Endangered and Threatened Wildlife and Plants; Final Determination Concerning Critical Habitat for the San Miguel Island Fox, Santa Rosa Island Fox, Santa Cruz Island Fox, and Santa Catalina Island Fox, 67924-67929 [05-22189]
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Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations
Disposition.
For requests denied or approved
below the Secretarial level, follow the
disposition procedures at PGI 250.306.
[FR Doc. 05–22106 Filed 11–8–05; 8:45 am]
guidebook.dcma.mil/20/
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[FR Doc. 05–22112 Filed 11–8–05; 8:45 am]
BILLING CODE 5001–08–P
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
DEPARTMENT OF THE INTERIOR
48 CFR Part 252
Fish and Wildlife Service
Defense Federal Acquisition
Regulation Supplement; Technical
Amendment
50 CFR Part 17
Department of Defense (DoD).
ACTION: Final rule.
Endangered and Threatened Wildlife
and Plants; Final Determination
Concerning Critical Habitat for the San
Miguel Island Fox, Santa Rosa Island
Fox, Santa Cruz Island Fox, and Santa
Catalina Island Fox
RIN 1018–AT78
AGENCY:
SUMMARY: DoD is making a technical
amendment to the Defense Federal
Acquisition Regulation Supplement to
update the Internet address for
obtaining a list of processes accepted
under the DoD Single Process Initiative
(SPI).
EFFECTIVE DATE: November 9, 2005.
FOR FURTHER INFORMATION CONTACT: Ms.
Michele Peterson, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP (DAR), IMD 3C132, 3062 Defense
Pentagon, Washington, DC 20301–3062.
Telephone (703) 602–0311; facsimile
(703) 602–0350.
List of Subjects in 48 CFR Part 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR part 252 is
amended as follows:
I
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
1. The authority citation for 48 CFR
part 252 continues to read as follows:
I
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
2. Section 252.211–7005 is amended
by revising the clause date and the
second sentence of paragraph (b) to read
as follows:
I
252.211–7005 Substitutions for Military or
Federal Specifications and Standards.
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SUBSTITUTIONS FOR MILITARY OR
FEDERAL SPECIFICATIONS AND
STANDARDS (NOV 2005)
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(b) * * * A listing of SPI processes
accepted at specific facilities is available
via the Internet at https://
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Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
SUMMARY: The San Miguel Island fox
(Urocyon littoralis littoralis), Santa Rosa
Island fox (U. l. santarosae), Santa Cruz
Island fox (U. l. santacruzae), and Santa
Catalina Island fox (U. l. catalinae) were
listed as endangered under the
Endangered Species Act of 1973, as
amended (Act), on March 5, 2004. We,
the U.S. Fish and Wildlife Service, do
not find any habitat on the four islands
occupied by the foxes that meets the
definition of critical habitat under the
Act. Because there is no habitat that
meets the definition of critical habitat
for these island fox subspecies, there is
none to designate; therefore, we are not
designating any critical habitat.
DATES: This rule becomes effective on
December 9, 2005.
ADDRESSES: Comments and materials
received, as well as supporting
documentation used in the preparation
of this final rule, will be available for
public inspection, by appointment,
during normal business hours, at the
Ventura Fish and Wildlife Office, 2493
Portola Road, Suite B, Ventura, CA
93003.
For
the San Miguel Island fox, Santa Rosa
Island fox, and Santa Cruz Island fox,
contact Diane Noda, Field Supervisor,
Ventura Fish and Wildlife Office, at the
above address, (telephone 805/644–
1766; facsimile 805/644–3958). For the
Santa Catalina Island fox, contact Jim
Bartel, Field Supervisor, Carlsbad Fish
and Wildlife Office, 6010 Hidden Valley
Road, Carlsbad, CA (telephone 760/431–
9440; facsimile 760/431–9624).
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
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Background
It is our intent to discuss only those
topics directly relevant to the
designation of critical habitat in this
rule. For more information on the four
island fox subspecies, refer to the March
5, 2004, final listing rule (69 FR 10335)
and the October 7, 2004, proposed
critical habitat rule (69 FR 60134).
Previous Federal Actions
For information on previous Federal
actions concerning the four island fox
subspecies, refer to the proposed critical
habitat rule (69 FR 60134; October 7,
2004).
Summary of Comments and
Recommendations
We requested written comments from
the public on the proposed designation
of critical habitat for four island fox
subspecies in the proposed rule (69 FR
60134; October 7, 2004). We also
contacted appropriate Federal, State,
and local agencies; scientific
organizations; and other interested
parties and invited them to comment on
the proposed rule.
During the comment period that
opened on October 7, 2004 and closed
on December 6, 2004, we received three
comments directly addressing the
proposed critical habitat designation:
two from peer reviewers and one from
a member of the public. The State of
California, where the islands on which
these subspecies live are located, did
not provide comments. The two peer
reviewers who commented generally
supported our proposal to not designate
critical habitat for the island fox
subspecies, although one thought
additional research was needed. The
other commenter opposed our proposal.
Comments received are addressed in the
following summary and incorporated
into the final rule as appropriate. We
did not receive any requests for a public
hearing.
Peer Review
In accordance with our policy
published on July 1, 1994 (59 FR
34270), we solicited expert opinions
from five knowledgeable individuals
with scientific expertise that included
familiarity with the species, the
geographic region in which the species
occurs, and conservation biology
principles. We received responses from
two of the peer reviewers. One of the
peer reviewers agreed with our
conclusion in the proposed rule that
designating critical habitat would not
confer additional benefits to the
conservation of the four island fox
subspecies. This peer reviewer’s
extensive experience with the three
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northern island fox subspecies lead him
to believe that there is little habitat
preferences among island foxes,
although the foxes may use some
habitats more than others. The other
peer reviewer generally agreed with our
proposal but suggested that, with
additional study, one habitat type might
be established as critical habitat for
island fox subspecies (refer to Peer
Review Comments below for additional
details).
We reviewed all comments received
from the peer reviewers and the public
for substantive issues and new
information regarding critical habitat for
the four island fox subspecies, and we
address them in the following summary.
Peer Reviewer Comments
(1) Comment: A peer reviewer
familiar with the three northernmost
island fox subspecies agreed with the
Service’s proposal to not designate
critical habitat for those three island fox
subspecies because: (1) Island foxes use
many, if not all, of the habitats available
to them on the northern Channel
Islands; (2) habitat types on these three
islands are in many cases less discrete
than elsewhere, and designation of
discrete critical habitat would be
difficult; and (3) island fox habitat on
the northern Channel Islands is already
protected by the land management
policies of the landowners, the National
Park Service (NPS), and The Nature
Conservancy (TNC). The experience of
this peer reviewer with the three listed
subspecies on the northern Channel
Islands indicates that there is little
habitat preference among island foxes
and that habitat types on these islands
are not discrete enough to facilitate
designation and demarcation of habitat
boundaries. The peer reviewer did not
speak to the Santa Catalina Island
subspecies because he does not have
expertise with that island.
The second peer reviewer agreed that
the four subspecies of island fox are
habitat generalists that utilize a wide
variety of habitats, including coastal
dune, grassland, and oak and pine
woodland. However, his research results
indicate at least a few habitats are used
somewhat more by island foxes while
others are used somewhat less. This
reviewer’s research indicated that
native, perennial grasslands are used by
island foxes more than exotic, annual
grasslands and that, with additional
research, native, perennial grasslands
could possibly be viewed as a primary
constituent element (PCE) for the foxes.
The reviewer is further concerned that
exotic, annual grasslands have replaced
native, perennial grasslands in several
areas on the islands. The reviewer
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suggested that the Service could resolve
the question of the importance of
perennial grasslands by: (1) Evaluating
the significance of perennial grassland
habitat to island fox foraging ecology
and demography (the peer reviewer
notes that an experimental approach to
this evaluation would be the most
beneficial); (2) quantifying the historic
and current distribution of both native
perennial grasslands and exotic, annual
grasslands, and assessing the potential
for habitat conversion from native,
perennial grasslands to exotic, annual
grasslands; and (3) if native, perennial
grasslands were shown to be important
to foxes, identifying alternative
management actions that would provide
for the conservation of this native
habitat.
Our Response: As noted by both peer
reviewers, island foxes are habitat
generalists and use all the habitats
available on the islands. One reviewer
pointed out that, in some situations,
island foxes use native, perennial
grasslands more than exotic, annual
grasslands. However, the fact that island
foxes may use native, perennial
grasslands more than exotic, annual
grasslands does not by itself signify that
perennial grasslands contain the
features essential to the conservation of
the species. Critical habitat is defined in
section 3(5)(A) of the Act as (i) the
specific areas within the geographical
area occupied by a species, at the time
it is listed in accordance with the Act,
on which are found those physical or
biological features (I) essential to the
conservation of the species and (II) that
may require special management
considerations or protection. The
reviewer noted that, with additional
research and experimentation, native,
perennial grasslands may be determined
to meet the definition of critical habitat.
However, we must use the best available
science available to us at this time to
make our decision. If research results
become available in the future and
suggest that there are features essential
to fox conservation that meet the
definition of critical habitat, as
appropriate, the Service will revisit this
critical habitat determination.
Comments Related to Policy Issues
(2) Comment: A commenter
challenged statements in the proposed
rule that the designation of critical
habitat is of little additional value for
most listed species and stated that
species with critical habitat are twice as
likely to recover as species without
designated critical habitat.
Our Response: We have not been able
to independently verify commenter’s
claim that species with critical habitat
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are twice as likely to recover as species
without critical habitat. Of the 14
species delisted or proposed for
delisting under the Act, only 3 had
designated critical habitat. We believe
that, in most cases, cooperative
conservation through voluntary
measures, our grant programs, and the
recovery planning process along with
regulatory measures such as section 7
consultations, the section 9 protective
prohibitions of unauthorized take, and
the section 10 incidental take permit
process provide greater incentives and
conservation benefits than does the
designation of critical habitat.
(3) Comment: A commenter
challenged statements in the proposed
rule that critical habitat designations,
and litigation to compel the Service to
make them, consumes a significant
amount of the agency’s resources and is
unduly burdensome for that reason.
Our Response: Through two
administrations, the FWS has provided
information and testimony regarding the
relatively few benefits provided by
critical habitat. Nevertheless, we have
also proceeded with designation of such
habitat. In the case of the island fox, we
are not designating any critical habitat
because there is no habitat that meets
the definition. As a result, the relative
worth of a designation is not an issue.
Comments Related to the Proposal To
Not Designate Any Critical Habitat
(4) Comment: A commenter stated
that, in the final listing rule for the
island foxes (69 FR 10335; March 5,
2004), the Service found that
designation of critical habitat is prudent
for the San Miguel, Santa Rosa, Santa
Cruz, and Santa Catalina island fox
subspecies. However, in the proposed
critical habitat rule (69 FR 60134;
October 7, 2004), the Service concluded
that there is no habitat that meets the
definition of critical habitat. The Service
has not provided an adequate or rational
justification for why it has reversed its
position.
Our Response: Section 4(a)(3) of the
Act, as amended, and implementing
regulations (50 CFR 424.12) require that
we designate critical habitat, to the
maximum extent prudent and
determinable, at the time a species is
listed as endangered or threatened.
Designation 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 such threat to the
species; or (2) such designation of
critical habitat would not be beneficial
to the species. Although we determined
in the March 5, 2004, final listing rule
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that designation of critical habitat was
prudent for the island foxes, in the
proposed critical habitat rule, we found
there is no habitat on the four islands
occupied by the foxes that meets the
definition of critical habitat under the
Act. Critical habitat is defined under the
Act as ‘‘specific areas on which are
found those physical or biological
features (I) essential to the conservation
of the species and (II) that may require
special management considerations or
protection; and (ii) specific areas
outside the geographic area occupied by
a species at the time it is listed, upon
a determination that such areas are
essential for the conservation of the
species.’’ We have found no areas on the
four islands occupied by island foxes
that contain the physical or biological
features essential to the species’
conservation and that may require
special management. Accordingly, we
have determined to designate no critical
habitat for the four island fox
subspecies. Also, there are no specific
areas outside the geographical area
occupied by the species at the time they
were listed that are essential for the
conservation of the species. As noted by
the two peer reviewers who commented
on the proposed critical habitat rule, the
four subspecies of island foxes are
habitat generalists that use all habitats
available on the islands. Accordingly,
we cannot conclude that any specific
areas are essential to the conservation of
the foxes, and thus, there are no areas
that meet the definition of critical
habitat. For further discussion, see the
Critical Habitat section of this
document. Accordingly, we have not
reversed our position. We in the past
made a general finding that designation
of critical habitat would be prudent, in
accordance with the statutory and
regulatory standards for making that
finding. However, when we examined
the issue more closely, preparing to
making an actual proposal, we found no
habitat that met the statutory and
regulatory standards for designation as
critical habitat. These are unrelated
issues.
(5) Comment: A commenter stated
that it cannot reasonably be disputed
that the foxes need some habitat to
survive and recover. If all of the islands
can effectively be used by the foxes
(assuming all populations recover to the
point where they can exist in the wild),
then all of the four islands, which
constitute the entirety of the foxes’
extremely limited range, should be
designated as critical habitat.
Our Response: The Act defines
critical habitat in part as ‘‘specific areas
on which are found those physical or
biological features (i) essential to the
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conservation of the species.’’ We agree
with the commenter that the island
foxes require habitat in order to be
recovered and that the foxes are able to
use the habitat in existence on each of
the four islands. However, critical
habitat does not require nor demand the
designation of a species’ entire range; in
fact, Congress has expressly cautioned
us against that. Here, we have
determined that the island foxes do not
require specific types of habitats, but
rather are habitat generalists. As such,
we are unable to identify any physical
or biological features essential to the
four island fox subspecies’ conservation
that may require special management,
and thus have found no habitat that
meets the Act’s definition of critical
habitat.
(6) Comment: The commenter stated
the Service’s contention that there are
no current or anticipated threats to the
island habitat (69 FR 60135) is
disingenuous because in the final listing
rule for the four subspecies of island
fox, the Service stated that over the last
150 years, habitat on all the islands
where the island fox occurs has been
affected by livestock grazing,
cultivation, and other disturbances.
Our Response: Although many, if not
all, the habitats used by island foxes on
the three northern Channel Islands (San
Miguel, Santa Rosa, and Santa Cruz
Island) have been altered, the island
foxes thrived in these altered habitats
prior to the dramatic declines that led
to their endangered status. These
declines were not the result of threats to
any of the habitats used by the four
subspecies, but rather were due to
predation and disease. It wasn’t until
golden eagles (Aquila chrysaetos)
became established on the islands that
island fox numbers declined
dramatically. Even if all the habitats on
these islands were restored to a pristine
condition, the island foxes cannot
recover to their previous abundance
until predation by golden eagles is
eliminated or reduced dramatically.
Similarly, the population of Santa
Catalina Island fox did not decline until
a severe outbreak of canine distemper
occurred. For all four subspecies,
habitat does not appear to be a factor
limiting the current population growth
rate, nor is it likely to limit future
population growth.
Summary of Changes From Proposed
Rule
In developing the final designation of
critical habitat for the four subspecies of
island fox, we reviewed public
comments received on the proposed
designation of critical habitat (69 FR
60134; October 7, 2004) and
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incorporated these comments as
appropriate in this final rule. We also
updated the numbers of island foxes in
captivity and in the wild where
appropriate. We are not aware of any
new, significant, biological or
management information for the four
subspecies that would make us
reconsider the provisions of our
proposed rule. While we have made no
major changes to the rule, we have made
a minor administrative change: Instead
of adding text pertaining to the four
subspecies of island fox to 50 CFR 17.97
as proposed, we are adding text to 50
CFR 17.95.
Background
Since the proposed critical habitat
was published (October 7, 2004; 69 FR
60134), there have been additional
releases of island foxes on both Santa
Rosa Island and San Miguel Island;
several foxes have been killed by golden
eagles on Santa Rosa Island. Currently,
on Santa Rosa Island there are at least
14 foxes in the wild and 50 foxes in
captivity. On San Miguel Island, there
are at least 10 foxes in the wild and 48
in captivity. Wild foxes on both islands
are successfully reproducing (Tim
Coonan, NPS, pers. comm. 2005).
Critical Habitat
Section 4(a)(3) of the Act, as
amended, and implementing regulations
(50 CFR 424.12) require that we
designate critical habitat, to the
maximum extent prudent and
determinable, at the time a species is
listed as endangered or threatened.
Designation 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 such threat to the
species, or (2) such designation of
critical habitat would not be beneficial
to the species.
Critical habitat is defined in section 3
of the Act as (i) the specific areas within
the geographical area occupied by a
species, at the time it is listed in
accordance with the Act, on which are
found those physical or biological
features (I) essential to the conservation
of the species and (II) that may require
special management considerations or
protection; and (ii) specific areas
outside the geographic area occupied by
a species at the time it is listed, upon
a determination that such areas are
essential for the conservation of the
species. ‘‘Conservation’’ means the use
of all methods and procedures that are
necessary to bring an endangered or a
threatened species to the point at which
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listing under the Act is no longer
necessary.
In the March 5, 2004, final listing
rule, we determined that designation of
critical habitat was prudent for the
island foxes. As discussed more fully
below, we now find that there are no
‘‘specific areas on which are found
those physical or biological features (I)
essential to the conservation of the
species and (II) that may require special
management considerations or
protection.’’ Further, there are no
‘‘specific areas outside the geographical
area occupied by [the] species at the
time it [was] listed that are essential for
the conservation of the species.’’
In accordance with section 4(b)(2) of
the Act, in determining which areas to
propose as critical habitat, we are
required to base critical habitat
determinations on the best scientific
data available. The Act defines critical
habitat as ‘‘the specific areas within the
geographic area occupied by the species
* * * on which are found those
physical or biological features (i)
essential to the conservation of the
species * * * ’’ According to the
regulations at 50 CFR 424.12, these
features include, but are not limited to:
Space for individual and population
growth and for normal behavior;
nutritional or physiological
requirements, such as food, water, air,
light, or minerals; cover or shelter; sites
for breeding, reproduction, and rearing
(or development) of offspring; and
habitats that are protected from
disturbance or are representative of the
historic geographical and ecological
distribution of a species.
The island fox, however, is a habitat
generalist in all aspects of its life
history. It does not require particular
habitats for food, cover, breeding, and
denning sites. The foxes are
opportunistic omnivores, eating a wide
variety of plants (e.g., grass, fruits, and
berries) and animals (e.g., insects, birds,
and mice) in whatever habitat they use
(69 FR 10336). As such, the foxes use all
habitat available on each of the islands,
including riparian, oak woodland, pine
woodland, chaparral, coastal sage scrub,
maritime scrub, and grasslands. In
general, some of these habitats contain
cover from aerial predation, however,
the nature of the cover is not habitat
specific. Island fox reproduction is also
not limited to a specific habitat, as they
are known to locate their simple den
sites in any habitat where they find
natural shelter (e.g., brush pile, rock
crevice, hollow stump, or log) (Laughrin
1977). The island foxes thrived in these
islands prior to the dramatic declines
that led to their endangered status.
These declines were not the result of
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threats to any of the habitats used by the
four subspecies. It wasn’t until golden
eagles became established on the islands
that island fox numbers declined
dramatically on Santa Cruz, Santa Rosa,
and San Miguel Islands. Similarly, the
population of Santa Catalina Island fox
did not decline until a severe outbreak
of canine distemper occurred. We are
not aware of any existing or anticipated
threats to the island habitats that would
likely affect island foxes. Accordingly,
there is currently no information to
support a conclusion that any specific
habitat within these areas is essential.
Therefore, we do not believe there are
areas within the subspecies’ habitat that
contain specific features essential to the
conservation of the island fox.
Adverse effects to the fox that have
occurred on the Channel Islands have
been a result of direct threats to
individuals rather than to island fox
habitat (e.g., disease (canine distemper)
and predation from golden eagles).
Although the habitat of island foxes on
all islands has been subject to
substantial human-induced changes
over the past 150 years, these changes
are unlikely to have directly caused the
observed declines. These subspecies’
precarious situations derive almost
entirely from golden eagle predation
and canine distemper rather than from
any habitat degradation or loss.
Furthermore, habitat does not appear to
be a factor limiting the current
population growth rate, nor is it likely
to limit future population growth. We
believe that island fox conservation
depends on addressing threats not
related to habitat.
As discussed above, declines have
been caused largely by predation and
disease. A critical habitat designation
would provide no benefit/assistance in
reducing the effects of predation and
disease on individual foxes because the
regulatory effects of critical habitat
designations apply to adverse
modification or destruction of habitat,
rather than the particular effects that are
causing mortality of individual foxes.
Moreover, we note that the current
threats, predation and disease, are being
addressed by the conservation actions of
the NPS, TNC, and Catalina Island
Conservancy (CIC) on the islands.
At the time of listing (March 2004),
there were no foxes in the wild on San
Miguel Island (all San Miguel Island
foxes were in captive breeding facilities
located on San Miguel Island). However,
since the time of listing, foxes have been
released back into the wild on San
Miguel Island. Additional foxes have
also been released on Santa Rosa Island
since the time of listing. We consider all
of the islands to be occupied by island
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foxes at the present time. Although we
are not designating any critical habitat
for any of the four subspecies, areas
occupied by island foxes will continue
to be subject to conservation actions
implemented under section 7(a)(1) of
the Act and to the regulatory protections
afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of
the best available information at the
time of the action. The take prohibitions
of section 9 (e.g., prohibitions against
killing, harming, harassing, capturing
foxes) also continue to apply.
In accordance with the Act, a critical
habitat designation can include areas
outside the species’ range at the time of
listing if we determine that these areas
are essential to the conservation of the
species. We have not found any areas
unoccupied at the time of listing or
outside of the current range of the four
island subspecies to be essential for
their conservation.
In summary, we do not find any
habitat on the subject islands that meets
the definition of critical habitat in
section 3(5)(A) of the Act. Because there
is no habitat that meets the definition of
critical habitat for the four island fox
subspecies, there is none to designate,
and we are not designating any critical
habitat for any of the four subspecies.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order
12866, this document is a significant
rule in that it may raise novel legal and
policy issues, but will not have an
annual effect on the economy of $100
million or more or affect the economy
in a material way. Due to the tight
timeline for publication in the Federal
Register, the Office of Management and
Budget (OMB) has not formally
reviewed this rule. This rule does not
designate any areas as critical habitat,
and therefore, we did not prepare an
economic analysis.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Because no critical habitat is being
designated in this rule, there are no
economic effects, and we did not
prepare an economic analysis.
Executive Order 13211
On May 18, 2001, the President issued
Executive Order 13211 on regulations
that significantly affect energy supply,
distribution, and use. Executive Order
13211 requires agencies to prepare
Statements of Energy Effects when
undertaking certain actions. This final
rule does not designate critical habitat
for the four island fox subspecies.
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Therefore, no regulatory effects will
derive from this action; it is not a
significant energy action, and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), the Service makes the following
findings: (a) This rule will not produce
a Federal mandate, and (b) we do not
believe that this rule will significantly
or uniquely affect small governments.
Because we are not designating any
areas of critical habitat, this rule will
result in no regulatory impact on any
entities.
Takings
This rule does not pose significant
takings implications.
Federalism
We are not designating critical habitat
in this final rule, and therefore this final
rule does not have significant federalism
effects. A federalism assessment is not
required.
Civil Justice Reform
In accordance with Executive Order
12988, the Office of the Solicitor has
determined that the rule does not
unduly burden the judicial system and
meets the requirements of sections 3(a)
and 3(b)(2) of the Order.
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.)
This rule does not contain any new
collections of information that require
approval by OMB under the Paperwork
Reduction Act. This rule will not
impose recordkeeping or reporting
A complete list of all references cited
in this rulemaking is available upon
request from the Ventura Fish and
Wildlife Office (see ADDRESSES).
Author(s)
National Environmental Policy Act
We are not proposing to designate any
areas as critical habitat. It is our position
that, outside the Tenth Circuit, we do
not need to prepare environmental
analyses as defined by the National
Environmental Policy Act in connection
with designating critical habitat under
the Endangered Species Act of 1973, as
amended. We published a notice
outlining our reasons for this
determination in the Federal Register
on October 25, 1983 (48 FR 49244). This
assertion was upheld in the courts of the
Ninth Circuit (Douglas County v.
Babbitt, 48 F.3d 1495 (9th Cir. Ore.
1995), cert. denied 116 S. Ct. 698 (1996).
The primary author of this notice is
the staff of the U.S. Fish and Wildlife
Service.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Regulation Promulgation
Accordingly, we amend part 17,
subchapter B of chapter I, title 50 of the
Code of Federal Regulations, as set forth
below:
I
PART 17—[AMENDED]
Government-to-Government
Relationship With Tribes
In accordance with the President’s
memorandum of April 29, 1994,
‘‘Government-to-Government Relations
with Native American Tribal
Governments’’ (59 FR 22951), Executive
Order 13175, and the Department of
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. We
are not designating any areas as critical
habitat. No tribal lands are essential for
the conservation of the San Miguel
Island fox, Santa Rosa Island fox, Santa
Cruz Island fox, or Santa Catalina Island
fox.
Species
Common name
References Cited
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.
Vertebrate population
where endangered or
threatened
Historic
range
Scientific name
1. The authority citation for part 17
continues to read as follows:
I
Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
625, 100 Stat. 3500; unless otherwise noted.
2. Amend § 17.11(h) by revising the
entries for ‘‘Fox, San Miguel Island,’’
‘‘Fox, Santa Catalina Island,’’ ‘‘Fox,
Santa Cruz Island,’’ and ‘‘Fox, Santa
Rosa Island’’ under ‘‘MAMMALS’’ in
the List of Endangered and Threatened
Wildlife to read as follows:
I
§ 17.11 Endangered and threatened
wildlife.
*
*
*
(h) * * *
Status
*
When listed
*
Critical
habitat
Special
rules
MAMMALS
*
Fox, San Miguel Island.
Fox, Santa Catalina
Island.
Fox, Santa Cruz Island.
Fox, Santa Rosa Island.
*
*
Urocyon littoralis
littoralis.
Urocyon littoralis
catalinae.
Urocyon littoralis
santacruzae.
Urocyon littoralis
santarosae.
*
*
*
*
U.S.A. (CA) .............. Entire ........................
*
17.95(a)
NA
U.S.A. (CA) ..............
Entire ........................
E
742
17.95(a)
NA
U.S.A. (CA) ..............
Entire ........................
E
742
17.95(a)
NA
U.S.A. (CA) ..............
Entire ........................
E
742
17.95(a)
NA
*
3. In § 17.95, amend paragraph (a) by
adding entries for San Miguel Island
Fox, Santa Catalina Island Fox, Santa
Cruz Island Fox, and Santa Rosa Island
15:11 Nov 08, 2005
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*
I
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*
Fox, in the same alphabetical order as
these species occur in the table at
§ 17.11(h), to read as follows:
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§ 17.95
*
*
Critical habitat—fish and wildlife.
(a) Mammals.
*
*
*
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Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations
67929
San Miguel Island Fox (Urocyon
littoralis littoralis)
We have determined that no areas
meet the definition of critical habitat
under section 3(5)(A) of the Act for San
Miguel Island fox. Therefore, no specific
areas are designated as critical habitat
for this subspecies.
Dated: November 1, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 05–22189 Filed 11–8–05; 8:45 am]
BILLING CODE 4310–55–P
Effective dates for BFT daily
retention limits are provided in Table 1
under SUPPLEMENTARY INFORMATION.
Santa Catalina Island Fox (Urocyon
littoralis catalinae)
DEPARTMENT OF COMMERCE
FOR FURTHER INFORMATION CONTACT:
National Oceanic and Atmospheric
Administration
SUPPLEMENTARY INFORMATION:
We have determined that no areas
meet the definition of critical habitat
under section 3(5)(A) of the Act for
Santa Catalina Island fox. Therefore, no
specific areas are designated as critical
habitat for this subspecies.
Santa Cruz Island Fox (Urocyon
littoralis santacruzae)
Santa Rosa Island Fox (Urocyon
littoralis santarosae)
We have determined that no areas
meet the definition of critical habitat
under section 3(5)(A) of the Act for
Santa Rosa Island fox. Therefore, no
specific areas are designated as critical
habitat for this subspecies.
*
*
*
*
*
DATES:
Brad
McHale, 978–281–9260.
50 CFR Part 635
[I.D. 102505B]
Atlantic Highly Migratory Species;
Atlantic Bluefin Tuna Fisheries
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; inseason
retention limit adjustment.
AGENCY:
We have determined that no areas
meet the definition of critical habitat
under section 3(5)(A) of the Act for
Santa Cruz Island fox. Therefore, no
specific areas are designated as critical
habitat for this subspecies.
retention limit from zero to two large
medium or giant BFT on the previously
designated RFDs during the month of
November 2005.
SUMMARY: NMFS has determined that
the Atlantic bluefin tuna (BFT) General
category daily retention limit on
previously designated restricted fishing
days (RFD) that was published on June
7, 2005, should be adjusted. Certain
General category RFDs are being waived
to allow for maximum utilization of the
coastwide General category BFT quota.
Therefore, NMFS waives the RFDs in
November and increases the daily
Regulations implemented under the
authority of the Atlantic Tunas
Convention Act (16 U.S.C. 971 et seq.)
and the Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act; 16 U.S.C. 1801
et seq.) governing the harvest of BFT by
persons and vessels subject to U.S.
jurisdiction are found at 50 CFR part
635. The 2005 BFT fishing year began
on June 1, 2005, and ends May 31, 2006.
The final initial 2005 BFT specifications
and General category effort controls
(June 7, 2005; 70 FR 33033) established
the following RFD schedule for the 2005
fishing year: All Fridays, Saturdays, and
Sundays from November 18, 2005,
through January 31, 2006, and
Thursday, November 24, 2005,
inclusive, provided quota remained
available and the fishery was open.
RFDs are intended to extend the General
category BFT fishery late into the season
and provide for a winter fishery in the
southern Atlantic region.
TABLE 1. EFFECTIVE DATES FOR RETENTION LIMIT ADJUSTMENTS
Permit Category
Effective Dates
Atlantic tunas General and HMS Charter/
Headboat (while fishing commercially)
November 18-20, 2005, and November
24-27, 2005
Adjustment of General Category Daily
Retention Limits
Under 50 CFR 635.23(a)(4), NMFS
may increase or decrease the General
category daily retention limit of large
medium and giant BFT over a range
from zero (on RFDs) to a maximum of
three per vessel to allow for maximum
utilization of the quota for BFT. On
September 28, 2005 (70 FR 56595),
NMFS adjusted the commercial daily
BFT retention limit, in all areas, for
those vessels fishing under the General
category quota, to two large medium or
giant BFT, measuring 73 inches (185
cm) or greater curved fork length (CFL),
per vessel per day/trip. This retention
limit was supposed to be effective
through January 31, 2005, inclusive,
provided quota remained available and
the fishery remained open.
Based on a review of dealer reports,
daily landing trends, available quota,
VerDate Aug<31>2005
15:11 Nov 08, 2005
Jkt 208001
Area
All
weather conditions, and the availability
of BFT on the fishing grounds, NMFS
has determined that waiving RFDs and
increasing the General category daily
BFT retention limit on those RFDs
previously established for the month of
November, is warranted. Therefore,
NMFS adjusts the General category
daily BFT retention limits for November
18, 19, 20, 24, 25, 26, and 27, 2005, to
two large medium or giant BFT per
vessel. NMFS has selected these days in
order to give adequate advance notice to
fishery participants. While catch rates
have continued to be low so far this
season, NMFS recognizes that they may
increase. In order to ensure equitable
fishing opportunities in all areas and
provide opportunities for a late winter
General category BFT fishery, NMFS has
not waived the RFDs scheduled in
December and January at this time. If
catch rates continue to be low, some or
PO 00000
Frm 00029
Fmt 4700
Sfmt 4700
BFT Size Class Limit
Two BFT per vessel per day/trip, measuring 73 inches (185 cm) CFL or larger
all of the remaining previously
scheduled RFDs may be waived as well.
The intent of this adjustment is to
allow for maximum utilization of the
U.S. landings quota of BFT while
maintaining an equitable distribution of
fishing opportunities to help achieve
optimum yield in the General category
BFT fishery, to collect a broad range of
data for stock monitoring purposes, and
to be consistent with the objectives of
the HMS FMP.
Monitoring and Reporting
NMFS selected the RFDs being
waived after examining current fishing
year catch and effort rates, previous
fishing years catch and effort rates, and
analyzing the available quota for the
2005 fishing year. NMFS will continue
to monitor the BFT fishery closely
through dealer landing reports.
Depending on the level of fishing effort
E:\FR\FM\09NOR1.SGM
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]]>Agencies
[Federal Register Volume 70, Number 216 (Wednesday, November 9, 2005)]
[Rules and Regulations]
[Pages 67924-67929]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-22189]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT78
Endangered and Threatened Wildlife and Plants; Final
Determination Concerning Critical Habitat for the San Miguel Island
Fox, Santa Rosa Island Fox, Santa Cruz Island Fox, and Santa Catalina
Island Fox
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The San Miguel Island fox (Urocyon littoralis littoralis),
Santa Rosa Island fox (U. l. santarosae), Santa Cruz Island fox (U. l.
santacruzae), and Santa Catalina Island fox (U. l. catalinae) were
listed as endangered under the Endangered Species Act of 1973, as
amended (Act), on March 5, 2004. We, the U.S. Fish and Wildlife
Service, do not find any habitat on the four islands occupied by the
foxes that meets the definition of critical habitat under the Act.
Because there is no habitat that meets the definition of critical
habitat for these island fox subspecies, there is none to designate;
therefore, we are not designating any critical habitat.
DATES: This rule becomes effective on December 9, 2005.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, will be
available for public inspection, by appointment, during normal business
hours, at the Ventura Fish and Wildlife Office, 2493 Portola Road,
Suite B, Ventura, CA 93003.
FOR FURTHER INFORMATION CONTACT: For the San Miguel Island fox, Santa
Rosa Island fox, and Santa Cruz Island fox, contact Diane Noda, Field
Supervisor, Ventura Fish and Wildlife Office, at the above address,
(telephone 805/644-1766; facsimile 805/644-3958). For the Santa
Catalina Island fox, contact Jim Bartel, Field Supervisor, Carlsbad
Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA
(telephone 760/431-9440; facsimile 760/431-9624).
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this rule. For more information
on the four island fox subspecies, refer to the March 5, 2004, final
listing rule (69 FR 10335) and the October 7, 2004, proposed critical
habitat rule (69 FR 60134).
Previous Federal Actions
For information on previous Federal actions concerning the four
island fox subspecies, refer to the proposed critical habitat rule (69
FR 60134; October 7, 2004).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for four island fox subspecies in the
proposed rule (69 FR 60134; October 7, 2004). We also contacted
appropriate Federal, State, and local agencies; scientific
organizations; and other interested parties and invited them to comment
on the proposed rule.
During the comment period that opened on October 7, 2004 and closed
on December 6, 2004, we received three comments directly addressing the
proposed critical habitat designation: two from peer reviewers and one
from a member of the public. The State of California, where the islands
on which these subspecies live are located, did not provide comments.
The two peer reviewers who commented generally supported our proposal
to not designate critical habitat for the island fox subspecies,
although one thought additional research was needed. The other
commenter opposed our proposal. Comments received are addressed in the
following summary and incorporated into the final rule as appropriate.
We did not receive any requests for a public hearing.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from five knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. We received responses from two of the
peer reviewers. One of the peer reviewers agreed with our conclusion in
the proposed rule that designating critical habitat would not confer
additional benefits to the conservation of the four island fox
subspecies. This peer reviewer's extensive experience with the three
[[Page 67925]]
northern island fox subspecies lead him to believe that there is little
habitat preferences among island foxes, although the foxes may use some
habitats more than others. The other peer reviewer generally agreed
with our proposal but suggested that, with additional study, one
habitat type might be established as critical habitat for island fox
subspecies (refer to Peer Review Comments below for additional
details).
We reviewed all comments received from the peer reviewers and the
public for substantive issues and new information regarding critical
habitat for the four island fox subspecies, and we address them in the
following summary.
Peer Reviewer Comments
(1) Comment: A peer reviewer familiar with the three northernmost
island fox subspecies agreed with the Service's proposal to not
designate critical habitat for those three island fox subspecies
because: (1) Island foxes use many, if not all, of the habitats
available to them on the northern Channel Islands; (2) habitat types on
these three islands are in many cases less discrete than elsewhere, and
designation of discrete critical habitat would be difficult; and (3)
island fox habitat on the northern Channel Islands is already protected
by the land management policies of the landowners, the National Park
Service (NPS), and The Nature Conservancy (TNC). The experience of this
peer reviewer with the three listed subspecies on the northern Channel
Islands indicates that there is little habitat preference among island
foxes and that habitat types on these islands are not discrete enough
to facilitate designation and demarcation of habitat boundaries. The
peer reviewer did not speak to the Santa Catalina Island subspecies
because he does not have expertise with that island.
The second peer reviewer agreed that the four subspecies of island
fox are habitat generalists that utilize a wide variety of habitats,
including coastal dune, grassland, and oak and pine woodland. However,
his research results indicate at least a few habitats are used somewhat
more by island foxes while others are used somewhat less. This
reviewer's research indicated that native, perennial grasslands are
used by island foxes more than exotic, annual grasslands and that, with
additional research, native, perennial grasslands could possibly be
viewed as a primary constituent element (PCE) for the foxes. The
reviewer is further concerned that exotic, annual grasslands have
replaced native, perennial grasslands in several areas on the islands.
The reviewer suggested that the Service could resolve the question of
the importance of perennial grasslands by: (1) Evaluating the
significance of perennial grassland habitat to island fox foraging
ecology and demography (the peer reviewer notes that an experimental
approach to this evaluation would be the most beneficial); (2)
quantifying the historic and current distribution of both native
perennial grasslands and exotic, annual grasslands, and assessing the
potential for habitat conversion from native, perennial grasslands to
exotic, annual grasslands; and (3) if native, perennial grasslands were
shown to be important to foxes, identifying alternative management
actions that would provide for the conservation of this native habitat.
Our Response: As noted by both peer reviewers, island foxes are
habitat generalists and use all the habitats available on the islands.
One reviewer pointed out that, in some situations, island foxes use
native, perennial grasslands more than exotic, annual grasslands.
However, the fact that island foxes may use native, perennial
grasslands more than exotic, annual grasslands does not by itself
signify that perennial grasslands contain the features essential to the
conservation of the species. Critical habitat is defined in section
3(5)(A) of the Act as (i) the specific areas within the geographical
area occupied by a species, at the time it is listed in accordance with
the Act, on which are found those physical or biological features (I)
essential to the conservation of the species and (II) that may require
special management considerations or protection. The reviewer noted
that, with additional research and experimentation, native, perennial
grasslands may be determined to meet the definition of critical
habitat. However, we must use the best available science available to
us at this time to make our decision. If research results become
available in the future and suggest that there are features essential
to fox conservation that meet the definition of critical habitat, as
appropriate, the Service will revisit this critical habitat
determination.
Comments Related to Policy Issues
(2) Comment: A commenter challenged statements in the proposed rule
that the designation of critical habitat is of little additional value
for most listed species and stated that species with critical habitat
are twice as likely to recover as species without designated critical
habitat.
Our Response: We have not been able to independently verify
commenter's claim that species with critical habitat are twice as
likely to recover as species without critical habitat. Of the 14
species delisted or proposed for delisting under the Act, only 3 had
designated critical habitat. We believe that, in most cases,
cooperative conservation through voluntary measures, our grant
programs, and the recovery planning process along with regulatory
measures such as section 7 consultations, the section 9 protective
prohibitions of unauthorized take, and the section 10 incidental take
permit process provide greater incentives and conservation benefits
than does the designation of critical habitat.
(3) Comment: A commenter challenged statements in the proposed rule
that critical habitat designations, and litigation to compel the
Service to make them, consumes a significant amount of the agency's
resources and is unduly burdensome for that reason.
Our Response: Through two administrations, the FWS has provided
information and testimony regarding the relatively few benefits
provided by critical habitat. Nevertheless, we have also proceeded with
designation of such habitat. In the case of the island fox, we are not
designating any critical habitat because there is no habitat that meets
the definition. As a result, the relative worth of a designation is not
an issue.
Comments Related to the Proposal To Not Designate Any Critical Habitat
(4) Comment: A commenter stated that, in the final listing rule for
the island foxes (69 FR 10335; March 5, 2004), the Service found that
designation of critical habitat is prudent for the San Miguel, Santa
Rosa, Santa Cruz, and Santa Catalina island fox subspecies. However, in
the proposed critical habitat rule (69 FR 60134; October 7, 2004), the
Service concluded that there is no habitat that meets the definition of
critical habitat. The Service has not provided an adequate or rational
justification for why it has reversed its position.
Our Response: Section 4(a)(3) of the Act, as amended, and
implementing regulations (50 CFR 424.12) require that we designate
critical habitat, to the maximum extent prudent and determinable, at
the time a species is listed as endangered or threatened. Designation
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 such threat to the species; or (2) such designation of
critical habitat would not be beneficial to the species. Although we
determined in the March 5, 2004, final listing rule
[[Page 67926]]
that designation of critical habitat was prudent for the island foxes,
in the proposed critical habitat rule, we found there is no habitat on
the four islands occupied by the foxes that meets the definition of
critical habitat under the Act. Critical habitat is defined under the
Act as ``specific areas on which are found those physical or biological
features (I) essential to the conservation of the species and (II) that
may require special management considerations or protection; and (ii)
specific areas outside the geographic area occupied by a species at the
time it is listed, upon a determination that such areas are essential
for the conservation of the species.'' We have found no areas on the
four islands occupied by island foxes that contain the physical or
biological features essential to the species' conservation and that may
require special management. Accordingly, we have determined to
designate no critical habitat for the four island fox subspecies. Also,
there are no specific areas outside the geographical area occupied by
the species at the time they were listed that are essential for the
conservation of the species. As noted by the two peer reviewers who
commented on the proposed critical habitat rule, the four subspecies of
island foxes are habitat generalists that use all habitats available on
the islands. Accordingly, we cannot conclude that any specific areas
are essential to the conservation of the foxes, and thus, there are no
areas that meet the definition of critical habitat. For further
discussion, see the Critical Habitat section of this document.
Accordingly, we have not reversed our position. We in the past made a
general finding that designation of critical habitat would be prudent,
in accordance with the statutory and regulatory standards for making
that finding. However, when we examined the issue more closely,
preparing to making an actual proposal, we found no habitat that met
the statutory and regulatory standards for designation as critical
habitat. These are unrelated issues.
(5) Comment: A commenter stated that it cannot reasonably be
disputed that the foxes need some habitat to survive and recover. If
all of the islands can effectively be used by the foxes (assuming all
populations recover to the point where they can exist in the wild),
then all of the four islands, which constitute the entirety of the
foxes' extremely limited range, should be designated as critical
habitat.
Our Response: The Act defines critical habitat in part as
``specific areas on which are found those physical or biological
features (i) essential to the conservation of the species.'' We agree
with the commenter that the island foxes require habitat in order to be
recovered and that the foxes are able to use the habitat in existence
on each of the four islands. However, critical habitat does not require
nor demand the designation of a species' entire range; in fact,
Congress has expressly cautioned us against that. Here, we have
determined that the island foxes do not require specific types of
habitats, but rather are habitat generalists. As such, we are unable to
identify any physical or biological features essential to the four
island fox subspecies' conservation that may require special
management, and thus have found no habitat that meets the Act's
definition of critical habitat.
(6) Comment: The commenter stated the Service's contention that
there are no current or anticipated threats to the island habitat (69
FR 60135) is disingenuous because in the final listing rule for the
four subspecies of island fox, the Service stated that over the last
150 years, habitat on all the islands where the island fox occurs has
been affected by livestock grazing, cultivation, and other
disturbances.
Our Response: Although many, if not all, the habitats used by
island foxes on the three northern Channel Islands (San Miguel, Santa
Rosa, and Santa Cruz Island) have been altered, the island foxes
thrived in these altered habitats prior to the dramatic declines that
led to their endangered status. These declines were not the result of
threats to any of the habitats used by the four subspecies, but rather
were due to predation and disease. It wasn't until golden eagles
(Aquila chrysaetos) became established on the islands that island fox
numbers declined dramatically. Even if all the habitats on these
islands were restored to a pristine condition, the island foxes cannot
recover to their previous abundance until predation by golden eagles is
eliminated or reduced dramatically. Similarly, the population of Santa
Catalina Island fox did not decline until a severe outbreak of canine
distemper occurred. For all four subspecies, habitat does not appear to
be a factor limiting the current population growth rate, nor is it
likely to limit future population growth.
Summary of Changes From Proposed Rule
In developing the final designation of critical habitat for the
four subspecies of island fox, we reviewed public comments received on
the proposed designation of critical habitat (69 FR 60134; October 7,
2004) and incorporated these comments as appropriate in this final
rule. We also updated the numbers of island foxes in captivity and in
the wild where appropriate. We are not aware of any new, significant,
biological or management information for the four subspecies that would
make us reconsider the provisions of our proposed rule. While we have
made no major changes to the rule, we have made a minor administrative
change: Instead of adding text pertaining to the four subspecies of
island fox to 50 CFR 17.97 as proposed, we are adding text to 50 CFR
17.95.
Background
Since the proposed critical habitat was published (October 7, 2004;
69 FR 60134), there have been additional releases of island foxes on
both Santa Rosa Island and San Miguel Island; several foxes have been
killed by golden eagles on Santa Rosa Island. Currently, on Santa Rosa
Island there are at least 14 foxes in the wild and 50 foxes in
captivity. On San Miguel Island, there are at least 10 foxes in the
wild and 48 in captivity. Wild foxes on both islands are successfully
reproducing (Tim Coonan, NPS, pers. comm. 2005).
Critical Habitat
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that we designate critical habitat,
to the maximum extent prudent and determinable, at the time a species
is listed as endangered or threatened. Designation 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 such threat
to the species, or (2) such designation of critical habitat would not
be beneficial to the species.
Critical habitat is defined in section 3 of the Act as (i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographic area occupied by a species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. ``Conservation'' means the use of all methods and procedures
that are necessary to bring an endangered or a threatened species to
the point at which
[[Page 67927]]
listing under the Act is no longer necessary.
In the March 5, 2004, final listing rule, we determined that
designation of critical habitat was prudent for the island foxes. As
discussed more fully below, we now find that there are no ``specific
areas on which are found those physical or biological features (I)
essential to the conservation of the species and (II) that may require
special management considerations or protection.'' Further, there are
no ``specific areas outside the geographical area occupied by [the]
species at the time it [was] listed that are essential for the
conservation of the species.''
In accordance with section 4(b)(2) of the Act, in determining which
areas to propose as critical habitat, we are required to base critical
habitat determinations on the best scientific data available. The Act
defines critical habitat as ``the specific areas within the geographic
area occupied by the species * * * on which are found those physical or
biological features (i) essential to the conservation of the species *
* * '' According to the regulations at 50 CFR 424.12, these features
include, but are not limited to: Space for individual and population
growth and for normal behavior; nutritional or physiological
requirements, such as food, water, air, light, or minerals; cover or
shelter; sites for breeding, reproduction, and rearing (or development)
of offspring; and habitats that are protected from disturbance or are
representative of the historic geographical and ecological distribution
of a species.
The island fox, however, is a habitat generalist in all aspects of
its life history. It does not require particular habitats for food,
cover, breeding, and denning sites. The foxes are opportunistic
omnivores, eating a wide variety of plants (e.g., grass, fruits, and
berries) and animals (e.g., insects, birds, and mice) in whatever
habitat they use (69 FR 10336). As such, the foxes use all habitat
available on each of the islands, including riparian, oak woodland,
pine woodland, chaparral, coastal sage scrub, maritime scrub, and
grasslands. In general, some of these habitats contain cover from
aerial predation, however, the nature of the cover is not habitat
specific. Island fox reproduction is also not limited to a specific
habitat, as they are known to locate their simple den sites in any
habitat where they find natural shelter (e.g., brush pile, rock
crevice, hollow stump, or log) (Laughrin 1977). The island foxes
thrived in these islands prior to the dramatic declines that led to
their endangered status. These declines were not the result of threats
to any of the habitats used by the four subspecies. It wasn't until
golden eagles became established on the islands that island fox numbers
declined dramatically on Santa Cruz, Santa Rosa, and San Miguel
Islands. Similarly, the population of Santa Catalina Island fox did not
decline until a severe outbreak of canine distemper occurred. We are
not aware of any existing or anticipated threats to the island habitats
that would likely affect island foxes. Accordingly, there is currently
no information to support a conclusion that any specific habitat within
these areas is essential. Therefore, we do not believe there are areas
within the subspecies' habitat that contain specific features essential
to the conservation of the island fox.
Adverse effects to the fox that have occurred on the Channel
Islands have been a result of direct threats to individuals rather than
to island fox habitat (e.g., disease (canine distemper) and predation
from golden eagles). Although the habitat of island foxes on all
islands has been subject to substantial human-induced changes over the
past 150 years, these changes are unlikely to have directly caused the
observed declines. These subspecies' precarious situations derive
almost entirely from golden eagle predation and canine distemper rather
than from any habitat degradation or loss. Furthermore, habitat does
not appear to be a factor limiting the current population growth rate,
nor is it likely to limit future population growth. We believe that
island fox conservation depends on addressing threats not related to
habitat.
As discussed above, declines have been caused largely by predation
and disease. A critical habitat designation would provide no benefit/
assistance in reducing the effects of predation and disease on
individual foxes because the regulatory effects of critical habitat
designations apply to adverse modification or destruction of habitat,
rather than the particular effects that are causing mortality of
individual foxes. Moreover, we note that the current threats, predation
and disease, are being addressed by the conservation actions of the
NPS, TNC, and Catalina Island Conservancy (CIC) on the islands.
At the time of listing (March 2004), there were no foxes in the
wild on San Miguel Island (all San Miguel Island foxes were in captive
breeding facilities located on San Miguel Island). However, since the
time of listing, foxes have been released back into the wild on San
Miguel Island. Additional foxes have also been released on Santa Rosa
Island since the time of listing. We consider all of the islands to be
occupied by island foxes at the present time. Although we are not
designating any critical habitat for any of the four subspecies, areas
occupied by island foxes will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. The take prohibitions of section 9 (e.g.,
prohibitions against killing, harming, harassing, capturing foxes) also
continue to apply.
In accordance with the Act, a critical habitat designation can
include areas outside the species' range at the time of listing if we
determine that these areas are essential to the conservation of the
species. We have not found any areas unoccupied at the time of listing
or outside of the current range of the four island subspecies to be
essential for their conservation.
In summary, we do not find any habitat on the subject islands that
meets the definition of critical habitat in section 3(5)(A) of the Act.
Because there is no habitat that meets the definition of critical
habitat for the four island fox subspecies, there is none to designate,
and we are not designating any critical habitat for any of the four
subspecies.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but will not have an annual effect on the economy of $100 million or
more or affect the economy in a material way. Due to the tight timeline
for publication in the Federal Register, the Office of Management and
Budget (OMB) has not formally reviewed this rule. This rule does not
designate any areas as critical habitat, and therefore, we did not
prepare an economic analysis.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Because no critical habitat is being designated in this rule, there
are no economic effects, and we did not prepare an economic analysis.
Executive Order 13211
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This final rule does
not designate critical habitat for the four island fox subspecies.
[[Page 67928]]
Therefore, no regulatory effects will derive from this action; it is
not a significant energy action, and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), the Service makes the following findings: (a) This rule will
not produce a Federal mandate, and (b) we do not believe that this rule
will significantly or uniquely affect small governments. Because we are
not designating any areas of critical habitat, this rule will result in
no regulatory impact on any entities.
Takings
This rule does not pose significant takings implications.
Federalism
We are not designating critical habitat in this final rule, and
therefore this final rule does not have significant federalism effects.
A federalism assessment is not required.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act. 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
We are not proposing to designate any areas as critical habitat. It
is our position that, outside the Tenth Circuit, we do not need to
prepare environmental analyses as defined by the National Environmental
Policy Act in connection with designating critical habitat under the
Endangered Species Act of 1973, as amended. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This assertion was upheld in the courts
of the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir.
Ore. 1995), cert. denied 116 S. Ct. 698 (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, and the Department
of 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. We are not designating any
areas as critical habitat. No tribal lands are essential for the
conservation of the San Miguel Island fox, Santa Rosa Island fox, Santa
Cruz Island fox, or Santa Catalina Island fox.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Ventura Fish and Wildlife Office (see
ADDRESSES).
Author(s)
The primary author of this notice is the staff of the U.S. Fish and
Wildlife Service.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. Amend Sec. 17.11(h) by revising the entries for ``Fox, San Miguel
Island,'' ``Fox, Santa Catalina Island,'' ``Fox, Santa Cruz Island,''
and ``Fox, Santa Rosa Island'' under ``MAMMALS'' in the List of
Endangered and Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------ population where Critical
Historic range endangered or Status When listed habitat Special rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals .............. ........... ........... .............
* * * * * * *
Fox, San Miguel Island.......... Urocyon littoralis U.S.A. (CA)........ Entire............. E 742 17.95(a) NA
littoralis.
Fox, Santa Catalina Island...... Urocyon littoralis U.S.A. (CA)........ Entire............. E 742 17.95(a) NA
catalinae.
Fox, Santa Cruz Island.......... Urocyon littoralis U.S.A. (CA)........ Entire............. E 742 17.95(a) NA
santacruzae.
Fox, Santa Rosa Island.......... Urocyon littoralis U.S.A. (CA)........ Entire............. E 742 17.95(a) NA
santarosae.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (a) by adding entries for San Miguel
Island Fox, Santa Catalina Island Fox, Santa Cruz Island Fox, and Santa
Rosa Island Fox, in the same alphabetical order as these species occur
in the table at Sec. 17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
(a) Mammals.
* * * * *
[[Page 67929]]
San Miguel Island Fox (Urocyon littoralis littoralis)
We have determined that no areas meet the definition of critical
habitat under section 3(5)(A) of the Act for San Miguel Island fox.
Therefore, no specific areas are designated as critical habitat for
this subspecies.
Santa Catalina Island Fox (Urocyon littoralis catalinae)
We have determined that no areas meet the definition of critical
habitat under section 3(5)(A) of the Act for Santa Catalina Island fox.
Therefore, no specific areas are designated as critical habitat for
this subspecies.
Santa Cruz Island Fox (Urocyon littoralis santacruzae)
We have determined that no areas meet the definition of critical
habitat under section 3(5)(A) of the Act for Santa Cruz Island fox.
Therefore, no specific areas are designated as critical habitat for
this subspecies.
Santa Rosa Island Fox (Urocyon littoralis santarosae)
We have determined that no areas meet the definition of critical
habitat under section 3(5)(A) of the Act for Santa Rosa Island fox.
Therefore, no specific areas are designated as critical habitat for
this subspecies.
* * * * *
Dated: November 1, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-22189 Filed 11-8-05; 8:45 am]
BILLING CODE 4310-55-P
