[Federal Register Volume 72, Number 156 (Tuesday, August 14, 2007)]
[Proposed Rules]
[Pages 45407-45411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15765]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU80
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Arenaria ursina (Bear Valley Sandwort), Castilleja
cinerea (Ash-gray Indian Paintbrush), and Eriogonum kennedyi var.
austromontanum (Southern Mountain Wild-buckwheat)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period, notice of
availability of draft economic analysis, and amended Required
Determinations.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the comment period on the proposed designation of critical
habitat for Arenaria ursina, Castilleja cinerea, and Eriogonumkennedyi
var. austromontanum under the Endangered Species Act of 1973, as
amended (Act). We also announce the availability of the draft economic
analysis for the proposed critical habitat designation and an amended
Required Determinations section of the proposal. The draft economic
analysis forecasts future costs associated with conservation efforts
for the three listed plants in the areas proposed for designation to be
$1.95 million (undiscounted) over the next 20 years. The present value
of these impacts, applying a 3 percent discount rate, is $1.45 million
($0.10 million annualized); or $1.03 million, using a discount rate of
7 percent ($0.10 million annualized). The amended Required
Determinations section provides our determination concerning compliance
with applicable statutes and Executive Orders that we deferred until
the information from the draft economic analysis of this proposal was
available. We are reopening the comment period to allow all interested
parties to comment simultaneously on the proposed rule, the associated
draft economic analysis, and the amended Required Determinations
section.
DATES: We will accept public comments until September 13, 2007.
ADDRESSES: Written comments and materials may be submitted to us by any
one of the following methods:
(1) E-mail: Please submit electronic comments to
[email protected]. Include ``pebble plains plants'' in the
subject line. Please see the Public Comments Solicited section under
SUPPLEMENTARY INFORMATION.
(2) Facsimile: You may send your comments to 760-431-5901.
(3) U.S. mail or hand-delivery: You may submit written comments and
information to Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife
Office, 6010 Hidden Valley Road, Carlsbad, CA 92011.
(4) Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad
Fish and Wildlife Office, at the address listed in ADDRESSES
(telephone: 760-431-9440). Persons who use a telecommunications device
for the deaf (TDD) may call the Federal Information Relay Service
(FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We will accept written comments and information during this
reopened comment period. We solicit comments on the proposed critical
habitat designation for Arenariaursina (Bear Valley sandwort),
Castillejacinerea (Ash-gray Indian paintbrush), and Eriogonumkennedyi
var. austromontanum (southern mountain wild-buckwheat) (also
collectively referred to herein as three pebble plains plants),
published in the Federal Register on November 22, 2006 (71 FR 67712),
and on our draft economic analysis of the proposed designation. We will
consider information and recommendations from all interested parties.
We are particularly interested in comments concerning:
(1) The reasons why habitat should or should not be designated as
critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq.),
including whether the benefit of designation will outweigh threats to
these species caused by designation, such that designation of critical
habitat is prudent;
(2) Specific information on the amount and distribution of
Arenariaursina, Castillejacinerea, and Eriogonumkennedyi var.
austromontanum habitat, and what areas that were occupied at the time
of listing that contain features essential for the conservation of the
species should be included in the designation and why, and what areas
that were not occupied at the time of listing are essential to the
conservation of the species and why;
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(4) Information on the extent to which any State and local
environmental protection measures referred to in the draft economic
analysis may have been adopted largely as a result of the listing of
Arenariaursina, Castillejacinerea, and Eriogonumkennedyi var.
austromontanum;
(5) Information on whether the draft economic analysis identifies
all State and local costs attributable to the proposed critical habitat
designation, and information on any costs that have been inadvertently
overlooked;
(6) Information on whether the draft economic analysis makes
appropriate assumptions regarding current practices and likely
regulatory changes imposed as a result of the designation of critical
habitat;
(7) Information on whether the draft economic analysis correctly
assesses the effect on regional costs associated with any land use
controls that may derive from the designation of critical habitat;
[[Page 45408]]
(8) Information on areas that could potentially be
disproportionately impacted by designation of critical habitat for
Arenariaursina, Castillejacinerea, or Eriogonumkennedyi var.
austromontanum;
(9) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation of critical habitat,
and in particular, any impacts on small entities; and the benefits of
including or excluding areas that exhibit these impacts;
(10) Information on whether the draft economic analysis
appropriately identifies all costs that could result from the
designation;
(11) Information on whether our approach to critical habitat
designation could be improved or modified in any way to provide for
greater public participation and understanding, or to assist us in
accommodating public concern and comments;
(12) Economic data on the incremental effects that would result
from designating any particular area as critical habitat; and
(13) Information on whether there are any quantifiable economic
benefits that could result from the designation.
Pursuant to section 4(b)(2) of the Act, an area may be excluded
from critical habitat if it is determined that the benefits of such
exclusion outweigh the benefits of including a particular area as
critical habitat, unless the failure to designate such area as critical
habitat will result in the extinction of the species. We may exclude an
area from designated critical habitat based on economic impacts,
national security, or any other relevant impact.
All previous comments and information submitted during the initial
comment period from November 22, 2006, to January 22, 2007, for the
proposed rule (71 FR 67712) need not be resubmitted. If you wish to
comment, you may submit your comments and materials concerning the
draft economic analysis and the proposed rule by any one of several
methods (see ADDRESSES). Our final designation of critical habitat will
take into consideration all comments and any additional information we
have received during both comment periods. On the basis of public
comment on this analysis, the critical habitat proposal, and the final
economic analysis, we may, during the development of our final
determination, find that areas proposed are not essential, are
appropriate for exclusion under section 4(b)(2) of the Act, or are not
appropriate for exclusion.
If submitting comments electronically, please also include ``Attn:
pebble plains plants'' and your name and return address in your e-mail
message. If you do not receive a confirmation from the system that we
have received your e-mail message, please contact the person listed
under FOR FURTHER INFORMATION CONTACT.
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
You may obtain copies of the proposed rule and draft economic
analysis by mail from the Carlsbad Fish and Wildlife Office (see
ADDRESSES) or by visiting our website at http://www.fws.gov/carlsbad/SBMP.htm.
Background
On September 13, 2004, the Center for Biological Diversity and the
California Native Plant Society filed a joint lawsuit challenging the
Service's failure to designate critical habitat for six California
plant species, including Arenariaursina, Castillejacinerea, and
Eriogonumkennedyi var. austromontanum (Center for Biological Diversity,
et al. v. Norton, No. ED CV-04-1150 RT (SGLx)). In an April 14, 2005,
settlement agreement, the Service agreed to submit to the Federal
Register a proposed rule to designate critical habitat, if prudent, on
or before November 9, 2006, and a final rule by November 9, 2007.
On November 4, 2006, a proposed rule to designate critical habitat
for A. ursina, C. cinerea, and E. k. var. austromontanum was signed; it
was published on November 22, 2006 (71 FR 67712). The proposal includes
approximately 1,511 acres (ac) (611 hectares (ha)) of land in San
Bernardino County, California.
Critical habitat is defined in section 3 of the Act as 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 essential to the conservation of the
species and that may require special management considerations or
protection, and specific areas outside the geographical 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. If the
proposed rule is made final, section 7 of the Act will prohibit
destruction or adverse modification of critical habitat by any activity
funded, authorized, or carried out by any Federal agency. Federal
agencies proposing actions affecting areas designated as critical
habitat must consult with us on the effects of their proposed actions,
pursuant to section 7(a)(2) of the Act.
Draft Economic Analysis
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific and commercial data
available, after taking into consideration the economic impact, impact
on national security, or any other relevant impact of specifying any
particular area as critical habitat. We have prepared a draft economic
analysis based on the November 22, 2006, proposed rule to designate
critical habitat for Arenariaursina, Castillejacinerea, and
Eriogonumkennedyi var. austromontanum (71 FR 67712).
The draft economic analysis is intended to quantify the economic
impacts of all potential conservation efforts for the three pebble
plains plants; some of these costs will likely be incurred regardless
of whether critical habitat is designated. According to the draft
economic analysis, activities associated with the conservation of the
three listed pebble plains plants are likely to primarily impact
unauthorized off-highway vehicle use, control of invasive, nonnative
plants, and dispersed recreation. The draft economic analysis forecasts
future costs associated with conservation efforts for the three pebble
plains plants in the areas proposed for designation to be $1.95 million
(undiscounted) over the next 20 years. The present value of these
impacts, applying a 3 percent discount rate, is $1.45 million ($0.10
million annualized); or $1.03 million, using a discount rate of 7
percent ($0.10 million annualized). The analysis quantifies economic
impacts associated with the conservation efforts on each affected
entity--typically landowners or managers--associated with the
following: (1) vehicle use off designated routes; (2) the presence of
nonnative plant species; and (3) dispersed recreation activities.
The draft economic analysis considers the potential economic
effects of actions relating to the conservation of Arenariaursina,
Castillejacinerea, and Eriogonumkennedyi var. austromontanum, including
costs associated with sections 4, 7, and 10 of the Act, and including
those attributable
[[Page 45409]]
to the designation of critical habitat. It further considers the
economic effects of protective measures taken as a result of other
Federal, State, and local laws that aid habitat conservation for A.
ursina, C. cinerea, and E. k. var. austromontanum in areas containing
features essential to the conservation of the species. The draft
analysis considers both economic efficiency and distributional effects.
In the case of habitat conservation, efficiency effects generally
reflect the ``opportunity costs'' associated with the commitment of
resources to comply with habitat protection measures (such as lost
economic opportunities associated with restrictions on land use).
This analysis also addresses how potential economic impacts are
likely to be distributed, including an assessment of any local or
regional impacts of habitat conservation and the potential effects of
conservation activities on small entities and the energy industry. This
information can be used by decision-makers to assess whether the
effects of the designation might unduly burden a particular group or
economic sector. Finally, this draft analysis looks retrospectively at
costs that have been incurred since the date Arenariaursina,
Castillejacinerea, and Eriogonumkennedyi var. austromontanum were
listed as threatened (63 FR 49006; September 14, 1998), and considers
those costs that may occur in the 20 years following the designation of
critical habitat.
As stated earlier, we solicit data and comments from the public on
this draft economic analysis, as well as on all aspects of the
proposal. We may revise the proposal or its supporting documents to
incorporate or address new information received during the comment
period. In particular, we may exclude an area from critical habitat if
we determine that the benefits of excluding the area outweigh the
benefits of including the area as critical habitat, provided such
exclusion will not result in the extinction of the species.
Required Determinations--Amended
In our November 22, 2006, proposed rule (71 FR 67712), we indicated
that we would defer our determination of compliance with several
statutes and Executive Orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders was available in the draft economic
analysis. Those data are now available for our use in making these
determinations. In this notice we are affirming the information
contained in the proposed rule concerning Executive Order (E.O.) 13132;
E.O. 12988, the Paperwork Reduction Act; and the President's memorandum
of April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments (59 FR 22951). Based on the information
made available to us in the draft economic analysis, we are amending
our Required Determinations, as provided below, concerning E.O. 12866
and the Regulatory Flexibility Act, E.O. 13211, E.O. 12630, and the
Unfunded Mandates Reform Act.
Regulatory Planning and Review
In accordance with E.O. 12866, this document is a significant rule
because it may raise novel legal and policy issues. Based on our draft
economic analysis of the proposed designation of critical habitat for
Arenariaursina, Castillejacinerea, or Eriogonumkennedyi var.
austromontanum, costs related to conservation activities for these
species pursuant to sections 4, 7, and 10 of the Act are estimated to
be approximately $1.95 million (undiscounted) over the next 20 years.
The present value of these impacts, applying a 3 percent discount rate,
is $1.45 million ($0.10 million annualized); or $1.03 million, using a
discount rate of 7 percent ($0.10 million annualized). Therefore, based
on our draft economic analysis, we do not anticipate that the proposed
designation of critical habitat for A. ursina, C. cinerea, and E. k.
var. austromontanum would result in an annual effect on the economy of
$100 million or more or affect the economy in a material way. Due to
the necessary timeline for publication in the Federal Register, the
Office of Management and Budget (OMB) has not formally reviewed the
proposed rule or accompanying economic analysis.
Further, E.O. 12866 directs Federal agencies promulgating
regulations to evaluate regulatory alternatives (OMB Circular A-4,
September 17, 2003). Pursuant to Circular A-4, once it has determined
that the Federal regulatory action is appropriate, the agency will then
need to consider alternative regulatory approaches. Since the
determination of critical habitat is a statutory requirement pursuant
to the Act, we must then evaluate alternative regulatory approaches,
where feasible, when promulgating a designation of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweigh the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or combination thereof, in a
designation constitutes our regulatory alternative analysis.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act (5
U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a
notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effect of the rule on small entities (small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. Based upon our draft
economic analysis of the proposed designation, we provide our analysis
for determining whether the proposed rule would result in a significant
economic impact on a substantial number of small entities. Based on
comments received, this determination is subject to revision as part of
the final rulemaking.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic
[[Page 45410]]
impact is meant to apply to a typical small business firm's business
operations.
To determine if the proposed designation of critical habitat for
Arenaria ursina, Castilleja cinerea, and Eriogonum kennedyi var.
austromontanum would affect a substantial number of small entities, we
considered the number of small entities affected within particular
types of economic activities (such as residential development and
dispersed recreation activities). We considered each industry or
category individually to determine if certification is appropriate. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement; some
kinds of activities are unlikely to have any Federal involvement and
thus will not be affected by the designation of critical habitat.
Designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies; non-Federal
activities are not affected by the designation.
If this proposed critical habitat designation is made final,
Federal agencies must consult with us under section 7 of the Act if
their activities may affect designated critical habitat. Consultations
to avoid the destruction or adverse modification of critical habitat
would be incorporated into the existing consultation process.
In our draft economic analysis of the proposed critical habitat
designation, we evaluated the potential economic effects on small
business entities resulting from conservation actions related to the
listing of Arenaria ursina, Castilleja cinerea, or Eriogonum kennedyi
var. austromontanum and proposed designation of its critical habitat.
The analysis is based on the estimated impacts associated with the
proposed rulemaking as described in Chapters 2 through 4 of the
analysis and evaluates the potential for economic impacts related to
three categories: unauthorized vehicle activities; invasive, nonnative
plant species management; and dispersed recreation activities.
The U.S. Forest Service (USFS), the California Department of Fish
and Game, and the Boy Scouts of America are not considered small
entities by the Small Business Administration. They do not meet the
criteria because the first two entities are governments serving more
than 50,000 people, and the Boy Scouts of America is a civic or social
organization having annual receipts greater than $6.5 million. The
private landowners are unlikely to be business entities. Accordingly,
the small business analysis contained in Appendix A of the economic
analysis focuses on economic impacts of controlling unauthorized off-
highway vehicles and nonnative plant species on land owned by The
Wildlands Conservancy.
The Wildlands Conservancy (TWC) is a nonprofit, public benefit
organization. It was unaware of the presence of the three listed
species and their habitat on its land and, to date, has not undertaken
actions specific to the conservation of the plants. Potential impacts
to TWC of managing unauthorized off-road vehicle use and controlling
invasive, nonnative plant species are based on cost-per-acre estimates
from the USFS. Annualized impacts to TWC at a 3 percent discount rate
are expected to be $4,504. However, since only one entity meeting the
definition of a small business owns land within the area proposed as
critical habitat, we do not anticipate that this regulation, if
finalized as proposed, will result in a significant impact to a
substantial number of small business entities. Please refer to our
draft economic analysis of the proposed critical habitat designation
for a more detailed discussion of potential economic impacts.
In summary, we have considered whether this proposed rule would
result in a significant economic effect on a substantial number of
small entities. For the above reasons and based on currently available
information, we certify that the rule will not, if promulgated, have a
significant economic impact on a substantial number of small entities.
Therefore, an initial regulatory flexibility analysis is not required.
Executive Order 13211 - Energy Supply, Distribution, and Use
On May 18, 2001, the President issued E.O. 13211 on regulations
that significantly affect energy supply, distribution, and use. E.O.
13211 requires agencies to prepare Statements of Energy Effects when
undertaking certain actions. This proposed designation of critical
habitat for Arenaria ursina, Castilleja cinerea, and Eriogonumkennedyi
var. austromontanum is considered a significant regulatory action under
E.O. 12866 due to its potentially raising novel legal and policy
issues. OMB has provided guidance for implementing this Executive Order
that outlines nine outcomes that may constitute ``a significant adverse
effect'' when compared without the regulatory action under
consideration. The draft economic analysis finds that none of these
criteria are relevant to this analysis. Thus, based on the information
in the draft economic analysis, energy-related impacts associated with
A. ursina, C. cinerea, and E. k. var. austromontanum conservation
activities within proposed critical habitat are not expected. As such,
the proposed designation of critical habitat is not expected to
significantly affect energy supplies, distribution, or use and a
Statement of Energy Effects is not 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), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments,'' with
two exceptions. It excludes ``a condition of federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and Tribal governments under entitlement authority,''
if the provision would ``increase the stringency of conditions of
assistance'' or ``place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding'' and the State, local,
or tribal governments ``lack authority'' to adjust accordingly. (At the
time of enactment, these entitlement programs were: Medicaid; Aid to
Families with Dependent Children work programs; Child Nutrition; Food
Stamps; Social Services Block Grants; Vocational Rehabilitation State
Grants; Foster Care, Adoption Assistance, and Independent Living;
Family Support Welfare Services; and Child Support Enforcement.)
``Federal private sector mandate'' includes a regulation that ``would
impose an enforceable duty upon the private sector, except (i) a
condition of Federal assistance; or (ii) a duty arising from
participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only
[[Page 45411]]
regulatory effect is that Federal agencies must ensure that their
actions do not destroy or adversely modify critical habitat under
section 7. Non-Federal entities that receive Federal funding,
assistance, permits, or otherwise require approval or authorization
from a Federal agency for an action may be indirectly impacted by the
designation of critical habitat. However, the legally binding duty to
avoid destruction or adverse modification of critical habitat rests
squarely on the Federal agency. Furthermore, to the extent that non-
Federal entities are indirectly impacted because they receive Federal
assistance or participate in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would not apply, nor would critical
habitat shift the costs of the large entitlement programs listed above
on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments. As discussed in the draft economic analysis,
the majority (92 percent) of the lands proposed as critical habitat are
federally owned by the USFS, which does not qualify as a small
government. Of the remaining eight percent, seven percent is privately
owned land and one percent is State land. Consequently, we do not
believe that critical habitat designation would significantly or
uniquely affect small government entities. As such, a Small Government
Agency Plan is not required.
Executive Order 12630 - Takings
In accordance with E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing critical habitat for Arenaria ursina, Castilleja cinerea, and
Eriogonum kennedyi var. austromontanum in a takings implications
assessment. The takings implications assessment concludes that this
proposed designation of critical habitat for the three listed pebble
plains plants does not pose significant takings implications.
Author
The primary author of this notice is the Carlsbad Fish and Wildlife
Office.
Authority: The authority for this action is the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.).
Dated: August 3, 2007.
Todd Willens,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E7-15765 Filed 8-13-07; 8:45 am]
Billing Code: 4310-55-S