[Federal Register: August 4, 2004 (Volume 69, Number 149)]
[Rules and Regulations]               
[Page 47329-47351]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04au04-17]                         


[[Page 47329]]

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Part V

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; Designation of Critical 
Habitat for Astragalus magdalenae var. peirsonii (Peirson's milk-
vetch); Final Rule


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI77

 
Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Astragalus magdalenae var. peirsonii (Peirson's 
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), designate 
critical habitat for the federally threatened Astragalus magdalenae 
var. peirsonii (Peirson's milk-vetch) pursuant to the Endangered 
Species Act of 1973, as amended (Act). We designate a total of 
approximately 21,836 acres (ac) (8,848 hectares (ha)) of critical 
habitat in Imperial County, California.

DATES: This rule becomes effective on September 3, 2004.

ADDRESSES: All comments and materials received during the comment 
periods and supporting documentation used in preparation of the 
proposed and final rules will be available for public inspection, by 
appointment, during normal business hours at the Carlsbad Fish and 
Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley 
Road, Carlsbad, CA 92009. The final rule, economic analysis, and map 
will also be available via the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://carlsbad.fws.gov.


FOR FURTHER INFORMATION CONTACT: Field Supervisor, Carlsbad Fish and 
Wildlife Service (telephone 760/431-9440; facsimile 760/431-9618).

SUPPLEMENTARY INFORMATION: Please see the proposed rule for critical 
habitat for Astragalus magdalenae var. peirsonii for a discussion on 
critical habitat providing little additional protection to species, 
role of critical habitat in implementing the Act, and the procedural 
and resource difficulties in designating critical habitat (68 FR 
46143).

Background

    For a general discussion of the role of critical habitat in 
implementing the Act, background information on the biology of 
Astragalus magdalenae var. peirsonii, and a description of previous 
Federal actions, including our determination that designating critical 
habitat for this species is prudent, please see our August 5, 2003, 
proposed rule (68 FR 46143). On November 15, 2001, the Center for 
Biological Diversity and California Native Plant Society filed a 
lawsuit in the U.S. District Court for the Southern District of 
California challenging our determination not to designate critical 
habitat for eight desert plants, including Astragalus magdalenae var. 
peirsonii (Center for Biological Diversity et al. v. Norton, No. 01 CV 
2101). A second lawsuit also asserting the same challenge was filed on 
November 21, 2001, by the Building Industry Legal Defense Fund 
(Building Industry Legal Defense Fund v. Norton, No. 01 CV 2145). On 
July 1, 2002, the court ordered the Service to complete a review of the 
prudency determination and, if prudent, to finalize critical habitat 
for the plant on or before July 28, 2004. On April 6, 2004, we 
published a notice of availability of the draft economic analysis for 
the designation of critical habitat and reopened the comment period for 
the proposed rule and draft economic analysis. This second comment 
period closed on May 6, 2004.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for Astragalus magdalenae var. 
peirsonii in the proposed rule published on August 5, 2003 (68 FR 
46143). We also contacted appropriate Federal, State, and local 
agencies; scientific organizations; and other interested parties and 
invited them to comment on the proposed rule. During the comment period 
that opened on August 5, 2003, and closed on October 6, 2003, we 
received 23 comment letters directly addressing the proposed critical 
habitat designation: 2 from peer reviewers, 1 from a Federal agency, 
and 20 from organizations or individuals. During the comment period 
that opened on April 6, 2004, and closed on May 6, 2004, we received 10 
comment letters directly addressing the proposed critical habitat 
designation and the draft economic analysis. Of these latter comments, 
1 was from a peer reviewer, 1 from a Federal agency, and 8 were from 
organizations. Eighteen commenters supported the designation of 
critical habitat for A. magdalenae var. peirsonii and six opposed the 
designation. Nine letters included comments or information, but did not 
express support or opposition to the proposed critical habitat 
designation. Comments received were grouped into three general issues 
specifically relating to the proposed critical habitat designation for 
A. magdalenae var. peirsonii, and are addressed in the following 
summary and incorporated into the final rule as appropriate. We did not 
receive any requests for a public hearing.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from eleven knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from three of 
the peer reviewers. The peer reviewers generally concurred with our 
methods and conclusions and provided additional information, 
clarifications, and suggestions to improve the final critical habitat 
rule. Peer reviewer comments are addressed in the following summary and 
incorporated into the final rule as appropriate.

Peer Review Comments

    Comment 1: One commenter supported the model used to propose 
critical habitat for Astragalus magdalenae var. peirsonii, but pointed 
to the need for using metapopulation approaches, experimental 
approaches, and data from ecologically similar species. The commenter 
suggested future approaches for modeling, monitoring, and research.
    Our Response: We agree that having the results of these modeling 
and research efforts would improve the process of delineating critical 
habitat, however, such data is not available. The suggested approaches 
also may have a benefit in developing a recovery plan or management and 
conservation plans for Astragalus magdalenae var. peirsonii.
    Comment 2: The proposed rule cites the finding by Romspert and Burk 
(1979) that older plants were the primary seed producers and that 
plants that become reproductive in the first season do not make 
significant contributions to the seed bank. However, Phillips and 
Kennedy (2002) concluded that first-year plants can have a significant 
effect on the seed bank.
    Our Response: First-year plants that flower and set seeds likely 
contribute to the seed bank. In a comparison between the mean number of 
fruits from older and younger plants, Phillips and Kennedy (2002) found 
that older plants had a mean of 171.5 fruits compared with an estimated 
5 fruits for first-year plants. With an average of 14 seeds per fruit 
(Barneby 1964, TOA 2001), younger plants could produce 70 seeds while 
older plants could produce almost 2400 seeds per plant. Consequently, 
both older and younger plants that

[[Page 47331]]

flower and set seeds are needed to maintain the population.
    Comment 3: One commenter indicated a seed bank analysis should have 
been completed for areas included in critical habitat on the basis of 
the probability of seeds being present in areas contiguous to, and 
having habitat continuity with, areas where Astragalus magdalenae var. 
peirsonii plants have been known to occur.
    Our Response: We considered the work by Phillips and Kennedy (2002, 
2003) on the seed bank for A. magdalenae var. peirsonii in assessing 
areas to include as critical habitat. Their work suggests that the seed 
bank is present in areas contiguous to and having habitat continuity 
where A. magdalenae var. peirsonii is known to occur. Their work 
further supported the inclusion of gaps between transects and cells in 
the essential habitat model where no standing plants of A. magdalenae 
var. peirsonii were observed.
    Comment 4: The critical habitat map should be revised to include 
only substantial occurrences of the plant, not isolated occurrences, 
and connections between these areas. The proposed boundaries appear to 
include the entire dune system and much unoccupied, unfavorable 
habitat, particularly in Subunit C and Subunit D.
    Our Response: Please see our responses to Public Comments Issues 1 
and 2.

Public Comments

Issue 1: Biological Justification and Methodology

    Comment 1: One commenter indicated we apparently identified all 
areas that may be occupied by Astragalus magdalenae var. peirsonii and 
included them in the proposed critical habitat designation without 
identifying why they are essential to the conservation of the species.
    Our Response: We did not identify and propose critical habitat for 
all areas that may be occupied by Astragalus magdalenae var. peirsonii. 
For example, portions of the areas between Subunits A and B (south of 
Highway 78), between Subunits B and Subunits C and D (north and south 
of Interstate 8), and between Subunits C and D likely support low 
densities of standing plants, root crowns, or seed bank where the 
habitat is suitable. The gaps between Subunits A, B, C, and D were not 
proposed as critical habitat because these areas were not considered 
essential to the conservation of A. magdalenae var. peirsonii. We also 
state in the proposed rule that ``Outlier occurrences evidenced only by 
WESTEC 1977 were not included because of the age of the report and the 
lack of substantiation by more recent BLM surveys.'' (68 FR 46149). For 
the areas that were proposed as critical habitat, we provide a 
discussion of the essential habitat model and the use of the model to 
determine and justify those areas essential to the conservation of A. 
magdalenae var. peirsonii. See also our response to Comment 4.
    Comment 2: One commenter suggested that areas where plants have not 
been mapped should be excluded.
    Our Response: In the proposed rule, we state that ``Surveys 
conducted by BLM indicate variability in occurrences of standing plants 
from year to year'' and ``if standing plants were not found in a 
particular grid cell during a survey, but were recorded as present'' in 
that same grid cell in other survey years, we concluded that the grid 
cell was occupied (68 FR 46150). Not unexpectedly, gaps occur between 
transects because they were randomly selected across the length of the 
Algodones Dunes. We analyzed the gaps between transects to determine 
whether to include the intervening areas in the development of the 
essential habitat model. We state in the proposed rule that ``grid 
squares where this plant has not been encountered are included as 
critical habitat if they are contiguous with grid squares where the 
plant has been found and possess the primary constituent elements'' (68 
FR 46151). Moreover, surveys conducted by Thomas Olson and Associates 
(TOA) (2001) filled in gaps between BLM's surveyed transects and grid 
cells. Thus, we proposed and designated critical habitat where plants 
were not mapped.
    Comment 3: Various commenters indicated we should have included all 
of the Algodones Dunes.
    Our Response: Astragalus magdalenae var. peirsonii has a limited 
distribution within the Algodones Dunes. Certain areas within the 
Algodones Dunes, such as areas characterized by desert pavement or by 
creosote bush scrub, do not support A. magdalenae var. peirsonii. The 
gaps between Subunits A, B, C, and D were not proposed as critical 
habitat because these areas were not considered essential to the 
conservation of A. magdalenae var. peirsonii (see response to Comment 
1). Developed areas, Off-Highway Vehicle (OHV) staging areas, and 
disturbed areas along roadways were not proposed as critical habitat 
because these limited areas no longer support an intact active sand 
dune system with natural expanses of slopes and swales (see response to 
Comment 6). Consequently, the entire Algodones Dunes was not proposed 
or designated as critical habitat.
    Comment 4: Commenters indicated the proposed critical habitat does 
not adequately provide for habitat connectivity and recovery by not 
including large, well-connected reserves. They stated that we should 
have followed conservation biology principles of reserve design to 
provide corridors for connectivity among the critical habitat subunits, 
or included all of the current and historical range of A. magdalenae 
var. peirsonii in critical habitat.
    Our Response: Consistent with the principles of conservation 
biology, Subunits A and B are relatively large contiguous blocks of 
habitat that encompass the most important areas identified by our 
essential habitat model. Moreover, we stated in the proposed rule that 
``Based on observations of unimpeded sand and wind movement across 
existing paved roads, we did not expect that the paved roads would 
represent a barrier to the dispersal of the fruits and seeds of 
Astragalus magdalenae var. peirsonii,'' (68 FR 46150) and the 
``discontinuities associated with the highways are likely traversed 
occasionally by mature fruits dispersed by the wind as well as by 
pollinators.'' (68 FR 46152). Therefore, we do not believe that we need 
to provide, in the critical habitat designation, corridors for 
connectivity among the critical habitat Subunits A and B or that our 
designation of critical habitat does not follow the principles of 
conservation biology.
    Comment 5: The proposed rule did not adequately explain why areas 
were excluded, including unoccupied habitat, developed areas, OHV 
staging areas, disturbed areas along roadways, areas between the 
southern areas (Subunit C and Subunit D), and areas connecting the 
southern and northern subunits.
    Our Response: We did not propose critical habitat in areas that did 
not meet the definition of critical habitat under section 3(5)(A) of 
the Act. Developed areas, OHV staging areas, and disturbed areas along 
roadways were not proposed as critical habitat because these limited 
areas no longer support an intact active sand dune system with natural 
expanses of slopes and swales. For example, we state in the proposed 
rule that ``Significant impacts from OHV use on A. magdalenae var. 
peirsonii have been observed at and near OHV staging areas'' (68 FR 
46145) and we believe these OHV staging areas no longer provide the 
primary constituent elements for this species. The areas between 
Subunits C and D and areas

[[Page 47332]]

connecting the northern subunit (Subunit A) and southern subunits 
(Subunits B, C, and D) were not proposed as critical habitat because 
these areas were not considered essential to the conservation of A. 
magdalenae var. peirsonii. See our response to Comment 4 for our 
explanation that these areas were not essential to the conservation of 
A. magdalenae var. peirsonii.
    Comment 6: One commenter expressed the opinion that, although OHVs 
may destroy individual plants, the ``churning'' by OHVs aids the 
propagation of seeds.
    Our Response: The commenter did not provide any additional 
information or data to support their opinion that ``churning'' by OHVs 
aids in the propagation of seeds. We were unable to incorporate this 
suggestion in the final rule.
    Comment 7: No genetic information or population size estimates are 
included in the proposed rule. There is no ``correct'' demographic 
model that incorporates the spatial and temporal complexity exhibited 
by Astragalus magdalenae var. peirsonii.
    Our Response: Critical habitat designations are based on the best 
available information. Genetic information, population size estimates, 
and demographic models are not currently available. If this type of 
information became available, it would be helpful in the development of 
a recovery plan and management and conservation plans for this species.
    Comment 8: One commenter stated Astragalus magdalenae var. 
peirsonii is not in danger of going extinct and grows in several other 
areas. The commenter provided a Web site printout suggesting this 
species may occur in or near Joshua Tree National Park.
    Our Response: Astragalus magdalenae var. peirsonii is listed as a 
``threatened'' species. The term ``threatened species'' means any 
species which is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range. In contrast, the term ``endangered species'' means any species 
which is in danger of extinction throughout all or a significant 
portion of its range. A search of official Web sites for Joshua Tree 
National Park and the National Park Service provides no known locations 
of this plant on any National Park Service lands. Two plant lists for 
Joshua Tree National Monument (now Park) also did not reference this 
plant. The Algodones Dunes is the only location where we have confirmed 
the current existence of A. magdalenae var. peirsonii in the United 
States.
    Comment 9: The acreages for each of the critical habitat subunits 
were not provided in the proposed rule.
    Our Response: We have included the acreages for each subunit in the 
final critical habitat designation.

Issue 2: Legal and Procedural

    Comment 10: The North Algodones Dune Wilderness is a 32,000-acre 
preserve for Astragalus magdalenae var. peirsonii, which should be 
considered in all decisions about critical habitat and listing for 
species found in the wilderness area. Subunit A should be removed from 
critical habitat because it is included in the wilderness area and 
already protected from most human contact. Subunit B, which includes 
the middle dune areas that have intense management efforts, other areas 
of habitat considered marginal for A. magdalenae var. peirsonii, and 
areas having only small stands of the species also should be removed 
from critical habitat designation.
    Our Response: The North Algodones Dune Wilderness was designated a 
wilderness area to protect a number of rare and endemic plant and 
animal species, including Astragalus magdalenae var. peirsonii. The 
existence of A. magdalenae var. peirsonii in this designated wilderness 
area was considered when listing this species as threatened rather than 
endangered, as was originally proposed (57 FR 19844). Management of the 
North Algodones Dune Wilderness takes the form of ``minimal and subtle 
on-site controls and restrictions'' BLM (2003). The wilderness area is 
essential for the survival of Astragalus magdalenae var. peirsonii., 
however, the area is not specifically managed for this plant. The North 
Algodones Dune Wilderness was not excluded from the critical habitat 
designation because the habitat within the Wilderness meets the 
definition of critical habitat and is not otherwise appropriate for 
exclusion under 4(b)(2). See Comments 1 and 5 for the basis for other 
areas being included or excluded in the critical habitat designation.
    Comment 11: The BLM's Recreation Area Management Plan (RAMP) does 
not address the species-specific management needs and measures for 
Astragalus magdalenae var. peirsonii.
    Our Response: As noted in the proposed rule, the RAMP does not 
include active management for Astragalus magdalenae var. peirsonii. 
Consequently, BLM lands covered by the RAMP are included in the 
critical habitat designation. The RAMP includes an intensive monitoring 
program for A. magdalenae var. peirsonii that is being implemented by 
BLM. Based on this monitoring program, management needs for this 
species will be better understood. The RAMP outlines the management of 
the Imperial San Dunes Recreation Area to maximize recreational 
opportunities. Monitoring of Peirson's milk-vetch is a component of 
this RAMP.
    Comment 12: The Bureau of Reclamation stated that a 1-mile-long, 
1,000-foot-wide area along All-American Canal in Critical Habitat 
Subunit D should be exempted from the critical habitat designation. The 
Bureau of Reclamation received a Biological and Conference Opinion of 
the All-American Canal Lining Project, dated February 9, 1996.
    Our Response: Subunit D was not carried forward to the final 
designation of critical habitat because of the relatively small size 
and separation from the other critical habitat subunits. We considered 
the most important areas for Astragalus magdalenae var. peirsonii to 
extend along the central westerly spine of the Algodones Dunes. The 
previously proposed Subunit D was located along the easterly edge of 
the main sand dune formations at the southern end of the Algodones 
Dunes. In general, low numbers of Astragalus magdalenae var. peirsonii 
were found in the vicinity of the former Subunit D. The previously 
proposed Subunit D was also divided by the All-American Canal (Canal), 
with the majority of the subunit occurring northeast of the Canal. The 
Canal likely acts as a barrier to the dispersal of wind-blown seed and 
seed capsules, thereby isolating the northeast section of the former 
Subunit D from the rest of the Algodones Dunes. Thus, we determined 
that subunit D is not essential to the conservation of Astragalus 
magdalenae var. peirsonii. While this area is not designated as 
critical habitat, Federal agencies still have the requirement to 
consult with the Service under section 7 of the Act for their actions 
that may affect Astragalus magdalenae var. peirsonii.
    Comment 13: Since all existing data show no historic or recent 
decline in the species, what constitutes recovery of the species?
    Our Response: The data collected by BLM demonstrates a high degree 
of annual variability in the number of Astragalus magdalenae var. 
peirsonii plants observed during their surveys. The high variability is 
influenced by several factors, including rainfall patterns within the 
Algodones Dunes. For example, BLM counted 5,064 plants in 1998 (higher 
than average rainfall) and 942 plants in 1999 and 86 plants in 2000 
(both years with lower than average rainfall) along these transects.

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Astragalus magdalenae var. peirsonii has apparently been extirpated 
from Borrego Valley in eastern San Diego County, not having been seen 
there since 1959 and not located in 1978 surveys (Spolsky 1978). The 
periodically low numbers and restricted range of A. magdalenae var. 
peirsonii make it vulnerable to threats discussed in the final rule 
listing this plant. BLM has initiated a large-scale monitoring program 
for A. magdalenae var. peirsonii that will provide valuable information 
on population trends for this species (BLM 2003).
    Recovery is defined in our regulations (50 CFR 402.02) as 
``improvement in the status of listed species to the point at which 
listing is no longer appropriate under the criteria set out in section 
4(a)(1) of the Act.'' The reasons for listing A. magdalenae var. 
peirsonii are detailed in the proposed (57 FR 19844) and final (63 FR 
53596) rules to list the species as threatened. To achieve recovery, 
the threats must be eliminated, reduced, or managed to the extent that 
the status of A. magdalenae var. peirsonii no longer meets the 
definition of threatened (i.e., in danger of becoming endangered in the 
foreseeable future throughout all or a significant portion of its 
range). Objective and measurable criteria included in a recovery plan 
are used to determine when a species has recovered and can be delisted. 
A draft recovery plan for A. magdalenae var. peirsonii is currently in 
preparation.
    Comment 14: Two commenters expressed concern that the detailed 
legal descriptions used to define the areas proposed for inclusion in 
critical habitat do not allow easy comprehension of the critical 
habitat boundaries.
    Our Response: Our regulations (50 CFR 17.94(b) and 50 CFR 
424.12(c)) set forth the requirements for describing areas included in 
a critical habitat designation. Although maps are included, such maps 
are provided for reference purposes only to guide Federal agencies and 
other interested parties in locating the general critical habitat 
boundaries. Critical habitat subunits must be described by specific 
limits using reference points found on standard topographic maps of the 
area. We are required to provide legal definitions of the boundaries. 
The boundaries for critical habitat are provided as Universal 
Transverse Mercator (UTM) North American Datum coordinates that 
describe the critical habitat boundaries.
    Comment 15: Determination of critical habitat should be postponed 
until completion of the status review announced in the 90-day finding 
(68 FR 52784) on a petition to delist Astragalus magdalenae var. 
peirsonii.
    Our Response: Notice of the 12-month finding on a petition to 
delist Astragalus magdalenae var. peirsonii was published on June 4, 
2004 (69 FR 31523). After reviewing the best scientific and commercial 
information available, we found that the petitioned action was not 
warranted. Astragalus magdalenae var. peirsonii is retained as a 
threatened species under the Act.
    Comment 16: One commenter expressed the opinion that the proposed 
critical habitat represents a closure of the area to OHVs and 
constitutes a ``taking.'' Several commenters also seemed to believe 
that the designation would result in these areas being closed to OHVs 
and other human activity.
    Our Response: Proposed or final designation of critical habitat 
does not of itself require that an area, including any of the BLM 
management areas within the Algodones Dunes, be closed to any 
particular activity. In the case of Federal lands, which constitute the 
overwhelming majority of the proposed and designated critical habitat, 
or federally funded or permitted activities, the designation requires 
the Federal agency in question to consult with the Service under 
section 7 of the ESA as to whether any activity which might adversely 
modify the critical habitat would in fact do so.
    A section 7 consultation on the impact of BLM management of the 
Dunes, including the RAMP, on the Astragalus magdalenae var. peirsonii, 
and a conference on the proposed critical habitat, has been underway 
for some time. However, as of the date of this designation of critical 
habitat, it has not been concluded. We therefore do not know whether 
any closures might result from the consultation and conference, or 
whether there might be subsequent litigation, which might lead to 
closures of some or all of the area. All we can say at this time is 
that the designation of critical habitat does not of itself require 
closures to OHV or other human uses.
    On the other hand, the designation does not affect land ownership 
or establish a refuge, wilderness, reserve, preserve or other type of 
conservation area. It does not affect activities on private land unless 
the landowner requires a Federal permit, funding or other assistance to 
conduct the activity. We prepared a Takings Implications Assessment for 
the proposed and final designations of critical habitat for Astragalus 
magdalenae var. peirsonii as required by Executive Order 12630 
(``Government Actions and Interference with Constitutionally Protected 
Private Property Rights''). These assessments concluded that the 
designation of critical habitat did not pose significant takings 
implications.
    Comment 17: One comment letter recommended we provide more maps 
showing clearer details of proposed critical habitat, the historic 
range of Astragalus magdalenae var. peirsonii, and a detailed political 
map of the area.
    Our Response: The maps we publish are limited by the printing 
capabilities of the Federal Register and the Code of Federal 
Regulations. We can provide more accurate maps on request, as well as 
answer questions regarding particular areas. Please contact the 
Carlsbad Fish and Wildlife Office (see ADDRESSES section above) for 
assistance.
    Comment 18: One commenter expressed neither support nor opposition 
to the proposed designation of critical habitat, but requested a 
``plan'' and map for the proposed critical habitat.
    Our Response: We do not develop management plans or recovery plans 
for designated critical habitat. The proposed and final rules include 
maps and legal descriptions of the critical habitat. See the response 
to Comment 17 regarding availability of more detailed maps.
    Comment 19: One commenter recommended that we give full 
consideration to the threats from OHVs in the final rule.
    Our Response: Critical habitat designation identifies areas 
essential to the conservation of the species that may require special 
management considerations (see Comment 1). Critical habitat does not 
directly address threats to the species. Instead, Federal agencies must 
consult with the Service on their actions that may affect critical 
habitat and ensure that their actions do not destroy or adversely 
modify critical habitat.

Issue 3: Economic Issues

    Comment 20: One commenter stated the ``economic analysis'' in the 
notice of proposed rulemaking was incomplete and inadequate. Other 
commenters indicated the economic analysis must be included in the 
proposed rule, and the proposed rule should be revised to include an 
economic analysis and published again for review. Commenters were 
concerned that the public would not be able to comment on the economic 
analysis.
    Our Response: The proposed rule did not contain an economic 
analysis. As is our usual practice because of the urgency of court 
orders the proposal indicated that we would announce the

[[Page 47334]]

availability of the draft economic analysis at a later date and would 
at that time seek public review and comment on the draft economic 
analysis. We published a notice of availability for the economic 
analysis in the Federal Register on April 6, 2004. That notice also 
reopened the comment period on the proposed rule and the draft 
economic. The comment period closed on May 6, 2004.
    Comment 21: Commenters suggested that the benefits, such as non-
consumptive uses, resulting from the designation of critical habitat to 
protect Astragalus magdalenae var. peirsonii should be taken into 
account.
    Our Response: We are unable to quantify the benefits of non-
consumptive uses resulting from critical habitat. While the ISDRA 
offers opportunities for non-OHV recreation, such as hiking and 
horseback riding, historical use patterns indicate that the number of 
individuals participating in these activities is far less than those 
involved in OHV-based recreation. As such, the analysis focuses on 
economic impacts to OHV enthusiasts and OHV-related businesses. The 
published economics literature has documented that real social welfare 
benefits can result from the conservation and recovery of endangered 
and threatened species. Regional economies and communities can benefit 
from the preservation of healthy populations of endangered and 
threatened species, and the habitat on which these species depend.
    In Executive Order 12866, the Office of Management and Budget (OMB) 
directs Federal agencies to provide an assessment of costs and benefits 
of proposed regulatory actions. However, in its guidance for 
implementing Executive Order 12866, OMB acknowledges that often it may 
not be feasible to monetize, or even quantify, the benefits of 
environmental regulations. Where benefits cannot be quantified, OMB 
directs agencies to describe the benefits of a proposed regulation 
qualitatively. Given the limitations associated with estimating the 
benefits of critical habitat for Astragalus magdalenae var. peirsonii, 
the Service believes that the benefits of critical habitat are best 
expressed in biological terms that can be weighed against the expected 
cost impacts of the rulemaking. Thus, we have qualitatively described 
the benefits in the final rule and we have not used the benefits of 
non-consumptive uses in our economic analysis.
    Comment 21: One commenter objected to a statement that the proposed 
rule would not impose a cost on the OHV industry.
    Our Response: The economic analysis considered a No Closure 
Scenario (BLM Management Areas are not closed to OHV recreation as a 
result of critical habitat) and a Closure Scenario (BLM Management 
Areas are closed to OHV recreation as a result of critical habitat) to 
estimate the economic costs of designating critical habitat. Under the 
No Closure Scenario, the annual efficiency impacts associated with 
future Astragalus magdalenae var. peirsonii protection associated with 
administrative and project modification costs only (such as a Federal 
agency compliance with section 7 of the Act) would be approximately 
$0.6 million. Under the No Closure Scenario, losses to OHV users would 
be zero.
    Under the Closure Scenario, the efficiency effects would be 
associated with administrative costs, project modification costs, and 
consumer surplus losses to OHV users. That is, efficiency effects would 
be the sum of the administrative and project modification costs ($0.57 
million) and the consumer surplus contribution associated with the 
affected regions. If all of the areas designated as critical habitat 
within the Imperial Sand Dunes Recreation Area (ISDRA) were closed to 
OHV use, the efficiency effects would range from $9.5 million per year 
to $10.5 million per year ($0.57 million per year in administrative and 
project modification costs plus consumer surplus impacts ranging from 
$8.9 million per year to $9.9 million per year) (2003 dollars). If all 
of the areas designated as critical habitat within the ISDRA were 
closed to OHV use, the regional economy would see an upper bound 
reduction in output of $55 million to $124 million in year 2013 (2003 
dollars), and a potential loss in employment of 1,207 to 2,585 jobs. If 
no closures were to take place, the lower bound regional economic 
impact would be zero.
    For the regulatory flexibility analysis, we identified the OHV 
industry as being the only small entities that could be affected by the 
designation of critical habitat. The designation of critical habitat 
only affects Federal agencies that must consult on impacts to critical 
habitat under section 7 of the Act. An analysis of past section 7 
consultations revealed that business activities of the OHV industry 
have not directly triggered section 7 consultations in the past and are 
unlikely to trigger future section 7 consultations. Therefore, we 
concluded that critical habitat would not create new costs for small 
entities to comply with the designation.
    Comment 22: One commenter believes that the range of forecast 
economic impacts is too wide (i.e., scenarios in the DEA range from no 
closure to blanket closures of certain areas).
    Our Response: Given the uncertainty in the nature and scope of 
future limitations of OHV use in the Imperial Sand Dunes Recreation 
Area (ISDRA) associated with PMV conservation measures, the analysis 
provides impact measures under a range of scenarios, from no closures 
to complete closure. As proposed in the 2003 Biological Opinion issued 
by the Service on management of the ISDRA, BLM has initiated an 
extensive monitoring program for the PMV. BLM proposes to reinitiate 
consultation with the Service in four years based on information 
obtained from monitoring or studies. BLM also proposes to reinitiate 
sooner than four years if the PMV population in any Management Area 
falls to 50 percent of the baseline level in a subsequent year with 
comparable rainfall at or above the long-term mean (Service, 2003). 
This future consultation has the potential to result in additional 
management actions to protect the PMV, although currently no actions 
are anticipated that would reduce OHV opportunities or adversely impact 
the regional economy. Given uncertainties related to future management 
decisions and biological factors, narrowing the range of potential 
scenarios is not possible at this time. As a result, the analysis can 
be used to determine the social welfare and regional economic impacts 
that might occur under a range of potential future management actions 
related specifically to closure scenarios. Both technical reviewers of 
the draft report concluded that this approach is appropriate given the 
uncertainty associated with future policy decisions.
    Comment 23: Several commenters note that the analysis 
underestimates expenditures made by ISDRA visitors. Commenters provide 
estimates of expenditures per trip ranging from $1,000 to $2,000.
    Our Response: The analysis recognizes that OHV users incur large 
trip-related expenses when visiting the ISDRA. However, the high-end 
estimates reported by several commenters may not represent the average 
of expenditures across all groups who visit the dunes, and overstates 
the expenditures made by the average visitor within the two counties 
included in the analysis.
    The $265 to $515 per trip expenditure range used in the analysis is 
derived from an American Sand Association newsletter (dating May 2003), 
and is

[[Page 47335]]

intended to represent an average across the hundreds of thousands of 
trips taken to the ISDRA each year. Clearly some visitors spend more; 
however, the range used is intended to represent an average. More 
important, the expenditure range applied in the DEA is used to 
represent expenditures by visitors solely within Imperial and Yuma 
Counties. BLM and OHV stakeholder groups indicate that many ISDRA 
visitors purchase goods and services outside of Imperial and Yuma 
Counties (e.g. gas, groceries, supplies, and equipment are purchased 
within counties of origin featured in Exhibit 3-1 of the report).
    The report's trip expenditure assumptions are similar to estimates 
used in an economic study conducted by BLM in its Final Environmental 
Impact Statement for the Imperial Sand Dunes Recreation Area Management 
Plan (May 2003). The BLM study's estimate of $260 in expenditures per 
household OHV trip is taken from a California Department of Parks and 
Recreation Off-Highway Vehicle study. This estimate is assumed to 
represent the portion of expenditures spent within the local economy, 
consisting of Imperial and Yuma Counties. The high-end expenditure-per-
trip estimates provided by commenters likely do not represent purchases 
made entirely within the counties modeled in the analysis.
    Technical reviewers of the DEA note that visitor expenditure 
estimates are critical to estimating the regional economic impacts and 
support the assumptions employed within the DEA. Moreover, expenditures 
generated by applying the $250-$515 range to estimated number of ISDRA 
trips per year are reasonable when viewed in the context of the local 
economy. While overall estimates of expenditures per trip remain 
unchanged from the DEA, the final report has been revised to include 
discussion of the high-end trip expenditures incurred by ISDRA OHV 
users (Section 4.1.5).
    Comment 24: Several commenters note that analysis does not address 
impacts to OHV and OHV-related equipment manufacturers within Imperial 
and Yuma Counties.
    Our Response: BLM and OHV user groups have indicated that most 
ISDRA visitors purchase OHVs and other recreational vehicles in areas 
outside of Imperial and Yuma Counties (i.e. in counties of origin 
depicted in Exhibit 3-1). The analysis recognizes, however, that OHV 
businesses within Imperial and Yuma Counties benefit directly from OHV 
recreation at the ISDRA. Section 3.2.2 states, ``Several businesses 
that operate within Imperial and Yuma Counties are dependent on the 
recreational activities that occur within the ISDRA * * * major towns 
in the counties have a number of small businesses that sell OHVs and 
OHV accessories and services and market to both local and tourist 
populations. In addition, a number of small businesses exist within the 
geographical boundaries of the ISDRA itself, catering exclusively to 
dune visitors. Any reduction in visitation is likely to adversely 
impact these local businesses''.
    Potential impacts to local businesses selling OHV equipment, 
supplies and services in Imperial and Yuma counties are examined in the 
analysis of regional economic impacts (Exhibit 4-13). In 2003, direct 
expenditures incurred by ISDRA recreators on OHV equipment, supplies, 
and services are estimated to be $69.2 million (on average $194.60 per 
trip multiplied by an estimated 355,704 trips). Information on the 
number of ISDRA visitors who live in and purchase OHVs and OHV-related 
vehicles within Imperial and Yuma Counties is not available. Therefore, 
data do not exist to accurately estimate potential reductions in OHV 
purchases made within Imperial and Yuma Counties given possible changes 
in ISDRA management. The report, however, does recognize the potential 
for impacts to these regional OHV retailers.
    While overall cost estimates remain unchanged from the DEA, the 
report has been revised to incorporate additional information on OHV. 
Specifically, local governments and OHV groups have provided 
information on OHV retailers within Imperial and Yuma Counties.
    Comment 25: Several commenters stated that the report 
underestimates or excludes expenditures incurred through purchasing 
OHVs and OHV-related equipment, including trailers, haulers, 
specialized dune transportation equipment.
    Our Response: The above response describes why potential economic 
impacts to regional OHV retailers were not quantified in the analysis. 
While overall cost estimates within the report remain unchanged, 
Section 3.2.1 of the report has been revised to describe additional 
information on investment in OHV equipment.
    Comment 26: One commenter questioned whether the regional economic 
analysis incorporates impacts to permitted vendors within the ISDRA.
    Our Response: The analysis addresses potential impacts of decreased 
expenditures in industries related to OHV recreation by utilizing 
IMPLAN, a software package that translates initial changes in 
expenditures into changes in demand for inputs to affected sectors. The 
sectors examined include fuel, food, camping supplies, medical goods 
and services sales and equipment repairs within Imperial and Yuma 
Counties. To the extent that permitted vendors are included as part of 
these sectors and are taxed by local governments, impacts to them are 
captured in the regional economic impact analyses of these industries.
    Comment 27: One commenter notes that current closures in the 
Algodones Dunes are creating an adverse economic impact that is not 
being defined within this draft report.
    Our Response: The analysis addresses impacts from past and current 
closures. Section 4.1.6, ``Summary of Past Impacts'', provides 
estimates of consumer losses and regional economic impacts stemming 
from the 2001 temporary closures.
    Comment 28: Several commenters note that the report underestimates 
lost revenues within Imperial and Yuma Counties. One commenter notes 
that a former BLM economic study underestimated economic contributions 
associated with ISDRA visitation. Another commenter states that the 
text-box in the Executive Summary underestimates the economic 
contribution of the ISDRA to Imperial County.
    Our Response: The analysis calculates a range of economic 
contributions associated with ISDRA visitation assuming high and low 
visitation projections and high and low expenditures per trip. The 
report first calculates the economic contribution of the entire ISDRA 
and then attempts to distinguish contributions associated with 
visitation in areas proposed as critical habitat. Exhibit ES-6, Figure 
4-2 and Exhibit 4-14 summarize contributions of OHV-related 
expenditures and contributions by each management area and proposed 
critical habitat. The value generated by Glamis alone within Yuma 
County is as high as $17.36 million per year. Placed in the context of 
both counties' annual taxable sales, regional economic contributions of 
the ISDRA comprise a sizable portion of the two counties' economies.
    The text-box within the Executive Summary examines the current 
economic value generated by OHV use within the Glamis Management Area 
relative to the county's revenues. Total expenditures generated from 
OHV use within the entire ISDRA in 2003 can be calculated by 
multiplying current visitation by assumed expenditures per trip. 
Exhibit 4-14 also provides total

[[Page 47336]]

expenditures generated by the entire ISDRA by management area assuming 
2013 visitation. The text-box has been clarified to highlight the focus 
on the Glamis Management Area.
    Comment 29: Several commenters note that the estimated impacts 
should be placed in the context of OHV-related business sales and not 
the entire region's economy. One commenter requests that the analysis 
include a definition of ``significant'' when comparing reported 
economic impacts on local economies. Another commenter notes that sales 
taxes lost to the region would equate to a 5 percent loss in workforce 
and small businesses that rely on OHV recreation would cease to exist. 
Finally, one commenter notes that the analysis does not adequately 
address how the estimated job losses (of up to 2,585 jobs) will impact 
a region that already experiences high unemployment.
    Our Response: Response to comments above addresses potential 
impacts to small businesses in the two-county area. The analysis has 
been revised to include estimated losses as a percent of OHV-related 
businesses and sales, specifically sales within the retail trade, 
accommodation, and food services sectors within the two counties 
(Exhibits ES-5 and 4-17). In addition, Section 4.2.6 within the report 
has been revised to further discuss how potential losses in revenues, 
employment, and taxes may impact the local economies. Note that Section 
3.1.4 within the report describes the high unemployment rates prevalent 
in both counties and major cities within the region.
    Comment 30: Several commenters note that the economic analysis does 
not address potential impacts to OHV trailer manufacturing and OHV 
accessory businesses that exist outside of Imperial and Yuma Counties. 
One commenter notes that OHV recreation provides approximately $9 
billion to California's economy and that since the ISDRA is the most 
heavily used OHV area in the state, potential closures would be far 
greater than those estimated in the economic analysis.
    Our Response: The report recognizes that OHV businesses operating 
outside of the primary study area (Imperial and Yuma Counties) have the 
potential to be impacted by any limitations on OHV activity within the 
ISDRA, provided that limitations discourage users from purchasing OHVs 
and related equipment (Section 3, paragraph 89). These potential 
impacts are difficult to analyze as no data exist to model where OHV 
enthusiasts from the greater California and Arizona region purchase 
vehicles and other equipment, and how these purchases will change in 
response to closures within the ISDRA.
    First, as stated in paragraph 89, ``OHV-related businesses located 
outside of Yuma and Imperial Counties may experience a lesser impact 
than those within these counties, since OHV enthusiasts may decide to 
visit other OHV areas in California, Arizona, and neighboring states.'' 
Technical reviewers of the report agree that if an area is closed, the 
visitor may not give up OHV recreational experiences but instead may 
seek other places to visit. By not taking into account this behavioral 
phenomenon, generated impact estimates could be greatly overestimated.
    Second, while OHV and related equipment manufacturers may 
experience impacts within the greater California and Arizona area, 
these impacts are anticipated to be small relative to the overall size 
of these counties' economies. As stated in paragraph 89, ``This 
analysis does not quantify the expenditures OHV users make on vehicles 
or related equipment because these purchases are likely made over a 
broader geographic area.'' Potential changes in OHV-related 
expenditures are not expected to have a significant impact outside of 
Imperial and Yuma Counties, because the majority of these counties are 
large, with diverse economies (e.g. Los Angeles).
    Finally, losses to businesses within the two-county area from 
decreased ISDRA visitation are unlikely to be replaced by expenditures 
on other goods and services of the same order of magnitude. However, 
impacts to OHV-related businesses in other areas (e.g. origin counties) 
will likely be offset by expenditures on other goods and services in 
those regions, even if OHV use declines.
    The most recent OHV survey conducted by the California Off-Highway 
Motor Vehicle Recreation Division in 2002 estimates the annual economic 
impact of OHV recreation in California at $3.049 billion (CA Off-
Highway Motor Vehicle Recreation Division, 2001). The extent that use 
limitations within the ISDRA discourage OHV users from the greater 
economic study area from purchasing OHVs and OHV-related equipment, OHV 
businesses within the broader geographic area are likely to be 
impacted.
    Comment 31: One commenter notes that decreases in revenues within 
Imperial and Yuma Counties as a result OHV-use restrictions may 
increase revenues in other counties that provide sand dune 
opportunities that do not host rare species.
    Our Response: The analysis acknowledges within Section 3 that, ``* 
* * OHV-related businesses located outside of Yuma and Imperial may 
experience a lesser impact than those within these counties, since OHV 
enthusiasts may decide to visit other OHV areas in California, Arizona, 
and neighboring states''. Exhibit 3-8 within the report provides 
examples of substitute sites available to OHV users and notes this 
occurrence as a key assumption in Exhibit ES-7. However, with over 
83,000 acres currently open to OHV use and 132,870 acres available once 
the temporary closures are lifted, the ISDRA remains one of the largest 
dune systems available for motorized-recreation in the region. Three 
sites, Ocotillo Wells, Superstition Mountain, and Dumont Dunes, closest 
to the ISDRA provide for recreation.
    While decreased expenditures within Imperial and Yuma Counties may 
be offset by increased expenditures, though difficult to quantify, in 
other OHV areas, understanding potential impacts to this region is 
critical to understanding the potential impacts of any changes in OHV 
use at the ISDRA. Several businesses that operate within the region 
rely heavily on income generated by OHV-based recreation. Reduced 
visitation resulting in revenue, employment and tax losses may pose 
considerable burdens to local communities.
    Comment 32: One commenter noted that visitation is not evenly 
distributed throughout the ISDRA: the inner areas of the dunes are the 
most popular, and the inner areas are what draw visitors to the dunes. 
Another commenter notes that the analysis inflates impacts by assuming 
visitation is evenly distributed within each management area when 
``highest use areas were already excluded''. Another commenter notes 
that assuming visitation is evenly distributed within each management 
area is unrealistic because of ``the known distributional patterns of 
motorized recreation over the OHV accessible areas of the dunes''.
    Our Response: The analysis recognizes that high-use, developed, 
staging, and camping areas that are unlikely to contribute to the 
conservation of the species have been excluded from the proposed 
designation. The analysis also agrees that the inner portions of the 
dunes may be more attractive to some users (Sections 2.3.1; Section 4, 
paragraph 121; and Section 4.1.1). However, while the inner portions of 
the dunes may draw many users to the dunes, these areas are more remote 
and are therefore likely to experience less intensive

[[Page 47337]]

visitation (i.e., such visitation may require specialized equipment).
    It is not possible, using existing data, to predict the percentage 
of OHV users who visit areas of the ISDRA that are proposed for 
critical habitat. Lacking detailed data and user patterns and to offset 
conflicting attitudes towards visitation distribution, the report 
models visitation based on BLM visitor counts and assumes an equitable 
distribution of visitation within each management area. To the extent 
that areas proposed for designation are less or more popular with OHV 
users, this analysis could overstate or understate impacts by over- or 
underestimating the number of trips that could be affected by the 
designation.
    Comment 33: One commenter suggests that any potential limitations 
on OHV use may displace visitation to other parts of the season (users 
might spread usage over other times, resulting in similar usage and 
economic expenditures). Another commenter notes that the analysis 
cannot assume lasting impacts of any future closures on visitation 
levels within the ISDRA.
    Our Response: The analysis recognizes that OHV limitations in the 
past may have resulted in a redistribution of visitation over the 
recreation season. Section 4.1.1 states that that in the years 
subsequent to the temporary 2001 closures, BLM ``documented an increase 
in visitation during traditionally off-peak weekends, likely a result 
of OHV recreationists seeking a less-crowded ISDRA experience * * * 
whether visitation to the ISDRA declined as a result of the closures is 
debated.''
    Data are not available to model intertemporal substitution by ISDRA 
visitors given closure of one or more of the management areas. To 
determine the economic impact of past limitations on OHV recreation, 
the analysis assumes that OHV-users who would otherwise recreate at the 
closed ISDRA management areas would limit or refrain from visits to the 
dunes. Thus, the analysis can be used to understand the upper-bound 
social welfare and regional economic impacts under a variety of closure 
scenarios.
    Comment 33: Several commenters note that ISDRA visitation actually 
increased rather than declined subsequent to the 2001 closures and that 
it is erroneous to conclude that visitation declined by 15 percent due 
to the closures particularly since visitation fluctuates based on 
weather and other factors.
    Our Response: The report acknowledges in Section 4.1.4 that the 
reported change in ISDRA visitation between 2001 and 2002 is not likely 
due to actual increased visitation but rather to refined counting 
methodologies employed by BLM. The analysis states that ``prior to 
2002, BLM extrapolated visitation by employing on-the-ground and fly-
over estimates of vehicles during peak weekends. In 2002, BLM installed 
underground vehicle counters at each major ISDRA entrance point. 
Accordingly, accurate visitation data by management area prior to the 
2002 recreation season is not available.''
    The report also recognizes in Section 4.1.4, that fluctuations in 
annual visitation reflect a variety of factors, including economic and 
weather conditions. While BLM did not observe a drop in visitation 
subsequent to the closures, users within the OHV community expressed 
that visitation levels were likely impacted. The 15 percent reduction 
was therefore assumed to represent visitation in the areas slated for 
temporary closure. To understand the maximum social welfare and 
regional economic impacts of a closure, the DEA assumed that under 
closures OHV users who preferred to recreate in the closed areas would 
choose to not visit the dunes or make fewer trips per year. In Exhibit 
4-8, this assumption of a 15 percent reduction is listed as a key 
assumption employed in the analysis of past economic impacts.
    Comment 35: One commenter notes that the DEA does not consider 
economic costs associated with managing OHV activities at the ISDRA, 
including law enforcement required during high-use weekends. Another 
commenter notes that the analysis overlooks costs inflicted upon public 
safety by OHV use. Finally, a commenter remarks that it is incorrect to 
assume that closures are associated with cost savings to public 
agencies. (CNPS, BN, BLM)
    Our Response: The analysis addresses costs associated with the 
public provision of on-site services at the ISDRA within Section 3.2.3. 
As stated:

    Accommodating the millions of visitors that visit the ISDRA each 
year requires the provision of additional services and on-site 
infrastructure by both BLM and local government agencies * * * 
(m)oreover, the high visitation that occurs at the ISDRA during 
holiday weekends between March and October necessitates the 
provision of additional enforcement and emergency services. During 
high-use holiday weekends, BLM employs as many as 100 officers from 
state, local, and federal agencies to patrol the dunes. In the ISDRA 
Business Plan, BLM anticipates incurring annual costs of up to $3.12 
million related to law enforcement ($500,000), emergency ($280,000), 
and additional holiday staffing ($2.34 million) * * * The Imperial 
County Sheriff's Office has also led a coalition of law enforcement 
agencies over the past three years to enforce legal behavior and 
provide for public safety at the dunes. In December 2003, the 
Sheriff's Office was granted approximately $750,000 for OHV law 
enforcement and emergency services at the ISDRA by the California 
Off-Highway Motor Vehicle Recreation Commission. Any reduction in 
future visitation at the ISDRA is potentially associated with public 
costs savings in expenditures related to providing on-site 
infrastructure, enforcement, and emergency services at the dunes. 
However, data are not available to estimate the extent of these cost 
savings; as such, these cost savings are not monetized in this 
analysis.

    Comment 37: Two commenters noted that the substitute sites listed 
in Figure 3-2 do not provide recreational opportunities provided by the 
ISDRA in terms of acres available for dune recreation and distance from 
point of origin. One commenter specified that comparable alternatives 
should be limited a 250 mile radius from Los Angeles or Phoenix, cities 
from where the majority of ISDRA users originate.
    Our Response: Substitute sites were compiled from a variety of 
sources, including published documents and personal communication with 
ISDRA dune users. As visitors from the ISDRA originate from a broad 
geographic area, the analysis assumed a broad distribution of OHV 
recreation. Figure 3-2 has been revised to incorporate updated 
information on types of recreational opportunities offered by the 
alternative OHV recreation areas (e.g. whether sites offer dune-based 
recreation). Information on potential substitute sites for OHV 
recreation within the region is provided as a basis for comparison and 
does not impact cost estimates presented in the report.
    Comment 38: Several comments noted that the report fails to address 
or minimizes the economic contribution of non-OHV recreation, 
overlooking the fact that non-OHV recreation may be precluded by OHV 
use due to safety concerns. One commenter also requested that the 
analysis address contributions of recreational activities associated 
with botanical opportunity.
    Our Response: The report acknowledges the presence of non-OHV 
related recreational activities within the ISDRA, including hiking, 
horseback riding, conservation activities, and some commercial 
activities including filming (as stated in paragraph 6 and Section 
2.3). While the ISDRA offers opportunities for non-OHV recreation, BLM 
has noted that these activities occur infrequently relative to OHV-
based recreation. Based on historical use patterns within areas open to 
non-motorized recreation, non-OHV related

[[Page 47338]]

activities are expected to remain relatively modest in the future.
    While non-motorized recreation is precluded in OHV-recreation areas 
due to safety concerns, it is difficult to determine whether closures 
to OHV-use would generate similar levels of visitation and expenditures 
by non-OHV recreational activities. Given the current disparity between 
the number of non-OHV trips and OHV based trips, non-OHV recreation 
given closures to OHV-use would likely draw several order of magnitude 
less visitation.
    Comment 39: One commenter notes that the number of acres available 
to OHV use within the ISDRA reported in Figure 3-8 is misleading. The 
report presents 83,560 acres available to OHV use and the commenter 
notes that number should reflect acreage prior to the temporary 
closures, or 132,870 acres.
    Our Response: Figure 3-8 has been revised to incorporate both 
temporary and permanent acreage numbers (83,560 and 132,870 acres 
available for OHV use).

Summary of Changes From the Proposed Rule

    In the development of our final designation of critical habitat for 
Astragalus magdalenae var. peirsonii, we reviewed comments received on 
the proposed designation of critical habitat. In addition to minor 
clarifications and incorporation of additional information on the 
biology of A. magdalenae var. peirsonii, we made the following changes 
to the proposed designation:
    (1) We did not include Subunit D in the final designation of 
critical habitat. Because of its relatively small size and separation 
from the other subunits, we do not consider it essential to the 
conservation of the taxon.
    (2) We excluded portions of Subunit B and all of Subunit C from the 
final designation of critical habitat under section 4(b)(2) of the Act.
    (3) We modified the primary constituent elements to include the 
associated co-adapted psammophytic (sand-loving) scrub plant community 
that supports the white-faced digger bee (Habropoda spp.), the primary 
pollinator of Astragalus magdalenae var. peirsonii (Porter 2003b).

Critical Habitat

    Please see the proposed rule for critical habitat for Astragalus 
magdalenae var. peirsonii for a general discussion on sections 3, 4, 
and 7 of the Act in relation to critical habitat (68 FR 46143).

Methods

    As required by section 4(b)(2) of the Act and regulations at 50 CFR 
424.12, we used the best scientific and commercial information 
available to determine areas that contain the physical and biological 
features that are essential for the conservation of Astragalus 
magdalenae var. peirsonii. This included information from our own 
documents on this plant and related taxa; available information that 
pertains to the biology and habitat requirements of this taxon, 
including data from research and survey observations, such as WESTEC 
(1977), BLM surveys conducted from 1998 to 2002 (Willoughby 2000, 
2001), TOA (2001), and Phillips and Kennedy (2002, 2003); the 
California Natural Diversity Database (2003); peer-reviewed journal 
articles and book excerpts regarding A. magdalenae var. peirsonii, 
similar species, or more generalized issues of conservation biology; 
unpublished biological documents; site visits; and discussions with 
botanical experts regarding A. magdalenae var. peirsonii and related 
species.
    The areas designated as critical habitat are occupied by Astragalus 
magdalenae var. peirsonii as demonstrated by repeated surveys by BLM 
(Willoughby 2000, 2001), and independently confirmed by other surveys 
(TOA 2001; Phillips and Kennedy 2002, 2003). This plant may be present 
as standing plants, persisting as perennial root crowns in the sand, or 
as seed bank in the sand. During any given year, the suitable habitat 
for A. magdalenae var. peirsonii may be occupied by various 
combinations of these three life history phases. These surveys confirm 
the continuity of habitat for A. magdalenae var. peirsonii along the 
northwest-to-southeast axis of the Algodones Dunes. The dynamics of 
dune morphology, local rainfall patterns and amounts, spatial 
distribution of the seed bank, and seed scarification each contribute 
to the patchy or mosaic nature of the distribution of standing plants 
of A. magdalenae var. peirsonii. Local rainfall patterns and amounts 
are likely to cause shifts in the proportions of these three life 
history phases. All areas designated as critical habitat contain at 
least one of the primary constituent elements and have been determined 
to be essential to the conservation of the species.
    The most extensive survey of the Algodones Dunes was conducted in 
1977 (WESTEC 1977). This survey used 66 transects that ran across the 
dunes from west to east. The presence and relative abundance of 
standing plants of Astragalus magdalenae var. peirsonii and four other 
rare psammophytic scrub species were recorded along these transects. In 
1998, BLM began surveying for rare plants in the dunes repeating the 
methodology used by WESTEC in their 1977 survey. BLM surveyed 34 of the 
original 66 transects and employed a different abundance measure. The 
BLM conducted these surveys for 5 consecutive years (1998, 1999, 2000, 
2001, and 2002) recording the presence and abundance of the rare plant 
taxa along these transects.
    To determine the general range of Astragalus magdalenae var. 
peirsonii in the Algodones Dunes, we used survey information from 
published and unpublished documents and maps including WESTEC (1977), 
BLM (Willoughby 2000, 2001), and TOA (2001). WESTEC (1977) devised a 
grid system overlay for the Algodones Dunes. Each quadrant of the grid 
was approximately 0.45 mi (0.72 km) on a side. BLM reproduced this grid 
system to present data from their subsequent annual surveys from 1998 
to 2002 (Willoughby 2000, 2001). Both WESTEC and BLM considered a grid 
square occupied if A. magdalenae var. peirsonii was encountered 
anywhere within that grid square. For comparison, we also superimposed 
census data included by TOA (2001) on this same grid system. We 
produced maps based on WESTEC (1977), BLM (Willoughby 2000, 2001), and 
TOA (2001) data. Because of the differences in survey methodologies and 
abundance classes used by these surveys, we considered each of these 
records to document presence or absence. Due to fluctuations in both 
the presence and abundance of A. magdalenae var. peirsonii from year to 
year, we combined the data from multiple years of survey data. Also the 
various surveys recorded standing plants as the only measure of 
occupancy, not taking into account a dormant seed bank or root crowns.
    The survey efforts discussed above provided us with the data 
necessary to construct a model showing which regions of the Algodones 
Dunes represent habitat essential for the conservation of Astragalus 
magdalenae var. peirsonii. The model that we created used the data 
collected by the BLM from 1998 to 2002 as the input data and the data 
collected by WESTEC (1977) and TOA (2001) as a means of verifying the 
information generated by the model. The BLM data were used as the input 
data source for the model because it was more current, covered multiple 
years, and used the same methodology each year. Time and resources 
precluded us from conducting

[[Page 47339]]

independent surveys. Outlier occurrences evidenced only by WESTEC 
(1977) were not included because of the age of the report and the lack 
of substantiation by more recent BLM surveys.
    In order to create this model we used BLM data to extrapolate the 
values for four variables: (1) The presence or absence of standing 
plants of Astragalus magdalenae var. peirsonii. This variable indicated 
localities where A. magdalenae var. peirsonii had been found in any of 
the five survey years either as seedlings or as older plants; (2) the 
relative abundance of A. magdalenae var. peirsonii in any of the five 
survey years. The highest abundance class value recorded for each grid 
cell during the five years of surveys was used as the cell's value for 
this variable. This variable was used to identify areas that support 
higher plant densities; (3) the frequency of occurrence of A. 
magdalenae var. peirsonii from year to year. This variable was 
calculated based on the number of times A. magdalenae var. peirsonii 
was reported in a grid cell throughout the five years of surveys. This 
variable was used to identify areas that continued to persist as 
productive habitat for A. magdalenae var. peirsonii over time; and (4) 
the number of associated rare psammophytic (dune loving) plant taxa 
present. These plants included Croton wigginsii, Helianthus niveus ssp. 
tephrodes, Palafoxia arida var. gigantea, and Pholisma sonorae. For 
each grid cell, scores were assigned based on the number of these 
associated plants that were found over the course of the five years of 
surveys. Higher scores may indicate a higher likelihood of the presence 
of A. magdalenae var. peirsonii, the biological diversity of associated 
psammophytic scrub species, and/or the presence of higher quality 
psammophytic scrub habitat that supports A. magdalenae var. peirsonii.
    We calculated scores for each of these variables and then 
extrapolated the values for each variable for the entire dune area. We 
made this extrapolation based on a statistical method called Kriging, 
which calculates new values for unsurveyed areas based on the known 
values for the cells that were surveyed (Royle, Clausen, and 
Frederiksen, 1981; Oliver, M. A. and R. Webster. 1990). The data for 
these four variables were then standardized to a scale of 0 to 5 points 
so that the range of scores, from low to high, would be comparable to 
one another. The standardized scores were then totaled for each cell, 
for a possible high score of 20 points. This set of values was then 
further refined using the Kriging method to generate a map similar in 
appearance to a topographic map, showing the resulting scores of the 
model in the same way a topographic map shows variations in elevation. 
This map showed a strong band of high values that ran along the 
northwest to southeast axis of the dune field. The portion of the dunes 
that corresponded to the top three categories of scores was delineated 
and identified as essential to the conservation of Astragalus 
magdalenae var. peirsonii. In order to provide legal descriptions of 
the critical habitat boundaries, we then overlayed a 100-meter grid to 
establish UTM North American Datum 27 (NAD 27) coordinates to define 
the critical habitat subunit boundaries.
    Intrinsic to the creation of the essential habitat model for 
Astragalus magdalenae var. peirsonii was the application of several 
assumptions related to the (1) BLM study design (Willoughby 2000, 
2001); (2) habitat and weather variability across the entire dune 
system; (3) paved roads as barriers to dispersal; (4) occurrences of 
plants and seeds in grid cells over different survey periods; and (5) 
model protocol. These assumptions are described to allow the reviewer 
to understand the potential strengths and limitations of the results of 
the habitat modeling. Based on the BLM study design, a consistent 
survey methodology was used for the plant surveys conducted in 1998, 
1999, and 2000 (Willoughby 2000, 2001). Vegetation maps (BLM 2003), 
wind patterns (Romspert and Burk 1979; Norris and Norris 1961), and 
precipitation patterns (Willoughby 2000, 2001) supported our assumption 
that the habitat (in terms of dune action) precipitation, and 
vegetation, was uniform in variation and continuous throughout the dune 
system. Based on rainfall data collected from November 16, 2000, to 
March 16, 2001, (1.40 inches of precipitation was recorded at Cahuilla 
Ranger Station in the northwest part of the dunes and 2.67 inches of 
precipitation was reported at Buttercup Campground in the southern end 
of the dunes (Willoughby 2001)), BLM indicated that more precipitation 
may fall in the southern portion of the Algodones Dunes compared to the 
northern end of the dunes. However, given the limited precipitation 
data available for the Algodones Dunes (5 months) and the relatively 
short linear extent of the dunes (40 mi (64 km) long), we could not 
project a rainfall gradient and, instead, assumed that the 
precipitation was uniformly variable and continuous throughout the dune 
system. Based on observations of unimpeded sand and wind movement 
across existing paved roads, we did not expect that the paved roads 
would represent a barrier to the dispersal of the fruits and seeds of 
A. magdalenae var. peirsonii. Surveys conducted by BLM indicate 
variability in occurrences of standing plants from year to year 
(Willoughby 2000, 2001), and that at any given time, these occurrences 
may represent standing plants, root crown regrowth, or seedlings of A. 
magdalenae var. peirsonii. We assumed that if standing plants were not 
found in a particular grid cell during a survey, but were recorded as 
present in other survey years, then that grid cell may be occupied by 
either root crowns or seeds of this species. BLM randomly selected 
survey transects and, as expected, this random selection results in 
gaps between transects. We projected the distribution of A. magdalenae 
var. peirsonii across the gaps by assuming that the values of unknown 
grid cells are more closely related to nearby cells rather than distant 
cells. Based on our analysis of these assumptions, we believe that the 
essential habitat model can be used to identify areas that are 
essential to the conservation of A. magdalenae var. peirsonii within 
the Algodones Dunes.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to designate as critical 
habitat, we consider those physical and biological features (primary 
constituent elements) that are essential to the conservation of the 
species and that may require special management considerations or 
protection. These include but are not limited to: space for individual 
and population growth and for normal behavior; food, water, air, light, 
minerals or other nutritional or physiological requirements; cover or 
shelter; sites for germination or seed dispersal; and habitats that are 
protected from disturbance or are representative of the historic 
geographical and ecological distributions of a species.
    All areas designated as critical habitat for A. magdalenae var. 
peirsonii are within the species' historical range and contain one or 
more of the biological and physical features (primary constituent 
elements) identified as essential for the conservation of the species. 
The primary constituent elements essential to the conservation of 
Astragalus magdalenae var. peirsonii habitat are based on specific 
components that are described below.

[[Page 47340]]

Space for Individual and Population Growth, Including Sites for 
Germination, Pollination, Reproduction, Seed Dispersal, and Seed Bank

    The active sand dunes provide space for individual and population 
growth for Astragalus magdalenae var. peirsonii. In the United States, 
A. magdalenae var. peirsonii is limited to a band of sand dunes in the 
central portion of the Algodones Dunes. The dunes in this band are 
composed of a series of transitional crescentic ridges (Muhs et al. 
1995). Active sand dunes are characterized by bowls (hollows among the 
dunes), swales (low area), and slip faces (areas so steep that the 
loose sand naturally cascades downward) that run transverse to the 
primary ridge line. Astragalus magdalenae var. peirsonii occurs on the 
active sand dunes, generally where the slopes of the faces of the sand 
dunes are less than 30 degrees, but generally less than 20 degrees. 
These active sand dunes provide the habitat for the natural 
fluctuations of the population over time.
    Astragalus magdalenae var. peirsonii occurs in a vegetation 
community referred to as psammophytic scrub (WESTEC 1977; Willoughby 
2000). Astragalus magdalenae var. peirsonii is associated with other 
psammophytic plants (e.g., Croton wigginsii, Eriogonum deserticola, 
Helianthus niveus ssp. tephrodes, Palafoxia arida var. gigantea, 
Pholisma sonorae, and Tiquilia plicata). In areas where the sand dunes 
are more stabilized (less sand dune building and movement), such as 
along the margins of the dune fields, the open canopy psammophytic 
scrub community is replaced by the sandier phases of the creosote bush 
scrub community. Astragalus magdalenae var. peirsonii is apparently 
excluded from the relatively more closed canopy creosote bush scrub 
community. The associated co-adapted psammophytic scrub plant community 
also supports the white-faced digger bee (Habropoda spp.), the primary 
pollinator of Astragalus magdalenae var. peirsonii (Porter 2003b).
    Sand movement, dune-building, and dune migration are likely 
determined by the wind regime (Norris and Norris 1961). Winds from the 
northwest are prevalent in the winter, while in the summer the winds 
are from the southeast (Romspert and Burk 1979). Muhs et al. (1995) 
found during a study of the sand source for the Algodones Dunes that 
dominant sand-moving winds are as follows: prevailing from the 
northwest all year at Indio, California, from the west or southwest all 
year at El Centro, California, and from the northwest in winter and 
from the southeast in summer at Yuma, Arizona. These winds are 
responsible for the dispersal of seeds and fruits within the Algodones 
Dunes. Seeds are either dispersed locally by falling out of partly 
opened fruits on the parent plant or by their release from fruits blown 
across the sand after falling from the parent plant. Seed germination 
patterns likely reflect the horizontal and vertical distribution of the 
seed bank in the shifting sand dunes (seeds will not effectively 
germinate where they are buried below a certain depth of sand). As an 
adaptation to shifting sands and low soil moisture, this species has 
developed extremely long tap roots (Barneby 1964) that penetrate deeply 
to the more moist sand and anchor the plants in the shifting dunes. 
Seeds buried in the sand function as the seed bank and allow for growth 
when suitable conditions, such as adequate rainfall, scarification, and 
suitable sand depths, are met.

Intervening Areas for Gene Flow and Connectivity Within the Population

    The active sand dunes are continuous along the northwest-to-
southeast axis. The continuity of the sand dunes provide connectivity 
and facilitate gene flow within the population by allowing the movement 
of pollinators and the wind dispersal of fruit and seeds. Consistent 
with the principles of conservation biology, critical habitat includes 
relatively large contiguous blocks of habitat that encompass the most 
important areas identified by our essential habitat model. Moreover, we 
do not expect that the paved roads would represent a barrier to the 
dispersal of the fruits and seeds of Astragalus magdalenae var. 
peirsonii.

Areas That Provide the Basic Requirements for Growth (Such as Water, 
Light, and Minerals)

    A soil survey for the Imperial Valley area of Imperial County 
(Zimmerman 1981) did not include the areas east of the Coachella Canal 
but did depict a few adjacent portions of the Algodones Dunes as 
Rositas fine sand with 9 to 30 percent slopes. Rositas fine sand are 
described as deep, somewhat excessively drained, sloping soils formed 
in wind-blown sands of diverse origin. Dean (1978) describes the sand 
as quartz with a mean grain size of 0.006 in (0.17 mm). The dunes 
contain 60 to 70 percent quartz and 30 to 40 percent feldspar sand 
(Norris and Norris1961). The Algodones Dunes are one of the driest and 
hottest regions in the United States. Romspert and Burk (1979) reported 
average yearly precipitation between 1941-1970 was 2.6 in (67.8 mm). 
The rainfall is often described as scattered or patchy. Rainfall 
amounts differ from place to place and from year to year with areas to 
the northwest being generally dryer than those to the southeast 
(Willoughby 2001). The central areas of the Algodones Dunes provide the 
appropriate sand substrate and rainfall pattern to augment the basic 
requirements for growth of Astragalus magdalenae var. peirsonii.
    Based on the best available information at this time, the primary 
constituent elements of critical habitat for Astragalus magdalenae var. 
peirsonii consist of:
    (1) Intact, active sand dune systems (defined as sand areas that 
are subject to sand-moving winds that result in natural expanses of 
bowls, swales, and slopes and support the co-adapted psammophytic scrub 
plant and invertebrate communities) within the existing range of 
Astragalus magdalenae var. peirsonii that are characterized by:
    (A) Substrates of the Rositas soil series, specifically Rositas 
fine sands of sufficient depth to promote Astragalus magdalenae var. 
peirsonii and discourage creosote bush scrub;
    (B) Wind-formed slopes of less than 30 degrees, but generally less 
than 20 degrees; and
    (C) The associated co-adapted psammophytic scrub plant community 
(e.g., Croton wigginsii, Eriogonum deserticola, Helianthus niveus ssp. 
tephrodes, Palafoxia arida var. gigantea, Pholisma sonorae, and 
Tiquilia plicata) that supports the white-faced digger bee (Habropoda 
spp.), the primary pollinator of Astragalus magdalenae var. peirsonii 
(Porter 2003b).

Criteria Used To Identify Critical Habitat

    We identified critical habitat essential to the conservation of 
Astragalus magdalenae var. peirsonii where it currently occurs or has 
been known to occur in the Algodones Dunes. We are designating critical 
habitat to maintain self-sustaining populations of A. magdalenae var. 
peirsonii within the range of the taxon in the United States.
    Astragalus magdalenae var. peirsonii has a very limited range even 
within the Algodones Dunes. Less than one-third of the area delineated 
by the ISDRA has documented occurrences of A. magdalenae var. 
peirsonii. Extreme fluctuations in populations have been demonstrated. 
As a result, it is likely in some years that few, if any, seeds are 
added to the soil seed bank. The patchy distribution of the plants in 
any given year is likely a combination of several factors including the 
dynamics of dune

[[Page 47341]]

morphology, local rainfall patterns and amounts, as well as the spatial 
distribution of the seed bank, and seed scarification.
    We used the top three rankings of the essential habitat model to 
select areas to designate as critical habitat for Astragalus magdalenae 
var. peirsonii. The top three rankings identified areas where standing 
plants, root crowns, or seed bank are likely to occur at higher 
densities based on abundance class values, occurred at a higher 
frequency and persisted from year to year, and co-occurred with other 
rare psammophytic scrub plants as an indicator of habitat quality and 
biological diversity. We consider the most important areas for 
Astragalus magdalenae var. peirsonii to extend along the central 
westerly spine of the Algodones Dunes. The previously proposed Subunit 
D was located along the easterly edge of the main sand dune formations 
at the southern end of the Algodones Dunes. In general, low numbers of 
Astragalus magdalenae var. peirsonii were found in the vicinity of the 
former Subunit D. The previously proposed Subunit D was also divided by 
the All-American Canal (Canal), with the majority of the subunit 
occurring northeast of the Canal. The Canal likely acts as a barrier to 
the dispersal of wind-blown seed and seed capsules, thereby isolating 
the northeast section of the former Subunit D from the rest of the 
Algodones Dunes. Therefore, we did not include Subunit D in the final 
designation of critical habitat for Astragalus magdalenae var. 
peirsonii because of its relatively small size and separation from the 
other critical habitat subunits.
    In designating critical habitat, we made an effort to avoid 
developed areas, OHV staging areas, and disturbed areas along roadways 
that are unlikely to contain the primary constituent elements. However, 
we did not map critical habitat in sufficient detail to exclude all 
developed areas or other lands unlikely to contain the primary 
constituent elements essential for the conservation of Astragalus 
magdalenae var. peirsonii. Areas within the boundaries of the mapped 
subunits, such as buildings, roads, parking lots, railroad tracks, 
canals, and other paved areas, will not contain one or more of the 
primary constituent elements and thus do not constitute critical 
habitat for the species. Federal actions limited to these areas, 
therefore, would not trigger a consultation under section 7 of the Act, 
unless it is determined that such actions may affect the species and/or 
adjacent critical habitat.

Special Management Considerations or Protections

    Special management considerations or protections may be needed to 
maintain the physical and biological features as well as the primary 
constituent elements that are essential for the conservation of 
Astragalus magdalenae var. peirsonii within designated critical 
habitat. The term ``special management considerations or protection'' 
originates in section 3(5)(A) of the Act under the definition of 
critical habitat. We believe that the designated critical habitat 
subunits may require the special management considerations or 
protections due to the threats outlined below.
    1. Activities that disrupt the natural processes that support dune 
formation, movement, and structure to allow the natural distribution 
pattern of Astragalus magdalenae var. peirsonii. For examples, barriers 
to sand movement that deplete downwind sand dunes and habitats.
    2. Activities that degrade the psammophytic scrub plant community 
that is an indicator of habitat quality.
    3. Activities that increase sand compaction, such as OHV activity, 
leading to burial of the seed bank from the collapse of dune faces and 
ridges, and exposure of the seed bank.
    BLM released a Recreation Area Management Plan (RAMP) for the 
Imperial Sand Dunes (BLM 2003). A specified major focus of the RAMP is 
to ensure that the OHV recreational opportunities of the ISDRA are 
continuously available while responding to increased need for 
protection of plant and animal species in the dunes (BLM 2003). 
Species-specific management needs and measures for Astragalus 
magdalenae var. peirsonii are not addressed in the RAMP. In the RAMP, 
BLM includes an intensive monitoring/study plan that they are 
implementing. The results of this monitoring will be incorporated into 
a management plan developed for A. magdalenae var. peirsonii.

Critical Habitat Designation

    The critical habitat areas described below include one or more of 
the primary constituent elements described above and constitute our 
best assessment at this time of the areas needed for the conservation 
of Astragalus magdalenae var. peirsonii. Lands designated as critical 
habitat include Federal and private lands. The approximate areas of 
critical habitat by land ownership and subunits are summarized in Table 
1.

  Table 1.--Approximate Areas in Acres (ac) and Hectares (ha) of Designated Critical Habitat for Astragalus magdalenae var. peirsonii by Land Ownership
                                                                      and Subunits.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                Unit                            Federal                       State                       Private                       Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subunit A...........................  14,544 ac (5,886 ha).......  550 ac (223 ha)............  1,414 ac (572 ha)..........  16,509 ac (6,681 ha).
Subunit B...........................  5,355 ac (2,167 ha)........  0 ac (0 ha)................  0 ac (0 ha)................  5,355 ac (2,167 ha).
Total...............................  19,899 ac (8,053 ha).......  550 ac (223 ha)............  1,414 ac (572 ha)..........  21,863 ac (8,848 ha).
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The Algodones Dunes Critical Habitat Unit is divided into two 
subunits (Subunits A and B). The essential habitat model for Astragalus 
magdalenae var. peirsonii was used to identify those portions of the 
Algodones Dunes that were considered essential for the conservation of 
this species. Only a portion of the Algodones Dunes was designated as 
critical habitat based on the essential habitat model and discussion 
with BLM on high use recreational areas within the ISDRA. Subunits A 
and B contain the top three rankings (on a five rank scale) of the 
essential habitat model and were designated as critical habitat. Areas 
in Subunits A and B that fell within the top three rankings were 
believed to provide the best habitat because of the documented 
presence, higher densities, and long-term persistence of A. magdalenae 
var. peirsonii, and habitat quality based on co-occurences with other 
psammophytic scrub plants. The gaps and highways between critical 
habitat subunits are likely traversed occasionally by mature fruits 
dispersed by the wind and by pollinators.
    Subunit A is north of State Highway 78 and encompasses portions of 
the Mammoth and North Algodones Dunes Wilderness. The majority of this 
critical habitat subunit lies within the North Algodones Dunes 
Wilderness. This subunit receives the lowest level of

[[Page 47342]]

human disturbance because the North Algodones Dunes Wilderness is 
closed by BLM to recreational motorized vehicles. This subunit is 
essential to the conservation of Astragalus magdalenae var. peirsonii 
because it retains the most natural and pristine features of the 
Algodones Dunes ecosystem. This subunit includes the best remaining 
example of a dune system undisturbed by intensive OHV recreation.
    Subunit B is south of State Highway 78 and north of Interstate 8 
and encompasses the Ogilby Management Area. This subunit is essential 
to the conservation of Astragalus magdalenae var. peirsonii because it 
represents the largest, widest, and highest sand dune fields within the 
Algodones Dunes and thereby supports large numbers and high densities 
of A. magdalenae var. peirsonii. The natural processes of dune movement 
that maintain the biological conditions necessary to support A. 
magdalenae var. peirsonii are still retained.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.2, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to: Alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, in a March 15, 2001, decision of the United 
States Court Appeals for the Fifth Circuit (Sierra Club v. U.S. Fish 
and Wildlife Service et al., F.3d 434), the court found our definition 
of adverse modification to be invalid. In response to this decision, we 
are reviewing the regulatory definition of adverse modification in 
relation to the conservation of the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened, and with respect to its 
critical habitat, if any is designated or proposed. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. If a Federal action may affect a listed 
species or its critical habitat, the responsible Federal agency (action 
agency) must enter into consultation with us. Through this 
consultation, the Federal action agency would ensure that the permitted 
actions do not destroy or adversely modify critical habitat. 
Destruction or adverse modification of critical habitat occurs when a 
Federal action directly or indirectly alters critical habitat to the 
extent that it appreciably diminishes the value of critical habitat for 
the conservation of the species. Individuals, organizations, States, 
local governments, and other non-Federal entities are affected by the 
designation of critical habitat only if their actions occur on Federal 
lands, require a Federal permit, license, or other authorization, or 
involve Federal funding.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide ``reasonable and prudent alternatives'' to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Director 
believes would avoid the likelihood of jeopardizing the continued 
existence of listed species or resulting in the destruction or adverse 
modification of critical habitat.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions under certain 
circumstances, including instances where critical habitat is 
subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat, or adversely modify or destroy proposed critical 
habitat, respectively.
    Nearly all of the designated critical habitat is on BLM lands. 
Activities on BLM lands or by Federal agencies that may affect 
Astragalus magdalenae var. peirsonii or its critical habitat will 
require section 7 consultation. Activities on private or State lands 
requiring a permit from BLM or any other activity requiring Federal 
action (i.e. funding or authorization) that may affect this species 
will also continue to be subject to the section 7 consultation. Federal 
actions not affecting A. magdalenae var. peirsonii or its critical 
habitat, as well as actions on non-Federal lands that are not federally 
funded or permitted, will not require section 7 consultations for this 
species.
    The areas designated as critical habitat are occupied by either 
above-ground plants or a seedbank of A. magdalenae var. peirsonii. BLM 
and other Federal agencies already consults with us on activities where 
the species may be present to ensure that their actions do not 
jeopardize the continued existence of the species. Actions on which 
Federal agencies consult with us on effects to A. magdalenae var. 
peirsonii include, but are not limited to:
    (1) Development of the Recreational Area Management Plan for the 
Imperial Sand Dunes Recreation Area by the Bureau of Land Management;
    (2) Issuance of permits for private actions (e.g. filming) on 
Federal lands within the Algodones Dunes by the Bureau of Land 
Management;
    (3) Modifications to the All American Canal by the Bureau of 
Reclamation; and,
    (4) Construction and maintenance of facilities by the U.S. Border 
Patrol.
    Section 4(b)(8) of the Act requires us to evaluate briefly and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may adversely 
modify such habitat or that may be affected by such designation. 
Activities that may destroy or adversely modify critical habitat would 
be those that alter the primary constituent elements to the extent that 
the value of critical habitat for the conservation of the Astragalus 
magdalenae var. peirsonii is appreciably reduced.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and require that a section 
7 consultation be conducted include, but are not limited to:
    (1) Activities that may affect Astragalus magdalenae var. peirsonii 
by disturbing or degrading the structure of the dunes (ridges, slip 
faces, bowls, and swales);
    (2) Activities that may affect Astragalus magdalenae var. peirsonii 
by compacting or disturbing the sand such that seeds of Astragalus 
magdalenae var. peirsonii are not capable of germinating or plants are 
not able to survive; and,
    Activities that may destroy or adversely modify critical habitat 
include those that alter the primary constituent elements to an extent 
that the value of critical habitat for both the survival and

[[Page 47343]]

recovery of Astragalus magdalenae var. peirsonii is appreciably 
reduced. We note that such activities may also jeopardize the continued 
existence of the species.
    We completed a section 7 consultation with BLM on the Imperial Sand 
Dunes RAMP dated April 3, 2003. In that biological opinion, we 
concluded that the implementation of the RAMP is not likely to 
jeopardize the continued existence of Astragalus magdalenae var. 
peirsonii.
    We recognize that the designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, we 
want to ensure that the public is aware that critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery. Areas outside the 
designated critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) of 
the Act and to the regulatory protections afforded by the section 
7(a)(2) jeopardy standard and the prohibitions of section 9 of the Act. 
Critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.
    If you have questions regarding whether specific activities will 
constitute destruction or adverse modification of critical habitat, 
contact the Field Supervisor, Carlsbad Fish and Wildlife Office (see 
ADDRESSES section). Requests for copies of the regulations on listed 
wildlife and plants and inquiries about prohibitions and permits may be 
addressed to the U.S. Fish and Wildlife Service, Branch of Endangered 
Species, 911 N.E. 11th Ave, Portland, OR 97232 (telephone 503/231-2063; 
facsimile 503/231-6243).
    All lands designated as critical habitat are within the 
geographical area occupied by the species and are essential for the 
conservation of Astragalus magdalenae var. peirsonii. Federal agencies 
already consult with us on actions that may affect A. magdalenae var. 
peirsonii to ensure that their actions do not jeopardize the continued 
existence of the species. Thus, we do not anticipate substantial 
additional regulatory protection will result from critical habitat 
designation.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial data 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species.
    An analysis of the potential economic impacts of designating 
critical habitat for the Astragalus magdalenae var. peirsonii was 
prepared and was made available for public review on April 6, 2004 (69 
FR 18016). We accepted comments on the draft economic analysis until 
May 6, 2004. This analysis considered the potential economic effects of 
designating critical habitat as well as the protective measures taken 
as a result of the listing of A. magdalenae var. peirsonii as a 
threatened species, and other Federal, State, and local laws that aid 
habitat conservation in areas designated as critical habitat. The 
economic analysis considered a No Closure Scenario (BLM Management 
Areas are not closed to OHV recreation as a result of critical habitat) 
and a Closure Scenario (BLM Management Areas are closed to OHV 
recreation as a result of critical habitat) to estimate the economic 
costs of designating critical habitat.

Application of Section 4(b)(2) and Exclusions Under Section 4(b)(2) of 
the Act

    Pursuant to section 4(b)(2) of the Act, we must consider relevant 
impacts in addition to economic ones. We determined that the lands 
within the designation of critical habitat for Astragalus magdalenae 
var. peirsonii are not owned or managed by the Department of Defense, 
there are currently no habitat conservation plans for A. magdalenae 
var. peirsonii, and the designation does not include any Tribal lands 
or trust resources. The BLM's RAMP for the ISDRA does not address the 
species-specific management needs and measures for A. magdalenae var. 
peirsonii. A specified major focus of the RAMP is to ensure that the 
OHV recreational opportunities of the ISDRA are continuously available 
while responding to increased need for protection of plant and animal 
species in the dunes. In the RAMP, BLM includes an intensive 
monitoring/study plan that they are implementing. The results of this 
monitoring will be incorporated into a management plan developed for A. 
magdalenae var. peirsonii. Within the ISDRA, the 32,000-acre North 
Algodones Dune Wilderness was designated as a wilderness area to 
protect a number of rare and endemic plant and animal species, 
including A. magdalenae var. peirsonii. Management of the North 
Algodones Dune Wilderness takes the form of ``minimal and subtle on-
site controls and restrictions'' (BLM 2003). The North Algodones Dune 
Wilderness was not excluded from the critical habitat designation 
because this area is essential to the conservation of the species and 
may require special management consideration or protection.
    We have excluded portions of Unit 1B, consisting of the proposed 
critical habitat within the Gecko and Glamis Management Areas, and the 
Adaptive Management Area, totaling approximately 28,978, and all of 
proposed unit 1C, totaling 1,490 acres, under section 4(b)(2) of the 
Act. This section allows the Secretary to exclude areas from critical 
habitat if she determines that the benefits of such exclusion exceed 
the benefits of designating the area as critical habitat, unless the 
exclusion will result in the extinction of the species concerned. This 
is a discretionary authority Congress has provided to the Secretary 
with respect to critical habitat. The analysis, which led us to the 
conclusion that the benefits of excluding these areas exceed the 
benefits of designating them as critical habitat, and will not result 
in the extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are within proposed Unit 1B and all of proposed 
Unit 1C. Unit 1B absent this exclusion would consist of 33,958 acres of 
Federal land, 91 acres of private land, and 283 acres of State land as 
critical habitat for Astragalus magdalenae var. peirsonii. It is 
currently occupied by the species. Unit 1C absent this exclusion would 
consist of 1,490 acres of Federal land, and is also currently occupied.
    If these areas were designated as critical habitat, any actions BLM 
proposed to approve, fund or undertake which might adversely modify the 
critical habitat would require a consultation with us. If the action 
affected an area occupied by the plants, consultation would be required 
even without the critical habitat designation. As indicated above, 
these two units are each occupied by the listed plant, so consultation 
on BLM's activities on the

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excluded lands will be required even without the critical habitat 
designation.
    Another possible benefit of a critical habitat designation is 
education of landowners and the public regarding the potential 
conservation value of these areas. This may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation values for certain species. However, we believe that 
this educational benefit has largely been achieved. Almost all of the 
proposed critical habitat is Federal land managed by BLM. As a Federal 
agency, they have a statutory duty to manage their lands for the 
conservation of listed species, including Astragalus magdalenae var. 
peirsonii. They have already developed a management plan for the 
species on these lands, and are currently engaged in a section 7 
consultation with the Service on it, and a conference on the proposed 
critical habitat. However, this process will not be concluded prior to 
the date by which a final decision on this critical habitat designation 
must be made. These units have already been identified through the 
draft proposal. In addition, an organization of OHV users has sponsored 
studies of the plant on the lands included in the proposal, and there 
has been litigation over management of the area. Therefore, we believe 
the education benefits, which might arise from a critical habitat 
designation here, have already been generated.
    In summary, we believe that a critical habitat designation for this 
plant species would provide virtually no additional Federal regulatory 
benefits. Because almost all of the proposed critical habitat is 
Federal land occupied by the species, the BLM must consult with the 
Service over any action it undertakes, approves or funds which might 
impact the Astragalus magdalenae var. peirsonii. The additional 
educational benefits, which might arise from critical habitat 
designation, are largely accomplished through the proposed rule and 
request for public comment that accompanied the development of this 
regulation, and the proposed critical habitat is known to the BLM and 
to the recreational users of the land.
(2) Benefits of Exclusion
    We fully recognize there is a great deal of uncertainty in 
estimating the impact of management for the conservation of this 
species on future use of the ISDRA. As set out in the economic analysis 
done for this proposal, the outcome of future management decisions 
could range from no effects to complete closure of certain management 
areas to OHV use. Alternatively, future consultations and other 
management actions could result in limitations on the number of users 
allowed within a given management area. We note that it is not possible 
to forecast with certainty whether critical habitat designation would 
result in closures of portions of the ISDRA to OHV use, or in 
limitations on numbers of users.
    In this regard, it is important to note that the concept of closing 
all or part of the ISDRA to OHV use due to the presence of the 
Astragalus magdalenae var. peirsonii is not a hypothetical concern--
portions of the area have been closed as a result of litigation and 
resulting conservation actions related to the Astragalus magdalenae 
var. peirsonii.
    The economic analysis estimates that the total present value of 
lost OHV opportunities due to this closure occurring between 2001 and 
2004 is approximately $20.37 million. On an annual basis, these 
consumer surplus impacts associated with lost OHV opportunities are 
approximately $5.09 million per year during the closure period (2001 to 
2004). While these closures are potentially associated with cost 
savings to public agencies, local communities, and health and safety 
service providers, the economic analysis did not attempt to provide 
monetary estimates for these, and it is not clear that they would be 
significant when compared to the economic benefits of OHV use even if 
analyzed.
    The estimated regional economic impact of the current closure 
ranges from approximately $13 million to $26 million, and in the loss 
of up to 527 jobs. The loss in trips may also impact taxes by as much 
as $1.46 million in Imperial County, California and $260,000 in Yuma 
County, Arizona.
    We are therefore not addressing solely theoretical economic and 
human impacts, but rather the possibility of future economic and human 
impacts greater than those that have already occurred. In this context, 
it is important to note that Imperial and Yuma Counties have 
consistently had unemployment rates far greater than the national 
average, which will be addressed in more detail below.
    Although the outcome of future section 7 consultations or 
litigation associated with implementation of the RAMP and the 
designation of critical habitat are uncertain, closure of management 
areas within the ISDRA to OHV use to protect the PMV has occurred in 
the past. As a result, the economic analysis provided a range of 
economic estimates that could be used to understand the impact of a 
variety of potential future regulatory outcomes. Those desiring a 
detailed understanding of those estimates, and the limitations 
associated with them, should consult the economic analysis.
    Whether OHV access would be limited in the future within the 
proposed critical habitat areas we have excluded would depend on the 
outcome of currently ongoing and future section 7 consultations, which, 
in turn, must be made on the basis of the best available scientific 
information, and not the economic impacts which might occur. Similarly, 
litigation over the adequacy of conservation measures for the 
Astragalus magdalenae var. peirsonii would not likely take economic or 
other impacts into account. Congress has provided this opportunity, 
during the designation of critical habitat, for economic, national 
security and other relevant impacts to be taken into account as we 
decide whether to exclude areas from the designation because the 
benefits of avoiding those possible impacts, through exclusion, exceed 
the benefit of designating the area as critical habitat.
    The economic analysis looked at two different generally accepted 
ways of measuring economic impacts from possible closures of areas to 
OHV use--economic efficiency and regional economic impact. The figures 
resulting from these analyses are not the same, and should not be added 
in an effort to obtain cumulative totals. Please consult the economic 
analysis for explanations of the two methods and of their differences.
    The economic analysis found that if all of the areas proposed for 
designation within the ISDRA were closed to OHV use, the efficiency 
effects would range from $9.5 million per year to $10.5 million per 
year--$0.57 million per year in administrative and project modification 
costs plus consumer surplus impacts ranging from $8.9 million per year 
to $9.9 million per year, in 2003 dollars. Similarly, such a closure 
would cause the regional economy would see an upper bound reduction in 
output of $55 million to $124 million in year 2013 (2003 dollars), and 
a potential loss in employment of 1,207 to 2,585 jobs.
    Output (i.e., industry revenue) for all industries in these two 
counties is approximately $8.6 billion. Employment in these two 
counties is approximately 134,000. The upper-bound regional economic 
contribution of OHV recreation within the proposed critical habitat 
areas of the ISDRA represents 1.4 percent of total output and nearly 2 
percent of total employment in the two-county area.

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    Additionally, total annual sales within Imperial and Yuma County 
industries that benefit from OHV recreation provide an additional basis 
of comparison for the result of the regional economic contributions. 
These industries include retail trade and accommodation and food 
services. Total annual sales in these industries were approximately 
$2.24 billion in 1997. Employment in these two sectors was 18,871.
    The upper-bound regional economic contribution of OHV recreation 
within the proposed critical habitat areas of the ISDRA represents 5.5 
percent of total output and 13.7 percent of total employment within 
these two sectors in the two-county area.
    As noted above, Imperial and Yuma Counties have historically 
experienced significantly higher levels of unemployment relative to 
neighboring counties, their respective states and the rest of the 
nation. As of June 2004, the unemployment rate was 21.6% in Imperial 
County, California, and 27.6% in Yuma County Arizona (see websites 
referenced in the Economic Analysis for this date). Moreover, these two 
counties have a less diverse economic base than most others in the two 
States. Thus, reduced ISDRA visitation that results in revenue, 
employment and tax losses may pose considerable burdens to local 
communities.
    Because we are not excluding all proposed critical habitat, the 
economic impact figures adjusted downwards slightly to reflect the 
impact of possible closures on just the areas we are excluding. Future 
administrative and project modification costs, discounted to present 
value using a rate of seven percent, are forecast at $11.4 million, or 
$0.6 million annually. These costs will be incurred by BLM on 
implementing ISDRA-wide milk-vetch conservation measures, including 
monitoring and enforcement, and section 7 consultation with the 
Service. Future costs related specifically to monitoring and enforcing 
the geographical extent of the final critical habitat designation are 
likely to be smaller and represent a portion of total forecast costs. 
If all critical habitat areas were closed to OHV use, the efficiency 
effects would be the sum of administrative and project modification 
costs ($0.6 million annually), and consumer surplus losses associated 
with Mammoth Wash, North Algodones, and Ogilby management areas (a 
total of $0.2 million annually). Total efficiency effects associated 
with the designation would be $0.8 million annually.
    Similarly, the upper boundary of possible reductions in output and 
loss of jobs must be adjusted. If no OHV closures were to occur, the 
rule would have no impact on the regional economy. If all of the 
critical habitat areas within the ISDRA were closed to OHV use, the 
regional economy would experience an upper bound reduction in output of 
$2.8 million (2003 dollars) and a potential loss in employment of 60 
jobs.
    Several businesses located in the major towns within Imperial and 
Yuma Counties are dependent on the recreational activities that occur 
within the ISDRA, specifically OHV activities. Any reduction in the 
number of trips made to the dunes is likely to adversely impact these 
businesses and the overall regional economy. Additionally, losses to 
businesses within Imperial and Yuma Counties from decreased ISDRA 
visitation are unlikely to be replaced by expenditures on other goods 
and services of the same order and magnitude.
    Thus, the economic impact of closure of the areas we have excluded 
within the proposed critical habitat to OHV use would be locally very 
significant, as would the human impact of the potential job losses.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We do not believe that the benefits from the designation of 
critical habitat for lands we have decided to exclude--a limited 
educational benefit and very limited regulatory benefit, which are 
largely otherwise provided for, as discussed above--exceed the benefits 
of avoiding the potential economic and human costs which could result 
from including those lands in this designation of critical habitat. We 
therefore find that the benefits of excluding these areas from this 
designation of critical habitat outweigh the benefits of including them 
in the designation.
    In summary, the benefit of excluding these areas from critical 
habitat is avoidance of the risk that the areas would be closed in 
whole or in part to OHV use as a result of the critical habitat 
designation. This would avoid the potential adverse efficiency effects 
of up to $193.93, adverse impacts on the regional economy between 
$53.73 million and $121.16 million, and the possible loss of 1,179 and 
2,525 jobs, as projected in the economic analysis, in two counties with 
current unemployment rates of 21.6 and 27.6 percent.
    We again recognize that there is no certainty that economic impacts 
would reach the projected levels should closures occur, or that there 
would be future closures of these areas due to a critical habitat 
designation. However, we believe that the designation increases the 
risk of closure, as two of the three actions described later in this 
document as likely to trigger section 7 consultations for possible 
adverse modification of critical habitat are directly related to OHV 
use. We also recognize that we are excluding a sizeable portion of the 
original proposal.
    However, Congress expressly contemplated that exclusions based on 
potential impacts, and of this or even larger portions of proposed 
critical habitat, might occur when it enacted the exclusion authority. 
House Report 95-1625, stated on page 17:

    Factors of recognized or potential importance to human 
activities in an area will be considered by the Secretary in 
deciding whether or not all or part of that area should be included 
in the critical habitat * * * In some situations, no critical 
habitat would be specified. In such situations, the Act would still 
be in force prevent any taking or other prohibited act. * * * 
(emphasis supplied).

    We accordingly believe that these exclusions, and the basis upon 
which they are made, are fully within the parameters for the use of 
section 4(b)(2) set out by Congress.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species. Nearly 99% of the excluded lands are Federal 
lands occupied by the species. The species is accordingly protected 
under section 9(a)(2) of the Act. Any actions by the BLM, which might 
adversely affect the plants, must undergo a consultation with the 
Service under the requirements of sec. 7 of the Act. The exclusions 
leave these protections unchanged from those that would exist if the 
excluded areas were designated as critical habitat. The plant is listed 
as threatened, not endangered. A sizeable portion of its habitat is 
designed wilderness, where OHV use and other mechanical transportation 
or development is prohibited by statute. There is accordingly no reason 
to believe that these exclusions would result in extinction of the 
species.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. Due to 
the tight timeline for publication in the Federal Register, the Office 
of

[[Page 47346]]

Management and Budget (OMB) has not formally reviewed this rule. We 
prepared an economic analysis of this action and used this analysis to 
meet the requirement of section 4(b)(2) of the Act to determine the 
economic consequences of designating the specific areas as critical 
habitat and excluding any area from critical habitat if it is 
determined that the benefits of such exclusion outweigh the benefits of 
specifying such areas as part of the critical habitat, unless failure 
to designate such area as critical habitat will lead to the extinction 
of the Astragalus magdalenae var. peirsonii.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever a Federal agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities. SBREFA also amended the Regulatory Flexibility Act to require 
a certification statement. Based on the information that is available 
to us at this time, we are certifying that designation of critical 
habitat will not have a significant economic impact on a substantial 
numbers of small entities. The following discussion explains our 
rationale.
    According to the Small Business Administration (SBA), small 
entities include small organizations, including any independent 
nonprofit organization that is not dominant in its field, and small 
governmental jurisdictions, including school boards and city and town 
governments that serve fewer than 50,000 residents, as well as small 
businesses. The SBA defines small businesses categorically and has 
provided standards for determining what constitutes a small business at 
13 CFR parts 121-201 (also found at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.sba.gov/size/), which 

the Regulatory Flexibility Act requires all Federal agencies to follow. 
To determine if potential economic impacts to these small entities are 
significant, we consider the types of activities that might trigger 
regulatory impacts under this rule as well as the types of project 
modifications that may result.
    The Regulatory Flexibility Act does not explicitly define either 
``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 the area. 
Similarly, this analysis considers the relative cost of compliance on 
the revenues/profit margins of small entities in determining whether or 
not entities incur a ``significant economic impact.'' Only small 
entities that are expected to be directly affected by the designation 
are considered in this portion of the analysis. This approach is 
consistent with several judicial opinions related to the scope of the 
Regulatory Flexibility Act. (Mid-Tex Electric Co-Op, Inc. v. FERC and 
American Trucking Associations, Inc. v. EPA).
    To determine if the rule would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities (e.g., housing development, 
grazing, oil and gas production, timber harvesting). We applied the 
``substantial number'' test individually to each affected industry to 
determine if certification is appropriate. In estimating the numbers of 
small entities potentially affected, we also considered whether their 
activities have any Federal involvement; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies; non-Federal activities are 
not affected by the designation if they lack a Federal nexus. In areas 
where the species is present, Federal agencies funding, permitting, or 
implementing activities are already required to avoid jeopardizing the 
continued existence of the Astragalus magdalenae var. peirsonii through 
consultation with us under section 7 of the Act. If this critical 
habitat designation is finalized, Federal agencies must also consult 
with us to ensure that their activities do not destroy or adversely 
modify designated critical habitat through consultation with us.
    Should a federally funded, permitted, or implemented project be 
proposed that may affect designated critical habitat, we will work with 
the Federal action agency and any applicant, through section 7 
consultation, to identify ways to implement the proposed project while 
minimizing or avoiding any adverse effect to the species or critical 
habitat. In our experience, the vast majority of such projects can be 
successfully implemented with at most minor changes that avoid 
significant economic impacts to project proponents.
    Based on our experience with section 7 consultations for all listed 
species, virtually all projects--including those that, in their initial 
proposed form, would result in jeopardy or adverse modification 
determinations in section 7 consultations--can be implemented 
successfully with, at most, the adoption of reasonable and prudent 
alternatives. These measures, by definition, must be economically 
feasible and within the scope of authority of the Federal agency 
involved in the consultation. The kinds of actions that may be included 
in future reasonable and prudent alternatives include avoidance, 
conservation set-asides, management of competing non-native species, 
restoration of degraded habitat, construction of protective fencing, 
and regular monitoring. These measures are not likely to result in a 
significant economic impact to project proponents.
    The economic analysis also evaluated potential impacts to small 
businesses. Several businesses that operate within Imperial and Yuma 
Counties are dependent on the recreational activities that occur within 
the ISDRA. Major towns in the counties have a number of small 
busin