Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Monterey Spineflower (Chorizanthe pungens var. pungens), 58618-58622 [E7-20241]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 72, Number 199 (Tuesday, October 16, 2007)]
[Proposed Rules]
[Pages 58618-58622]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-20241]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU83


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Monterey Spineflower (Chorizanthe pungens var. 
pungens)

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, announce the reopening 
of the comment period on the proposed revised designation of critical 
habitat for the Monterey Spineflower (Chorizanthe pungens var. pungens) 
under the Endangered Species Act of 1973, as amended (Act). We also 
announce the availability of the draft economic analysis of the 
proposed revised critical habitat designation and amended Required 
Determinations for the proposal. The draft economic analysis for 
Chorizanthe pungens var. pungens forecasts future costs associated with 
conservation efforts for Chorizanthe pungens var. pungens of 
approximately $17 million (undiscounted) over a 20-year period as a 
result of the proposed revised designation of critical habitat, 
including those costs coextensive with listing and recovery. Discounted 
future costs are estimated to be approximately $13 million ($0.85 
million annualized) at a 3 percent discount rate or approximately $9.6 
million ($0.85 million annualized) at a 7 percent discount rate. The 
amended Required Determinations section provides our determination 
concerning compliance with applicable statutes and Executive Orders 
that we have 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 an opportunity to comment 
simultaneously on the proposed rule, the associated draft economic 
analysis, and the amended Required Determinations section. Comments 
previously submitted need not be resubmitted as they will be 
incorporated into the public record as part of this comment period and 
will be fully considered in preparation of the final rule.

DATES: We will accept public comments until October 31, 2007.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials by any one of several methods:
    1. By mail or hand-delivery to: Diane Noda, Field Supervisor, U.S. 
Fish and Wildlife Service, Ventura Fish and Wildlife Office, 2493 
Portola Road, Suite B, Ventura, CA 93003.
    2. By electronic mail (e-mail) to: fw8mosp@fws.gov. Please see the 
Public Comments Solicited section below for other information about 
electronic filing.
    3. By fax to: the attention of Diane Steeck at 805-644-3958.
    4. Via the Federal eRulemaking Portal at https://
www.regulations.gov. Follow the instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT: Diane Steeck, Ecologist, or Connie 
Rutherford, Listing and Recovery Coordinator, Ventura Fish and Wildlife 
Office, at the address listed in ADDRESSES (telephone 805-644-1766; 
facsimile 805-644-3958). If you use a telecommunications device for the 
deaf (TDD), 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 on the proposed revised critical habitat 
designation for Chorizanthe pungens var. pungens published in the 
Federal Register on December 14, 2006 (71 FR 75189), and our draft 
economic analysis of the proposed revised designation. We will consider 
information and recommendations from all interested parties. We are 
particularly interested in comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether the benefit of designation would outweigh 
threats to the species caused by the designation, such that the 
designation of critical habitat is prudent.
    (2) Specific information on:
     The amount and distribution of Chorizanthe pungens var. 
pungens habitat,
     What areas occupied at the time of listing and that 
contain features essential to the conservation of the species we should 
include in the designation and why, and
     What areas not occupied at the time of listing are 
essential to the conservation of the species and why.

[[Page 58619]]

    (3) Our mapping methodology and criteria used for determining 
critical habitat, as well as any additional information on features 
essential to the conservation of the species.
    (4) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed revised critical 
habitat.
    (5) Information on whether, and, if so, how many of, the State and 
local environmental protection measures referenced in the draft 
economic analysis were adopted largely as a result of the listing of 
Chorizanthe pungens var. pungens, and how many were either already in 
place at the time of listing or enacted for other reasons.
    (6) Information on whether the draft economic analysis identifies 
all State and local costs and benefits attributable to the proposed 
revised critical habitat designation, and information on any costs or 
benefits that have been inadvertently overlooked.
    (7) 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.
    (8) 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.
    (9) Information on areas that could potentially be 
disproportionately impacted by designation of critical habitat for 
Chorizanthe pungens var. pungens. The draft economic analysis indicates 
the potential economic effects of undertaking conservation efforts for 
this species in particular areas within Monterey and Santa Cruz 
counties. Based on this information, we may consider excluding portions 
of these areas from the final designation per our discretion under 
section 4(b)(2) of the Act.
    (10) Any foreseeable economic, national security, or other 
potential impacts resulting from the proposed revised designation and, 
in particular, any impacts on small entities, and the benefits of 
including or excluding areas that exhibit these impacts; the reasons 
why our conclusion that the proposed revised designation of critical 
habitat would not result in a disproportionate effect on small 
businesses should or should not warrant further consideration; and 
other information that would indicate that the designation of revised 
critical habitat would or would not have any impacts on small entities.
    (11) Information on whether the draft economic analysis 
appropriately identifies all costs that could result from the proposed 
revised designation.
    (12) Whether the benefit of excluding any particular area from the 
revised critical habitat designation outweighs the benefit of including 
the area in the designation under section 4(b)(2) of the Act.
    (13) The existence of any conservation or management plans being 
implemented by California State Parks, Bureau of Land Management (BLM) 
on former Fort Ord, or other public or private land management agencies 
or owners that we should consider for exclusion from the designation 
under section 4(b)(2) of the Act. Please include information on any 
benefits (educational, regulatory, etc.) of including or excluding 
lands from this proposed revised designation.
    (14) Economic data on the incremental effects that would result 
from designating any particular area as revised critical habitat, since 
it is our intent to include the incremental costs attributed to the 
revised critical habitat designation in the final economic analysis.
    (15) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    The Secretary shall designate critical habitat on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impact of specifying any particular area as critical habitat. 
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.
    Comments and information submitted during the initial comment 
period on the December 14, 2006, proposed rule (71 FR 75189) need not 
be resubmitted as they will be incorporated into the public record as 
part of this comment period and will be fully considered in preparation 
of the final rule. 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 receive during both comment 
periods. On the basis of public comment on the draft economic 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 you use e-mail to submit your comments, please include ``Attn: 
RIN 1018-AU83'' in your e-mail subject header, preferably with your 
name and return address in the body of your message. If you do not 
receive a confirmation from the system that we have received your e-
mail, contact the persons listed under FOR FURTHER INFORMATION CONTACT.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comments, 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.
    Comments and materials received, as well as supporting 
documentation used in preparation of the proposal to designate revised 
critical habitat, will be available for public inspection, by 
appointment during normal business hours, at the Ventura Fish and 
Wildlife Office (see ADDRESSES). Copies of the proposed critical 
habitat rule and the draft economic analysis are available on the 
Internet at: https://www.fws.gov/ventura/. You may also obtain copies of 
the proposed revised critical habitat rule and the draft economic 
analysis by contacting the Ventura Fish and Wildlife Office (see 
ADDRESSES), or by calling 805-644-1766 extension 301.

Background

    Pursuant to the terms of a March 2006 settlement agreement, we 
agreed to submit for publication in the Federal Register a proposed 
revised critical habitat designation for Chorizanthe pungens var. 
pungens on or before December 7, 2006. We published a proposed rule to 
designate revised critical habitat for C. p. var. pungens on December 
14, 2006 (71 FR 75189). The proposed revised critical habitat totals 
approximately 11,032 acres (ac) (4,466 hectares (ha)) for C. p. var. 
pungens in Monterey and Santa Cruz Counties, 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

[[Page 58620]]

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, in accordance with 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. Based on the December 14, 2006, 
proposed rule to designate critical habitat for Chorizanthe pungens 
var. pungens (71 FR 75189), we have prepared a draft economic analysis 
of the proposed revised critical habitat designation for C. p. var. 
pungens.
    The draft economic analysis is intended to quantify the economic 
impacts of all potential conservation efforts for Chorizanthe pungens 
var. pungens; some of these costs will likely be incurred regardless of 
whether revised critical habitat is designated. The draft economic 
analysis provides estimated costs of conservation-related measures that 
are likely to be associated with future economic activities that may 
adversely affect the habitat within the proposed revised boundaries 
over a 20-year period. It also considers past costs associated with 
conservation of the species from the time it was listed (February 4, 
1994; 59 FR 5499) until the year the proposed revised critical habitat 
rule was published (December 14, 2006; 71 FR 75189). For a further 
description of the methodology of the analysis, see section 1.4 
(Approach to Estimating Economic Impacts) of the draft economic 
analysis.
    The draft economic analysis describes economic impacts of 
Chorizanthe pungens var. pungens conservation efforts associated with 
the following activities: (1) Removal and control of invasive, 
nonnative plant species; (2) recreational activities, including foot 
traffic, and off-road vehicles; (3) overspray of pesticides from 
agricultural operations; (4) munitions clean-up methods on former 
military ranges that remove and chip all standing vegetation; (5) 
expansion of unregulated vehicle parking on the sand dunes; and (6) 
vegetation clearing associated with road and trail maintenance. With 
regard to the removal and control of invasive, nonnative plant species, 
as well as recreational activities management, we acknowledge that most 
or all of these activities identified have been, and will continue to 
be, directed at the protection of several sensitive species, including 
C. p. var. pungens. Therefore, in the draft economic analysis, the 
attribution of such costs solely to C. p. var. pungens likely 
overstates the economic impact of the critical habitat designation.
    The draft economic analysis estimates pre-designation costs 
associated with the conservation of the species to be approximately 
$5.2 million (undiscounted). Discounted costs are estimated to be 
approximately $6.2 million at a 3 percent discount rate or 
approximately $7.9 million at a 7 percent discount rate. The draft 
economic analysis estimates post-designation costs associated with 
conservation efforts for Chorizanthe pungens var. pungens to be 
approximately $17 million (undiscounted) over a 20-year period as a 
result of the proposed designation of revised critical habitat, 
including those costs coextensive with listing and recovery. Discounted 
future costs are estimated to be approximately $13 million ($0.85 
million annualized) at a 3 percent discount rate or approximately $9.6 
million ($0.85 million annualized) at a 7 percent discount rate.
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of Chorizanthe pungens 
var. pungens, including costs associated with sections 4, 7, and 10 of 
the Act, and including those attributable to the designation of revised 
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 C. p. var. pungens 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).
    The draft 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, the draft analysis looks retrospectively at 
costs that have been incurred since the date Chorizanthe pungens var. 
pungens was listed as threatened (February 4, 1994; 59 FR 5499) and 
considers those costs that may occur in the 20 years following a 
designation of critical habitat. Forecasts of economic conditions and 
other factors beyond this point would be speculative.
    As stated earlier, we solicit data and comments from the public on 
the 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 
would not result in the extinction of the species.

Required Determinations--Amended

    In our December 14, 2006, proposed rule (71 FR 75189), we indicated 
that we would be deferring our determination of compliance with several 
statutes and Executive Orders until information concerning potential 
economic impacts of the revised 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 
(Federalism); 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 (Takings), and the Unfunded Mandates Reform Act.

[[Page 58621]]

Regulatory Planning and Review

    In accordance with Executive Order 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 Chorizanthe pungens var. pungens, future costs 
associated with conservation efforts for C. p. var. pungens are 
estimated to be approximately $17 million (undiscounted) over a 20-year 
period as a result of the proposed designation of revised critical 
habitat, including those costs coextensive with listing and recovery. 
Discounted future costs are estimated to be approximately $13 million 
($0.85 million annualized) at a 3 percent discount rate or 
approximately $9.6 million ($0.85 million annualized) at a 7 percent 
discount rate. As described in the draft economic analysis, four 
entities are anticipated to experience the highest estimated costs. 
These include California Department of Parks and Recreation (CDPR), 
with potential economic impacts estimated at approximately $10.5 
million (undiscounted) over the next 20 years; the Department of the 
Army (on former Fort Ord), with potential economic impacts estimated at 
approximately $3.5 million (undiscounted) over the next 20 years; the 
University of California (on former Fort Ord), with potential economic 
impacts estimated at approximately $1.5 million (undiscounted) over the 
next 20 years; and the Bureau of Land Management (BLM), with potential 
economic impacts estimated at approximately $0.83 million 
(undiscounted) over the next 20 years. Therefore, based on our draft 
economic analysis, we have determined that the proposed designation of 
revised critical habitat for C. p. var. pungens will not result in an 
annual effect on the economy of $100 million or more or affect the 
economy in a material way. Due to the timeline for publication in the 
Federal Register, the Office of Management and Budget (OMB) did not 
formally review the proposed rule.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, Circular A-4, September 17, 2003). Pursuant to 
Circular A-4, once it has been 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 under the Act, we must 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 provided 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 (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 (i.e., 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 impact is meant to apply to a 
typical small business firm's business operations.
    To determine if the proposed designation of revised critical 
habitat for Chorizanthe pungens var. pungens would affect a substantial 
number of small entities, we considered the number of small entities 
affected within particular types of economic activities (e.g., 
residential and commercial development). 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 so 
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 the proposed revised 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 revised critical 
habitat designation, we evaluate the potential economic effects on 
small business entities resulting from conservation actions related to 
the listing of Chorizanthe pungens var. pungens and proposed 
designation of revised critical habitat. We determined from our draft 
analysis that the small business entities that could potentially be 
affected include one city government (City of Pacific Grove), and one 
private farm. However, costs were not associated with the City of 
Pacific Grove or the private farm because of the small likelihood that 
these landowners would undertake actions to conserve the species in the 
future. It is unknown at this time whether a third entity, Fort Ord 
Reuse Authority (FORA), would be classified as a small entity because 
the local agencies that will receive land from FORA are unknown because 
the Habitat

[[Page 58622]]

Conservation Plan (HCP) that will provide the framework for 
distribution and management of former Fort Ord lands has not been 
completed. Therefore, for the purpose of the draft economic analysis, 
FORA was not classified as a small entity. From this analysis, 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 Executive Order 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. One critical habitat unit 
(Prunedale, Unit 7) contains 17 ac (7 ha) of land held in a 
conservation easement owned by Pacific Gas and Electric Company. 
Pacific Gas and Electric Company maintains power lines that cross this 
unit; however, because the company does not plan to develop this land 
any further, the designation of revised critical habitat is not 
expected to have an adverse effect on energy production. Although the 
proposed designation of revised critical habitat for Chorizanthe 
pungens var. pungens is considered a significant regulatory action 
under E.O. 12866 because it may raise novel legal and policy issues, it 
is not expected to significantly affect energy supplies, distribution, 
or use. Therefore, this action 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 would not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
two exceptions. It excludes ``a condition of federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding'' and the State, local, 
or tribal governments ``lack authority'' to adjust accordingly. (At the 
time of enactment, these entitlement programs were: Medicaid; Aid to 
Families with Dependent Children work programs; Child Nutrition; Food 
Stamps; Social Services Block Grants; Vocational Rehabilitation State 
Grants; Foster Care, Adoption Assistance, and Independent Living; 
Family Support Welfare Services; and Child Support Enforcement.) 
``Federal private sector mandate'' includes a regulation that ``would 
impose an enforceable duty upon the private sector, except (i) a 
condition of Federal assistance; or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. 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) As discussed in the draft economic analysis of the proposed 
designation of revised critical habitat for Chorizanthe pungens var. 
pungens, there is expected to be no impact on small governments or 
small entities. There is no record of consultations between the Service 
and any of these governments since C. p. var. pungens was listed as 
threatened on February 4, 1994 (59 FR 5499). It is likely that small 
governments involved with developments and infrastructure projects 
would be interested parties or involved with projects involving section 
7 consultations for C. p. var. pungens within their jurisdictional 
areas. Any costs associated with this activity are likely to represent 
a small portion of a local government's budget. Consequently, we do not 
believe that the designation of revised critical habitat for the C. p. 
var. pungens would significantly or uniquely affect these small 
governmental entities. As such, a Small Government Agency Plan is not 
required.

Executive Order 12630--Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing revised critical habitat for Chorizanthe pungens var. 
pungens. Critical habitat designation does not affect landowner actions 
that do not require Federal funding or permits, nor does it preclude 
development of habitat conservation programs or issuance of incidental 
take permits to permit actions that do require Federal funding or 
permits to go forward. The takings implications assessment concludes 
that this proposed designation of revised critical habitat for C. p. 
var. pungens does not pose significant takings implications.

Authors

    The primary authors of this notice are the staff of the Ventura 
Fish and Wildlife Office.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: October 5, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E7-20241 Filed 10-15-07; 8:45 am]
BILLING CODE 4310-55-P