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Federal Register: August 26, 2008 (Volume 73, Number 166)

DOCID: fr26au08-14 FR Doc E8-19194

DEPARTMENT OF THE INTERIOR

Veterans Affairs Department

CFR Citation: 50 CFR Part 17

RIN ID: RIN 1018-AU86

FWS ID: [FWS-R8-ES-2007-0007; 92210-1117-0000-B4]

NOTICE: Part III

DOCID: fr26au08-14

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY:

Endangered and Threatened Wildlife and Plants; Designation of

DATES: This rule becomes effective on September 25, 2008.

DOCUMENT SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for Acanthomintha ilicifolia (San Diego thornmint) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 671 acres (ac) (272 hectares (ha)) of land in San Diego County, California, fall within the boundaries of the critical habitat designation.

SUMMARY:

Interior Department, Fish and Wildlife Service,

DOCUMENT BODY 2:

Critical Habitat for Acanthomintha ilicifolia (San Diego thornmint)

SUPPLEMENTAL INFORMATION

Background

It is our intent to discuss only those topics directly relevant to the designation of critical habitat for Acanthomintha ilicifolia in this final rule. For more information on the taxonomy, biology, and ecology of A. ilicifolia, refer to the final listing rule published in the Federal Register on October 13, 1998 (63 FR 54938), and the proposed critical habitat rule published in the Federal Register on March 14, 2007 (72 FR 11946). We did not receive any new information pertaining to the species description, life history, distribution, ecology, or habitat of A. ilicifolia following the publication of the proposed designation of critical habitat for this species; therefore, please refer to the documents listed above for a complete detailed discussion of this species.

Acanthomintha ilicifolia is an annual member of the mint family in the genus Acanthomintha. This plant ranges in height from 2 to 6 inches (in) (5 to 15 centimeters (cm)) and has white, twolipped, tubular flowers with rosecolored markings on the lower lip (Jokerst 1993, p. 713). Members of this genus have paired leaves and several sharp, spiny bracts (modified leaves) below whorled flowers. Acanthomintha ilicifolia can be distinguished from other members of the genus by its flower, which has hairless anthers and style.

Acanthomintha ilicifolia usually occurs on heavy clay soils in open areas surrounded by shrubby vegetation. These openings are generally found within coastal sage scrub, chaparral, and native grassland of coastal San Diego County and south to San Telmo in northern Baja California, Mexico (Beauchamp 1986, p. 175; Reiser 2001, pp. 35). Acanthomintha ilicifolia is frequently associated with gabbro soils, which are derived from igneous rock, and gray calcareous clays derived from soft calcareous sandstone (Oberbauer and Vanderwier 1991, pp. 208 209). This species is endemic to San Diego County, California, and northwestern Baja California, Mexico, and grows on open clay lenses described as friable, meaning that these soils have a loose, crumbly texture.

Previous Federal Actions

On August 10, 2004, the Center for Biological Diversity and California Native Plant Society challenged our failure to designate critical habitat for this species as well as four other plant species (Center for Biological Diversity v. Norton, C043240 JL (N. D. Cal.)). In a settlement agreement dated December 21, 2004, we agreed to submit for publication in the Federal Register a proposed designation of critical habitat, if prudent and determinable, on or before February 28, 2007, and a final determination by February 28, 2008. We published a proposed critical habitat designation for Acanthomintha ilicifolia in the Federal Register on March 14, 2007 (72 FR 11946). As part of that 2007 proposed designation, we determined that it was prudent to designate critical habitat for this species (72 FR 11946; March 14, 2007). We accepted public comments on the proposed designation for 60 days, ending May 14, 2007.

On November 27, 2007, we published a notice announcing the availability of the draft economic analysis (DEA) and reopening the public comment period on the proposed rule (72 FR 66122). This comment period closed on December 27, 2007. In light of new information received, we requested an extension of the due date of the final critical habitat rule. On April 16, 2008, the extension request was granted allowing us to open an additional comment period. On May 13, 2008, we opened a third comment period on the DEA and the proposed rule. This comment period closed on June 12, 2008 (73 FR 27483). Please refer to the ``Previous Federal Actions'' section of the proposed critical habitat rule for Acanthomintha ilicifolia, which published in the Federal Register on March 14, 2007 (72 FR 11946), for a discussion of additional Federal actions that occurred prior to the proposed designation of critical habitat for this species. This final rule complies with the December 21, 2004, settlement agreement and April 16, 2008, extension.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of critical habitat for Acanthomintha ilicifolia in the proposed rule that published on March 14, 2007 (72 FR 11946), and in the notice of availability of the draft EA published in the Federal Register on November 27, 2007 (72 FR 66122). We received significant information during the second comment period; therefore, we opened a third comment period on the proposed rule and the draft EA. The third comment period opened on May 13, 2008, and closed June 12, 2008 (73 FR 27483). We contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and the draft EA.

During the comment period that opened on March 14, 2007, and closed on May 14, 2007, we received two comments directly addressing the proposed critical habitat designation. One comment was from a Federal agency and the other was from a nongovernmental organization. During the second comment period open from November 27, 2007 to December 27, 2007, we received four comment letters. Of these latter comments, one was from a Federal agency, one was from a local government, one was from a peer
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reviewer, and one was from an organization. We did not receive any additional comments during the third comment period. All comments received were grouped into general issue categories relating to the proposed designation of critical habitat for Acanthomintha ilicifolia, and are addressed in the following summary and incorporated into this final rule as appropriate. We did not receive requests for a public hearing or comments on the draft EA.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from five knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region where the species occurs, and conservation biology principles. We received a response from one peer reviewer. The peer reviewer agreed with our characterization of the known physical and biological features for Acanthomintha ilicifolia.

We reviewed all comments we received from the peer reviewer and the public for substantive issues and new information regarding critical habitat for Acanthomintha ilicifolia. The comments are addressed in the following summary.

Peer Reviewer Comments

Comment 1: The peer reviewer concurred with our characterization of the known physical and biological features that are essential to the conservation of this species based on extensive research on Acanthomintha ilicifolia. Additionally, the peer reviewer highlighted several areas of interest that have not been studied at this time, but may provide more information on the physical and biological features essential for the survival of A. ilicifolia. The topics that the peer reviewer indicated require further research include population genetics, pollinator studies, and additional soil studies. The peer reviewer stated that additional population genetics studies of A. ilicifolia could show that some populations display greater genetic diversity, or that some genetic characters are contained in only one or two populations. Additionally, the peer reviewer indicated that studies are needed to determine habitat requirements for pollinators and to understand the effect that habitat fragmentation may have on A. ilicifolia.

Our Response: We agree with the peer reviewer's assessment of information needs for Acanthomintha ilicifolia. We used the best available scientific and commercial data to designate critical habitat for this species. The peer reviewer's comments support the designation, and the peer reviewer did not identify any significant data that we did not consider. We look forward to working with stakeholders, researchers, and other organizations to study the important issues identified by the peer reviewer. The California Department of Fish and Game is funding a study on the pollinators of A. ilicifolia. This and other future projects will help us to better understand the conservation needs of this species.

Comment 2: The peer reviewer applauded and reiterated the importance of our inclusion of newly discovered populations of Acanthomintha ilicifolia in the proposed critical habitat. The peer reviewer also commented that our criterion for population stability is reasonable and further tracking of population dynamics may help refine this criterion. The peer reviewer supported our inclusion of up to 500 ft (152 m) of habitat adjacent to mapped occurrences where the habitat is contiguous with occupied habitat and supports the physical and biological features essential to the conservation of this species. The peer reviewer indicated these areas capture unmapped clay soil patches, minimize the effects of fragmentation, and help alleviate our lack of specific knowledge regarding pollinators for this species by minimizing the encroachment of irrigated areas that support nonnative insect fauna (which may compete with native insect pollinators or affect the hydrology that supports A. ilicifolia).

Our Response: We appreciate the peer reviewer's positive evaluation of our criteria used to identify critical habitat.

Comment 3: The peer reviewer commented that we should not exclude the area within the pending Encinitas subarea plan under the Multiple Habitat Conservation Plan (MHCP) as proposed. The peer reviewer indicated this plan has not progressed towards completion at a timely rate and that until a conservation plan has been developed, we should designate the area as critical habitat.

Our Response: Following the publication of the proposed rule, we reevaluated the City of Encinitas' pending habitat conservation plan (HCP) subarea plan under the MHCP in San Diego County, California. We concluded that, at this time, the City of Encinitas' subarea plan is not complete and progress on the completion has slowed. However, the majority of subunit 1C is part of the Manchester Avenue Mitigation Bank and is actively managed for Acanthomintha ilicifolia (Spiegelberg 2005, p. 133). Preservation and management of the Manchester Avenue Mitigation Bank is independent of the completion of the City of Encinitas' subarea plan. We determined that the benefits of excluding the lands within the Manchester Avenue Mitigation Bank outweigh the benefits of including these lands in a critical habitat designation and that their exclusion will not result in extinction of this species. Therefore, we excluded 70 ac (28 ha) of subunit 1C under section 4(b)(2) of the Act (see ``Exclusions Under Section 4(b)(2) of the Act'' section of this final rule for a detailed discussion of this exclusion), and we designated the remaining 9 ac (4 ha) of private lands outside the Manchester Avenue Mitigation Bank as critical habitat.

Public Comments

Comment 4: One commenter stated that at a minimum, all occupied habitat needs to be designated as critical habitat. The commenter stated the definitions of ``recovery'' and ``conservation'' are synonymous, and therefore, any critical habitat designation must include all areas the Service finds essential to the conservation (i.e., recovery) of the species. This commenter reiterated that Acanthomintha ilicifolia is widely scattered in a discontinuous distribution, and stated that this type of distribution can lead to a high level of withinspecies genetic diversity. The commenter stated that it is essential to conserve withinspecies diversity represented by occurrences on varying soil types as well as geographically distinct populations. The commenter stated that withinspecies diversity helps species preserve their ability to respond to diseases, climate change, pollution, and other current and future threats. The commenter concluded that in the face of uncertainty, designation of all occupied habitat, regardless of ownership, is legally necessary to conserve this species.

Our Response: We agree with the commenter that the term conservation is defined in the Act as using all methods and procedures necessary to bring any listed species to the point at which the measures provided under the Act are no longer necessary (i.e., recovery). The provisions within section 4 of the Act require the Secretary to determine whether a species is endangered or threatened based on threats to the species, and therefore, recovery is linked to the alleviation of threats to the species.

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The Act defines critical habitat as the specific areas within the geographical area occupied by the species at the time it is listed on which are found those physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and specific areas outside the geographical area occupied by the species at the time it is listed upon a determination by the Secretary that such areas are essential for the conservation of the species. We believe that our proposed and final designations accurately capture all areas essential to the conservation of Acanthomintha ilicifolia as required by the Act. The areas delineated as critical habitat in this final rule: (1) Support populations that occur on rare or unique habitat within the species' range; (2) support the largest known populations of A. ilicifolia; and (3) support the most stable populations of A. ilicifolia. Further, this final designation identifies threats to the physical and biological features essential to the conservation of the species within each subunit and identifies special management considerations or protection needed to alleviate those threats and thereby will contribute to the recovery of A. ilicifolia. Although there is no recovery plan for this species, we believe that recovery for A. ilicifolia can be achieved through the implementation of conservation measures to protect the physical and biological features on the areas occupied by this species that meet the definition of critical habitat (see the ``Special Management Considerations or Protection'' section for details about the type of management needed for this species).

The commenter stated that we need to include all occupied habitat in order to conserve the species' geographic and genetic diversity. Species and plant communities that are protected across their ranges are expected to have lower likelihoods of extinction (Soule and Simberloff 1986; Scott et al. 2001, pp. 12971300); our criteria identified multiple locations across the entire range of the species as essential habitat to prevent range collapse. Genetic variation in plants can result from the effects of population isolation and adaptation to locally distinct environments (Lesica and Allendorf 1995, pp. 754757; Fraser 2000, pp. 4951; Hamrick and Godt 1996, pp. 291 295); and our criteria identified populations that occur on rare or unique habitat within the species' range in order to capture the range of plant communities, soil types, and environmental gradients in which Acanthomintha ilicifolia is found to preserve the genetic variation that may result from adaptation to local environmental conditions, as documented in other plant species (e.g., see Hamrick and Godt 1996, pp. 299301; Millar and Libby 1991, pp. 150, 152155). Locations that possess unique ecological characteristics are those that represent the full range of environmental variability where A. ilicifolia have evolved, and, therefore, are likely to promote the adaptation of this species to different environmental conditions. We believe we captured the withinspecies diversity that the commenter is referring to by including areas that support populations on rare or unique habitat types, the largest known populations of A. ilicifolia, and the most stable populations of A. ilicifolia. At this time, no one has investigated the genetic structure of this species; however, if such genetic studies are conducted for this species in the future, we may revise this critical habitat designation if we determine that this final designation does not adequately represent the species' range of genetic diversity.

Our designation relies on the best available scientific information to capture the geographic range of the species. The commenter did not specifically identify any geographically distinct populations that we did not capture in our designation. Our criteria do not capture populations where we had information indicating that the habitat had been lost to development and, therefore, the populations were likely extirpated. Furthermore, our criteria limited the designation to areas where we had data indicating the location of a known population and demographic or specific habitat data to assess its importance to the overall conservation of this species. As described above, our designation includes areas that support populations of Acanthomintha ilicifolia on rare or unique habitat types, the largest known populations of A. ilicifolia, and the most stable populations of A. ilicifolia, thereby capturing species' diversity. We determined that designating these areas, each of which was occupied at the time of listing and contains the physical and biological features essential to the conservation of A. ilicifolia fulfills the plant's biological needs and is adequate to conserve this species (for a more detailed discussion see the ``Criteria Used To Identify Critical Habitat'' section). We concluded that there are no areas outside the geographical area occupied by the species at the time of listing essential to the conservation of the species and, therefore, consistent with section 3(5)(c) of the Act, we did not include the entire geographical area currently occupied by this species.

We recognize that our designation does not encompass all known occurrences of this species; however, we believe that our criteria and the designation are adequate to provide for the conservation and recovery of this species throughout its extant range. Although there is no recovery plan for this species, we believe that recovery for A. ilicifolia can be achieved through the implementation of conservation measures to protect the physical and biological features in the areas occupied by this species that meet the definition of critical habitat (see the ``Special Management Considerations or Protection'' section for details about the type of management needed for this species).

The commenter expressed concern that the proposed designation may not capture all areas necessary to allow Acanthomintha ilicifolia to respond to diseases, climate change, pollution, and other current and future threats. As stated above, the designation identifies all known threats to the physical and biological features essential to the conservation of the species in each individual subunit and identifies special management considerations or protection needed to alleviate those threats. We recognize these threats may change in the future; however, we base our critical habitat designations on the information available at the time of the designation and do not speculate as to what areas may be found essential if better information became available or what areas may become essential over time. The commenter did not include any specific data on future threats to the features essential to this species nor are we aware of any studies that include additional information that we did not consider. Should additional data become available concerning future threats, we may revise this critical habitat designation if it is determined that the designation did not capture an area essential to the conservation of the species based on the identification of additional threats.

Comment 5: One commenter stated that the Act specifically allows critical habitat designations to include areas both within and outside the geographical area occupied by the species at the time it is listed as well as currently unoccupied habitat in order to capture all areas essential to the recovery of listed species. The commenter continued to state that the proposed designation of critical habitat
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for Acanthomintha ilicifolia fails to meet the government's legal requirements to promote recovery of A. ilicifolia.

Our Response: We agree with the commenter that the Act does provide the flexibility to include areas within the designation that were not occupied at the time a species was listed (including currently unoccupied habitat) if those areas are determined to be essential to the conservation of the species. We evaluated all known occurrences of Acanthomintha ilicifolia for inclusion in our proposed critical habitat designation and identified two subunits in the proposed rule, 3E and 4D, for inclusion in the designation that were not known to be occupied at the time the species was listed. We now consider subunits 3E and 4D to be occupied at the time of listing. Even though these occurrences were not discovered until after the species was listed in 1998, over 1,000 plants were recorded at each of these sites when they were first discovered. We believe the large population size indicates that the occurrences were established for several years because the seeds of A. ilicifolia do not disperse in large numbers and any new population of A. ilicifolia would likely start out small and take several years to reach a population size greater than 1,000 plants. In our proposed rule, we did not identify any areas outside the geographical area occupied by A. ilicifolia as essential for the conservation of this species. As discussed in response to comment 4, we believe our proposed rule and this final designation of critical habitat meet the requirements of the Act and are consistent with 50 CFR 424.12(e). We are not designating any areas outside the geographical area occupied by this species as we believe this designation is adequate to ensure the conservation of the species.

We recognize the designation of critical habitat may not include all habitat areas that may eventually be determined to be necessary for the species' recovery. Critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas outside the critical habitat designation will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and regulatory protections afforded by the section 7(a)(2) jeopardy standard and the prohibitions of section 9 of the Act. Critical habitat designations based on the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

Comment 6: One commenter stated that the proposed exclusions, which if finalized will exclude over 67 percent of occupied habitat, violate the principles of the Act, and are not legal because excluding areas from a critical habitat designation will not promote the recovery of this species as is required by the Act. The commenter noted that, because all the units identified in the proposed rule are described as requiring special management considerations to conserve the primary constituent elements, that all units must be designated.

Our Response: Section 4(a)(3)(A) of the Act generally mandates that the Secretary designate any habitat which is considered to be critical habitat, as defined in section 3(5)(A), concurrently with listing and provides that such designations may be revised thereafter as appropriate. Section 4(b)(2) of the Act further requires that in making critical habitat designations, the Secretary take into account the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines that the failure to designate such area as critical habitat will result in the extinction of the species concerned. Therefore, consistent with the Act, we must consider the relevant impacts of designation on those areas that are determined to meet the definition of critical habitat using the best scientific data available prior to finalizing a critical habitat designation.

After determining all areas that meet the definition of critical habitat under section 3(5)(A) of the Act, we considered the economic impact, the impact on national security, and other relevant impacts of specifying any particular area as critical habitat. In this final designation, we recognize that designating critical habitat in areas where we have partnerships with landowners that have led to conservation and management of Acanthomintha ilicifolia on nonFederal lands has a relevant perceived impact to those landowners and a relevant impact to future partnership and conservation efforts on non Federal lands. Based on these relevant impacts, we evaluated the benefits of designating those particular areas as critical habitat against the benefits of excluding the areas from the designation, and we determined that the benefits of excluding a portion of subunits 1A and 1C and all of subunits 1B, 2A, 2B, 2C, 2D, 3A, 3B, 4A, 4B, 4C, and 4D outweigh the benefits of including these areas in the final critical habitat designation and that the exclusion of these areas will not result in extinction of this species. Therefore, these exclusions are in full compliance with the Act. We also concluded that the conservation and management that will occur on the nonFederal lands we are excluding will contribute to the recovery of this species even though the Act does not require that areas excluded from a critical habitat designation contribute to recovery of a species, but rather that the benefits analysis demonstrate that the benefits of exclusion outweigh the benefits of inclusion and that the exclusion will not result in the extinction of the species. For a complete analysis and discussion of the exclusions, please refer to the ``Exclusions Under Section 4(b)(2) of the Act'' section below.

Comment 7: One commenter specifically questioned the ability of the San Diego Multiple Habitat Conservation Program (MHCP) and the San Diego Multiple Species Conservation Program (MSCP) to prevent extinction of this species, therefore questioning our determination that excluding these areas would not lead to the extinction of Acanthomintha ilicifolia. The commenter stated that habitat conservation plans (HCPs), like the MHCP and MSCP, are often ineffective conservation vehicles. The commenter listed three studies and stated that the studies conclude that species covered by multiple species HCPs may be less likely to be recovered than those outside such HCPs. The commenter goes on to state that the MHCP and MSCP are in relatively early stages of implementation and are untested. The commenter states there are substantial questions as to whether these HCPs will provide sufficient habitat or species conservation for A. ilicifolia. The commenter stated that designating critical habitat in areas covered by the MHCP and MSCP would not undermine those HCPs and that the additional protection that a critical habitat designation provides would be especially beneficial if project proponents in those areas elect not to follow the guidelines set forth in the HCPs, suggesting that designating critical habitat would provide a useful and needed ``safety net.'' The commenter requested that we reconsider [[Page 50458]]
our proposed exclusion of nonFederal lands covered by the MHCP and MSCP.

Our Response: We reevaluated our proposed exclusions of nonFederal land covered by the MHCP and MSCP. Although the commenter grouped the two HCPs together, we evaluated the proposed exclusion of each HCP separately in relation to the comments.

We reevaluated our proposed exclusion of nonFederal land covered by the MHCP under the approved Carlsbad Habitat Management Plan (HMP) and the draft Encinitas subarea plan. The MHCP is a framework plan that has been in place for 5 years and is structured to be implemented through the approval of individual, constituent subarea plans.

The City of Carlsbad received an incidental take permit based on the Carlsbad HMP, an individual subarea plan under the MHCP framework plan on November 9, 2004. All 59 ac (24 ha) of land that meet the definition of critical habitat within the boundaries of the Carlsbad HMP are already conserved under the Carlsbad HMP. In addition to the two areas that we proposed as critical habitat in the Carlsbad HMP, there are other populations of A. ilicifolia that are conserved under the subarea plan. Not all areas placed in conservation are actively managed under the plan at this time; however, we believe the Carlsbad HMP conserves A. ilicifolia within its boundaries. According to the Service's biological opinion for the Carlsbad HMP, coverage of Acanthomintha ilicifolia under this plan is contingent upon compliance with the conservation measures outlined in the HMP (i.e., a funded management plan in place) and the completion of the San Marcos subarea plan under the MHCP. However, we did not identify any lands in San Marcos that meet the definition of critical habitat as described in the ``Criteria Used to Identify Critical Habitat'' section. As a result, we analyzed the exclusion of subunits 1A and 1B in more detail and concluded that exclusion is appropriate because the essential habitat under the Carlsbad HMP is conserved. Management plans were developed and are being implemented for conserved lands in both of these subunits, although some management differs between these two areas because these management plans were developed over different periods of time (i.e., the management plan for subunit 1A was developed after the Carlsbad HMP was completed, whereas the management plan for lands within subunit 1B was developed prior to development of the Carlsbad HMP). Regardless, conservation and management of A. ilicifolia in these subunits is occurring and we believe it is contributing to the conservation of the species.Overall, the extent of habitat preservation and management that has taken place through implementation of the Carlsbad HMP since it was permitted in 2004 is significant, and demonstrates the City of Carlsbad's commitment to fully implement this HCP.

A detailed accounting of preservation, conservation, and management requirements of the Carlsbad HMP can be found in the ``Exclusions Under Section 4(b)(2) of the Act'' section. The comprehensive framework of the subarea plan and areaspecific management plans developed as areas are preserved under the subarea plan contain requirements to conserve and adaptively manage Acanthomintha ilicifolia habitats and provide for the conservation of this species' primary constituent elements (PCEs), thereby contributing to the recovery of this species. The Carlsbad HMP provides for management and monitoring for A. ilicifolia at several sites, including habitat in subunit 1A that is currently actively managed by the Center for Natural Lands Management. Activities that benefit A. ilicifolia in subunit 1A include mapping and census projects, removal of nonnative invasive species, and the restoration of areas degraded by past human use (Tierra Data, Inc. 2005, p. 3463; Carlsbad HMP 2004, p. D97). Land in subunit 1B was permanently preserved prior to the creation of the HMP. Management of the conserved land in subunit 1B is the responsibility of the homeowners' associations who own the open space in this subunit. These lands are signed and fenced and considered part of Carlsbad's habitat preserve.

The Encinitas subarea plan under the MHCP is not complete, and significant progress has not occurred towards its completion. Therefore, we are not excluding from the final designation essential habitat within the draft Encinitas subarea plan.

We also reevaluated our proposed exclusion of nonFederal land covered by approved subarea plans under the MSCP. The MSCP is a framework plan that has been in place for 10 years. Both the City and the County of San Diego received incidental take permits for their individual subarea plans under the MSCP framework plan. Approximately 948 ac (383 ha) of land that meet the definition of critical habitat are within the City and County subarea plan boundaries under the MSCP. The MSCP subarea plans provide for the conservation of Acanthomintha ilicifolia through the establishment of preserve lands within the MultiHabitat Planning Area (MHPA) (City) and PreApproved Mitigation Areas (PAMA) (County). In 10 years of implementing the subarea plans, approximately 787 ac (319 ha), or 83 percent, of lands that meet the definition of critical habitat are conserved. Although some areas placed in conservation are not yet fully managed under the plans, we believe the subarea plans under the MSCP will conserve essential habitat of A. ilicifolia within the subarea plan boundaries. The extent of habitat preservation and management that has taken place through implementation of the MSCP subarea plans is significant, and demonstrates the City's and County's commitments to fully implement their subarea plans.

The commenter indicated concern that species may more likely recover outside of HCPs and questioned the habitat and species conservation provided by the MSCP for Acanthomintha ilicifolia. The subarea plans under the MSCP contain requirements to monitor and adaptively manage A. ilicifolia habitats and provide for the conservation of this species' PCE. The framework and areaspecific management plans required under the subarea plans are comprehensive and address a broad range of management needs at the preserve and species levels that are intended to reduce the threats to covered species and thereby contribute to the recovery of the species. These plans include the following: (1) Fire management; (2) public access control; (3) fencing and gates; (4) ranger patrol; (5) trail maintenance; (6) visitor/interpretive and volunteer services; (7) hydrological management; (8) signage and lighting; (9) trash and litter removal; (10) access road maintenance; (11) enforcement of property and/or homeowner requirements; (12) removal of invasive species; (13) nonnative predator control; (14) species monitoring; (15) habitat restoration; (16) management for diverse age classes of covered species; (17) use of herbicides and rodenticides; (18) biological surveys; (19) research; and (20) species management conditions (MSCP 1998).

Eight major populations of Acanthomintha ilicifolia are included within preserve lands under the approved MSCP subarea plans, each of which will be conserved from 80 to 100 percent, with 85 percent overall coverage. A detailed accounting of preservation, conservation, and management requirements can be found in the ``Exclusions Under Section 4(b)(2) of the Act'' section. In sum, all but 89 ac (36 ha) of the total 948 ac (383 ha)
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of lands that meet the definition of critical habitat within the MSCP plan area are conserved or otherwise assured of conservation. Consistent with the narrow endemics requirements of the MSCP, the remaining 89 ac (36 ha) will be surveyed for A. ilicifolia prior to any development occurring on these lands. Under the City of San Diego's subarea plan, impacts to narrow endemic plants, including A. ilicifolia, inside the MHPA will be avoided and outside the MHPA will be protected by: (1) Avoidance; (2) management; (3) enhancement; and/or (4) transplantation to areas identified for preservation (City of San Diego 1997, p. 105106; Service 1997, p. 15). Under the County of San Diego's subarea plan, narrow endemic plants, including A. ilicifolia, will be conserved under the Biological Mitigation Ordinance using a process that: (1) Requires avoidance to the maximum extent feasible; (2) allows for a maximum 20 percent encroachment into a population if total avoidance is not feasible; and (3) requires mitigation at the 1:1 to 3:1 (in kind) for impacts if avoidance and minimization of impacts would result in no reasonable use of the property (County of San Diego (BMO) 1997, p. 11; Service 1998, p. 12). These measures will ameliorate any habitat loss within the 89 ac (36 ha) of lands that are not currently preserved or otherwise assured of conservation under the MSCP, by requiring in situ conservation or mitigation of impacts to A. ilicifolia and its habitat. Although some losses may occur to this species, the preservation, conservation, and management of A. ilicifolia required under the City and County MSCP subarea plans ensures the longterm conservation of this species and its habitat within the plan areas.

We evaluated the relevant impacts of designating critical habitat within areas covered by the City and County MSCP subarea plans and determined that the benefits of excluding nonFederal lands covered by the MSCP outweigh the benefits of specifying those areas as critical habitat and determined that excluding these lands will not lead to the extinction of Acanthomintha ilicifolia. Therefore, we excluded all non Federal lands covered by the City and County subarea plans under the MSCP from this final designation (please see ``Exclusions Under Section 4(b)(2) of the Act'' section below for a detailed analysis).

The commenter also expressed concern that HCPs are ineffective conservation vehicles. We respectfully disagree. Numerous processes are incorporated into HCPs that provide for Service oversight of implementation to ensure compliance with the provisions to protect Acanthomintha ilicifolia. For example, the MSCP imposes annual reporting requirements and provides for Service review and approval of proposed subarea plan amendments and preserve boundary adjustments and for Service review and comment on projects during the California Environmental Quality Act review process. The Service also chairs the MSCP Habitat Management Technical Committee and the Monitoring Subcommittee (MSCP 1998, p. 511523). The Carlsbad HMP also incorporates many processes to ensure the Service an active role in implementation of the HCP. For example, Habitat Management Plans, reviewed and approved by the Service, must be developed for each preserve area within the Carlsbad HMP, and monitoring and management objectives must be established for each preserve. Progress towards meeting these objectives is measured through the submission of annual reports. There are also regular coordination meetings between the Service and the City of Carlsbad to discuss ongoing conservation issues. Both the MSCP subarea plans and the Carlsbad HMP must account annually for the progress they are making in assembling conservation areas. The Service must receive annual reports that include, both by project and cumulatively, the habitat acreage destroyed and conserved within the HCPs. This accounting process ensures that habitat conservation proceeds in rough proportion to habitat loss and in compliance with the MSCP subarea plans and, the Carlsbad HMP, and the plans' associated implementing agreements.

The commenter did not provide copies of the citations that they stated conclude that multispecies HCPs are not likely to contribute to the recovery of listed species, nor did the commenter identify any examples of projects that may not comply with the Carlsbad HMP or the City and County MSCP subarea plans by impacting Acanthomintha ilicifolia. In light of our summary above, we continue to believe that implementation of the Carlsbad HMP and the City and County MSCP subarea plans will benefit A. ilicifolia recovery, and we believe there is adequate oversight of these plans to ensure compliance.

Comment 8: One commenter supported our exclusion of lands covered by the MSCP and requested that we exclude proposed critical habitat areas within the pending North County MHCP in San Diego County. The commenter stated that the designation of critical habitat in these areas may have a negative effect on entities pursuing the MHCP and deter the completion of the plan.

Our Response: At this time, the HCP for northern San Diego County (North County MHCP) is being developed and a draft plan is not available for public review. We understand the commenters' concern that a designation of critical habitat in areas that may be addressed in the future by the North County MHCP may have a negative effect on entities pursuing the HCP and deter its completion. This concern is consistent with our discussion of conservation partnerships in the ``Exclusions Under Section 4(b)(2) of the Act'' section of this final rule. However, we also recognize that there is a regulatory and recovery benefit to designating critical habitat in areas that are not protected through existing management or conservation plans. Exclusions under section 4(b)(2) of the Act must be considered on a casebycase basis. Because a draft of the northern San Diego County MHCP has not been released for public comment or formally evaluated by the Service, it is not clear that this framework plan will adequately address the conservation and recovery needs of Acanthomintha ilicifolia. Nor is it clear which areas will actively develop subarea plans under the North County MHCP. Therefore, we cannot presently determine that the regulatory and recovery benefits of a critical habitat designation in these areas would be minimized by the measures provided under this future plan. Therefore, we did not exclude lands that may be covered under this plan from critical habitat (the portion of subunit 1A owned by the County of San Diego). However, if this designation is revised in the future, we will reevaluate for potential exclusion areas conserved under the plan. In the meantime, we are committed to continue working with all partners to the North County MHCP to minimize any additional regulatory burden attributable to this critical habitat designation.

Comment 9: One commenter questioned discussion in the proposed rule concerning critical habitat designations and public perceptions, stating that we did not present any empirical or quantitative evidence to support our claim that landowners fear a decline in property value due to real or perceived restrictions on landuse options and that participants in pending HCPs or other conservation plans may abandon the planning process in part due to perceived additional regulatory compliance with a critical habitat designation. The commenter noted that the MSCP and MHCP and their
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respective subarea plans were presumably approved only after a public education program that would have explained the consequences of having listed species on private property. The commenter further stated that if the MSCP and MHCP function as promised by the proposed rule, critical habitat designation should create few or no additional burdens for permittees and finally that the Service inappropriately considers an exclusion as an ``eitheror'' situation with regard to HCP implementation. The commenter stated that critical habitat and habitat conservation plans can coexist.

Our Response: The proposed designation cites several studies that have examined the issue of conservation of threatened and endangered species on private lands to support our discussion of the impacts to nonFederal landowners (Wilcove et al. 1996; Bean 2002; Conner and Mathews 2002; James 2002; Koch 2002; Brook et al. 2003). As discussed in detail in the ``Conservation Partnerships on NonFederal Lands'' section below, at least 80 percent of endangered or threatened species occur either partially or solely on private lands (Crouse et al. 2002). Although many nonFederal landowners derive satisfaction from contributing to listed species recovery, many private landowners are wary of the possible consequences of attracting endangered species to their property. Mounting evidence suggests that some regulatory actions by the Federal Government, while wellintentioned and required by law, can (under certain circumstances) have unintended negative consequences for the conservation of species on private lands (Wilcove et al. 1996; Bean 2002; Conner and Mathews 2002; James 2002; Koch 2002; Brook et al. 2003). Many landowners fear a decline in their property value due to real or perceived restrictions on landuse options where threatened or endangered species are found (Main et al. 1999; Brook et al. 2003). According to some researchers, the designation of critical habitat on private lands significantly reduces the likelihood that landowners will support and carry out conservation actions (Main et al. 1999; Bean 2002; Brook et al. 2003). Such voluntary conservation actions may be particularly important for listed plant species that are not subject to the take prohibition under section 9 of the Act or the incidental take permitting requirements of section 10(a)(1)(B) of the Act. For this reason, we actively encourage participants developing HCPs under section 10 of the Act to include measures that address the conservation of listed plant species in their plans even though such measures are not required. Designating critical habitat for plant species on lands voluntarily protected in an HCP or other conservation management plan could undermine our efforts. Therefore, we believe the judicious use of excluding specific areas of nonfederally owned lands from critical habitat designations can contribute to species recovery and provide a superior level of conservation than critical habitat alone.

Furthermore, our proposed critical habitat designations often draw significant public comment on the real and perceived impacts of the designation to Federal and nonFederal landowners. We received significant comments on multiple rules concerning impacts to private and nonFederal lands covered by HCPs and other land management conservation plans, including comment on this rule stating that the designation of critical habitat in areas covered by HCPs may have a negative effect on entities pursuing an HCP and may deter the completion of pending subarea plans under either the MSCP or MHCP (see Comment 8). As discussed in response to Comment 7 above and in the ``Conservation Partnerships on NonFederal Lands'' section below, we continue to recognize that designating critical habitat in areas where we have partnerships with landowners that have led to conservation or management of listed species on nonFederal lands has a relevant perceived impact to landowners and a relevant impact to future partnership and conservation efforts on nonFederal lands.

Finally, we agree with the commenter that implementing a signed and permitted HCP is not an ``eitheror'' situation when determining whether to designate an area that meets the definition of critical habitat as critical habitat. Rather, as stated in section 4(b)(2) of the Act, the Secretary shall designate critical habitat, or make revisions thereto, on the basis of the best available data and after (emphasis added) taking into consideration the economic impact, the impact on national security, 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. We agree with the commenter that designation of an area covered by an HCP should create few or no additional regulatory burdens for permittees, and our analyses of the benefits of including areas covered by an HCP demonstrates how the regulatory benefit of inclusion is small. And while we agree that critical habitat and habitat conservation plans can coexist, we recognize that the designation has a relevant real impact to future partnerships and conservation efforts on nonFederal lands and a perceived impact to those landowners already in partnership with us. We consider that impact in weighing the benefits of inclusion against the benefits of exclusion on a casebycase basis to determine if exclusion of those lands is appropriate.

Comment 10: One commenter objected to the discussion in the proposed rule concerning the inundation of lawsuits relative to critical habitat and suggested that litigation would be unnecessary or unsuccessful if the Service complied with the law. The commenter suggested that policymakers make choices that avoid compliance with the Act's critical habitat requirements and underfund species and habitat conservation programs, starving the Service of funds and staff. The commenter concluded that compliance with the law would be a more fiscally, biologically, and legally responsible choice.

Our Response: We removed the discussion of litigationdriven workload from this final rule. We believe this final rule is scientifically sound and compliant with the Act and our implementing regulations.

Comment 11: One commenter indicated that portions of subunit 1A are developed or used for agriculture and do not have the potential to support Acanthomintha ilicifolia. The commenter provided a map depicting the areas they believe do not support this species and requested that we remove these lands from critical habitat.

Our Response: We reassessed the areas described by the commenter. We removed the lands in subunit 1A that do not contain the PCE, including active agricultural fields, navigational aids associated with McClellenPalomar Airport, a dirt maintenance road, and development areas in the City of Carlsbad. We remapped the boundary of subunit 1A, and verified that the revised subunit contains the features essential to the conservation of species which may require special management considerations or protection. As a result of the changes described above, we removed 26 ac (11 ha) that do not support A. ilicifolia and do not contain the PCE, resulting in 62 ac (25 ha) designated as critical habitat within subunit 1A.

Comment 12: One commenter provided information on the management of lands owned by the
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Center for Natural Lands Management (CNLM). The commenter indicated that portions of subunits 1A and 1C are owned by the CNLM, and are managed and monitored for Acanthomintha ilicifolia on an annual basis. Funding for the perpetual management of these sites is obtained from a monetary endowment. The CNLM prepared a Property Analysis Record (PAR) to determine how much money is needed to manage and monitor A. ilicifolia on these lands. The commenter indicated that the CNLM reduces the threats to A. ilicifolia by managing weeds, erecting fences, closing trails, and distributing educational literature to the public. Additionally, the commenter indicated that high school students are involved with annual monitoring for this species and that an entomologist is working to determine potential pollinators for A. ilicifolia on lands in subunit 1C.

Our Response: We appreciate the detailed information provided by the commenter, and we incorporated this information as appropriate into the final rule.

Comments From Other Federal Agencies

Comment 13: The U.S. Forest Service (USFS) commented that laws, regulations, policies, and current Land Management Plan (LMP) direction currently in place provide protection at least equivalent to the protection that critical habitat designation would provide. The agency stated that the LMP in place at the Cleveland National Forest (CNF) incorporates management direction that provides sufficient protection and management for Acanthomintha ilicifolia and its habitat, and that the section 7 consultation on the LMP resulted in the Service coming to a similar conclusion, resulting in the issuance of a nonjeopardy biological opinion. Additionally, the Cleveland National Forest (CNF) has a Species Management Guide for A. ilicifolia that provides for exclusion of grazing, recreation, development, and soil disturbance (USFS 1991). The USFS commented that due to management and conservation standards, there should not be any reason to adversely modify the habitat's primary constituent elements for A. ilicifolia on the CNF. Furthermore, they commented that designation of critical habitat on CNF lands would not provide any additional benefit to the conservation of the species or its habitat since all sitespecific projects proposed by the CNF are subject to section 7(a)(2) consultation with the Service and that designation would unnecessarily add to their analysis burden by requiring CNF to make a determination of effect regarding critical habitat when consulting under section 7 of the Act. The USFS acknowledged their responsibility to conserve and recover listed species and that they will continue to provide necessary management, regardless of critical habitat designation.

Our Response: We determined that the lands identified on the CNF contain the physical and biological features essential to the conservation of Acanthomintha ilicifolia and meet the definition of critical habitat (see ``Criteria Used to Identify Critical Habitat'' section below). We acknowledge that the LMP for CNF will benefit A. ilicifolia and its habitat, and that the CNF has completed many of the actions outlined in the 1991 Management Guide (USFS 1991) to avoid and minimize impacts to A. ilicifolia. The LMP contains general provisions for conservation of this species and the Management Guide suggests specific management and conservation actions that should address known threats to this species on USFS lands. However, the LMP is a guidance document and does not require or assure funding for management actions outlined in the plan. Additionally, the LMP does not preclude projects from occurring outside of the framework of the plan that could negatively impact areas designated as critical habitat.

The Secretary has the discretion to exclude an area from critical habitat under section 4(b)(2) of the Act after taking into consideration the economic impact, the impact on national security, and any other relevant impact if he determines that the benefits of such exclusion outweigh the benefits of specifying such area, unless he determines that the exclusion would result in the extinction of the species concerned. We considered the request from the USFS that we exclude their lands because it would unnecessarily add work in the future to determine the effect regarding critical habitat for actions on their lands and the fact that they already completed consultation under Section 7(a)(2) of the Act on the LMP.

As part of our section 7 consultation with the USFS on the LMP, the USFS already consulted on various activities carried out on national forest lands including: Roads and trail management; recreation management; special use permit administration; administrative infrastructure; fire and fuels management; livestock grazing and range management; minerals management; and law enforcement. In our 2005 biological opinion on the LMP, we determined that implementation of the plan was not likely to jeopardize the continued existence of Acanthomintha ilicifolia. Since critical habitat has not been previously proposed or designated for this species, it is anticipated that consultation with the USFS regarding the LMP will be reinitiated. However, because the USFS has already consulted with us on potential impacts to the species related to activities outlined in the LMP, the USFS can supplement its analysis for those activities already analyzed in the LMP with the additional analysis required for critical habitat areas. We do not believe that this additional analysis would place an undue burden on the USFS in this case.

Based on the record before us, we elected not to exclude these lands and are designating lands identified on the CNF that meet the definition of critical habitat and are essential to the conservation of Acanthomintha ilicifolia. We will continue to consider on a caseby case basis in future critical habitat rules whether to exclude specific lands from such designation when we determine that the benefits of such exclusion outweigh the benefits of their inclusion.

Comment 14: One commenter indicated that the critical habitat proposal, if finalized, may adversely affect the Federal Aviation Administration's (FAA's) and San Diego County's ability to continue to operate McClellanPalomar Airport in a safe and efficient manner because navigational aides (e.g., lights, maintenance road to access navigational aides) are within the area proposed as subunit 1A.

Our Response: As stated above in our response to comment 11 above, we removed the lands in subunit 1A that do not contain the PCE, including all active agricultural fields, lands containing navigational aides associated with McClellenPalomar Airport, a dirt maintenance road, and development areas in the City of Carlsbad. We remapped the boundary of subunit 1A, and we have verified that this area meets the definition of critical habitat. Based on currently available information, we believe that we have removed all existing navigational aides from the designated critical habitat. Additionally, we do not believe that regular maintenance of any navigational aides that we are currently unaware of, but have been inadvertently included in the designation, will adversely modify critical habitat. We are committed to working with the FAA and staff of McClellenPalomar Airport to ensure that the designation of critical habitat does not impact the future safe and efficient operation of the airport.
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Summary of Changes From the Proposed Rule

In our March 14, 2007, proposed rule we identified 1,936 acres (ac) (783 hectares (ha)) of essential habitat for Acanthomintha ilicifolia in four units and seventeen subunits (72 FR 11946). At that time we proposed to exclude 1,302 ac (527 ha) under section 4(b)(2) of the Act (72 FR 11946; March 14, 2007). As we continued work on the proposed designation, we made two types of changes that affected the total area considered to meet the definition of critical habitat (what we will refer to as ``essential habitat''). First, we corrected simple mapping errors; for example, in one case we tallied a single piece of land twice in calculating the total number of acres thought to be essential habitat. Second, we removed areas that did not qualify as essential habitat either because they were developed and degraded or because they did not contain the PCE and were not otherwise considered essential. Table 1 depicts the changes made to the proposed rule published on March 14, 2007, and indicates how much area was removed (or added as was the case for some of the corrections) for each of the two reasons discussed above. As we continued work on the designation, we notified the public of new information we were using to make changes to the critical habitat (72 FR 66122, November 27, 2007; 73 FR 27483, May 13, 2008). However, Table 1 and this discussion focus on the changes from the March 14, 2007, proposed rule (72 FR 11946) to this final rule. The details related to these changes are explained below.
Table 1Areas Proposed as Critical Habitat (72 FR 11946, March 14, 2007), Area Removed or Added as a Correction, Area Removed as NonEssential Habitat, and Final Critical Habitat Designation Essential habitat Area removed in the March 14, Area subtracted because it was not Essential habitat Critical habitat unit/subunit 2007 proposed or added as a essential habitat as of this final rule * correction * * rule * Unit 1: Northern San Diego

County:

1A. Palomar Airport......... 88 ac (36 ha)..... .................. 26 ac (11 ha)..... 62 ac (25 ha).

1B. Southeast Carlsbad...... 73 ac (29 ha)..... .................. 16 ac (6 ha)...... 57 ac (23 ha).

1C. Manchester.............. 92 ac (37 ha)..... .................. 13 ac (5 ha)...... 79 ac (32 ha). Unit 2: Central San Diego

County:

2A. Los Pe[ntilde]asquitos 63 ac (25 ha)..... .................. .................. 63 ac (25 ha). Canyon.

2B. Sabre Springs........... 52 ac (22 ha)..... Subtracted: 0 ac .................. 52 ac (21 ha). (1 ha).

2C. Sycamore Canyon......... 306 ac (124 ha)... .................. .................. 306 ac (124 ha).

2D. Slaughterhouse Canyon... 77 ac (31 ha)..... .................. .................. 77 ac (31 ha). Unit 3: Viejas Mountain and

Poser Mountain:

3A. Viejas Mountain......... 33 ac (13 ha)..... .................. 1 ac (<1 ha)...... 32 ac (13 ha).

3B. Viejas Mountain......... 208 ac (84 ha).... .................. 15 ac (6 ha)...... 193 ac (78 ha).

3C. Viejas Mountain......... 318 ac (128 ha)... .................. 42 ac (16 ha)..... 276 ac (112 ha).

3D. Viejas Mountain......... 82 ac (33 ha)..... .................. .................. 82 ac (33 ha).

3E. Poser Mountain.......... 34 ac (14 ha)..... .................. .................. 34 ac (14 ha).

3F. Poser Mountain.......... 163 ac (66 ha).... .................. 8 ac (3 ha)....... 155 ac (63 ha). Unit 4: Southern San Diego

County:

4A. McGinty Mountain........ 18 ac (7 ha)...... Added: 2 ac (1 ha) .................. 20 ac (8 ha).

4B. McGinty Mountain........ 220 ac (89 ha).... Subtracted: 72 ac .................. 148 ac (60 ha). (29 ha).

4C. McGinty Mountain........ 27 ac (11 ha)..... Added: 1 ac (0 ha) .................. 28 ac (11 ha).

4D. Hollenbeck Canyon....... 84 ac (34 ha)..... .................. .................. 84 ac (34 ha).
Total................... 1,936 ac (783 ha) Subtracted: 69 ac 121 ac (48 ha).... 1,748 ac (707 ha). **. (29 ha). * The values in this table do not represent an actual conversion of acres to hectares. ** The sum of the values in this column is 1,938 ac (783 ha), whereas the value given for the total in the Table 1 of the March 14, 2007, Federal Register notice was 1,936 ac (783 ha). This difference is due to rounding and the conversion of values from acres to hectares on a subunitbysubunit basis rather than for the critical habitat as a whole.
(1) In the proposed rule (72 FR 11946; March 14, 2007), we proposed to exclude a total of 95 ac (38 ha) of private lands in subunits 3C, 3D, and 3F from the final critical habitat designation under section 4(b)(2) of the Act. We believed these lands were within the planning boundary for the County of San Diego approved subarea plan under the San Diego MSCP. However, the private lands in subunits 3C, 3D, and 3F are not within the planning boundary for the County of San Diego subarea plan under the MSCP; therefore, consideration for exclusion under that HCP was inappropriate. All lands that meet the definition of critical habitat in subunits 3C, 3D, and 3F are now designated as critical habitat.
(2) In the proposed rule (72 FR 11946; March 14, 2007), the maps and boundary descriptions of subunits 4A and 4B were delineated correctly; however, the area estimates were incorrect. The correct area for subunit 4A is 20 ac (8 ha) rather than 18 ac (7 ha), and the correct area for subunit 4B is 148 ac (60 ha) rather than 220 ac (89 ha) (see Table 1). NonFederal lands in subunits 4A and 4B are excluded from critical habitat, and the federally owned lands in subunit 4A are designated as critical habitat.
(3) In the proposed rule (72 FR 11946; March 14, 2007), we did not identify that subunit 4A contained 2 ac (1 ha) of federally owned land, and subunit 4C contained 1 ac (<1 ha) of federally owned land. Both of these subunits include land in the Service's San Diego National Wildlife Refuge (SDNWR). We proposed to exclude all nonFederal lands in subunits 4A and 4C from the final designation based on th

FOR FURTHER INFORMATION CONTACT

Jim Bartel, Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office (see ADDRESSES); telephone 7604319440; facsimile 7604315901. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 8008778339.