goal in conserving A. jaegerianus is not 
to create a static museum display, but to conserve the species and the 
ecosystem upon which it depends. We acknowledge that this ecosystem may 
change to the point that it no longer supports this species; however, 
our goal is to ensure that the changes are effected by the natural 
world, and not human activities.
    Comment 10: One commenter described the level of unauthorized OHV 
use that they have observed on Coolgardie Mesa, and notes that this use 
has killed several individuals of Astragalus jaegerianus. The commenter 
notes that this unauthorized use has increased from 2001 to 2010, and 
that a fence constructed by the Bureau has eliminated one area of 
extensive unauthorized use, but that the use has shifted to nearby 
areas.
    Our Response: We acknowledge that unauthorized off-highway use of 
areas occupied by Astragalus jaegerianus continues. We will continue to 
work with the Bureau to attempt to manage off-highway vehicle use 
within the area of critical habitat so public land users have access to 
Coolgardie Mesa in a manner that will facilitate the conservation of A 
jaegerianus.
    Comment 11: One commenter notes he has never encountered a Bureau 
ranger or other law enforcement officer on Coolgardie Mesa and 
anticipates that the Bureau or Service will install a fence to prevent 
access to public lands.
    Our Response: The Service is aware that the Bureau cannot maintain 
a constant law enforcement presence in the Coolgardie Mesa area; and we 
continue to work with the Bureau to attempt to increase the public's 
compliance with existing land-use regulations. We understand that the 
Bureau will continue to install fencing along designated open routes of 
travel to prevent unauthorized off-road vehicle use. To the best of our 
knowledge, the Bureau has no intention of installing a fence around the 
boundaries of critical

[[Page 29112]]

habitat, and the Service has no authority to install such a fence.
    Comment 12: One commenter urged the Service to think about how the 
potential development of large-scale solar and wind projects in the 
desert could affect Astragalus jaegerianus, and questioned whether more 
critical habitat should be set aside given these future losses of 
desert habitat.
    Our Response: Because extensive surveys have been conducted for 
Astragalus jaegerianus, including in areas outside the known geographic 
range of the species, we have a high level of certainty that A. 
jaegerianus does not occur in other areas of the Mojave Desert. 
Therefore, we anticipate that large-scale solar and wind energy 
projects across the Mojave Desert and future losses of desert habitat 
that may occur will not affect A. jaegerianus.
    With respect to the geographic area within the Mojave Desert where 
Astragalus jaegerianus occurs, management of this habitat was discussed 
in the April 1, 2010, proposed revised critical habitat designation (75 
FR 16404). Congress passed the Energy Policy Act of 2005; subsequently, 
the Bureau issued step-down orders that address more specifically how 
to implement the Energy Policy Act of 2005 (for example, Order No. 3283 
(DOI 2009a pp. 1-2) and Order No. 3285 (DOI 2009b pp. 1-3)). In 
addition, the Bureau has issued its own guidelines for implementing 
these policies and orders on Bureau lands. For instance, in 2008, the 
Bureau issued Instruction Memorandum (IM) 2009-043, the Wind Energy 
Development Policy, which includes guidelines for the development of 
wind energy projects within designated ACECs (Bureau 2008, p. 2). No 
alternative energy projects have been permitted or proposed within 
areas we are designating as critical habitat for A. jaegerianus, 
although the Bureau has received expressions of interest from wind 
energy companies that are seeking sites for wind energy development.
    Comment 13: One commenter reported seeing Astragalus jaegerianus 
outside of the area included in the proposed revised critical habitat 
designation, and included photos showing plants growing adjacent to OHV 
trails.
    Our Response: We examined the photos and determined the subject 
plants are not Astragalus jaegerianus, but a species of larkspur 
(Delphinium) in the buttercup family (Ranunculaceae).
    Comment 14: One commenter stated that the proposed revised critical 
habitat designation failed to include adequate critical habitat to 
protect and conserve all known extant occurrences of Astragalus 
jaegerianus.
    Our Response: As per guidance on determining critical habitat, we 
took into consideration all known extant occurrences of Astragalus 
jaegerianus (see previous April 6, 2004, proposed critical habitat 
designation (69 FR 18018), and the April 1, 2010, proposed revised 
critical habitat designation (75 FR 16404). All known occurrences of A. 
jaegerianus are included in our final critical habitat designation, 
with the exception of lands within Fort Irwin, which are exempted under 
section 4(a)(3) of the Act due to an approved INRMP that benefits the 
conservation of the species. See the Exemptions section below.
    Comment 15: One commenter asserts that the proposed revised 
critical habitat designation ignored the recovery goal of critical 
habitat because we did not include unoccupied habitat for recovery of 
the species (as per Gifford Pinchot Task Force v. U.S. Fish and 
Wildlife Service 378 F.3d 1059, 1069-70 (9th Circuit 2004) ruling). The 
commenter also refers to an analysis of listed species with and without 
critical habitat that indicates species with critical habitat are more 
likely to be recovering than species that lack the designation (and 
cites Taylor et al. 2005). The commenter suggests we should have used 
robust models for conservation design (and cites Burgman et al. 2001) 
to estimate additional areas important for recovery of the species.
    Our Response: A critical habitat designation does not need to 
include habitat unoccupied at the time of listing for recovery of the 
species. We can include such habitat areas if we determine that those 
lands are essential for the conservation of the species. However, in 
this case, we did not designate any areas outside the geographical area 
occupied by the species because: (1) We believe the size of the 
occupied areas are sufficient for the conservation of the species, and 
(2) based on extensive surveys for the species, these areas best 
represent what is needed for the conservation of the species.
    With respect to the comment that species with critical habitat are 
more likely to be recovering than species that lack the designation, we 
note that in Taylor et al. (2005), the authors opine that this may be 
the case because, in practice, land managers have often given 
significant protection to critical habitats. In the case of Astragalus 
jaegerianus, we note that the Bureau had already developed 
recommendations to establish ACECs on Coolgardie Mesa and Paradise, and 
provide conservation-oriented management prescriptions in the draft 
WMP, prior to the publication of our previous 2004 proposed critical 
habitat designation.
    With respect to using robust models for conservation design, we 
acknowledge it would be useful to have sufficient biological 
information to construct such a model. In this case, however, because 
we do not have the level of detail necessary to develop the type of 
model used in Burgman et al. (2001), we are using the best available 
scientific information to identify critical habitat, as described in 
the Methods section.
    Comment 16: One commenter stated that the critical habitat 
designation should be based on conservation biology principles and 
include sufficient lands to maintain connectivity and reduce 
fragmentation between populations (as cited in the literature, e.g., 
Debinski, and Holt 2000, Noss et al. 1997, Honnay and Jacquemyn 2006), 
especially since intervening habitat is important for pollinators. 
Furthermore, genetic studies on Astragalus jaegerianus indicate an 
already limited gene flow between populations, and further isolation 
may decrease genetic variation and ability of the species to adapt to 
environmental variation (Noss et al. 1997).
    Our Response: We agree that principles of conservation biology 
(including maintaining gene flow between populations) are useful to 
consider in identifying critical habitat. We have acknowledged their 
importance in our discussion under the Physical and Biological Features 
and Methods sections in this final revised critical habitat designation 
and the April 1, 2010, proposed revised critical habitat designation 
(75 FR 16404), and have used the best scientific information available 
in the development of this designation. The critical habitat 
designation in and of itself will do nothing one way or the other to 
affect the degree of fragmentation between populations.
    Comment 17: One commenter stated that it is important to include 
currently unoccupied habitat for the species in the critical habitat 
designation because of the potential effects of climate change on 
temperature and precipitation, even if these are not well-understood.
    Our Response: While climate change modeling has been undertaken for 
the Great Basin and Sonoran Desert regions (for example, see Redmond 
2010), very little modeling has been conducted for the Mojave Desert 
region to date. Recent studies, however, have discussed the effects of 
drought on desert shrubs

[[Page 29113]]

including localized diebacks and drought-pruning (for example, see 
Breshears et al. 2005, pp. 15144-15148; Hereford et al. 2006, pp. 13-
34; Haymerlynck and Huxman 2009, pp. 582-585; and McAuliffe and 
Haymerlynck 2010, pp.885-896). Huggins et al. (2010, pp. 120-128) 
studied the effects of recent drought on host shrubs that support 
Astragalus jaegerianus and found higher survival rates of A. 
jaegerianus in host shrubs with more intact canopies, providing the 
first evidence that recent drought conditions in the Mojave Desert 
could be indirectly affecting the survivorship of A. jaegerianus. 
However, based on the best available scientific information, we are 
unable to predict at this time additional areas that could support A. 
jaegerianus in the future.
    Comment 18: One commenter stated that the Service should not 
exclude areas that are covered by the Bureau's WMP from the critical 
habitat designation by using the logic that they do not need ``special 
management'' or through an exclusion through section 4(b)(2) of the 
Act; by definition, these areas qualify as critical habitat.
    Our Response: Our revised final critical habitat designation 
includes all Bureau lands that are included in the WMP.
    Comment 19: One commenter notes that Fort Irwin does not seem to be 
affected by the designation of critical habitat.
    Our Response: In 2004, Congress amended the Act to exempt DOD-
managed lands from critical habitat designations if the military 
installation has an INRMP that is determined to provide a benefit to 
the species. Fort Irwin has such a plan that the Service has reviewed 
and approved. We acknowledge that military training at Fort Irwin will 
result in the loss of habitat for Astragalus jaegerianus; however, the 
Army has also established two areas, totaling 6,772 ac (2,741 ha), 
where all training will be prohibited to protect this species. In 
another area, comprising 3,700 ac (1,497 ha), all vehicular traffic 
will be restricted to a limited number of roads to protect A. 
jaegerianus.

Comments Related to the Draft Economic Analysis

    Comment 20: One commenter stated that the economic analysis needs 
to include all habitat currently occupied by Astragalus jaegerianus, 
including lands on Fort Irwin, and not rely on the ``flawed'' proposed 
revised critical habitat designation as the basis for the analysis.
    Our Response: The DEA includes a discussion of all geographic areas 
occupied by the species; the areas occupied by the species on Fort 
Irwin are not included in the designation because they are exempted 
through section 4(a)(3)(b) of the Act.
    Comment 21: One commenter stated that the DEA incorrectly asserts 
that, ``[a]ll Federal land is managed for purposes of Astragalus 
jaegerianus conservation according to the WMP.'' The comment notes 
that, while some of the areas proposed for critical habitat are within 
ACECs designated by the WMP, these areas still allow some level of OHV 
use, causing habitat fragmentation and opportunities for illegal OHV 
use in the areas designated as critical habitat.
    Our Response: The final EA has been amended to state that all 
Bureau lands are managed according to the WMP for the purposes of 
Astragalus jaegerianus conservation. The objective of the WMP is to 
provide a conservation strategy for sensitive plant and animal species, 
including A. jaegerianus. The DEA does not assert that the management 
of the proposed critical habitat area according to the WMP precludes 
all OHV use within the boundaries of the proposed critical habitat 
area. Specifically, Section 3.2.2 of the DEA describes that vehicle 
routes within the proposed critical habitat area are classified under 
the WMP as open, closed, or limited, and all OHV-users must comply with 
the road designations. Section 3.2.2 further describes that because of 
damage related to unauthorized use, the Bureau has fenced portions of 
the West Paradise ACEC and the Coolgardie Mesa ACEC. As noted in the 
final EA, however, ``Vehicle use will not be altogether precluded, due 
to the need to provide access to the private lands and mining claims.'' 
The DOD is not permitting any activities on DOD lands within the 
boundaries of the ACECs, since the intent of their acquisition is to 
transfer them to the Bureau.
    Comment 22: A comment provided on the DEA states that there is some 
development pressure, particularly with regard to wind energy 
development, on private parcels within the ACEC areas until these 
parcels are acquired to consolidate public land ownership.
    Our Response: As described in Section 3.1 of the DEA, the private 
parcels within the proposed designation are primarily homesteads 
interspersed within the ACECs. No development activities, such as wind 
energy projects, have been subject to section 7 consultation under the 
Act regarding the Astragalus jaegerianus on these private lands. While 
it is possible that such projects may be proposed in the future, only 
those projects subject to a Federal nexus (i.e., projects permitted, 
funded, or carried out by a Federal agency) may result in section 7 
consultation with the Service. No such consultations have occurred for 
any projects on private lands in A. jaegerianus habitat to date. The 
probability of future wind energy projects being proposed on private 
lands within the proposed critical habitat area is uncertain; however, 
we do not anticipate any development of wind energy in the area. See 
also response to Comment 12 above and the Energy Supply, Distribution, 
or Use section below.
    Comment 23: Multiple comments state that any restrictions placed 
upon the proposed critical habitat area will result in losses to miners 
and OHV users. One of these comments further states that recreationists 
contribute millions of dollars to the regional economy. Another comment 
asserts the DEA does not correctly assess the effect of restrictions on 
certain land-use activities on local, regional, and national economies.
    Our Response: Section 3.2 of the DEA describes that land use 
activities, such as mining and OHV recreation, are currently restricted 
within the proposed critical habitat area, even absent critical habitat 
designation. The Federal lands in the proposed critical habitat area 
(79 percent of the proposed critical habitat) are managed for 
Astragalus jaegerianus conservation according to the WMP, which has 
limited access to the habitat area through closing some vehicle routes 
and fencing ACECs containing A. jaegerianus habitat. Section 3.3.1 of 
the DEA describes that, due to the existing management of habitat 
threats through the WMP, critical habitat for A. jaegerianus is not 
expected to result in additional conservation measures for the species 
on Federal lands. Section 3.3.2 of the DEA further describes that the 
private land uses within proposed critical habitat (small scattered 
parcels containing homesteads) are not likely to trigger section 7 
consultation or the California Environmental Quality Act (CEQA) 
requirements and, therefore, critical habitat designation of these 
lands is not anticipated to restrict land-use activities. Thus, the DEA 
does not expect critical habitat to generate any additional 
restrictions on land-use activities that will result in impacts to the 
local, regional, or national economies.
    Comment 24: A comment provided on the DEA suggests that, if there 
are no economic costs associated with the critical habitat designation 
due to the existing conservation measures for the

[[Page 29114]]

species, it is likely that there is no need for the designation. The 
comment further states that the designation must result in some 
economic impacts due to project delays and costs of consultation with 
the Service.
    Our Response: Even though there were no economic costs identified 
in the final EA associated with the critical habitat designation due to 
existing conservation measures for the species, the areas proposed for 
designation meet the definition of critical habitat, and therefore are 
included in the designation.
    Section 3.3.1 of the DEA describes that critical habitat 
designation is not expected to result in additional section 7 
consultations. The section also notes that any future consultations 
considering Astragalus jaegerianus will experience some incremental 
administrative costs to consider potential adverse modification of 
critical habitat. Due to the continued management of the critical 
habitat area by the Bureau according to the WMP, however, the DEA 
anticipates only a single, informal consultation with the Bureau 
regarding the pending land transfer between the DOD and the Bureau. The 
Bureau does not anticipate consulting with the Service on other land 
management activities, and no consultations are forecast to occur for 
activities on private lands. Thus, the DEA concludes that the 
incremental administrative costs of consultation associated with the 
critical habitat designation are most likely to be negligible; the DEA 
did not predict any project delays.
    Comment 25: One comment asserts that the DEA fails to calculate the 
benefits of the critical habitat designation, stating that all types of 
benefits should be assessed and quantified or, where quantification is 
inappropriate or too speculative, should be described qualitatively to 
allow for a comparison of costs to benefits.
    Our Response: As described in Section 3.4 of the DEA, critical 
habitat designation is not expected to generate: (1) Additional 
conservation efforts for Astragalus jaegerianus; (2) changes in 
economic activity; or (3) changes to land management. Absent any 
changes in the above, no incremental economic benefits are forecast to 
result from the designation of critical habitat.
    We believe the commenter is referring to benefits with respect to 
broader social values, which are not the same as economic impacts. 
While the Secretary must consider economic and other relevant impacts 
as part of the final decisionmaking process under section 4(b)(2) of 
the Act, the Act explicitly states that it is the government's policy 
to conserve all threatened and endangered species and the ecosystems 
upon which they depend. Thus we believe that explicit consideration of 
broader social values for the species and its habitat, beyond the more 
traditionally defined economic impacts, is not necessary, because 
Congress has already clarified the social importance of the species and 
its habitat. As a practical matter, we note the difficulty in being 
able to develop credible estimates of such values as they are not 
readily observed through typical market transactions. In sum, we 
believe that society places the utmost value on conserving any and all 
threatened and endangered species and the habitats upon which they 
depend and thus we need only to consider whether the economic impacts 
(both positive and negative) are significant enough to merit exclusion 
of any particular area without causing the species to go extinct.
    Comment 26: A comment provided on the DEA states that the document 
should explain the differences between the October 2004 DEA of the 
previous proposed critical habitat designation for Astragalus 
jaegerianus and the 2010 DEA of the proposed revised critical habitat 
designation. The 2004 analysis quantified both pre-designation 
(occurring from the time of listing to final critical habitat 
designation) and post-designation impacts, estimating $5.84 million to 
$13.01 million in post-designation impacts. The 2010 DEA, however, does 
not quantify any impacts. The comment further asserts that there must 
be some economic impact associated with fencing areas, effects on 
military activities, relocating OHV use, and precluding mining and 
energy projects.
    Our Response: Section 1.3 of the DEA describes the differences 
between the 2005 Economic Analysis (which is the final version of the 
October 2004 DEA referenced in this comment) and the 2010 DEA of the 
revised proposed critical habitat.
    First, the 2005 Economic Analysis and the 2010 DEA apply different 
analytic frameworks. The 2005 Economic Analysis quantified impacts of 
all Astragalus jaegerianus conservation in the areas being proposed as 
critical habitat, regardless of whether the conservation efforts were 
occurring due to critical habitat designation or other baseline 
regulations or conservation plans. As a result, the impacts quantified 
in the 2005 Economic Analysis include impacts due to such baseline 
protections as Federal listing of A. jaegerianus, implementation of the 
West Mojave Plan, and DOD conservation efforts for A. jaegerianus at 
the National Training Center at Fort Irwin (NTC). The 2010 DEA, 
however, focuses on those impacts resulting incrementally from critical 
habitat designation, as described in Chapter 2. That is, we do not 
include impacts of A. jaegerianus conservation occurring due to the 
implementation of baseline protections, plans, or regulations. Thus, 
impacts of activities such as fencing, limiting OHV activity, mining, 
and energy projects are not quantified in the 2010 DEA, as they are 
expected to occur regardless of the critical habitat designation.
    Second, the proposed critical habitat area considered in the 2005 
Economic Analysis was more than double the proposed critical habitat 
area being considered in the 2010 DEA. The primary reason for the 
difference in scope is that the Service's 2010 proposed revised 
critical habitat designation exempted 16,462 ac (6,662 ha) located 
within DOD's National Training Center at Fort Irwin from critical 
habitat designation. Because this area is exempt from critical habitat 
designation, no impacts of critical habitat are expected to occur on 
these lands.

Summary of Changes From the Proposed Revised Rule and Previous Critical 
Habitat Designation

    In our final revised critical habitat rules, we typically provide a 
Summary of Changes that compares the final revised critical habitat 
designation with the previously proposed revised critical habitat 
designation as well as with previously designated critical habitat. 
However, we designated zero (0) ac (0 ha) in our previous designation. 
Therefore, we are also providing comparison between the previously 
proposed critical habitat designation from April 6, 2004 (69 FR 18018), 
the proposed revised critical habitat designation from April 1, 2010 
(75 FR 16404), and this final revised critical habitat designation. 
There are no changes from the April 1, 2010, proposed revised critical 
habitat designation and this final revised critical habitat 
designation. This final revised critical habitat designation compares 
with the previous April 6, 2004, proposed designation (69 FR 18018) as 
follows:
    (1) In 2004, we proposed 9,627 ac (3,896 ha) of Bureau lands and 
4,427 ac (1,792 ha) of private lands. Currently we are designating 
9,888 ac (4,002 ha) of Bureau lands and 2,899 ac (1,169 ha) of private 
lands.
    (2) In 2004, we proposed 211 ac (85 ha) of lands inaccurately 
identified as

[[Page 29115]]

State lands. In this revised designation we are not including, through 
exemption under section 4(a)(3) of the Act, 211 ac (85 ha) of the NTC 
lands covered under the Army's INRMP. The land was inaccurately 
identified as State Lands in our 2004 proposed critical habitat rule.
    (3) In this revised designation we are including 1,282 ac (519 ha) 
of lands that were formerly in private ownership but have been acquired 
by the DOD for the purposes of conservation of Astragalus jaegerianus. 
These lands are not contiguous with the NTC and are not covered under 
the Army's INRMP.
    (4) We are not designating through exemption under section 4(a)(3) 
of the Act, 16,462 ac (6,662 ha) of the NTC lands covered under the 
Army's INRMP.
    Below, table 1 compares the acreage by land ownership included in 
the previous 2004 proposed critical habitat designation and the 
previous 2005 final critical habitat designation, with what we proposed 
in the 2010 revision and are including in this final revised critical 
habitat designation.

 Table 1--Comparison of Acreages Included in Previous and Current Rulemaking Actions for Astragalus jaegerianus
----------------------------------------------------------------------------------------------------------------
                                                          2005 final         2010 proposed
                                    2004 proposed       revision to the    revised critical   2011 final revised
 Name of critical habitat unit      designation of     critical habitat         habitat        critical habitat
                                  critical  habitat   designation (70 FR  designation (75 FR      designation
                                    (69 FR 18018)           18220)              16404)
----------------------------------------------------------------------------------------------------------------
Goldstone-Brinkman.............  9,906 ac (4,008 ha)  Excluded (all) 0    10,394 ac (4,206    10,394 ac (4,206
                                                       ac (0 ha).          ha) exempted due    ha) exempted due
                                                                           to INRMP on NTC     to INRMP on NTC
                                                                           lands.              lands.
Paradise.......................  6,828 ac (2,763 ha)  Excluded (all) 0    A portion exempted  A portion exempted
                                                       ac (0 ha).          due to INRMP on     due to INRMP on
                                                                           NTC lands, 6,068    NTC lands, 6,068
                                                                           ac (2,456 ha); a    ac (2,456 ha); a
                                                                           portion included    portion included
                                                                           964 ac (390 ha).    964 ac (390 ha).
Coolgardie.....................  12,788 ac (5,175     Excluded (all) 0    13,105 ac (5,303    13,105 ac (5,303
                                  ha).                 ac (0 ha).          ha) included.       ha) included.
    Totals.....................  29,522 ac (11,947    0 ac (0 ha).......  14,069 ac (5,693    14,069 ac (5,693
                                  ha).                                     ha).                ha).
----------------------------------------------------------------------------------------------------------------
Note: Land areas may not sum due to rounding.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered species or threatened species to the point at which the 
measures provided pursuant to the Act are no longer necessary. Such 
methods and procedures include, but are not limited to, all activities 
associated with scientific resources management such as research, 
census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot otherwise be relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies insure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner seeks or requests Federal 
agency funding or authorization of an action that may affect a listed 
species or critical habitat, the consultation requirements of section 
7(a)(2) of the Act would apply, but even in the event of a destruction 
or adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time it was listed 
must contain physical and biological features (PBFs) which are 
essential to the conservation of the species and which may require 
special management considerations or protection. Critical habitat 
designations identify, to the extent known using the best scientific 
and commercial data available, those PBFs that are essential to the 
conservation of the species (such as space, food, cover, and protected 
habitat), focusing on the principal biological or physical constituent 
elements (primary constituent elements) within an area that are 
essential to the conservation of the species (such as roost sites, 
nesting grounds, seasonal wetlands, water quality, tide, soil type). 
Primary constituent elements are the elements of PBFs that, when laid 
out in the appropriate quantity and spatial arrangement to provide for 
a species' life-history processes, are essential to the conservation of 
the species.
    Under the Act, we can designate critical habitat in areas outside 
the geographical area occupied by the species at the time it is listed, 
upon a determination that such areas are essential for the conservation 
of the species. According to regulations at 50 CFR 424.12, we designate 
critical habitat in areas outside the geographical area presently 
occupied by a species only when a designation limited to its present 
range would be inadequate to ensure the conservation of the species. 
When the best available scientific data do not demonstrate that the

[[Page 29116]]

conservation needs of the species require such additional areas, we 
will not designate critical habitat in areas outside the geographical 
area occupied by the species. An area currently occupied by the species 
but that was not occupied at the time of listing may, however, be 
essential to the conservation of the species and may be included in the 
critical habitat designation.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species and 
any previous designation of critical habitat. Additional information 
sources may include the recovery plan, 5-year reviews for the species, 
articles in peer-reviewed journals, conservation plans developed by 
States and counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials and expert opinion or 
personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. Climate change will be a particular challenge for 
biodiversity because the interaction of additional stressors associated 
with climate change and current stressors may push species beyond their 
ability to survive (Lovejoy 2005, pp. 325-326). The synergistic 
implications of climate change and habitat fragmentation are the most 
threatening facet of climate change for biodiversity (Hannah et al. 
2005, p. 4). Current climate change predictions for terrestrial areas 
in the Northern Hemisphere indicate warmer air temperatures, more 
intense precipitation events, and increased summer continental drying 
(Field et al. 1999, pp. 1-3; Hayhoe et al. 2004, p. 12422; Cayan et al. 
2005, p. 6; Intergovernmental Panel on Climate Change 2007, p. 1181). 
Climate change may lead to increased frequency and duration of severe 
storms and droughts (Golladay et al. 2004, p. 504; McLaughlin et al. 
2002, p. 6074; Cook et al. 2004, p. 1015).
    Some efforts have been made to predict the effects of climate 
change in the Western States region (see Redmond 2010). However, 
predictions of climatic conditions for smaller subregions, such as the 
Mojave Desert in California, remain uncertain. It is unknown at this 
time if climate change in the Mojave Desert in California will result 
in a warmer trend with localized drying, higher precipitation events, 
or other effects. Thus, the information currently available on the 
effects of global climate change and increasing temperatures does not 
make sufficiently precise estimates of the location and magnitude of 
the effects. Nor are we currently aware of any climate change 
information specific to the habitat of Astragalus jaegerianus that 
would indicate what areas may become important to the species in the 
future. Therefore, we are unable to determine what additional areas, if 
any, may be appropriate to include in the final revised critical 
habitat for this species to respond to potential effects of climate 
change.
    We specifically requested information from the public on the 
currently predicted effects of climate change on Astragalus jaegerianus 
and its habitat, and we have included a discussion of potential effects 
of the current drought on host shrubs and indirect effects on A. 
jaegerianus (Huggins et al. 2010, pp. 120-128). Should drought 
conditions continue in the Mojave Desert, regardless of whether it is 
caused by climate change or other short-term weather variation, it may 
affect the long-term persistence of A. jaegerianus. We recognize that 
critical habitat designated at a particular point in time may not 
include all of the habitat areas that we may later determine are 
necessary for the recovery of the species. For these reasons, a 
critical habitat designation does not signal that habitat outside the 
designated critical habitat area is unimportant or may not be required 
for recovery of the species.
    Areas that are important to the conservation of the species, both 
inside and outside the critical habitat designation, will continue to 
be subject to: (1) Conservation actions implemented under section 
7(a)(1) of the Act, (2) regulatory protections afforded by the 
requirement in section 7(a)(2) of the Act for Federal agencies to 
insure their actions are not likely to jeopardize the continued 
existence of any endangered or threatened species, and (3) the 
prohibitions of section 9 of the Act if actions occurring in these 
areas may affect the species. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. These 
protections and conservation tools will continue to contribute to 
recovery of this species. Similarly, critical habitat designations made 
on the basis of the best available information at the time of 
designation will not control the direction and substance of future 
recovery plans, habitat conservation plans (HCPs), or other species 
conservation planning efforts if new information available at the time 
of these planning efforts calls for a different outcome.

Physical and Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied at the time of listing to propose as 
critical habitat, we consider the physical and biological features that 
are essential to the conservation of the species and that may require 
special management considerations or protection. These include, but are 
not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic, geographical, and ecological 
distributions of a species.
    We derive the specific PBFs required for Astragalus jaegerianus 
from studies of this species' habitat, ecology, and life history as 
described in the Critical Habitat section of the proposed revised rule 
to designate critical habitat published in the Federal Register on 
April 1, 2010 (75 FR 16404), and in the information presented below. 
Additional information can be found in the final listing rule published 
in the Federal Register on October 6, 1998 (63 FR 53596), and the 
previous proposed critical habitat designation (69 FR 18018; April 6, 
2004).
    The revised critical habitat is designed to provide sufficient 
habitat to maintain self-sustaining populations of

[[Page 29117]]

Astragalus jaegerianus throughout its range and to provide those 
habitat components essential for the conservation of the species. We 
have determined for the revised critical habitat that A. jaegerianus 
requires the following PBFs: (1) Habitat for individual and population 
growth, including sites for germination, pollination, reproduction, 
pollen and seed dispersal, and seed banks; (2) sites for the host 
plants that provide structural support for A. jaegerianus; (3) 
intervening areas that allow gene flow and provide connectivity or 
linkage within segments of the larger population; and (4) areas that 
provide basic requirements for growth, such as water, light, and 
minerals.
Primary Constituent Elements for Astragalus jaegerianus
    Under the Act and its implementing regulations, we are required to 
identify the PBFs essential to the conservation of Astragalus 
jaegerianus in areas occupied at the time of listing, focusing on the 
features' PCEs. We consider PCEs to be the elements of the PBFs that 
are essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the PCEs specific to 
Astragalus jaegerianus are:
    (1) Shallow soils at elevations between 3,100 and 4,200 feet (ft) 
(945 to 1,280 meters (m)) derived primarily from Jurassic or Cretaceous 
granitic bedrock, and less frequently on soils derived from diorite or 
gabbroid bedrock, or on granitic soils overlain by scattered rhyolitic 
cobble, gravel, and sand.
    (2) Host shrubs at elevations between 3,100 and 4,200 ft (945 to 
1,280 m). The primary host shrubs include but are not limited to: 
Thamnosma montana (turpentine bush), Ambrosia dumosa (burro bush), 
Eriogonum fasciculatum ssp. Polifolium (California buckwheat), 
Ericameria cooperi var. cooperi (golden bush), Ephedra nevadensis 
(Mormon tea), and Salazaria mexicana (paperbag bush) that are usually 
found in mixed-desert-shrub communities.
    With this designation of critical habitat, we intend to identify 
the PBFs essential to the conservation of the species, through the 
identification of the appropriate quantity and spatial arrangement of 
the PCEs sufficient to support the life-history processes of the 
species. All units and subunits designated as critical habitat are 
currently occupied by Astragalus jaegerianus and contain the PCEs in 
the appropriate quantity and spatial arrangement sufficient to support 
the life-history needs of the species.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain the features that are essential to the conservation 
of the species and may require special management considerations or 
protection.
    A detailed discussion of threats affecting the PBFs essential to 
the conservation of Astragalus jaegerianus, and that may require 
special management considerations or protection, can be found in the 
previous proposed critical habitat designation of April 6, 2004 (69 FR 
18018), and the 5-year review (Service 2008, pp. 1-21). In summary, 
these threats include surface mining, unauthorized OHV recreation, 
military training activities, competition with nonnative species, and 
habitat fragmentation. In addition, the Bureau has received interest 
from wind energy companies that are seeking sites for wind energy 
development, although no specific plans for the areas occupied by 
Astragalus jaegerianus are currently being considered for any energy 
development projects.
    The areas included in this revised critical habitat designation 
will require some level of management to address the current and future 
threats to Astragalus jaegerianus and to maintain the PBFs essential to 
the conservation of the species. In units that were occupied at the 
time of listing and are currently occupied, special management will be 
needed to ensure that designated habitat is able to provide areas for 
germination, pollination, reproduction, and sites for the host plants 
that provide structural support for A. jaegerianus; intervening areas 
that allow gene flow and provide connectivity or linkage within 
segments of the larger population; and areas that provide basic 
requirements for growth, such as water, light, and minerals.
    There will be impacts from military activities on Astragalus 
jaegerianus and its habitat at NTC. We will not discuss these impacts 
any further, because areas where A. jaegerianus occurs on NTC are being 
exempted (see Exemptions section below). Army-owned lands in the 
Paradise and Coolgardie units that are not part of the NTC were 
purchased for A. jaegerianus conservation and will not be impacted by 
military activities.
    The designation of critical habitat does not imply that lands 
outside of critical habitat do not play an important role in the 
conservation of Astragalus jaegerianus. Activities with a Federal nexus 
that may affect those areas outside of critical habitat, such as 
surface mining, off-highway vehicle recreation, land transfer programs, 
and military training activities, are still subject to review under 
section 7 of the Act, if they may affect A. jaegerianus. The 
prohibitions of section 9 of the Act applicable to plants also continue 
to apply both inside and outside of designated critical habitat. With 
respect to plants, section 9 of the Act includes among its prohibitions 
the import or export of listed species, the removal to possession or 
malicious damage or destruction of species on areas under Federal 
jurisdiction, or the removal, damage, or destruction of species in 
violation of State law (16 U.S.C. 1538(a)(2)).

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we used the best 
scientific and commercial data available to designate critical habitat. 
We reviewed available information pertaining to the habitat 
requirements of this species. In accordance with the Act and its 
implementing regulation at 50 CFR 424.12(e), we considered whether 
designating additional areas--outside those currently occupied as well 
as those occupied at the time of listing--is necessary to ensure the 
conservation of the species. We are not designating any areas outside 
the geographical area occupied by the species because occupied areas 
are sufficient for the conservation of the species.
    The material we used to determine critical habitat for Astragalus 
jaegerianus included the 1998 final listing rule (63 FR 53596; October 
6, 1998), the 2004 proposed critical habitat designation (69 FR 18018; 
April 6, 2004), data in reports submitted during section 7 
consultations and by biologists holding section 10(a)(1)(A) recovery 
permits, research published in peer-reviewed articles and presented in 
academic theses and agency reports, the 5-year review for A. 
jaegerianus (Service 2008, pp. 1-21), Army surveys of 2001 (Charis 
2002, pp. 1-85), and regional geographic information system (GIS) 
coverages. We analyzed this information to develop criteria for 
identifying areas that contain the PCEs in the appropriate quantity and 
spatial arrangement essential to the conservation of the A. jaegerianus 
that may require special management considerations or protection, or 
that are essential for the conservation of A. jaegerianus. Extensive 
surveys funded by the Army were conducted in 2001 (Charis 2002).

[[Page 29118]]

The 2001 surveys were conducted under optimal growing conditions for 
the species and contributed greatly to our knowledge of the overall 
distribution and abundance of A. jaegerianus.
    We are designating all habitat occupied by Astragalus jaegerianus 
during the extensive Army surveys conducted in 2001, other than those 
lands exempted under section 4(a)(3) of the Act (see discussion in 
Exemptions section below). Because the species is long-lived and the 
2001 surveys were conducted under optimal conditions, we believe the 
survey results capture the fullest expression of A. jaegerianus and 
provide an accurate representation of habitat occupied by the species.
Methods
    As required by section 4(b) of the Act and 50 CFR 424.12, we used 
the best scientific information available in determining which areas 
within the geographic area occupied by the species at the time of 
listing contain the features essential to the conservation of 
Astragalus jaegerianus, and which areas outside the geographic area 
occupied at the time of listing are essential for the conservation of 
the species. We reviewed information used to prepare the 2004 proposed 
critical habitat rule (69 FR 18018; April 6, 2004); the 5-year review 
(Service 2008, pp. 1-21); published peer-reviewed articles; data from 
our files that we used for listing the species; geologic maps 
(California Geologic Survey 1953); recent biological surveys and 
reports, particularly from the Army surveys of 2001 (Charis 2002, pp. 
1-85); additional information provided by the Army, the Bureau, and 
other interested parties; and discussions with botanical experts. We 
also conducted site visits to all three known general geographic areas 
that are occupied and are considered essential to the conservation of 
the species.
    The long-term probability of the survival and recovery of 
Astragalus jaegerianus is dependent upon: The protection of existing 
population sites; the maintenance of ecologic functions within these 
sites, including connectivity within and between populations in close 
geographic proximity to one another (to facilitate pollinator activity 
and seed dispersal mechanisms); and keeping these areas free of major 
ground-disturbing activities. The areas we are proposing to designate 
as critical habitat provide all of the features essential for the 
conservation of A. jaegerianus.
    In our delineation of the proposed critical habitat units in 2004, 
we initially selected three areas to provide for the conservation of 
Astragalus jaegerianus that comprise the four specific population sites 
where it is known to occur. As discussed under the ``Current 
Distribution'' section of the April 1, 2010 proposed revised critical 
habitat rule (75 FR 16404), at the time of listing, A. jaegerianus was 
known to occur from Brinkman Wash and Montana Mine (the populations at 
these two sites were subsequently determined to be contiguous and thus 
are considered one population), Paradise Wash, and Coolgardie; due to 
our understanding of the lifespan of the species, we also conclude that 
the Goldstone site was occupied at the time of listing even though this 
was not confirmed until 3 years subsequent to listing. All four 
populations are important because A. jaegerianus exhibits life-history 
attributes, including variable seed production, low germination rates, 
and habitat specificity in the form of a dependence on a co-occurring 
organism (host shrubs), that make it vulnerable to extinction (see 
previous rules (69 FR 18018 and 70 FR 18220) and Gilpin and Soule 1986, 
p. 33; Keith 1998, p. 1080). We believe the 2004 proposed critical 
habitat designation (69 FR 18018) is of sufficient size to maintain 
landscape-scale processes and to minimize the secondary impacts 
resulting from human occupancy and human activities occurring in 
adjacent areas. We mapped the units with a degree of precision 
commensurate with the best available information and the size of the 
unit.
    Of principle importance in the process of delineating the proposed 
critical habitat units are data in a GIS format provided by the Army, 
depicting the results of Army field surveys for Astragalus jaegerianus 
conducted in 2001 (Charis 2002, pp. 1-85). These data consisted of 
three files depicting the locations of transects that were surveyed for 
A. jaegerianus, the locations of A. jaegerianus individuals found 
during the surveys, and minimum convex polygons (MCP) calculated to 
represent the outer bounds of A. jaegerianus populations (Charis 2002, 
pp. 1-85).
    For mapping proposed critical habitat units, we proceeded through a 
multi-step process. First, we started with the MCPs that had been 
calculated by the Army (Charis 2002, pp. 1-85) based on the presence of 
documented individuals. We then expanded these boundaries outward from 
the edge of each of the four populations by a distance of 0.25 mi (0.4 
km). We did this to include Astragalus jaegerianus individuals that are 
part of these populations, but were not noted during surveys. The basis 
for determining that these additional land areas are occupied is as 
follows:
    (1) This habitat has the appropriate elevational range, and 
includes the granitic soils and plant communities that support host 
plants required by A. jaegerianus;
    (2) botanists involved in the Army surveys stated that ``the 
estimate of [A. jaegerianus] distribution is a minimum'' (SAIC 2003, 
pp. 1-2), and that additional individuals of A. jaegerianus most likely 
occurred on the fringes of the MCPs (SAIC 2003, pp. 1-2);
    (3) this 0.25-mi (0.4-km) distance is commensurate in scale with 
the distance between transects where individuals were found and the 
distance between individuals along one transect, and it is well within 
the distance that can be traversed by pollinators and seed dispersers;
    (4) mapping errors during the 2001 surveys indicated that the 
location of individuals did not match up precisely with the location of 
the transect boundaries (Charis 2002 pp. 36-37); and
    (5) limited surveys were conducted in 2003, and despite the 
unfavorable climatic conditions for A. jaegerianus, 13 additional 
individuals were located outside the MCPs (SAIC 2003 pp. 1-2). Three of 
the four areas where new plants were found were within the 0.25-mi 
(0.4-km) distance around the MCPs.
    We next removed areas on the margins of the resultant polygons 
where we determined, by referring to digital raster graphic maps, the 
topography is either too steep or the elevation too high to support 
additional Astragalus jaegerianus individuals. This boundary 
modification involved editing the eastern and southeastern edge of the 
Coolgardie MCP and a cirque-shaped sliver from the central portion of 
the southern boundary of the Brinkman-Montana MCP.
    For the Goldstone and Brinkman-Montana populations, expansion of 
the MCP boundaries by 0.25 mi (0.4 km) left a narrow corridor (about 
0.125 mi- (0.2 km-) wide) between the revised polygons. We chose to 
bridge the gap between the two polygons by incorporating the 
intervening habitat that is within the geographic area occupied by the 
species between the Goldstone and Brinkman-Montana polygons into a 
single critical habitat unit, called the Goldstone-Brinkman unit. We 
did this for several reasons: The intervening habitat between the two 
MCPs contains the PCEs with the appropriate elevational range, granitic 
soils, and plant communities (based on topographic maps, geologic maps, 
and aerial photos) that Astragalus jaegerianus requires; there were no

[[Page 29119]]

obvious physical barriers between the two MCPs; the distance between 
the two closest A. jaegerianus individuals across the gap of the two 
MCPs was smaller than the distance between individuals within the MCPs; 
and the distance between the two MCPs was small enough that it could be 
easily traversed by a pollinator with a potential flight distance of 
0.6 mi (1 km), or a seed disperser such as certain small mammals and 
birds. Granitic soil and the plant community in the intervening area 
between the two polygons also provide habitat for the pollinators that 
visit A. jaegerianus flowers, as well as habitat for seed dispersers 
(birds, small mammals, and large insects) that carry seed between the 
coppices of suitable host shrubs, and the area functions as long-term 
storage for the soil seedbank of A. jaegerianus.
    Finally, the boundaries of the critical habitat units were modified 
slightly in the process of creating the legal descriptions of the 
critical habitat units. This process consisted of overlaying the 
critical habitat units with grid lines spaced at 100-m intervals; the 
grid lines following the Universal Transverse Mercator (UTM) coordinate 
system ties to the North American Datum of 1927. Vertices defining the 
critical habitat boundary polygon were then moved to the closest vertex 
on the 100-m UTM grid lying inside of the critical habitat boundary. 
Vertices not necessary to define the shape of the boundary polygon were 
deleted. Changing the boundaries in this fashion serves two purposes: 
(1) It creates a list of coordinates that is easier for the public to 
use when looking at USGS 7.5-minute topographic maps, and (2) it 
minimizes the number of coordinates necessary to define the shapes of 
the critical habitat units.
    When determining critical habitat boundaries within this final 
rule, we made every effort to avoid including developed areas such as 
lands covered by buildings, pavement, and other structures because such 
lands lack PBFs for Astragalus jaegerianus. The scale of the maps we 
prepared under the parameters for publication within the Code of 
Federal Regulations may not reflect the exclusion of such developed 
lands. In addition, old mining sites, where the soil profile and 
topography have been altered such that no native vegetation can grow, 
also do not and likey will not contain any of the PBFs for A. 
jaegerianus in the future. Any such lands inadvertently left inside 
critical habitat boundaries shown on the maps of this final rule have 
been excluded by text in the rule and are not designated as critical 
habitat. Therefore, a Federal action involving these lands will not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the PBFs in the adjacent critical habitat.
    For the proposed revised critical habitat designation of April 1, 
2010 (75 FR 16404), we made no changes to the boundaries of the 
critical habitat units that were proposed in 2004 (69 FR 18018), other 
than to exempt DOD lands on Fort Irwin that are included in the INRMP 
(see Exemptions section below). Other changes between the previous 2004 
proposed critical habitat designation and the 2010 proposed revised 
critical habitat designation address changes and corrections in the 
acreage attributed to various landowners; these changes are detailed in 
the Summary of Changes From the Proposed Revised Rule and Previous 
Critical Habitat Designation section above.
    We are designating as critical habitat lands that we have 
determined are occupied at the time of listing and contain sufficient 
PBFs to support life-history processes essential for the conservation 
of Astragalus jaegerianus and for which special management may be 
required.
    Two units are being designated based on sufficient elements of PBFs 
being present to support Astragalus jaegerianus life processes. Both 
units contain all of the identified elements of PBFs and support 
multiple life processes; the Paradise Unit supports a portion of the 
Paradise population, and the Coolgardie Unit supports all of the 
Coolgardie population.

Final Revised Critical Habitat Designation

    We are designating two units as critical habitat for Astragalus 
jaegerianus. The critical habitat areas described below constitute our 
best assessment at this time of areas that meet the definition of 
critical habitat. Those two units are: (1) Paradise, and (2) 
Coolgardie. Table 2 shows the land ownership and approximate area of 
each critical habitat unit. Both units are within an area that is north 
of the town of Barstow in the Mojave Desert in San Bernardino County, 
California, were occupied at the time of listing, are currently 
occupied, and contain the PCEs that sustain A. jaegerianus. We are 
exempting the previously proposed Goldstone-Brinkman unit and a large 
portion of the previously proposed Paradise unit (from the 2004 
proposed critical habitat rule (69 FR 18018)) because NTC now has a 
Service-approved INRMP that benefits the species. Please see discussion 
in Exemptions section below for a description of the importance of 
these exempted areas to A. jaegerianus.

                                          Table 2--Designated Critical Habitat Units for Astragalus jaegerianus
                                       [Areas estimates reflect all land within critical habitat unit boundaries.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Bureau of Land
             Unit name                Army lands  (Federal)   Management  (Federal)       State lands           Private lands              Totals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Paradise...........................  318 ac (129 ha).......  409 ac (166 ha).......  0 ac (0 ha)..........  237 ac (96 ha).......  964 ac (390 ha).
Coolgardie.........................  964 ac (390 ha).......  9,479 ac (3,836 ha)...  0 ac (0 ha)..........  2,662 ac (1,077 ha)..  13,105 ac (5,303 ha).
    Totals.........................  1,282 ac (519 ha).....  9,888 ac (4,002 ha)...  0 ac (0 ha)..........  2,899 ac (1,173 ha)..  14,069 ac (5,693 ha).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Approximate acres have been converted to hectares (1 ac = 0.4047 ha). Fractions of acres and hectares have been rounded to the nearest whole
  number. Totals are sums of units. Area sizes may not sum due to rounding.

    We present brief descriptions of both units, and reasons why they 
meet the definition of critical habitat for Astragalus jaegerianus 
below.
Paradise Unit
    The Paradise unit consists of approximately 7,032 ac (2,846 ha). We 
are designating critical habitat for Astragalus jaegerianus on 964 ac 
(390 ha). Of this, 318 ac (129 ha) is Army-owned land adjacent to the 
NTC (off Fort Irwin), 237 ac (96 ha) is privately owned land located 
adjacent to the NTC, and approximately 409 ac (166 ha) is on adjacent 
Federal lands managed by

[[Page 29120]]

the Bureau. The remaining 6,068 acres (2,456 ha) within this unit are 
on Army lands at NTC subject to the INRMP and have been exempted under 
section 4(a)(3) of the Act (see Exemptions section below).
    As part of the plan amendments to the CDCA, the Bureau in 2005 
designated an area of approximately 1,000 ac (405 ha) as part of the 
West Paradise Valley Conservation Area. It generally overlaps with the 
964 ac (390 ha) in this designation of critical habitat. The boundary 
of the West Paradise Valley Conservation Area encompasses some Army 
lands not on NTC and some private inholdings. This unit contains the 
PBFs essential to the conservation of the species. The unit supports a 
portion of the Paradise population which is one of the four populations 
of Astragalus jaegerianus. In 2001, approximately 1,667 individuals 
were observed in this population. The land within this unit supports 
the granitic soils (PCE 1) and host shrubs (PCE 2) that are necessary 
for the growth, reproduction, and establishment of A. jaegerianus 
individuals. These granitic soils and host shrubs also provide habitat 
for (1) the pollinators that visit A. jaegerianus flowers that result 
in the production of seed; (2) seed dispersers (birds, small mammals, 
and large insects) that carry seed between the coppices of suitable 
host shrubs; and (3) sites for long-term storage for seedbank of A. 
jaegerianus.
    The Paradise unit may require special management considerations or 
protection due to the threats to the species and its habitat posed by: 
Invasions of nonnative plants such as Sahara mustard (Brassica 
tournefortii) and other plant species that may take over habitat for 
the species; habitat fragmentation that detrimentally affects plant-
host plant and plant-pollinator interactions (i.e., composition and 
structure of the desert scrub community), leading to a decline in 
species reproduction and increasing susceptibility to nonnative plant 
invasion; and vehicles that cause direct and indirect impacts, such as 
excessive dust, to the plant. Habitat for Astragalus jaegerianus in the 
Paradise unit has been fragmented to a minor extent. We anticipate 
that, in the future, habitat fragmentation may increase, composition 
and structure of the plant community may be altered by the spread of 
nonnative plants, and direct and indirect effects of dust may increase. 
All of these threats would render the habitat less suitable for A. 
jaegerianus, and special management may be needed to address them.
Coolgardie Unit
    The Coolgardie unit consists of approximately 13,105 ac (5,303 ha), 
primarily on Federal lands managed by the Bureau. The designated 
Coolgardie critical habitat unit overlaps to a great extent with the 
Bureau's Coolgardie Mesa Conservation Area (CMCA). Of this acreage, 
approximately 9,479 ac (3,836 ha) are managed by the Bureau, and 
approximately 964 ac (390 ha) were formerly in private ownership, but 
have been acquired by the Army since 2005 for the purposes of 
conservation of Astragalus jaegerianus. These lands are not contiguous 
with the NTC and are not covered under the Army's INRMP. Parcels of 
private land are scattered throughout this unit and total approximately 
2,662 ac (1,077 ha). Some of these parcels may be acquired by the 
Bureau and added to the CMCA. This unit supports one of only four 
populations of A. jaegerianus. In 2001, surveyors observed 2,014 plants 
in this population.
    The land within this unit contains the PBFs essential to the 
conservation of the species and supports the granitic soils (PCE 1) and 
host shrubs (PCE 2) that are necessary for the growth, reproduction, 
and establishment of Astragalus jaegerianus individuals. It should be 
noted that the proposed critical habitat does not include the ``donut 
hole'' in the center of the unit, where granitic soils are absent. 
Within the proposed unit, the granitic soils and host shrubs: (1) 
Provide habitat for the pollinators that visit A. jaegerianus flowers 
and result in the production of seed; (2) provide habitat for seed 
dispersers (birds, small mammals, and large insects) that carry seed 
between the coppices of suitable host shrubs; and (3) provide for long-
term seedbank storage for A. jaegerianus.
    The Coolgardie unit may require special management considerations 
or protection due to the threats to the species and its habitat posed 
by: Invasions of nonnative plants such as Sahara mustard (Brassica 
tournefortii) and other plant species that may take over habitat for 
the species; habitat fragmentation that detrimentally affects plant-
host plant and plant-pollinator interactions (composition and structure 
of the desert scrub community), leading to a decline in species 
reproduction and increasing susceptibility to nonnative plant invasion; 
vehicles that cause direct and indirect impacts, such as excessive 
dust, to the plant; and limited mining activities that can lead to 
changes in habitat conditions (e.g., decreases in plant cover, and 
increases in nonnative species). Habitat for Astragalus jaegerianus in 
the Coolgardie unit has been fragmented to a moderate extent from 
current and historical mining and from off-road vehicle use, and non-
native species have been introduced into the area. We anticipate that 
in the future, habitat fragmentation may increase, and composition and 
structure of the plant community may be altered by the continued spread 
of nonnative plants. Due to increased recreational pressure, off-road 
vehicle use has increased in the past 4 years. All of these threats 
would render the habitat less suitable for A. jaegerianus, and special 
management may be needed to address them.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out is 
not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action that is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Court of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442F (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    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. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33

[[Page 29121]]

U.S.C. 1251 et seq.) or a permit from the Service under section 10 of 
the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, Tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) of the Act through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying 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 we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies may sometimes need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the PBFs to an 
extent that appreciably reduces the conservation value of critical 
habitat for Astragalus jaegerianus. As discussed above, the role of 
critical habitat is to support life-history needs of the species and 
provide for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Examples of activities that, when authorized, funded, or carried 
out by a Federal agency, may affect critical habitat and therefore 
should result in consultation for Astragalus jaegerianus include, but 
are not limited to:
    (1) Activities that would disturb the upper layers of soil, 
including disturbance of the soil crust, soil compaction, soil 
displacement, and soil destabilization. These activities include, but 
are not limited to, military-related and construction activities of the 
Army on its lands or lands under its jurisdiction not covered by an 
INRMP; activities of the Bureau on its lands or lands under its 
jurisdiction, including livestock grazing, fire management, and 
recreational use; and habitat restoration projects on private lands 
receiving funding from Federal agencies, such as from the Natural 
Resources Conservation Service (NRCS), that would include mechanical 
disturbance such as would occur with tracked vehicles, heavy-wheeled 
vehicles, vehicles used in restoration projects (e.g., rippers or 
discers), off-highway vehicles (including motorcycles), and mining 
activities, such as ``club mining'' with drywashers and sluices. These 
activities could alter soil conditions in ways that would affect the 
germination of seed, the growth of individual plants, and successful 
reproduction, and result in direct or cumulative adverse effects to 
these individuals and their life cycles.
    (2) Activities that appreciably degrade or destroy the native 
desert scrub communities that support host shrubs, including but not 
limited to military-related and construction activities of the Army on 
its lands or lands under its jurisdiction not covered by an INRMP; 
activities of the Bureau on its lands or lands under its jurisdiction, 
including livestock grazing, fire management, and recreational use; and 
habitat restoration projects on private lands receiving funding from 
Federal agencies, such as from the NRCS that would include mechanical 
disturbance such as would occur with tracked vehicles, heavy-wheeled 
vehicles, vehicles used in restoration projects (e.g., rippers or 
discers), off-highway vehicles (including motorcycles), and mining 
activities such as ``club mining'' with drywashers and sluices. These 
activities could alter the plant communities, particularly the host 
shrubs and habitat for pollinators, in ways that would affect the 
germination of seed, the growth of individual plants, and successful 
reproduction, and result in direct or cumulative adverse effects to 
these individuals and their life cycles.
    (3) Activities that would appreciably degrade the normal metabolic 
processes in individual plants through aerial application of chemical 
compounds, such as the application or runoff of chemical or biological 
agents into the air, onto the soil, or onto native vegetation, 
including substances such as pesticides, herbicides, fertilizers, 
tackifiers, obscurants, and chemical fire retardants used by the 
Bureau, the Army, NRCS, and the Animal and Plant Health Inspection 
Service, in the control of nonnative plant and animal species, 
firefighting, military training activities, and restoration activities. 
These activities could interfere with normal plant metabolic processes 
such as gas exchange in leaf tissues, and water and mineral uptake in 
root tissues. In addition, aerial spraying can affect reproduction 
through a reduction in successful pollen transfer; pollinator 
availability may also be affected, which, could in turn affect seed 
set.
    As discussed previously in the revised proposed rule (75 FR 16404), 
we completed consultation with both the Army and the Bureau on 
activities that were being proposed on their lands. We consulted with 
the Army on its proposed addition of training lands on the NTC (Charis 
2003; Service 2005); see

[[Page 29122]]

discussion below under ``Approved INRMPs''. We also consulted with the 
Bureau as the lead Federal agency on the plan amendments to the CDCA 
plan (Bureau 2005; Service 2005); for a complete discussion of actions 
and conservation measures undertaken through this consultation, please 
refer to the revised proposed critical habitat designation (75 FR 
16404).
    Where Federally listed wildlife species occur on private lands 
proposed for development, any habitat conservation plans submitted by 
the applicant to secure an incidental take permit, under section 
10(a)(1)(B) of the Act, would be subject to the section 7 consultation 
process. The Superior-Cronese Critical Habitat Unit for the desert 
tortoise (Gopherus agassizii), a species that is listed as threatened 
under the Act, overlaps with the distribution of Astragalus jaegerianus 
in a portion of the Paradise population of the species. We anticipate 
that most of the activities occurring on private lands within the range 
of A. jaegerianus will eventually be included under the umbrella of the 
HCP to be prepared by the County of San Bernardino. However, there may 
be activities proposed for private lands that either need to be 
completed prior to the approval of the HCP, or there may be a proposed 
activity that is not covered by the HCP and, therefore, may require a 
separate habitat conservation plan.

Exemptions

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

    The Sikes Act Improvement Amendment of 1997 (Sikes Act) (16 U.S.C. 
670a) required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an INRMP by November 17, 2001. An INRMP integrates 
implementation of the military mission of the installation with 
stewardship of the natural resources found on the base. Each INRMP 
includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    We consult with the military on the development and implementation 
of INRMPs for installations with listed species. We analyzed INRMPs 
developed by military installations located within the range of the 
critical habitat designation for Astragalus jaegerianus to determine if 
they are exempt under section 4(a)(3) of the Act. The following areas 
are DOD lands with completed, Service-approved INRMPs within the 
revised critical habitat designation.
Approved INRMPs
    Army lands within the boundaries of the NTC at Fort Irwin are 
subject to an INRMP for 2006-2011 (NTC 2005), which includes management 
guidelines in place that provide a benefit for Astragalus jaegerianus. 
As part of the Army's consultation on the proposed expansion of 
training lands at NTC (Service 2005), the Army established the 4,300-ac 
(1,740-ha) East Paradise Conservation Area on NTC. This area contains 
approximately 80 percent of the East Paradise population of A. 
jaegerianus. The Army established the 3,700-ac (1497-ha) Brinkman Wash 
Restricted Access Area (no-dig zone) on NTC. This area contains 1,872 
ac (758 ha) of A. jaegerianus habitat and approximately 51 percent of 
the Montana Mine population of A. jaegerianus. The Army also maintains 
the 2,471-ac (1,000-ha) Goldstone Conservation Area. The Army's INRMP 
management guidelines provide a benefit to A. jaegerianus through the 
following measures: the Army will prohibit off-road activity; they will 
reduce threats to A. jaegerianus caused by dust through the application 
of soil binders. They will also collect and store site-specific seed 
from host plants to restore closed routes and other disturbed areas 
within A. jaegerianus habitat. Contingent on funds, the Army will 
perform intensive nonnative species control and eradication efforts at 
conservation areas, if such species are found there. We will continue 
to monitor the status of the INRMP to ensure that it adequately 
addresses management guidelines for A. jaegerianus.
    In the April 6, 2004, proposed critical habitat designation (69 FR 
18018), the Army had not yet completed its INRMP and, therefore, was 
not exempted under section 4(a)(3)(B) of the Act. However, the Army was 
excluded under section 4(b)(2) of the Act for reasons of national 
security and because existing management plans provided a benefit to 
Astragalus jaegerianus. The Army's INRMP was approved in 2006, and 
includes management actions that the Secretary has determined benefit 
A. jaegerianus. With our current exemption of all areas within the 
Army's NTC (see ``Relationships to Sections 4(a)(3) of the Act'' 
section), the entire 10,394-ac (4,206-ha) Goldstone-Brinkman unit has 
been exempted from revised critical habitat designation. Similarly, 
almost all (6,068 ac (2,456 ha) of 7,032 ac (2,846 ha)) of the Paradise 
Unit on NTC has been exempted from designation as revised critical 
habitat. Army lands outside the NTC are not subject to the INRMP and, 
therefore, not exempted. The 2006 INRMP is due to be revised in 2011; 
the Army is currently reviewing the draft INRMP for 2011-2016. It 
contains all the same measures for A. jaegerianus as the existing INRMP 
(Everly 2011 in litt.).
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that the identified lands 
are subject to the NTC at Fort Irwin INRMP, and that conservation 
efforts identified in the INRMP will provide a benefit to Astragalus 
jaegerianus occurring in habitats within, or adjacent to, the NTC at 
Fort Irwin INRMP. Therefore, lands within this installation are exempt 
from critical habitat designation under section 4(a)(3) of the Act. 
Approximately 16,462 ac (6,662 ha) of A. jaegerianus habitat are not 
included in this revised critical habitat designation because of this 
exemption.

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying

[[Page 29123]]

any particular area as critical habitat. The Secretary may exclude an 
area from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the statute on its face, as well as the legislative 
history, are clear that the Secretary has broad discretion regarding 
which factor(s) to use and how much weight to give to any factor.
    Under section 4(b)(2) of the Act, the Secretary may exclude an area 
from designated critical habitat based on economic impacts, impacts on 
national security, or any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we must 
identify the benefits of including the area in the designation, 
identify the benefits of excluding the area from the designation, and 
determine whether the benefits of exclusion outweigh the benefits of 
inclusion. If the analysis indicates that the benefits of exclusion 
outweigh the benefits of inclusion, the Secretary may exercise his 
discretion to exclude the area only if such exclusion would not result 
in the extinction of the species.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared a draft economic analysis of the 
proposed critical habitat designation and related factors (Industrial 
Economics Incorporated (IEC) 2010, pp. 1-44). The draft analysis, dated 
September 30, 2010, was made available for public review on November 3, 
2010, and the comment period for the draft analysis and proposed 
revised designation of critical habitat was opened for an additional 30 
days, extending through December 3, 2010 (75 FR 67676). Following the 
close of the comment period, a final analysis (dated March 1, 2011) of 
the potential economic effects of the designation was developed taking 
into consideration the public comments and any new information (IEC 
2011).
    The intent of the final economic analysis (FEA) is to quantify the 
economic impacts of all potential conservation efforts for Astragalus 
jaegerianus; some of these costs will likely be incurred regardless of 
whether we designate critical habitat (baseline). The economic impact 
of the final critical habitat designation is analyzed by comparing 
scenarios both ``with critical habitat'' and ``without critical 
habitat.'' The ``without critical habitat'' scenario represents the 
baseline for the analysis, considering protections already in place for 
the species (e.g., under the Federal listing and other Federal, State, 
and local regulations). The baseline, therefore, represents the costs 
incurred regardless of whether critical habitat is designated. The 
``with critical habitat'' scenario describes the incremental impacts 
associated specifically with the designation of critical habitat for 
the species. The incremental conservation efforts and associated 
impacts are those not expected to occur absent the designation of 
critical habitat for the species. In other words, the incremental costs 
are those attributable solely to the designation of critical habitat 
above and beyond the baseline costs; these are the costs we consider in 
the final designation of critical habitat. Conservation measures 
implemented under the baseline (without critical habitat) scenario are 
described qualitatively within the FEA, but economic impacts associated 
with these measures are not quantified. Economic impacts are only 
quantified for conservation measures implemented specifically due to 
the designation of critical habitat (i.e., incremental impacts).
    The FEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. The FEA measures lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. Decision-makers can use this information to assess whether 
the effects of the designation might unduly burden a particular group 
or economic sector. Finally, the FEA looks qualitatively at costs that 
have been incurred since 1998 (year of the species' listing) (63 FR 
53596), and considers those costs that may occur in the 20 years 
following the designation of critical habitat, which was determined to 
be the appropriate period for analysis because limited planning 
information was available for most activities to forecast activity 
levels for projects beyond a 20-year timeframe. The FEA quantifies 
incremental economic impacts of Astragalus jaegerianus conservation 
efforts associated with the following categories of activity: 
recreational OHV use, recreational surface mining, and wind energy 
development. It also assessed possible indirect impacts to economic 
activities as the result of possible applications of the CEQA, and 
regulatory uncertainty or delay associated with consultations with the 
Service.
    The FEA estimates that no economic impacts from additional 
conservation measures are likely to result from the designation of 
critical habitat. The main reason for this conclusion is that 
approximately 79 percent of the designated critical habitat is Federal 
land that is either being managed for Astragalus jaegerianus 
conservation by the Bureau under the guidance of the California Desert 
Conservation Area Plan, as modified by the West Mojave Plan, or is 
being held by the DOD. Because the DOD acquired these lands as 
mitigation for the expansion of Fort Irwin, it will not permit any 
ground-disturbing activities on them. Ultimately, the DOD will transfer 
the lands to the Bureau, and the Bureau will manage them as part of the 
Coolgardie Mesa and West Paradise Areas of Critical Environmental 
Concern. The Service, DOD, and the Bureau do anticipate section 7 
consultation on the land transfer, but expect that the consultation 
will be informal and not require a formal biological opinion under 
section 7 of the Act. An additional reason that no economic impacts are 
likely to result from the designation of critical habitat is that the 
private lands (remaining 21 percent of designation interspersed in a 
checkerboard fashion among the Bureau ACECs lands) occur in a remote 
region where access, development, and construction are limited. Also 
land-use activities specifically within ACECs are limited. These 
private lands are being targeted through the WMP for acquisition by 
Federal agencies from willing sellers to eventually become part of one 
of the two ACECs. No section 7 consultations have occurred regarding 
activities on private lands within the area since the listing of the 
desert tortoise in 1990. The federally threatened desert tortoise 
occurs throughout the area that we have proposed as critical habitat; 
critical habitat for the desert tortoise also completely overlaps the 
areas designated as revised critical habitat for A. jaegerianus. 
Consequently, based on discussions with land managers and the lack of 
consultations on private lands in this area since the listing of the 
desert

[[Page 29124]]

tortoise, we do not anticipate any land use changes that will result in 
future consultations.
    Our economic analysis identified that there could be 
``insignificant additional administrative costs to conduct the adverse 
modification analysis for those projects with a Federal nexus''; no 
attempt was made to quantify the administrative costs associated with 
this designation. As a result, there are no disproportionate costs that 
are likely to result from the designation. Consequently, the Secretary 
has determined not to exert his discretion to exclude any areas from 
this designation of critical habitat for Astragalus jaegerianus based 
on economic impacts.
    A copy of the FEA with supporting documents may be obtained by 
contacting the Ventura Fish and Wildlife Office (see ADDRESSES) or by 
downloading from the Internet at http://www.regulations.gov.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the DOD where a national security impact 
might exist. In preparing this final rule, we have determined that 
there are lands within the designation of critical habitat for 
Astragalus jaegerianus that are owned by the DOD. These lands were 
acquired as mitigation for the expansion of Fort Irwin, and the DOD 
will not permit any ground-disturbing activities on them. Ultimately, 
the DOD will transfer the lands to the Bureau, and the Bureau will 
manage them as part of the Coolgardie Mesa and West Paradise ACEC. The 
Service, DOD, and the Bureau anticipate consultation on the land 
transfer, but expect that the consultation would be informal and not 
require a formal biological opinion under section 7 of the Act. No 
military operations or training for national security occurs on these 
lands. Consequently, the Secretary has determined not to exert his 
discretion to exclude any areas from this final designation based on 
impacts on national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at any Tribal issues, and consider the government-to-
government relationship of the United States with Tribal entities. We 
also consider any social impacts that might occur because of the 
designation.
    In preparing this final rule, we have determined that there are 
currently no HCPs or other management plans for Astragalus jaegerianus, 
and the final designation does not include any Tribal lands or trust 
resources. We anticipate no impact on Tribal lands, partnerships, or 
HCPs from this critical habitat designation. Accordingly, the Secretary 
has determined not to exert his discretion to exclude any areas from 
this final designation based on other relevant impacts.
    Table 3 below provides approximate areas (ac, ha) of lands that 
meet the definition of critical habitat but are exempt from designation 
under section 4(a)(3) of the Act. Table 3 also provides our reasons for 
the exemption.

  Table 3--Exemptions From the Critical Habitat Designation for Astragalus jaegerianus by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                                           Areas meeting the
                                                           Basis for         definition of
              Unit                  Specific area         exclusion/       critical habitat    Areas exempted in
                                                           exemption           in acres        acres  (hectares)
                                                                              (hectares)
----------------------------------------------------------------------------------------------------------------
Goldstone-Brinkman.............  National Training    Exemption under     10,394 ac (4,206    10,394 ac (4,206
                                  Center, Fort Irwin   section 4(a)(3)     ha).                ha) exempted due
                                  Integrated Natural   of the Act.                             to INRMP* on
                                  Resources                                                    NTC** lands.
                                  Management Plan.
Paradise.......................  National Training    Exemption under     6,068 ac (2,456     6,068 ac (2,456
                                  Center, Fort Irwin   section 4(a)(3)     ha).                ha) exempted due
                                  Integrated Natural   of the Act.                             to INRMP on NTC
                                  Resources                                                    lands.
                                  Management Plan.
    Total......................  ...................  ..................  16,462 ac (2,456    16,462 ac (2,456
                                                                           ha).                ha).
----------------------------------------------------------------------------------------------------------------
*INRMP = Integrated Natural Resources Management Plan.
**NTC = National Training Center.

Required Determinations

Regulatory Planning and Review--Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under Executive 
Order 12866 (Regulatory Planning and Review). OMB bases its 
determination upon the following criteria:
    (1) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (2) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (3) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (4) Whether the rule raises novel legal or policy issues.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must 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 (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. The SBREFA amended 
the RFA to require Federal agencies to provide a certification 
statement of the factual basis for certifying that a rule will not

[[Page 29125]]

have a significant economic impact on a substantial number of small 
entities. In this final rule, we are certifying that the critical 
habitat designation for Astragalus jaegerianus will not have a 
significant economic impact on a substantial number of small entities. 
The following discussion explains our rationale.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations, small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). 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 on 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.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., 
recreational OHV use and recreational mining). We apply the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
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 number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities authorized, 
funded, or carried out by Federal agencies. Some kinds of activities 
are unlikely to have any Federal involvement and so will not be 
affected by critical habitat designation. In areas where the species is 
present, Federal agencies already are required to consult with us under 
section 7 of the Act on activities they authorize, fund, or carry out 
that may affect Astragalus jaegerianus. Federal agencies also must 
consult with us if their activities may affect critical habitat. 
Designation of critical habitat, therefore, could result in an 
additional economic impact on small entities due to the requirement to 
reinitiate consultation for ongoing Federal activities (see Application 
of the ``Adverse Modification Standard'' section).
    In our final economic analysis of the critical habitat designation, 
we evaluated the potential economic effects on small business entities 
resulting from conservation actions related to the listing of 
Astragalus jaegerianus and the designation of critical habitat. The 
analysis is based on the estimated impacts associated with the 
rulemaking as described in Section 3.5 of the analysis and evaluates 
the potential for economic impacts related to: (1) Recreational OHV 
use; (2) recreational surface mining; and (3) wind energy development. 
In this case, the analysis discusses that, because there are no 
incremental impacts resulting from the critical habitat designation, 
there are no impacts on small entities.
    In summary, we considered whether this designation would result in 
a significant economic effect on a substantial number of small 
entities. Based on the above reasoning and currently available 
information, we concluded that this rule would not result in a 
significant economic impact on a substantial number of small entities. 
Therefore, we are certifying that the designation of critical habitat 
for A. jaegerianus will not have a significant economic impact on a 
substantial number of small entities, and a regulatory flexibility 
analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration.
    This final revised critical habitat designation for Astragalus 
jaegerianus, as described above, is not expected to significantly 
affect energy supplies, distribution, or use. There are no transmission 
power lines identified on the designated critical habitat, or energy 
extraction activities (Bureau of Land Management 1980). In addition, 
according to the FEA, no future wind energy developments will be 
permitted within the Paradise Unit due to the DOD concerns regarding 
use of the air space (IEC 2011). Further, reserve-level management of 
the ACECs for Astragalus jaegerianus conservation in both proposed 
units indicate it is unlikely that wind energy developments will be 
permitted by the Bureau within the critical habitat designation (IEC 
2011, Section 3.2.4).
    Thus, based on information in the economic analysis, energy-related 
impacts associated with Astragalus jaegerianus conservation activities 
within critical habitat are not expected. As such, the designation of 
critical habitat 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.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments,'' with 
two exceptions. First, it excludes ``a condition of Federal 
assistance.'' Second, it also excludes ``a duty arising from 
participation in a voluntary Federal program,'' unless the regulation 
``relates to a then-existing Federal program under which $500,000,000 
or more is provided annually to State, local, and Tribal governments 
under entitlement authority,'' if the provision would ``increase the 
stringency of conditions of assistance'' or ``place caps upon, or 
otherwise decrease, the Federal Government's responsibility to provide

[[Page 29126]]

funding,'' and the State, local, or Tribal governments ``lack 
authority'' to adjust accordingly. At the time of enactment, these 
entitlement programs were: Medicaid; AFDC work programs; Child 
Nutrition; Food Stamps; Social Services Block Grants; Vocational 
Rehabilitation State Grants; Foster Care, Adoption Assistance, and 
Independent Living; Family Support Welfare Services; and Child Support 
Enforcement. ``Federal private sector mandate'' includes a regulation 
that ``would impose an enforceable duty upon the private sector, except 
(i) a condition of Federal assistance or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments and a small Government Agency Plan is not 
required. State lands were not included in this revised critical 
habitat designation. Given the distribution of this species, small 
governments will not be uniquely affected by this rule. Small 
governments will not be affected at all unless they propose an action 
requiring Federal funds, permits, or other authorization. Any such 
activity will require that the involved Federal agency ensure that the 
action is not likely to adversely modify or destroy designated critical 
habitat. However, as discussed above, Federal agencies are currently 
required to ensure that any such activity is not likely to jeopardize 
the species, and no further regulatory impacts from this revised 
designation of critical habitat are anticipated. Consequently, we do 
not believe that the critical habitat designation would significantly 
or uniquely affect small government entities. As such, a Small 
Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for Astragalus jaegerianus in a takings implications 
assessment. Critical habitat designation does not affect landowner 
actions that do not require Federal funding or permits, nor does it 
preclude development of habitat conservation programs or issuance of 
incidental take permits to permit actions that do require Federal 
funding or permits to go forward. The takings implications assessment 
concludes that this designation of critical habitat for A. jaegerianus 
does not pose significant takings implications for lands within or 
affected by the designation.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), 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. We solicited, but did not receive, comments from the 
CDFG and have noted this in the Summary of Comments and Recommendations 
section of the rule. As discussed above, the designation of critical 
habitat in areas currently occupied by Astragalus jaegerianus would 
have little incremental impact on State and local governments and their 
activities. This is because the proposed revised critical habitat 
occurs to a great extent on Federal lands managed by the DOD and the 
Bureau, and less than 2 percent occurs on private lands that would 
involve State and local agencies. The designation may have some benefit 
to these governments, in that the areas that contain the PBFs essential 
to the conservation of these species are more clearly defined, and the 
elements of the features of the habitat necessary to the conservation 
of the species are specifically identified. This information does not 
alter where and what Federally sponsored activities may occur. However, 
it may assist these local governments in long-range planning (rather 
than having them wait for case-by-case section 7 consultation to 
occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the regulation meets the applicable standards set forth in sections 
3(a) and 3(b)(2) of the Order. We are designating critical habitat in 
accordance with the provisions of the Act. This final rule uses 
standard property descriptions and identifies the elements of PBFs 
essential to the conservation of Astragalus jaegerianus within the 
designated areas to assist the public in understanding the habitat 
needs of the species.

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 of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321, et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the 9th Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

[[Page 29127]]

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 (Consultation and 
Coordination With Indian Tribal Governments), 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. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. We determined that there are no Tribal 
lands occupied by Astragalus jaegerianus at the time of listing that 
contain the features essential for conservation of the species, and no 
Tribal lands unoccupied by A. jaegerianus that are essential for the 
conservation of the species. Therefore, the designation of critical 
habitat for A. jaegerianus will not affect Tribes or Tribal lands.

Data Quality Act

    In developing this rule we did not conduct or use a study, 
experiment, or survey requiring peer review under the Data Quality Act 
(Pub. L. 106-554).

References Cited

    A complete list of all references cited herein is available on the 
Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2009-
0078 and upon request from the Field Supervisor, Ventura Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Author

    The primary authors of this rulemaking are the staff of the Ventura 
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

0
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.


0
2. In Sec.  17.96, amend paragraph (a) by revising the critical habitat 
designation for ``Astragalus jaegerianus (Lane Mountain milk-vetch),'' 
under the family Fabaceae, to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    Family Fabaceae: Astragalus jaegerianus (Lane Mountain milk-vetch)
    (1) Critical habitat units are depicted for San Bernardino County, 
California, on the map below.
    (2) Critical habitat consists of the mixed desert scrub community 
within the range of Astragalus jaegerianus that is characterized by the 
following primary constituent elements:
    (i) Shallow soils at elevations between 3,100 and 4,200 ft (945 to 
1,280 m) derived primarily from Jurassic or Cretaceous granitic 
bedrock, and less frequently on soils derived from diorite or gabbroid 
bedrock, or on granitic soils overlain by scattered rhyolitic cobble, 
gravel, and sand.
    (ii) Host shrubs at elevations between 3,100 and 4,200 ft (945 to 
1,280 m). The primary host shrubs include, but are not limited to: 
Thamnosma montana (turpentine bush), Ambrosia dumosa (burro bush), 
Eriogonum fasciculatum ssp. Polifolium (California buckwheat), 
Ericameria cooperi var. cooperi (golden bush), Ephedra nevadensis 
(Mormon tea), and Salazaria mexicana (paperbag bush) that are usually 
found in mixed desert shrub communities.
    (3) Critical habitat does not include manmade structures 
(including, but not limited to, buildings, aqueducts, runways, roads, 
and other paved areas) and the land on which they are located existing 
within the legal boundaries on the effective date of this rule and not 
containing one or more of the PCEs.
    (4) Critical habitat map units. These critical habitat units were 
mapped using Universal Transverse Mercator (UTM), Zone 10, North 
American Datum (NAD) 1983 (UTM NAD 83) coordinates. These coordinates 
establish the vertices and endpoints of the boundaries of the units.
    (5) Coolgardie Unit: San Bernardino County, California. From USGS 
1:24,000 quadrangle maps Lane Mountain and Mud Hills, San Bernardino 
County, California.
    (i) Land bounded by the following UTM Zone 10, NAD83 coordinates 
(E, N): 495500, 3884300; 495700, 3884600; 496400, 3885100; 497100, 
3885400; 497300, 3885500; 497700, 3885700; 498000, 3885800; 498200, 
3885800; 498900, 3885900; 500400, 3886100; 501100, 3886200; 501800, 
3886300; 502500, 3886400; 503300, 3886500; 503600, 3886500; 503900, 
3886400; 504100, 3886300; 504600, 3886100; 504900, 3886000; 505100, 
3885900; 505200, 3885700; 505300, 3885500; 505400, 3885400; 505300, 
3885200; 505100, 3884600; 505100, 3881000; 505000, 3880900; 504700, 
3880200; 504600, 3879900; 503900, 3879600; 503800, 3879500; 503600, 
3879500; 503000, 3879400; 502400, 3879300; 502000, 3879200; 501900, 
3878900; 501900, 3878800; 501200, 3878700; 500400, 3878600; 499700, 
3878500; 499600, 3878400; 499400, 3878500; 499100, 3878600; 498700, 
3878700; 498400, 3878800; 498300, 3879000; 498200, 3879400; 497800, 
3880900; 497700, 3881200; 496400, 3881700; 496200, 3881800; 496100, 
3881800; 496000, 3882000; 495600, 3883700; 495500, 3884100; returning 
to 495500, 3884300; excluding land bounded by: 498800, 3883900; 499200, 
3883200; 499300, 3882900; 499500, 3882100; 499800, 3881900; 501200, 
3881100; 501700, 3881100; 501900, 3881200; 501900, 3881300; 501800, 
3882000; 501700, 3882600; 501600, 3883100; 501200, 3883600; 500900, 
3883900; 500200, 3884000; 499000, 3884000; returning to 498800, 
3883900.
    (ii) Note: Map of Coolgardie Unit is provided at paragraph (6)(ii) 
of this entry.
    (6) Paradise Unit: San Bernardino County, California. From USGS 
1:24,000 quadrangle map Williams Well, San Bernardino County, 
California.
    (i) Land bounded by the following UTM Zone 10, NAD83 coordinates 
(E, N): 509089 3890369; 507600, 3889500; 507400, 3889400; 507300, 
3889500; 506900, 3889600; 506800, 3889700; 506400, 3890300; 506300, 
3890400; 506000, 3891600; 505900, 3892000; 505800, 3892300; 505500, 
3892600; 504900, 3893000; 504600, 3893200; 504500, 3893300; 504000, 
3894100; 503800, 3894400; 503700, 3894800; 503800, 3895100; 503857, 
3895157; 503873, 3895157; 503874, 3894353; 504678, 3894353; 504679, 
3893549; 505510, 3893550; 505512, 3892977; 505912, 3892974; 505909, 
3892573; 506314, 3892571; 506314, 3891767; 506804, 3891767; 506804, 
3891244; 506820, 3890426; 508454, 3890415; returning to 509089, 
3890369.

[[Page 29128]]

    (ii) Note: Map of Coolgardie and Paradise Units follows:
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[GRAPHIC] [TIFF OMITTED] TR19MY11.009


[[Page 29129]]


* * * * *

    Dated: April 28, 2011.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-12330 Filed 5-18-11; 8:45 am]
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