Endangered and Threatened Wildlife and Plants: Designation of Critical Habitat for Ivesia webberi (Webber's ivesia)

This Proposed Rule document was issued by the Fish and Wildlife Service (FWS)

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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R8-ES-2013-0080;4500030113]
RIN 1018-AZ57

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for

Agency

Fish and Wildlife Service, Interior.

Action

Proposed rule.

Summary

We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the Ivesia webberi (Webber's ivesia) under the Endangered Species Act (Act). In total, approximately 2,011 acres (814 hectares) in Plumas, Lassen, and Sierra Counties in northeastern California and Washoe and Douglas Counties in northwestern Nevada fall within the boundaries of the proposed critical habitat designation. If we finalize this rule as proposed, it would extend the Act's protections to this species' critical habitat. The effect of this regulation is to designate critical habitat for Ivesia webberi under the Act.

Dates

Comment submission: We will accept comments received or postmarked on or before October 1, 2013. Comments submitted electronically using the Federal eRulemaking Portal (seeADDRESSESbelow) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown inFOR FURTHER INFORMATION CONTACTby September 16, 2013.

Public meeting: We will hold a public meeting on this proposed rule on August 22, 2013, in Reno, NV, from 4:00 to 6:00 p.m. People needing reasonable accommodations in order to attend and participate in the public hearing should contact Jeannie Stafford, Nevada Fish and Wildlife Office, as soon as possible (seeFOR FURTHER INFORMATION CONTACT).

Addresses

You may submit comments by one of the following methods:

(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R8-ES-2013-0080, which is the docket number for this rulemaking. You may submit a comment by clicking on “Comment Now!.”

(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R8-ES-2013-0080; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.

We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Information Requested section below for more information).

Public meeting: The public meeting will be held at the U.S. Department of the Interior Building, Great Basin Conference Room, 1340 Financial Blvd., Reno, NV 89502.

Details of units: The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at (http://www.fws.gov/nevada/), www.regulations.gov at Docket No. FWS-R8-ES-2013-0080, and at the Nevada Fish and Wildlife Office (seeFOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we may develop for this critical habitat designation will also be available at the Fish and Wildlife Service Web site and Field Office set out above and at http://www.regulations.gov.

For Further Information Contact

Edward D. Koch, State Supervisor, U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office, 1340 Financial Boulevard, Suite 234, Reno, NV 89502, by telephone 775-861-6300, or by facsimile 775-861-6301. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

Supplementary Information

Executive Summary

Why we need to publish a rule. Under the Endangered Species Act, any species that is determined to be endangered or threatened requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can be completed only by issuing a rule.

This rule consists of: A proposed rule for designation of critical habitat for Ivesia webberi. This rule proposes designation of critical habitat necessary for the conservation of the species. Under this rule, we are proposing to designate a total of 2,011 acres (ac) (814 hectares (ha)) for Ivesia webberi within Plumas, Lassen, and Sierra Counties in northeastern California and Washoe and Douglas Counties in northwestern Nevada. We are proposing to list Ivesia webberi as a threatened species in a separate rule published elsewhere in today'sFederal Register.

The basis for our action. Under the Endangered Species Act, any species that is determined to be a threatened or endangered species shall, to the maximum extent prudent and determinable, have habitat designated that is considered to be critical habitat. Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species.

We are preparing an economic analysis of the proposed designation of critical habitat. In order to consider economic impacts, we are preparing an analysis of the economic impacts of the proposed critical habitat designation and related factors. We will announce the availability of the draft economic analysis as soon as it is completed, at which time we will seek additional public review and comment.

We will seek peer review. We are seeking comments from independent specialists to ensure that our listing proposal is based on scientifically sound data and analyses. We have invited these peer reviewers to comment on our specific assumptions andconclusions in this listing proposal. Because we will consider all comments and information received during the comment period, our final determinations may differ from this proposal.

Information Requested

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned government agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:

(1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq.) including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat may not be prudent.

(2) Specific information on:

(a) The amount and distribution of Ivesia webberi habitat,

(b) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of the species, should be included in the designation and why,

(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change, and

(d) What areas not occupied at the time of listing are essential for the conservation of the species and why.

(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.

(4) Whether we could improve or modify our approach to designating critical habitat in any way to facilitate management of critical habitat by private, State, or Federal landowners. For example, could altering the configuration of critical habitat unit boundaries facilitate management of critical habitat?

(5) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation; in particular, any impacts on small entities or families, and the benefits of including or excluding areas that exhibit these impacts.

(6) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.

(7) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

(8) Information on the projected and reasonably likely impacts of climate change on the Ivesia webberi and proposed critical habitat.

You may submit your comments and materials concerning this proposed rule by one of the methods listed inADDRESSES. We request that you send comments only by the methods described in theADDRESSESsection.

We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. You may request at the top of your document that we withhold personal information such as your street address, phone number, or email address from public review; however, we cannot guarantee that we will be able to do so.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office (seeFOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

Please see the proposed listing rule published elsewhere in today'sFederal Registerfor a complete history of previous Federal actions. We identified Ivesia webberi as a candidate in the June 13, 2002, Candidate Notice of Review (CNOR, 67 FR 40657). Ivesia webberi was included in all subsequent annual CNORs. On May 11, 2004, we received a petition to list a total of 225 plant and animal species from the list of candidate species, including I. webberi. Because we previously found the species was warranted for proposed listing, no further action was taken on the petition. When it was first identified as a candidate in 2002 (67 FR 40657), we assigned I. webberi a listing priority number (LPN) of 5, reflecting a species with threats that were considered high in magnitude but nonimminent; the LPN remained at 5 in all subsequent CNORs.

Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation ofthe Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical and biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in theFederal Registeron July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

Prudency Determination

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist:

(1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or

(2) such designation of critical habitat would not be beneficial to the species.

There is currently no imminent threat of take attributed to collection or vandalism for Ivesia webberi, and identification and mapping of critical habitat is not expected to initiate any such threat. In the absence of finding that the designation of critical habitat would increase threats to a species, if there are any benefits to a critical habitat designation, then a prudent finding is warranted. Here, the potential benefits of designation include: (1) Triggering consultation under section 7 of the Act in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is or has become unoccupied or the occupancy is in question; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the species. Therefore, because we have determined that the designation of critical habitat will not likely increase the degree of threat to the species and may provide some measure of benefit, we find that designation of critical habitat is prudent for I. webberi.

Critical Habitat Determinability

Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for Ivesia webberi is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:

(i) Information sufficient to perform required analyses of the impacts of the designation is lacking, or

(ii) The biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat.

When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).

We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where these species are located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the Ivesia webberi.

Physical or Biological Features

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:

(1) Space for individual and population growth and for normal behavior;

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.

We derive the specific physical or biological features essential for Ivesia webberi from studies of this species' habitat, ecology, and life history as described below. Additional information can be found in the proposed listing rule published elsewhere in today'sFederal Registerand in the Ivesia webberi (Webber's ivesia) Species Report (Service 2013, pp. 1-46) available at http://www.regulations.gov (in the Search box, enter FWS-R8-ES-2013-0080, which is the docket number for this rulemaking). Little is known about the habitat specificity and characteristics for I. webberi. Therefore, the physical and biological factors for I. webberi are based on our assessment of the ecosystem settings in which the species is most frequently detected. We have determined that the following physical or biological features are essential for I. webberi (see “Habitat” section in the Species Report (Service 2013, pp. 6-7)):

Space for Individual and Population Growth and for Normal Behavior

Plant Community and Competitive Ability—Ivesia webberi is primarily associated with Artemisia arbuscula Nutt. (low sagebrush) and other perennial, rock garden-type plants such as: Antennaria dimorpha (low pussytoes), Balsamorhiza hookeri (Hooker's balsamroot), Elymus elymoides (squirreltail), Erigeron bloomeri (scabland fleabane), Lewisia rediviva (bitter root), Poa secunda (Sandburg bluegrass), and Viola beckwithii (Beckwith's violet) (Witham 2000, p. 17; Morefield 2004, 2005, unpubl. survey; Howle and Henault 2009, unpubl. survey; BLM 2011, 2012a, unpubl. survey; Howle and Chardon 2011a, 2011b, 2011c, unpubl. survey). Overall, this plant community is open and sparsely vegetated and relatively short-statured, with I. webberi often dominating or co-dominating where it occurs (Witham 2000, p. 17).

Because Ivesia webberi is found in an open, sparsely vegetated plant community, it is likely a poor competitor. Nonnative, invasive plant species such as Bromus tectorum L. (cheatgrass), Taeniatherum caput-medusae (medusahead), and Poa bulbosa (bulbous bluegrass) form dense stands of vegetation that compete with native plant species, such as I. webberi, for the physical space needed to establish individuals and recruit new seedlings. This competition for space is compounded as dead or dying nonnative vegetation accumulates, eventually forming a dense thatch that obscures the soil crevices used by native species as seed accumulation and seedling recruitment sites (Davies 2008, pp. 110-111; Gonzalez et al. 2008, entire; Mazzola et al. 2011, pp. 514-515; Pierson et al. 2011, entire). Consequently, nonnative species deter recruitment and population expansion of I. webberi, as well as the entire Artemisia arbuscula-perennial bunchgrass-forb community with which I. webberi is associated. Therefore, we consider open, sparsely vegetated assemblages of A. arbuscula and other perennial grass and forb rock garden species to be a physical or biological feature for I. webberi.

Elevation—Known populations of Ivesia webberi occur between 4,475 and 6,237 feet (ft) (1,364 and 1,901 meters (m)) in elevation (Steele and Roe 1996, unpubl. survey; Witham 2000, p.16; Howle and Henault 2009, unpubl. survey). Because plants are not currently known to occur outside of this elevation band, we have identified this elevation range as a physical or biological feature for I. webberi.

Topography, Slope, and Aspect—Ivesia webberi occurs on flats, benches, or terraces that are generally above or adjacent to large valleys. These sites vary from slightly concave to slightly convex or gently sloped (0-15°) and occur on all aspects (Witham 2000, p. 16). Because plants have not been identified outside these landscape features or on slopes greater than 15°, we have identified slightly concave, convex, and gently sloped (0-15°) landscapes to be physical and biological features for I. webberi.

Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements

Soils—Populations of Ivesia webberi occur on a variety of soil series types, including, but not limited to: Reno—a fine, smectitic, mesic Abruptic Xeric Argidurid; Xman—a clayey, smectitic, mesic, shallow Xeric Haplargids; Aldi—a clayey, smectitic, frigid Lithic Ultic Argixerolls; and Barshaad—a fine, smectitic, mesic Aridic Palexeroll (USDA NRCS (U.S. Department of Agriculture Natural Resources Conservation Service) 2007, 2009a, 2009b, 2012a, 2012b). The majority of soils in which I. webberi occurs have an argillic (i.e., clay) horizon within 19.7 inches (in) (50 centimeters (cm)) of the soil surface (USDA NRCS 2007, 2009a, 2009b, 2012a, 2012b). An argillic horizon is defined as a subsurface horizon with a significantly higher percentage of clay than the overlying soil material (Soil Survey Staff 2010, p. 30). The clay content (percent by weight) of an argillic horizon must be 1.2 times the clay content of an overlying horizon (Soil Survey Staff 1999, p. 31). Agrillic horizons are illuvial, meaning they form below the soil surface, but may be exposed at the surface later due to erosion. Typically there is little or no evidence of illuvial clay movement in soils on young landscapes; therefore, soil scientists have concluded that the formation of an argillic horizon required at least a few thousand years (Soil Survey Staff 1999, p. 29). This argillic horizon represents a time-landscape relationship that can be locally and regionally important because its presence indicates that the geomorphic surface has been relatively stable for a long period of time (Soil Survey Staff 1999, p. 31).

The shallow, clay soils in which Ivesia webberi inhabits are very rocky on the surface and tend to be wet in the spring, but dry out as the season progresses (Zamudio 1999, p. 1). The high clay content in the soils creates ashrink-swell behavior as the soils wet and dry, which helps to “heave” rocks in the soil profile to the surface and creates the rocky surface “pavement” (Zamudio 1999, p. 1). The unique soils and hydrology of I. webberi sites may exclude competition from other species (Zamudio 1999, p. 1; Witham 2000, p. 16). The shrink-swell of the clay zone, which extends into the subsoil, favors perennials with deep taproots or annuals with shallow roots that can complete their life cycle before the surface soil dries out (Zamudio 1999, p. 1; Witham 2000, pp. 16, 20). The root systems of tap-rooted perennial forbs are suited to soil with clay subsoils because the roots branch profusely under the crown, spread laterally, and penetrate the clay B horizon along vertical cleavage planes (Hugie et al. 1964, p. 200). The roots are flattened, but unbroken by shrink-swell activity (Hugie et al. 1964, p. 200). Early maturing plants, such as I. webberi, presumably prefer soils with these heavy clay horizons because of the abundant spring moisture, which essentially saturates the surface horizons with water. Based on the information above, we consider soil with an argillic horizon characterized by shrink-swell behavior to represent a physical or biological feature for I. webberi.

Water—Ivesia webberi is restricted to sites with soils that are vernally moist (Zamudio 1999a, p. 1; Witham 2000, p. 16). From this finding, we infer that sufficient winter and spring moisture not only contributes to the physical properties of the substrate in which I. webberi occurs (i.e., the shrink-swell pattern that contributes to the formation of soil crevices), but also triggers biological responses in I. webberi, in the form of stimulating germination, growth, flowering, and seed production. Moisture retention is influenced by site topography as well as soil properties. Therefore, we consider soils that are vernally moist as a physical or biological feature for I. webberi.

Light—Although little is known regarding the light requirements of Ivesia webberi, inferences are possible from the plant species and the plant community from which I. webberi is associated (described under the “SpacePlant Community and Competitive Ability” section above, and the “Habitat” section of the Species Report (Service 2013, pp. 6-7). Generally speaking, co-occurring plant species are short-statured; when assembled into an Artemisia arbuscula-perennial bunchgrass-forb community, plants tend to occur widely spaced with intervening patches of rocky, open ground. These factors suggest that I. webberi is not shade-tolerant. Therefore, we assume that I. webberi is able to persist, at least in part, due to a lack of light competition with taller plants.

Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring

Reproduction—Ivesia webberi is a perennial plant species that is not rhizomatous or otherwise clonal. Therefore, like other Ivesia species, reproduction in I. webberi is presumed to occur primarily via sexual means (i.e., seed production and seedling recruitment). As with most plant species, I. webberi does not require separate sites for breeding, rearing, and reproduction other than the locations in which parent plants occur and any area necessary for pollinators and seed dispersal. Seeds of I. webberi are relatively large and unlikely to be dispersed by wind or animal vectors; upon maturation of the inflorescence and fruit, seeds are likely to fall to the ground in the immediate vicinity of parent plants (Witham 2000, p. 20). Depressions and crevices in soil frequently serve as seed accumulation or seedling establishment sites in arid ecosystems because they trap seeds and often have higher soil water due to trapped snow and accumulated precipitation (Reichman 1984, pp. 9-10; Eckert et al. 1986, pp. 417-420). The cracks of the shrink-swell clay soils which typify I. webberi habitat are thought to trap seeds and retain them on-site, and may serve to protect seeds from desiccation from sunlight or wind. Although the long-term viability of these seeds is unknown, I. webberi seeds held within these crevices may accumulate and function as a seedbank for I. webberi reproduction. Thus, the physical and biological feature of soil with an argillic horizon and shrink-swell behavior identified above under the “Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements” section also has an important reproduction function for I. webberi.

Pollination—Pollinators specific to Ivesia webberi have not been identified. However, most Ivesia species reproduce from seed with insect-mediated pollination occurring between flowers of the same or different plants (Witham 2000, p. 20). Floral visitors have been observed frequenting the flowers of I. aperta var. canina, which co-occurs with I. webberi at one population (USFWS 5; J. Johnson, unpubl. photos 2007). Although these floral visitors can only represent presumed pollinators because they were not observed to be carrying pollen, they represent the best available information regarding possible pollinators of I. webberi. Since no single pollinator or group of pollinators is known for I. webberi, we are not able to define habitat requirements for I. webberi in terms of the distances that particular orders, genera, or species of insect pollinators are known to travel.

Successful transfer of pollen among Ivesia webberi populations, therefore, may be inhibited if populations are separated by distances greater than pollinators can travel, or if a pollinator's nesting habitat or behavior is negatively affected (BLM 2012b, p. 2). Some bees such as bumblebees and other social species are able to fly extremely long distances. However, evidence suggests that their habitat does not need to remain contiguous, but it is more important that the protected habitat is large enough to maintain floral diversity to attract these pollinators (BLM 2012b, p. 18). By contrast, most solitary bees remain close to their nest, thus foraging distance tends to be 1,640 ft (500 m) or less (BLM 2012b, p.19). Conservation strategies that strive to maintain not just I. webberi, but the range of associated native plant species (many of which are also insect-pollinated) would therefore serve to attract a wide array of insect pollinators, both social and solitary, that may also serve as pollinators of I. webberi (BLM 2012b, pp. 5-6, 19). Because annual, nonnative, invasive grasses (such as Bromus tectorum) are wind-pollinated, they offer no reward for pollinators; as such nonnative species become established, pollinators are likely to become deterred from visiting areas occupied by I. webberi. Therefore, we consider an area of sufficient size with an intact assemblage of native plant species to provide for pollinator foraging and nesting habitat to be a physical or biological feature for I. webberi.

Habitats Protected From Disturbance or Representative of the Historical Geographical and Ecological Distributions of the Species

The long-term conservation of Ivesia webberi is dependent on several factors, including, but not limited to: Maintenance of areas necessary to sustain natural ecosystem components, functions, and processes (such as light and intact soil hydrology); and sufficient adjacent suitable habitat for vegetative reproduction, population expansion, and pollination.

Disturbance—Soils with a high content of shrink-swell clays, such as those where Ivesia webberi is found, often create an unstable soil environment to which this species is presumably adapted (Belnap 2001, p.183). These micro-scale disturbances are of light to moderate intensity; we are unaware of information to indicate that I. webberi has evolved with or is tolerant of moderate to heavy, landscape-scale disturbances. Moderate to heavy soil disturbances such as off-highway vehicle (OHV) use, road corridors, residential or commercial development, and livestock grazing can impact the species and its seedbank through habitat loss, fragmentation, and degradation due to soil compaction and altered soil hydrology (Witham 2000, Appendix 1, p. 1; Bergstrom 2009, pp. 25-26).

Climate change projections in the Great Basin, where Ivesia webberi occurs, include increasing temperatures (Chambers and Pellant 2008, p. 29; Finch 2012, p. 4), earlier spring snow runoff (Stewart et al. 2005, p. 1152), declines in snowpack (Knowles et al. 2006, p. 4557; Mote et al. 2005, entire), and increased frequencies of drought and fire (Seager et al. 2007, pp. 1181-1184; Littell et al. 2009, pp. 1014-1019; Abatzoglou and Kolden 2011, pp. 474-475). Nonnative, invasive plant species and modified fire regimes are already impacting the quality and composition of the Artemisia arbuscula-perennial bunchgrass—forb plant community where I. webberi occurs (BLM 2012c). We anticipate that climate-related changes expected across the Great Basin, such as altered precipitation and temperature patterns, will accelerate the pace and spatial extent of nonnative plant infestations and altered fire regimes. These patterns of climate change may also decrease survivorship of I. webberi by causing physiological stress, altering phenology, and reducing recruitment events and seedling establishment.

Managing for appropriate disturbance regimes (in terms of the type or intensity of disturbance) is difficult, because sources of disturbance are numerous and our ability to predict the effects of multiple, interacting disturbance regimes upon species and their habitats is limited. In this document, we use qualitative terms, but specifically solicit further input on methods or mechanisms to better quantify or describe these measures (see Information Requested section). For the reasons discussed above, we identify areas not subject to moderate to heavy, landscape-scale disturbances, such as impacts from vehicles driven off established roads or trails, development, livestock grazing, and frequent wildfire, to be a physical or biological feature for I. webberi.

Primary Constituent Elements for

According to 50 CFR 424.12(b), we are required to identify the physical or biological features essential to the conservation of Ivesia webberi in areas occupied at the time of listing, focusing on the features' primary constituent elements. We consider primary constituent elements to be those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.

Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, we determine that the primary constituent elements specific to Ivesia webberi are:

(i) Suitable Soils and Hydrology:

a. Vernally moist soils with an argillic horizon that shrink and swell upon drying and wetting; these soil conditions are characteristic of known Ivesia webberi populations and are likely important in the maintenance of the seedbank and population recruitment.

a. Suitable soils that can include (but are not limited to): Reno—a fine, smectitic, mesic Abruptic Xeric Argidurid; Xman—a clayey, smectitic, mesic, shallow Xeric Haplargids; Aldi—a clayey, smectitic, frigid Lithic Ultic Argixerolls; and Barshaad—a fine, smectitic, mesic Aridic Palexeroll; and

(ii) Topography:

a. Flats, benches, or terraces that are generally above or adjacent to large valleys. Occupied sites vary from slightly concave to slightly convex or gently sloped (0-15°) and occur on all aspects; and

(iii) Elevation:

a. Elevations between 4,475 and 6,237 feet (ft) (1,364 and 1,901 meters (m)); and

(iv) Characterized by a plant community that contains:

a. Open to sparely vegetated areas composed of generally short-statured associated plant species.

b. Presence of appropriate associated species that can include (but are not limited to): Antennaria dimorpha, Artemisia arbuscula, Balsamorhiza hookeri, Elymus elymoides, Erigeron bloomeri, Lewisia rediviva, Poa secunda, and Viola beckwithii.

c. An intact assemblage of appropriate associated species to attract the floral visitors that may be acting as pollinators of Ivesia webberi.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. All areas proposed for designation as critical habitat contain features that will require some level of management to address the current and future threats. In all units, special management will be required to ensure that the habitat is able to provide for the growth and reproduction of the species.

A detailed discussion of threats to Ivesia webberi and its habitat can be found in the Ivesia webberi Species Report (Service 2013, pp. 1-46). The features essential to the conservation of I. webberi (plant community and competitive ability, and suitable topography, elevation, soils, and hydrology required for the persistence of adults as well as successful reproduction of such individuals and the formation of a seedbank) may require special management considerations or protection to reduce threats. The current range of I. webberi is subject to human-caused modifications from the introduction and spread of nonnative invasive species including Bromus tectorum, Poa bulbosa, and Taeniatherum caput-medusae; modified wildfire regime; increased access and fragmentation of habitat by new roads and OHVs; agricultural, residential, and commercial development; and soil and seedbank disturbance by livestock (Service 2013, pp. 22-32).

Special management considerations or protection are required within critical habitat areas to address these threats. Management activities that could ameliorate these threats include (but are not limited to): Treatment of nonnative, invasive plant species; minimization of OHV access and placement of new roads away from the species and its habitat; regulations or agreements to minimize the effects of development in areas where the species resides; minimization of livestock use or other disturbances that disturb the soil or seeds; and minimization of habitat fragmentation. Where the species occurs on private lands, protection and management could be enhanced by various forms of land acquisition from willing sellers, ranging from the purchase of conservation easements to fee title acquisition. These activities would protect the primary constituentelements for the species by preventing the loss of habitats and individuals, protecting the plants habitat and soils from undesirable patterns or levels of disturbance, and facilitating the management for desirable conditions, including disturbance regimes.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify occupied areas at the time of listing that contain the features essential to the conservation of the species. If after identifying currently occupied areas, a determination is made that those areas are inadequate to ensure conservation of the species, in accordance with the Act and our implementing regulations at 50 CFR 424.12(e), we then consider whether designating additional areas—outside those currently occupied—are essential for the conservation of the species. We are not currently proposing to designate any areas outside the geographical area presently occupied by the species because its present range is sufficient to ensure the conservation of Ivesia webberi.

We delineated the critical habitat unit boundaries for Ivesia webberi using the following steps:

(1) In determining what areas were occupied by Ivesia webberi, we used polygon data collected by the Bureau of Land Management (BLM 2011, 2012a, unpubl. survey), California Natural Diversity Database (Schoolcraft 1992, 1998, unpubl. survey; Krumm and Clifton 1996, unpubl. survey; Steele and Roe 1996, unpubl. survey), California Department of Fish and Wildlife (Sustain Environmental Inc. 2009, p. III-19), Nevada Natural Heritage Program (Witham 1991, entire; Witham 2000, entire; Morefield 2004, 2005, 2010a, 2010b, unpubl. survey; Picciani 2006, unpubl. survey), U.S. Forest Service, (Duron 1990, entire; Howle and Henault 2009, unpubl. survey; Howle and Chardon 2011a, 2011b, 2011c, unpubl. survey) and consulting firms (Wood Rogers 2007, Tables 2 and 3, pp. 5-6) to map specific locations of I. webberi using ArcMap 10.1. These locations were classified into discrete populations based on mapping standards devised by NatureServe and its network of Natural Heritage Programs (NatureServe 2004, entire).

(2) We extended the boundaries of the polygon defining each population or subpopulation by 1,640 ft (500 m) to provide for sufficient pollinator habitat. This creates an area that is large enough to maintain flora diversity that would protect nesting areas of solitary pollinator species, while creating a large enough patch of flora diversity to attract social, wide-ranging pollinator species (as described above under the “Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring” section; BLM 2012b, p. 19).

(3) We then removed areas not containing the physical or biological features essential to the conservation of I. webberi within the 1,640-ft-wide (500-m-wide) area surrounding each population. We used a habitat model to identify areas lacking physical or biological features. The habitat model was developed by comparing occupied areas and the known environmental variables of these areas, such as elevation, slope, and soil type that we determined to be physical and biological features for this species. The environmental variables with the highest predictive ability influenced the habitat the model identified. Finally, we used ESRI ArcGIS Imagery Basemap satellite imagery to exclude forested areas within the areas the model selected because this is not the vegetation type that is a physical and biological feature for I. webberi.

When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for Ivesia webberi. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.

We are proposing for designation of critical habitat lands that we have determined are occupied at the time of listing and contain sufficient elements of physical or biological features to support life-history processes essential for the conservation of the species.

Units are proposed for designation based on sufficient elements of physical or biological features being present to support Ivesia webberi life-history processes. Some units contained all of the identified elements of physical or biological features and supported multiple life-history processes. Some segments contained only some elements of the physical or biological features necessary to support I. webberi' s particular use of that habitat.

The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0080, on our Internet site http://www.fws.gov/nevada/, and at the field office responsible for the designation (seeFOR FURTHER INFORMATION CONTACTabove).

Proposed Critical Habitat Designation

We are proposing 16 units as critical habitat for Ivesia webberi; 2 of these units have subunits. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for I. webberi. The 18 areas we propose as critical habitat are: (1) Sierra Valley, (2) Constantia, (3) East of Hallelujah Junction Wildlife Area (HJWA), Evans Canyon, (4) Hallelujah Junction Wildife Area (WA), (5) subunit—Dog Valley Meadow and subunit—Upper Dog Valley, (6) White Lake Overlook, (7) subunit—Mules Ear Flat and subunit—Three Pine Flat and Jeffrey Pine Saddle, (8) Ivesia Flat, (9) Stateline Road 1, (10) Stateline Road 2, (11) Hungry Valley, (12) Black Springs, (13) Raleigh Heights, (14) Dutch Louie Flat, (15) The Pines Powerline, and (16) Dante Mine Road. Table 1 lists the proposed critical habitat units and subunits and the area of each.

Table 1—Proposed Critical Habitat Units for Ivesia webberi
CH Unit and subunitPopulation(USFWS)Unit or subunit nameFederallyowned landacres(hectares)State or localGovernmentowned landacres(hectare)Privatelyowned landacres(hectares)Total area acres(hectares)
11Sierra Valley51(21)44(18)179(73)274(111)
22Constantia155(63)155(63)
33East of HJWA, Evans Canyon22(9)100(41)122(49)
44Hallelujah Junction WA69(28)69(28)
5:      
5a5Dog Valley Meadow386(156)386(156)
5b5Upper Dog Valley12(5)17(7)29(12)
66White Lake Overlook98(40)11(4)109(44)
7:      
7a7Mules Ear Flat31(13)34(14)65(27)
7b7Three Pine Flat; Jeffrey Pine Saddle3(1)65(26)68(27)
88Ivesia Flat62(25)62(25)
99Stateline Road 1125(50)7(3)132(53)
1010Stateline Road 265(26)65(26)
1111Hungry Valley56(23)56(23)
1212Black Springs116(47)24(10)140(57)
1313Raleigh Heights163(66)14(6)177(72)
1414Dutch Louie Flat11(4)46(19)56(23)
1515The Pines Powerline32(13)32(13)
1616Dante Mine Road10(4)4(2)14(6)
Total1,365(552)214(86)432(175)2,011(814)

We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for Ivesia webberi, below.

Unit 1: Sierra Valley

Unit 1 consists of 274 ac (111 ha) of Federal, State, and private lands. This Unit is located near the junction of State Highway 49 and County Highway A24 in Plumas County, California. Nineteen percent of this Unit is on Federal lands managed by the BLM, 16 percent is on California State land, and 65 percent is on private lands. This Unit is currently occupied and is the most western occupied Unit within the range of Ivesia webberi. The Sierra Valley Unit is important to the recovery of I. webberi because it supports 44.8 ac (18.1 ha), or nearly one-third (27.2 percent) of all habitat (165 ac (66.8 ha)) that is occupied by I. webberi across the species' range. Threats to I. webberi in this Unit include nonnative, invasive species, wildfire, OHV use, roads, livestock grazing, and any other forms of vegetation or ground-disturbing activities. While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Unit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Unit 2: Constantia

Unit 2 consists of 155 ac (63 ha) of Federal land. This unit is located east of U.S. Highway 395, southeast of the historic town of Constantia, in Lassen County, California. One hundred percent of this Unit is on Federal lands managed by the BLM. This Unit is currently occupied and is the most northern occupied Unit within the range of Ivesia webberi. The Constantia Unit is important to the recovery of I. webberi primarily because it represents one of relatively few locations within the Great Basin where the species is known to exist. Given the increasing prevalence of both site-specific and landscape-scale threats operating throughout this region and specifically within areas occupiedby I. webberi (Service 2013, entire), this location and most others where the species occurs confer redundancy within the species' distribution, thereby buffering the species against the risk of extirpation likely to result from these threats or other less-predicable stochastic events. Not a lot is known about the current condition of I. webberi and its habitat at this site, however, wildfire and any other forms of vegetation or ground-disturbing activities are threats to I. webberi in this Unit. While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Unit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Unit 3: East of Hallelujah Junction Wildlife Area (HJWA)—Evans Canyon

Unit 3 consists of 122 ac (49 ha) of Federal and State lands. This Unit is located east of U.S. Highway 395 on the border of HJWA in Lassen County, California. Eighty-two percent of this Unit is on California State land managed as the HJWA and 18 percent is on Federal land managed by the BLM. This Unit is currently occupied and is approximately 1.6 mi (2.6 km) away from Unit 4, which may allow for social pollinator dispersal between these two Units. Additionally, this is the only place where Ivesia webberi is found as a co-dominant in an Artemisia tridentata Nutt. (big sagebrush) community instead of an Artemisia arbuscula community. The perennial bunchgrass and forb components of the Artemisia tridentata community found within this Unit are the same as those occurring in locations where A. arbuscula is co-dominant with I. webberi. The East of HJWA—Evans Canyon Unit is important to the recovery of I. webberi primarily because it represents one of relatively few locations within the Great Basin where the species is known to exist. Given the increasing prevalence of both site-specific and landscape-scale threats operating throughout this region and specifically within areas occupied by I. webberi (Service 2013, entire), this location and most others where the species occurs confer redundancy within the species' distribution, thereby buffering the species against the risk of extirpation likely to result from these threats or other less-predicable stochastic events. Wildfire and any other forms of vegetation or ground-disturbing activities are threats to I. webberi in this Unit. While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Unit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Unit 4: Hallelujah Junction Wildlife Area (HJWA)

Unit 4 consists of 69 ac (28 ha) of State lands. This Unit is located west of U.S. Highway 395 within HJWA in Sierra County, California. One hundred percent of this Unit is on California State land managed as the HJWA. This Unit is currently occupied and is approximately 1.6 mi (2.6 km) away from Unit 3, which may allow for social pollinator dispersal between these Units. The HJWA Unit is important to the recovery of I. webberi primarily because it represents one of relatively few locations within the Great Basin where the species is known to exist. Given the increasing prevalence of both site-specific and landscape-scale threats operating throughout this region and specifically within areas occupied by I. webberi (Service 2013, entire), this location and most others where the species occurs confer redundancy within the species' distribution, thereby buffering the species against the risk of extirpation likely to result from these threats or other less-predicable stochastic events. Wildfire and any other forms of vegetation or ground-disturbing activities are threats to I. webberi in this Unit. While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Unit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Unit 5: Subunit 5a—Dog Valley Meadow and Subunit 5b—Upper Dog Valley

Subunit 5a—Dog Valley Meadow

Subunit 5a consists of 386 ac (156 ha) of Federal lands. This Subunit is located east of Long Valley Road in Dog Valley in Sierra County, California. One hundred percent of this Subunit is on Federal lands managed by the U.S. Forest Service (USFS). This Unit is currently occupied and is 0.5 mi (0.8 km) away from Subunit 5b, which may allow for social pollinator dispersal between these Subunits. The Dog Valley Meadow Unit is important to the recovery of Ivesia webberi because it supports 71.58 ac (28.97 ha), or nearly half (43.5 percent) of all habitat (165 ac (66.8 ha)) that is occupied by I. webberi across the species' range and 100,000 plants, or approximately 2 to 10 percent (i.e., dependent on which population estimate range is used for the calculation) of individuals known to exist across the species' range (Service 2013, pp. 15-16). Threats to I. webberi in this Subunit include nonnative, invasive plant species, wildfire, OHV and other recreational use, and any other forms of vegetation or ground-disturbing activities. Additionally, this Subunit historically was grazed, but the grazing allotment currently is vacant (Service 2013, p. 16). While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Subunit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Subunit 5b—Upper Dog Valley

Subunit 5b consists of 29 ac (12 ha) of Federal and private lands. This Subunit is located west of Long Valley Road and south of the Dog Valley campground in Dog Valley in Sierra County, California. Forty-one percent of this Subunit is on Federal lands managed by the USFS and 59 percent is on private lands. This Unit is currently occupied and is 0.5 mi (0.8 km) away from Subunit 5a, which may allow for social pollinator dispersal between these Subunits. The Upper Dog Valley Subunit is important to the recovery of I. webberi primarily because it represents one of relatively few locations within the Great Basin where the species is known to exist. Given the increasing prevalence of both site-specific and landscape-scale threats operating throughout this region and specifically within areas occupied by I. webberi (Service 2013, entire), this location and most others where the species occurs confer redundancy within the species' distribution, thereby buffering the species against the risk of extirpation likely to result from these threats or other less-predicable stochastic events. Threats to I. webberi in this Subunit include nonnative, invasive plant species, wildfire, OHV use, and any other forms of vegetation or ground-disturbing activities. Additionally, this Subunit historicallywas grazed, but the grazing allotment is currently vacant (Service 2013, p. 16). While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Subunit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Unit 6: White Lake Overlook

Unit 6 consists of 109 ac (44 ha) of Federal and private lands. This Unit is located north of Long Valley Road in Sierra County, California. Ninety percent of this Unit is on Federal lands managed by the USFS and 10 percent is on private lands. This Unit is currently occupied and is 1 mi (1.6 km) or less away from Units 7 and 9, which may allow for social pollinator dispersal between these Units. The White Lake Overlook Unit is important to the recovery of Ivesia webberi because it supports 13.56 ac (5.49 ha) or 8.2 percent of all habitat (165 ac (66.8 ha)) that is occupied by I. webberi across the species range. Threats to I. webberi in this Unit include wildfire and any other forms of vegetation or ground-disturbing activities. While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Unit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Unit 7: Subunit 7a—Mules Ear Flat and Subunit 7b—Three Pine Flat and Jeffrey Pine Saddle

Subunit 7a—Mules Ear Flat

Subunit 7a consists of 65 ac (27 ha) of Federal and private lands. This Subunit is located west of the California-Nevada border and southeast of Long Valley Road in Sierra County, California. Forty-eight percent of this Subunit is on Federal land managed by the USFS, and 52 percent is on private lands. This Subunit is currently occupied and is 1 mi (1.6 km) or less away from Units 6 and 9, which may allow for social pollinator dispersal between these Units. The Mules Ear Flat Subunit is important to the recovery of I. webberi primarily because it represents one of relatively few locations within the Great Basin where the species is known to exist. Given the increasing prevalence of both site-specific and landscape-scale threats operating throughout this region and specifically within areas occupied by I. webberi (Service 2013, entire), this location and most others where the species occurs confer redundancy within the species' distribution, thereby buffering the species against the risk of extirpation likely to result from these threats or other less-predicable stochastic events. Threats to I. webberi in this Subunit include nonnative, invasive plant species, wildfire, OHV use, roads, and any other forms of vegetation or ground-disturbing activities. Additionally, this Subunit historically was grazed, but the grazing allotment currently is vacant (Service 2013, p. 17). While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Unit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Subunit 7b—Three Pine Flat and Jeffrey Pine Saddle

Subunit 7b consists of 68 ac (27 ha) of Federal and private lands. This Subunit is located east of the California-Nevada border in Washoe County, Nevada. Four percent of this Subunit is on Federal lands managed by the USFS, and 96 percent is on private lands. This Subunit is currently occupied and is 1 mi (1.6 km) or less away from Units 6, 8, and 9, which may allow for social pollinator dispersal between these Units. The Three Pine Flat and Jeffery Pine Saddle Subunit is important to the recovery of I. webberi primarily because it represents one of relatively few locations within the Great Basin where the species is known to exist. Given the increasing prevalence of both site-specific and landscape-scale threats operating throughout this region and specifically within areas occupied by I. webberi (Service 2013, entire), this location and most others where the species occurs confer redundancy within the species' distribution, thereby buffering the species against the risk of extirpation likely to result from these threats or other less-predicable stochastic events. Threats to I. webberi in this Subunit include nonnative, invasive plant species, wildfire, OHV use, roads, and any other forms of vegetation or ground-disturbing activities. Additionally, this Subunit historically was grazed, but the grazing allotment currently is vacant (Service 2013, p. 17). While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Unit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Unit 8: Ivesia Flat

Unit 8 consists of 62 ac (25 ha) of Federal land. This Unit is located south of U.S. Highway 395 in Washoe County, NV. One hundred percent of this Unit is on Federal land managed by the USFS. This Unit is currently occupied and is 1 mi (1.6 km) away from Subunit 7b, which may allow for social pollinator dispersal between these Units. The Ivesia Flat Unit is important to the recovery of Ivesia webberi because it supports 100,000 plants (Service 2013, p. 17), or approximately between 2 and 10 percent (i.e., dependent on which population estimate range is used for the calculation) of individuals known to exist across the species' range. Threats to I. webberi in this Unit include nonnative, invasive plant species, wildfire, OHV use, roads, and any other forms of vegetation or ground-disturbing activities. Additionally, this Unit historically was grazed, but the grazing allotment currently is vacant (Service 2013, p. 17). While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Unit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Unit 9: Stateline Road 1

Unit 9 consists of 132 ac (53 ha) of Federal and private lands. This Unit is located along the California-Nevada border in Sierra County, California, and Washoe County, Nevada. Ninety-four percent of this Unit is on Federal land managed by the USFS, and 6 percent is on private lands. This Unit is currently occupied and is 1 mi (1.6 km) or less away from Units 6, 7, and 10, which may allow for social pollinator dispersal between these Units. The Stateline Road 1 Unit is important to the recovery of I. webberi primarily because it represents one of relatively few locations within the Great Basin where the species is known to exist. Given the increasing prevalence of both site-specific and landscape-scale threats operatingthroughout this region and specifically within areas occupied by I. webberi (Service 2013, entire), this location and most others where the species occurs confer redundancy within the species' distribution, thereby buffering the species against the risk of extirpation likely to result from these threats or other less-predicable stochastic events. Threats to I. webberi in this Unit include nonnative, invasive plant species, wildfire, development, and any other forms of vegetation or ground-disturbing activities. Additionally, this Unit historically was grazed, but the grazing allotment currently is vacant (Service 2013, p. 18). While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Unit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Unit 10: Stateline Road 2

Unit 10 consists of 65 ac (26 ha) of Federal land. This Unit is located along the California-Nevada border in Sierra County, California, and Washoe County, Nevada. One hundred percent of this Unit is on Federal land managed by the USFS. This Unit is currently occupied and is less than 1 mi (1.6 km) away from Unit 9, which may allow for social pollinator dispersal between these Units. The Stateline Road 2 Unit is important to the recovery of I. webberi primarily because it represents one of relatively few locations within the Great Basin where the species is known to exist. Given the increasing prevalence of both site-specific and landscape-scale threats operating throughout this region and specifically within areas occupied by I. webberi (Service 2013, entire), this location and most others where the species occurs confer redundancy within the species' distribution, thereby buffering the species against the risk of extirpation likely to result from these threats or other less-predicable stochastic events. Threats to I. webberi in this Unit include nonnative, invasive plant species, wildfire, development, and any other forms of vegetation or ground-disturbing activities. Additionally, this Unit historically was grazed, but the grazing allotment currently is vacant (Service 2013, p. 18). While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Unit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Unit 11: Hungry Valley

Unit 11 consists of 56 ac (23 ha) of Federal land. This Unit is located west of Eagle Canyon Drive in Washoe County, Nevada. One hundred percent of this Unit is on Federal land managed by the BLM. This Unit is currently occupied and is the eastern most occupied Unit within the range of Ivesia webberi. The Hungry Valley Unit is important to the recovery of I. webberi primarily because it represents one of relatively few locations within the Great Basin where the species is known to exist. Given the increasing prevalence of both site-specific and landscape-scale threats operating throughout this region and specifically within areas occupied by I. webberi (Service 2013, entire), this location and most others where the species occurs confer redundancy within the species' distribution, thereby buffering the species against the risk of extirpation likely to result from these threats or other less-predicable stochastic events. Threats to I. webberi in this Unit include nonnative, invasive plant species, wildfire, OHV use and other recreational use, roads, livestock grazing, and any other forms of vegetation or ground-disturbing activities. While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Unit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Unit 12: Black Springs

Unit 12 consists of 140 ac (57 ha) of Federal and private lands. This Unit is located northwest of North Virginia Street and south of U.S. Highway 395 in Washoe County, Nevada. Eighty-three percent of this Unit is on Federal land managed by the USFS, and 17 percent is on private lands. This Unit is currently occupied and is approximately 1 mi (1.6 km) away from Unit 13, which may allow for social pollinator dispersal between these Units. The Black Springs Unit is important to the recovery of I. webberi primarily because it represents one of relatively few locations within the Great Basin where the species is known to exist. Given the increasing prevalence of both site-specific and landscape-scale threats operating throughout this region and specifically within areas occupied by I. webberi (Service 2013, entire), this location and most others where the species occurs confer redundancy within the species' distribution, thereby buffering the species against the risk of extirpation likely to result from these threats or other less-predicable stochastic events. Threats to I. webberi in this Unit include nonnative, invasive plant species, wildfire, OHV use, roads, and any other forms of vegetation or ground-disturbing activities. Additionally, this Unit historically was grazed, but the grazing allotment currently is vacant (Service 2013, p. 18). While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Unit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Unit 13: Raleigh Heights

Unit 13 consists of 177 ac (72 ha) of Federal and private lands. This Unit is located northwest of North Virginia Street and south of US Highway 395 in Washoe County, Nevada. Ninety-two percent of this Unit is on Federal land managed by the USFS, and 8 percent is on private lands. This Unit is currently occupied and is approximately 1 mi (1.6 km) away from Unit 12, which may allow for social pollinator dispersal between these Units. The Raleigh Heights Unit is important to the recovery of Ivesia webberi because it supports between 100,000 to 4,000,000 plants (Service 2013, p. 19), or approximately 10 to 79.5 percent (i.e., dependent on which population estimate range is used for the calculation) of individuals known to exist across the species range. Threats to I. webberi in this Unit include nonnative, invasive plant species, wildfire, OHV use, roads, and any other forms of vegetation or ground-disturbing activities. While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Unit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Unit 14: Dutch Louie Flat

Unit 14 consists of 56 ac (23 ha) of Federal and private lands. This Unit is located southwest of South McCarran Boulevard in Washoe County, Nevada. Nineteen percent of this Unit is on Federal lands managed by the USFS and 81 percent is on private lands. This Unit it currently occupied and is approximately 0.5 mi (0.8 km) away from Unit 15, which may allow for social pollinator dispersal between these Units. The Dutch Louie Flat Unit is important to the recovery of Ivesia webberi because it supports between 600,000 to 693,795 plants (Service 2013, p. 19), or approximately 14 to 61 percent (i.e., dependent on which population estimate range is used for the calculation) of individuals known to exist across the species range. Threats to I. webberi in this Unit include nonnative, invasive plant species, wildfire, OHV and other recreational use, roads, development, and any other forms of vegetation or ground-disturbing activities. While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Unit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Unit 15: The Pines Powerline

Unit 15 consists of 32 ac (13 ha) of private lands. This Unit is located southwest of South McCarran Boulevard in Washoe County, Nevada. One hundred percent of this Unit is on private lands. This Unit is currently occupied and is approximately 0.5 mi (0.8 km) away from Unit 14, which may allow for social pollinator dispersal between these Units. The Pines Powerline Unit is important to the recovery of I. webberi primarily because it represents one of relatively few locations within the Great Basin where the species is known to exist. Given the increasing prevalence of both site-specific and landscape-scale threats operating throughout this region and specifically within areas occupied by I. webberi (Service 2013, entire), this location and most others where the species occurs confer redundancy within the species' distribution, thereby buffering the species against the risk of extirpation likely to result from these threats or other less-predicable stochastic events. Threats to I. webberi in this Unit include nonnative, invasive plant species, wildfire, OHV and other recreational use, roads, development, and any other forms of vegetation or ground-disturbing activities. While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Unit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Unit 16: Dante Mine Road

Unit 16 consists of 14 ac (6 ha) of Federal and private lands. This Unit is located east of US Highway 395 in Douglas County, Nevada. Seventy-three percent of this Unit is on Federal land managed by the BLM, and 27 percent is on private lands. This Unit is currently occupied and is the most southern occupied Unit within the range of Ivesia webberi. The Dante Mine Road Unit is important to the recovery of I. webberi primarily because it represents one of relatively few locations within the Great Basin where the species is known to exist. Given the increasing prevalence of both site-specific and landscape-scale threats operating throughout this region and specifically within areas occupied by I. webberi (Service 2013, entire), this location and most others where the species occurs confer redundancy within the species' distribution, thereby buffering the species against the risk of extirpation likely to result from these threats or other less-predicable stochastic events. Threats to I. webberi in this Unit include nonnative, invasive plant species, wildfire, roads, development, and any other forms of vegetation or ground-disturbing activities. While these lands currently have the physical and biological features essential to the conservation of I. webberi, because of a lack of cohesive management and protections, special management will be required to maintain these features in this Unit. These threats should be addressed as detailed above in the “Special Management Considerations or Protection” section.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action that is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.

Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our regulatory definition of “destruction or adverse modification” (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species.

If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation.

As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:

(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

(2) A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat.

When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, weprovide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:

(1) Can be implemented in a manner consistent with the intended purpose of the action,

(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

(3) Are economically and technologically feasible, and

(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.

Application of the “Adverse Modification” Standard

The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical or biological features to an extent that appreciably reduces the conservation value of critical habitat for Ivesia webberi. As discussed above, the role of critical habitat is to support life-history needs of the species and provide for the conservation of the species.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.

Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Ivesia webberi. These activities include, but are not limited to:

(1) Actions that would lead to the destruction or alteration of plants, their seedbank, or their habitat; or actions that destroy or result in continual or excessive disturbance of the clay soils where Ivesia webberi is found. Such activities could include, but are not limited to: Activities associated with road construction and maintenance; excessive OHV use; activies associated with commercial and residential development including roads and associated infrastructure; utility corridors or infrastructure; and excessive livestock grazing. These activities could lead to the loss of individuals, reduce plant numbers by prohibiting recruitment, remove the seedbank, fragment the habitat, introduce nonnative, invasive species, and alter the soil such that important shrink and swell processes no longer occur.

(2) Actions that would result in the loss of pollinators or their habitat, such that reproduction could be diminished. Such activities could include, but are not limited to: Destroying ground nesting habitat; habitat fragmentation that prohibits pollinator movement from one area to the next; spraying pesticides that would kill pollinators; and eliminating other plant species on which pollinators are reliant on for floral resources (this could include the replacement of native forb species with nonnative, invasive annual grasses, which do not provide floral resources for pollinators). These activities could result in reduced reproduction, fruit production, and recruitment in Ivesia webberi.

(3) Actions that would result in excessive plant competition at Ivesia webberi populations. These activities could include, but are not limited to, using highly competitive species in restoration efforts or creating disturbances that allow nonnative, invasive species such as Bromus tectorum, Poa bulbosa, and Taeniatherum caput-medusae. These activities could cause I. webberi to be outcompeted and subsequently either lost or reduced in numbers of individuals.

Exemptions

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

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographic areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense lands with a completed INRMP within the proposed critical habitat designation.

Exclusions

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

Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise his discretion to exclude the area only if such exclusion would not result in the extinction of the species.

Exclusions Based on Economic Impacts

Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we are preparing an analysis of the economic impacts of the proposed critical habitat designation and related factors. Many of the units, as proposed, include private lands. Federal lands with special use permits for development, grazing permits, and recreational uses are also included. State parcels are included where hunting or recreational activities occur. These areas and activities will be evaluated in a draft economic analysis.

During the development of a final designation, we will consider economic impacts based on information in our economic analysis, public comments, and other new information, and areas may be excluded from the final critical habitat designation under section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.

Exclusions Based on National Security Impacts

Under section 4(b)(2) of the Act, we consider whether there are lands where a national security impact might exist. In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for Ivesia webberi are not owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security. Consequently, the Secretary is not intending to exercise his discretion to exclude any areas from the final designation based on impacts on national security.

Exclusions Based on Other Relevant Impacts

Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues, and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.

In preparing this proposal, we have determined that there are currently no HCPs or other management plans for Ivesia webberi, and the proposed designation does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this proposed critical habitat designation. Accordingly, the Secretary does not intend to exercise his discretion to exclude any areas from the final designation based on other relevant impacts.

Peer Review

In accordance with our joint policy on peer review published in theFederal Registeron July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our critical habitat designation is based on scientifically sound data, and analyses. We have invited these peer reviewers to comment during this public comment period.

We will consider all comments and information received during this comment period on this proposed rule during our preparation of a final determination. Accordingly, the final decision may differ from this proposal.

Public Hearings

Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in theFederal Register. Such requests must be sent to the address shown inFOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in theFederal Registerand local newspapers at least 15 days before the hearing.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

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

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include such businesses as manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and forestry and logging operations with fewer than 500 employees and annual business less than $7 million. To determine whether small entities may be affected, we will consider the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meantto apply to a typical small business firm's business operations.

Importantly, the incremental impacts of a rule must be both significant and substantial to prevent certification of the rule under the RFA and to require the preparation of an initial regulatory flexibility analysis. If a substantial number of small entities are affected by the proposed critical habitat designation, but the per-entity economic impact is not significant, the Service may certify. Likewise, if the per-entity economic impact is likely to be significant, but the number of affected entities is not substantial, the Service may also certify.

Under the RFA, as amended, and following recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking only on those entities directly regulated by the rulemaking itself, and not the potential impacts to indirectly affected entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried by the Agency is not likely to adversely modify critical habitat. Therefore, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Under these circumstances, our position is that only Federal action agencies will be directly regulated by this designation. Therefore, because Federal agencies are not small entities, the Service may certify that the proposed critical habitat rule will not have a significant economic impact on a substantial number of small entities.

We acknowledge, however, that in some cases, third-party proponents of the action subject to permitting or funding may participate in a section 7 consultation, and thus may be indirectly affected. We believe it is good policy to assess these impacts if we have sufficient data before us to complete the necessary analysis, whether or not this analysis is strictly required by the RFA. While this regulation does not directly regulate these entities, in our draft economic analysis we will conduct a brief evaluation of the potential number of third parties participating in consultations on an annual basis in order to ensure a more complete examination of the incremental effects of this proposed rule in the context of the RFA.

In conclusion, we believe that, based on our interpretation of directly regulated entities under the RFA and relevant case law, this designation of critical habitat will directly regulate only Federal agencies, which are not by definition small business entities. And as such, we certify that, if promulgated, this designation of critical habitat would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required. However, though not necessarily required by the RFA, in our draft economic analysis for this proposal, we will consider and evaluate the potential effects to third parties that may be involved with consultations with Federal action agencies related to this action.

Energy Supply, Distribution, or Use—Executive Order 13211

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. We do not expect the designation of this proposed critical habitat to significantly affect energy supplies, distribution, or use because of the small area of proposed critical habitat (total area of 2,011 ac (814 ha)) and lack of known significant energy supplies within the proposed critical habitat. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted.

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

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings:

(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families With Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.

(2) We do not believe that this rule will significantly or uniquely affect small governments because it will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments and, as such, a Small Government Agency Plan is not required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment if appropriate.

Takings—Executive Order 12630

In accordance with Executive Order 12630 (“Government Actions and Interference With Constitutionally Protected Private Property Rights”), this rule is not anticipated to have significant takings implications. As discussed above, the designation of critical habitat affects only Federal actions. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. Due to current public knowledge of the species protections and the prohibition against take of the species both within and outside of the proposed areas, we do not anticipate that property values will be affected by the critical habitat designation. However, we have not yet completed the economic analysis for this proposed rule. Once the economic analysis is available, we will review and revise this preliminary assessment as warranted, and prepare a Takings Implication Assessment.

Federalism—Executive Order 13132

In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior policy, we request information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies in California and Nevada. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical and biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur).

Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform—Executive Order 12988

In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the rule identifies the elements of physical or biological features essential to the conservation of the species. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.

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

This proposed rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

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

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

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes.

We have determined that there are no tribal lands occupied by Ivesia webberi at the time of listing that contain the features essential for conservation of the species, and no tribal lands that are unoccupied by the I. webberi that are essential for the conservation of the species. Therefore, we are not proposing to designate critical habitat for I. webberi on tribal lands.

Clarity of the Rule

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in theADDRESSESsection. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearlywritten, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

References Cited

A complete list of references cited in this rulemaking is available on the Internet at http://www.regulations.gov and upon request from the Nevada Fish and Wildlife Office (seeFOR FURTHER INFORMATION CONTACT).

Authors

The primary authors of this proposed rulemaking are the staff members of the Nevada Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

Part 17 Endangered and Threatened Wildlife and Plants

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

Authority

16 U.S.C. 1361-1407; 1531-1544; and 4201-4245; unless otherwise noted.

2. In § 17.96, amend paragraph (a) by adding an entry for “Ivesia webberi (Webber's ivesia),” in alphabetical order under Family Rosaceae, to read as follows:

§ 17.96
Critical habitat—plants.

(a) Flowering plants.

* * * * *

Family Rosaceae: Ivesia webberi (Webber's ivesia)

(1) Critical habitat units are depicted for Plumas, Lassen, and Sierra Counties, California, and Washoe and Douglas Counties, Nevada, on the maps below.

(2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of Ivesia webberi consist of four components:

(i) Plant community.

(A) Open to sparsely vegetated areas composed of generally short-statured associated plant species.

(B) Presence of appropriate associated species that can include (but are not limited to): Antennaria dimorpha, Artemisia arbuscula, Balsamorhiza hookeri, Elymus elymoides, Erigeron bloomeri, Lewisia rediviva, Poa secunda, and Viola beckwithii.

(C) An intact assemblage of appropriate associated species to attract the floral visitors that may be acting as pollinators of Ivesia webberi.

(ii) Topography.

Flats, benches, or terraces that are generally above or adjacent to large valleys. Occupied sites vary from slightly concave to slightly convex or gently sloped (0-15°) and occur on all aspects.

(iii) Elevation.

Elevations between 4,475 and 6,237 ft (1,364 and 1,901 m).

(iv) Suitable soils and hydrology.

(A) Vernally moist soils with an argillic horizon that shrink and swell upon drying and wetting; these soil conditions are characteristic of known Ivesia webberi populations and are likely important in the maintenance of the seedbank and population recruitment.

(B) Suitable soils that can include (but are not limited to): Reno—a fine, smectitic, mesic Abruptic Xeric Argidurid; Xman—a clayey, smectitic, mesic, shallow Xeric Haplargids; Aldi—a clayey, smectitic, frigid Lithic Ultic Argixerolls; and Barshaad—a fine, smectitic, mesic Aridic Palexeroll.

(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on [INSERT EFFECTIVE DATE OF FINAL RULE].

(4) Critical habitat map units. Data layers defining map units were created on the base of both satellite imagery (ESRI ArcGIS Imagery Basemap) as well as USGS geospatial quadrangle maps and were mapped using NAD 83 Universal Transverse Mercator (UTM), zone 11N coordinates. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service's internet site, (http://www.fws.gov/nevada/), http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0080 and at the field office responsible for this designation. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2.

(5)Note:Index map follows:

BILLING CODE 4310-55-P

Image #EP02AU13.028

(6) Unit 1, Sierra Valley: Critical habitat for Ivesia webberi, Plumas County, California.

(i) Unit 1 includes 274 ac (111 ha).

(ii)Note:A map of Unit 1 follows:

Image #EP02AU13.029

(7) Unit 2, Constantia: Critical habitat for Ivesia webberi, Lassen County, California.

(i) Unit 2 includes 155 ac (63 ha).

(ii)Note:A map of Unit 2 follows:

Image #EP02AU13.030

(8) Unit 3, East of HJWA—Evans Canyon and Unit 4, Hallelujah Junction WA: Critical habitat for Ivesia webberi, Lassen and Sierra Counties, California.

(i) Unit 3 includes 122 ac (49 ha) and Unit 4 includes 69 ac (28 ha).

(ii)Note:A map of Units 3 and 4 follows:

Image #EP02AU13.031

(9) Unit 5, Subunit 5a, Dog Valley Meadow; and Subunit 5b, Upper Dog Valley: Critical habitat for Ivesia webberi, Sierra County, California.

(i) Subunit 5a includes 386 ac (156 ha) and Subunit 5b includes 29 ac (12 ha). Combined, Unit 5 includes 415 ac (168 ha).

(ii)Note:A map of Unit 5 (Subunits 5a and 5b) follows:

Image #EP02AU13.032

(10) Unit 6, White Lake Overlook, Sierra County, California; Unit 7, Subunit 7a, Mules Ear Flat, Sierra County, California; Unit 7, Subunit 7b, Three Pine Flat and Jeffery Pine Saddle, Washoe County, Nevada; Unit 8, Ivesia Flat, Washoe County, Nevada; Unit 9, Stateline Road 1, Washoe County, Nevada; and Unit 10, Stateline Road 2, Washoe County, Nevada: Critical habitat for Ivesia webberi, Sierra County, California, and Washoe County, Nevada.

(i) Unit 6 includes 109 ac (44 ha), Subunit 7a includes 65 ac (27 ha), Subunit 7b includes 68 ac (27 ha), Unit 8 includes 62 ac (25 ha), Unit 9 includes 132 ac (53 ha), and Unit 10 includes 65 ac (26 ha).

(ii)Note:A map of Units 6 through 10 follows:

Image #EP02AU13.033

(11) Unit 11, Hungry Valley: Critical habitat for Ivesia webberi, Washoe County, Nevada.

(i) Unit 11 includes 56 ac (23 ha).

(ii)Note:A map of Unit 11 follows:

Image #EP02AU13.034

(12) Unit 12, Black Springs and Unit 13, Raleigh Heights: Critical habitat for Ivesia webberi, Washoe County, Nevada.

(i) Unit 12 includes 140 ac (57 ha) and Unit 13 includes 177 ac (72 ha).

(ii)Note:A map of Units 12 and 13 follows:

Image #EP02AU13.035

(13) Unit 14, Dutch Louie Flat and Unit 15, The Pines Powerline: Critical habitat for Ivesia webberi, Washoe County, Nevada.

(i) Unit 14 includes 56 ac (23 ha) and Unit 15 includes 32 ac (13 ha).

(ii)Note:A map of Units 14 and 15 follows:

Image #EP02AU13.036

(14) Unit 16, Dante Mine Road: Critical habitat for Ivesia webberi, Douglas County, Nevada.

(i) Unit 16 includes 14 ac (6 ha).

(ii)Note:A map of Unit 16 follows:

Image #EP02AU13.037

* * * * *

Dated: July 23, 2013.
Rachel Jacobsen,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-18583 Filed 8-1-13; 8:45 am]
BILLING CODE 4310-55-C
 
 
Comment Period Closed
Oct 1 2013, at 11:59 PM ET
ID: FWS-R8-ES-2013-0080-0001
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Document Information

Date Posted: Aug 2, 2013
RIN: 1018-AZ57
CFR: 50 CFR Part 17
Federal Register Number: 2013-18583
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Comments

6
Comments Received*
Jim Bramham's Comment
See attached file(s)
I have reached my limit of these ridiculous unconstitutional land grabs. Quit wasting our tax dollars.

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