Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Berberis nevinii (Nevin's barberry), 58793-58803 [07-5063]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 72, Number 200 (Wednesday, October 17, 2007)]
[Proposed Rules]
[Pages 58793-58803]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-5063]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU84


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Berberis nevinii (Nevin's barberry)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, revisions to 
proposed critical habitat, 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 Berberis nevinii (Nevin's barberry) under the Endangered 
Species Act of 1973, as amended (Act). We are also using this comment 
period to announce revisions to proposed critical habitat subunits 1B, 
1D, and 1E as described in the proposed rule published in the Federal 
Register on February 6, 2007, and 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 estimates potential costs to be approximately 
$169,000 to $172,000 in undiscounted dollars over a 20-year period in 
areas proposed as critical habitat and approximately $1.7 to $433.5 
million in undiscounted dollars over a 20-year period (or 40-year 
period for impacts related to management of Vail Lake) in areas 
proposed for exclusion from critical habitat under section 4(b)(2) of

[[Page 58794]]

the Act. We are reopening the comment period to allow all interested 
parties to comment simultaneously on the proposed rule, our revisions 
to 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 November 16, 2007.

ADDRESSES: You may submit written comments and materials to us by any 
one of the following methods:
    (1) E-mail: Please submit electronic comments to 
fw8cfwocomments@fws.gov. Include ``Nevin's barberry'' in the subject 
line. For more information, please see the Public Comments Solicited 
section under SUPPLEMENTARY INFORMATION.
    (2) Facsimile: You may fax 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: https://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 the ADDRESSES 
section (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 on the proposed critical habitat designation 
for Berberis nevinii published in the Federal Register on February 6, 
2007 (72 FR 5552), the revisions to proposed critical habitat described 
herein (see Revisions to Proposed Critical Habitat section), and the 
draft economic analysis of the revised proposed designation. We will 
consider information and recommendations from all interested parties. 
We are particularly interested in comments concerning:
    (1) Critical Habitat Subunits 1B, 1D, and 1E as revised in this 
notice (see Revisions to Proposed Critical Habitat section).
    (2) 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 would outweigh threats to 
the species caused by the designation such that the designation of 
critical habitat is prudent.
    (3) Specific information on the amount and distribution of Berberis 
nevinii habitat; what habitat or habitat features are essential to the 
conservation of this species and why; which areas occupied at the time 
of listing containing these features should be included in the critical 
habitat designation and why; and which areas not occupied at the time 
of listing but currently occupied should be included in the final 
designation and why.
    (4) The geographical extent, number of plants, and/or reproductive 
status of native Berberis nevinii occurrences, particularly those in 
the Loma Linda Hills area (vicinity of San Timoteo Canyon and Scott 
Canyon) in San Bernardino County and those in western Riverside County 
(including in the vicinity of Vail Lake, the Agua Tibia Mountain 
foothills on the Cleveland National Forest (CNF), in the Soboba 
Badlands east of the San Jacinto Wildlife Area, the Jurupa Hills area, 
and near the City of Temecula).
    (5) Specific information on three historical Berberis nevinii 
records from Los Angeles County--two from the Arroyo Seco near the City 
of Pasadena (California Natural Diversity Database (CNDDB) element 
occurrences 8 and 9) and one from the Big Tujunga Wash near San 
Fernando (CNDDB element occurrence 10)--such as whether the species 
still exists in these areas and where.
    (6) Whether any areas not currently known to be occupied by 
Berberis nevinii, but essential to the conservation of the species, 
should be included in the designation.
    (7) Information that demonstrates a species-specific pollinator-
plant relationship for Berberis nevinii; information on seed dispersal 
mechanisms and dispersal distance for B. nevinii; whether seed banks 
exist for this species and, if so, for how long and under what 
conditions; and whether such information should be applied to or 
considered a primary constituent element for the species.
    (8) Land use designations and current or planned activities in the 
mapped critical habitat subunits and their possible impact on proposed 
critical habitat.
    (9) Our proposed exclusion of Berberis nevinii habitat covered 
under the approved Western Riverside County Multiple Species Habitat 
Conservation Plan (MSHCP) and whether the benefits of excluding these 
areas outweigh the benefits of their inclusion under section 4(b)(2) of 
the Act (see 72 FR 5552, ``Relationship of Critical Habitat to Approved 
Habitat Conservation Plans (HCPs)--Exclusion Under Section 4(b)(2) of 
the Act'' section for details on the Western Riverside County MSHCP). 
If the Secretary determines the benefits of including these lands 
outweigh the benefits of excluding them, they will not be excluded from 
final critical habitat.
    (10) Additional information regarding management plans covering 
lands managed by the Bureau of Land Management (BLM) on Oak Mountain 
and by the U.S. Forest Service (USFS) on the CNF, and whether these 
plans provide specific management for Berberis nevinii such that 
consideration of exclusion of these lands under section 4(b)(2) of the 
Act would be appropriate.
    (11) Whether the benefits of exclusion of any particular area 
outweigh the benefits of inclusion under section 4(b)(2) of the Act.
    (12) 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 
Berberis nevinii.
    (13) 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.
    (14) 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.
    (15) 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.
    (16) Information on whether there are any quantifiable economic 
benefits that could result from the designation of critical habitat.
    (17) Information on areas that could potentially be 
disproportionately impacted by designation of critical habitat for 
Berberis nevinii.
    (18) Any foreseeable economic, national security, or other 
potential impacts resulting from the proposed designation, and, in 
particular, any impacts on small entities, and the benefits of 
including or excluding areas that exhibit these impacts.
    (19) Information on whether the draft economic analysis 
appropriately

[[Page 58795]]

identifies all costs that could result from the designation.
    (20) Economic data on the incremental effects that would result 
from designating any particular area as critical habitat, since it is 
our intent to include the incremental costs attributed to the revised 
critical habitat designation in the final economic analysis.
    (21) 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.
    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 February 6, 2007, to April 9, 2007, on the proposed 
rule (72 FR 5552) 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 proposed rule, 
draft economic analysis, or the amended Required Determinations 
provided in this document by any one of several methods (see 
ADDRESSES). Our final designation of critical habitat will take into 
consideration all written comments and any additional information we 
have received during both comment periods. On the basis of public 
comment on this analysis, the revised 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.
    You may submit your comments and material concerning the above 
actions by any one of several methods (see ADDRESSES). If you use e-
mail to submit your comments, please include ``Attn: Nevin's barberry'' 
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 
us directly by calling our Carlsbad Fish and Wildlife Office at (760) 
431-9440.
    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 https://www.fws.gov/carlsbad/.

Background

    On August 10, 2004, the Center for Biological Diversity and 
California Native Plant Society challenged our failure to designate 
critical habitat for Berberis nevinii and four other plant species 
(Center for Biological Diversity et al. v. Gale Norton, Secretary of 
the Department of the Interior et al., C-04-3240 JL, N. D. Cal.). In a 
court approved settlement agreement, the Service agreed to propose 
critical habitat for B. nevinii, if prudent, on or before January 30, 
2007, and finalize the designation on or before January 30, 2008. On 
February 6, 2007, we published a proposed rule to withdraw our previous 
not prudent finding and designate critical habitat for B. nevinii (72 
FR 5552), identifying approximately 417 acres (ac) (169 hectares (ha)) 
in Riverside County, California, that met the definition of critical 
habitat for this species. Of this, we proposed to exclude 385 ac (156 
ha) of non-Federal land from the final designation under section 
4(b)(2) of the Act because these lands are protected by an approved 
Habitat Conservation Plan (HCP) (see 72 FR 5552, ``Relationship of 
Critical Habitat to Approved Habitat Conservation Plans--Exclusion 
Under Section 4(b)(2) of the Act'' section for details), leaving a 
proposed final designation of 32 ac (13 ha) of Federal land.
    We are now proposing revisions to three of the proposed critical 
habitat subunits: 1B, 1D, and 1E (see ``Revisions to Proposed Critical 
Habitat'' section); accordingly, approximately 361 ac (146 ha) in 
Riverside County, California, meets the definition of critical habitat 
for this species, a reduction of 56 ac (23 ha). Of this, we propose to 
exclude approximately 344 ac (139 ha) of non-Federal land protected by 
an approved HCP from the final designation under section 4(b)(2) of the 
Act. These 344 ac (139 ha) are a subset of the 385 ac (156 ha) proposed 
for exclusion in the proposed rule. Other than these changes, the 
proposed rule of February 6, 2007, remains intact.
    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 as revised herein 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 of the proposed critical habitat designation based on the 
February 6, 2007, proposed rule to designate critical habitat for 
Berberis nevinii (72 FR 5552) and subsequent revisions to the proposed 
rule described herein (see Revisions to Proposed Critical Habitat).
    The draft economic analysis is intended to quantify the economic 
impacts of all potential conservation efforts for Berberis nevinii; 
some of these costs will likely be incurred regardless of whether 
critical habitat is designated. Potential economic impacts in areas 
proposed as critical habitat are estimated over a 20-year period, 
whereas estimated economic impacts in areas proposed for exclusion from 
critical habitat follow various timeframes, depending on the activity 
(e.g., a 5-year period for economic impacts related to administration, 
a 20-year period for economic impacts related to development, and a 40-
year period for economic impacts related to management of Vail Lake). 
The draft economic analysis estimates potential costs to be 
approximately $169,000 to

[[Page 58796]]

$172,000 in undiscounted dollars over a 20-year period in areas 
proposed as critical habitat and approximately $1.7 to $433.5 million 
in undiscounted dollars over a 20-year period (or 40-year period for 
impacts related to management of Vail Lake) in areas proposed for 
exclusion from critical habitat under section 4(b)(2) of the Act. These 
impacts would only occur if the area proposed for exclusion is instead 
designated as critical habitat. The cost estimates are based on 
revisions to the proposed designation of critical habitat described in 
this notice and include costs coextensive with listing and recovery.
    Discounted future costs in areas proposed as critical habitat are 
estimated to be approximately $136,000 to $139,000 ($10,000 annualized) 
at a 3 percent discount rate or approximately $107,000 to $110,000 
($11,000 annualized) at a 7 percent discount rate. Discounted future 
costs in areas proposed for exclusion from critical habitat are 
estimated to be approximately $1.2 to $232.5 million at a 3 percent 
discount rate ($82,000 to $10.1 million annualized) or approximately 
$0.9 to $118.1 million at a 7 percent discount rate ($81,000 to $8.9 
million annualized). For areas proposed for exclusion, the economic 
analysis provides an analysis of potential economic impacts related to 
residential/urban development, management of Vail Lake, and 
administration, with the timeframe for analysis varying based on the 
activity (1-5 years, 6-20 years, and 21-40 years). Estimated discounted 
future costs (3 percent discount rate) associated with management of 
Vail Lake range from zero to $12.2 million for the 2008 through 2012 
timeframe, from zero to $117.4 million for the 2013 through 2027 
timeframe, and from zero to $99.7 million for the 2028 through 2047 
timeframe. Similarly, estimated discounted future costs (3 percent 
discount rate) associated with development range from $333,000 to 
$967,000 for the 2008 through 2012 timeframe and from $873,000 to $2.3 
million for the 2013 through 2027 timeframe in areas proposed for 
exclusion from critical habitat. Lastly, the discounted future cost (3 
percent discount rate) associated with administration is estimated at 
$19,000 for the 2008 through 2012 timeframe in these same subunits.
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of Berberis nevinii, 
including costs associated with sections 4, 7, and 10 of the Act, and 
including those attributable 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 B. nevinii 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 government agencies, private businesses, and 
individuals. The analysis measures lost economic efficiency associated 
with residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, 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 
Berberis nevinii was listed as endangered (October 13, 1998; 63 FR 
54956), and considers those costs that may occur in the years following 
the designation of critical habitat, with the timeframes for this 
analysis varying by activity. Because the draft economic analysis 
considers the potential economic effects of all actions relating to the 
conservation of B. nevinii, including costs associated with sections 4, 
7, and 10 of the Act and those attributable to designating critical 
habitat, this may result in an overestimate of the potential economic 
impacts of the designation.
    As stated earlier, we are soliciting 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.

Changes to the Proposed Rule

    By this notice, we are also advising the public of revisions to 
three of the subunits described in the February 6, 2007, proposed rule 
(72 FR 5552): Subunit 1B (Agua Tibia Mountain Foothills), Subunit 1D 
(North of Vail Lake), and Subunit 1E (South of Vail Lake/Peninsula).
    During the first comment period for the proposed rule, we were 
informed by Cleveland National Forest (CNF) that proposed Subunit 1B 
(Agua Tibia Mountain Foothills), which we had identified as including 
approximately 17 ac (7 ha) of USFS land and approximately 5 ac (2 ha) 
of adjacent private land, was inaccurately mapped because it was based 
on inexact location information for the Berberis nevinii occurrence on 
CNF lands. Hence, we are revising the location and boundaries of 
proposed critical habitat Subunit 1B to reflect new location 
information provided by the CNF, and we are now proposing to designate 
less than 3 ac (1 ha) of Federal (CNF) land in Subunit 1B, rather than 
the approximately 22 ac (9 ha) of Federal and private land identified 
in the proposed rule. We delineated critical habitat based on the 
criteria outlined in the February 6, 2007, proposed rule, which 
resulted in this subunit no longer including any private land. Revised 
Subunit 1B was occupied at the time of listing and contains the primary 
constituent elements (PCEs), those physical or biological features 
essential to conservation of the species.
    We also reevaluated proposed critical habitat subunits bordering 
Vail Lake based on updated aerial photographs and Vail Lake storage/
volume data provided by Rancho California Water District (RCWD) for the 
economic analysis. We removed areas along the shoreline from subunits 
1D (North of Vail Lake) and 1E (South of Vail Lake/Peninsula) that do 
not contain the PCEs required by Berberis nevinii and are not occupied 
by the species due to lake-level fluctuations and recurrent, episodic 
inundation, sometimes for relatively long periods of time. We removed 
approximately 1 ac (1 ha) from proposed Subunit 1D and approximately 34 
ac (14 ha) from proposed Subunit 1E, leaving approximately 21 ac (8 ha) 
and approximately 217 ac (88 ha) in proposed subunits 1D and 1E, 
respectively.
    When delineating proposed critical habitat (72 FR 5552), we tried 
to exclude areas from proposed subunits near Vail Lake that were 
identified as being under water, and therefore did not contain the 
PCEs. We based subunit delineations in

[[Page 58797]]

the proposed rule on USGS 1-meter resolution color-balanced, color 
infrared aerial photography acquired in May/June 2002 for the Vail Lake 
area, western Riverside County. Based on information provided by RCWD 
for the draft economic analysis, the lake was storing between 
approximately 19,750 acre-feet (May 1, 2002) and 19,180 acre-feet (June 
30, 2002) of water during this time period. However, water levels at 
Vail Lake can fluctuate greatly, depending on the amount of local 
runoff reaching the lake, both within any given year and annually, 
frequently exceeding the 2002 water levels for relatively long periods 
of time. The RCWD, the entity that owns and operates/manages Vail Dam 
and Vail Lake, has a surface water storage permit in the lake for up to 
40,000 acre-feet from November 1 to April 30, annually. Thus, we 
revised proposed critical habitat boundaries for subunits bordering 
Vail Lake based on lake levels at RCWD's permitted storage capacity, 
resulting in boundary changes to proposed subunits 1D and 1E.
    Water volume in Vail Lake has been known to exceed 40,000 acre-
feet, even filling and surpassing lake storage capacity (50,000 acre-
feet) with water flowing over the spillway. The creation of Vail Lake 
in 1948 may have resulted in the loss of some Berberis nevinii 
individuals; however, the occurrences that are now located closest to 
Vail Lake have not been inundated or affected by rising water levels 
and fluctuations in the recent past (Boyd 2007). Thus, the revisions to 
proposed critical habitat subunits 1D and 1E are not likely to result 
in B. nevinii individuals in this area falling outside the revised 
subunit boundaries. These revisions will, on the other hand, more 
accurately represent B. nevinii habitat in subunits 1D and 1E.
    Table 1 contains the corrected area values based on revisions to 
proposed critical habitat subunits 1B, 1D, and 1E. The revisions to 
these three proposed subunits change the legal description published in 
the February 6, 2007, proposed rule. This notice republishes the legal 
descriptions for subunits 1B, 1D, and 1E based on the revisions 
described herein, along with a map depicting the revised location of 
proposed critical habitat for Berberis nevinii.

 Table 1.--Areas Proposed as Critical Habitat for Berberis nevinii and Areas Being Considered for Exclusion From
                     the Final Critical Habitat Designation Under Section 4(b)(2) of the Act
                               [Area is displayed in acres (ac) (hectares (ha)).]
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                                                                           Area proposed for
                                                       Area proposed as     exclusion from     Area proposed as
      Critical habitat unit         Land ownership     critical habitat     final critical      final  critical
                                                                                habitat             habitat
----------------------------------------------------------------------------------------------------------------
1. Agua Tibia/Vail Lake
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1A. Big Oak Mountain Summit.....  BLM...............  14.8 ac (6.0 ha)..  0 ac (0 ha).......  14.8 ac (6.0 ha).
1B. Agua Tibia Mountain           USFS..............  2.5 ac (1.0 ha)...  0 ac (0 ha).......  2.5 ac (1.0 ha).
 Foothills.
1C. South Flank Big Oak Mountain  Private...........  86.5 ac (35.0 ha).  86.5 ac (35.0 ha).  0 ac (0 ha).
1D. North of Vail Lake..........  Private \1\.......  20.8 ac (8.4 ha)..  20.8 ac (8.4 ha)..  0 ac (0 ha).
1E. South of Vail Lake/Peninsula  Private \1\.......  216.7 ac (87.7 ha)  216.7 ac (87.7 ha)  0 ac (0 ha).
1F. Temecula Creek East.........  Private...........  19.8 ac (8.0 ha)..  19.8 ac (8.0 ha)..  0 ac (0 ha).
                                                     -----------------------------------------------------------
    Total.......................  ..................  361.1 ac (146.1     343.8 ac (139.1     17.3 ac (7.0 ha).
                                                       ha).                ha).
----------------------------------------------------------------------------------------------------------------
\1\ Private lands in Subunits 1D and 1E include a total of 2.8 ac (1.1 ha) owned by the Rancho California Water
  District.

    Below, we present brief descriptions of the revised proposed 
subunits and reasons why they meet the definition of critical habitat 
for Berberis nevinii. These revised subunit descriptions replace those 
provided in the February 6, 2007, proposed rule (72 FR 5552).

Unit Descriptions

Subunit 1B: Agua Tibia Mountain Foothills

    Subunit 1B consists of approximately 3 ac (1 ha) of federally-owned 
land managed by the USFS on the CNF near the Agua Tibia Wilderness Area 
in southern Riverside County, California. Five Berberis nevinii 
individuals are known from this area and are located at the edge of a 
stream channel (PCE 1) growing in association with coast live oak and 
riparian woodland species (PCE 3). Nearby chaparral includes such 
species as Quercus berberidifolia, Adenostoma fasciculatum, and 
Haplopappus squarrosus, and nearby desert species include Yucca 
schidigera (CNDDB 2006). These B. nevinii plants are growing under a 
canopy of Quercus agrifolia and Platanus racemosa with the following 
species: Heteromeles arbutifolia, Q. berberidifolia, Elymus 
condensatus, Mimulus aurantiacus, Lonicera subspicata, Pterostegia 
drymarioides, and Epilobium canum. Soils in this area are classified as 
rough broken land and Visalia gravelly sandy loam, with 5 to 9 percent 
slopes (PCE 2) (Service GIS data 2007).
    We are proposing this subunit as critical habitat because it 
contains features essential to conservation of Berberis nevinii and it 
contains a relatively large natural occurrence of the species. 
Additionally, Service personnel visited this site in June 2006 while B. 
nevinii was in fruit and found that several of the fruits had three to 
four seeds, which may be significant for a species that appears to 
rarely set seed. Berberis nevinii occupied this subunit at the time of 
listing, as identified in the final listing rule (63 FR 54956, October 
13, 1998).
    The Berberis nevinii occurrence on the CNF is not as well protected 
as the occurrence on the Angeles National Forest (USFS 2005, p. 238). 
The primary threats to B. nevinii habitat in this area are human 
recreation (off-highway vehicle use, shooting); wildland fire, 
including an increased risk of fire ignition due to the proximity of 
State Highway 79 (USFS 2005, pp. 232, 237); fuels and fire management 
activities (USFS 2005, p. 237); and invasive, nonnative plants, 
including potential short-term adverse effects associated with control 
efforts (USFS 2005, p. 234). The CNF occurrence burned in 1996 followed 
by vigorous resprouting (USFS 2005, p. 237), and this location has also 
shown signs of disturbance from road

[[Page 58798]]

activities, with unauthorized use of off-highway vehicles occurring 
close to but not within the area occupied by the species (USFS 2005, p. 
235). Nonetheless, the magnitude of impacts associated with roads and 
recreational activity in this area appears to be low (USFS 2005, p. 
238). Also, the USFS does not anticipate substantial camping and 
hiking-related impacts to B. nevinii habitat, and these impacts will be 
avoided or mitigated by use of Forest Plan standards (USFS 2005, p. 
234).
    The February 6, 2007, proposed rule (72 FR 5552) identified the 
proximity of Highway 79 as a potential threat to the Berberis nevinii 
occurrence and habitat on the CNF, in part due to proposed highway 
widening and realignment activities. However, we no longer anticipate 
that these activities, if or when they occur, will affect Subunit 1B as 
the revised subunit is now more than one-tenth mile (160 meters) south 
of the highway. Invasive, nonnative plants and their management may 
also impact the B. nevinii occurrence and habitat at this site. Based 
on the weed management strategy in the USFS' Revised Land Management 
Plan for the four Southern California National Forests (USFS 2005), the 
CNF anticipates an eradication effort of the nonnative Arundo and other 
invasive grasses present in this subunit.
    One of the greatest threats to occupied habitat and the PCEs 
contained therein on the CNF is from wildland fire and the management 
of fire and fuels (i.e., fire suppression and prevention activities). 
The Wildland-Urban Interface (WUI) Defense Zone overlaps about 43 
percent of occupied habitat on the CNF (USFS 2005, p. 237; Service 
2005, p. 127). Some plants or habitat within the WUI Defense Zone could 
be removed or degraded under the Revised Land and Resource Management 
Plan due to fuel removal for fire protection or overly frequent fuel 
treatments (Service 2005, p. 127). Special management considerations or 
protection of the PCEs may be required to minimize disturbance to the 
vegetation and soils within this subunit; control invasive, nonnative 
plants; and maintain the natural fire regime of the area.
    Subunit 1B is included in the Western Riverside County Multiple 
Species Habitat Conservation Plan's (MSHCP) Conservation Area as 
existing Public/Quasi-Public (PQP) Conserved Lands. Since the CNF is 
not a signatory to the MSHCP and is not required to comply with the 
MSHCP's conservation measures, we are not proposing lands within this 
subunit for exclusion under section 4(b)(2) of the Act (see 72 FR 5552, 
``Exclusions under Section 4(b)(2) of the Act for Berberis nevinii'' 
section for a detailed discussion).
    During the first comment period for the proposed rule, we were 
informed that the Species Management Guide for Mahonia [Berberis] 
nevinii (Gray) Fedde (Mistretta and Brown 1989) developed for the 
Angeles National Forest was subsequently adopted by the CNF (Fege 1992, 
p. 1; Holtrop 2007, p. 2). Additionally, the CNF informed us that the 
species account for Berberis nevinii developed to support the 
environmental analysis for the USFS Land Management Plans for four 
southern California National Forests (USFS 2005) is meant to provide 
guidance for conservation and management of B. nevinii on USFS lands 
(Young 2007). However, these documents provide general guidance only 
and do not direct decisions regarding USFS site-specific project 
proposals. Additionally, these documents do not provide specific 
recommendations for the B. nevinii occurrence on the CNF. Therefore, as 
stated in the February 6, 2007, proposed rule (72 FR 5552), we are not 
proposing USFS lands within this subunit for exclusion under section 
4(b)(2) of the Act based on these plans.

Subunit 1D: North of Vail Lake

    Subunit 1D consists of approximately 21 ac (8 ha) of private land 
located immediately north of Vail Lake in southern Riverside County, 
California. The Berberis nevinii occurrence at this location is mapped 
along a canyon just above the high water line of Vail Lake, and 
consists of seven plants based on a 1989 survey (CNNDB 2006). Berberis 
nevinii individuals in this area are found in sandy and gravelly soils 
in a drainage bottom (PCE 1 and 2). The vegetation community is 
classified as coastal scrub and valley foothill riparian (PCE 3) 
(Service GIS data 2006). At this site, B. nevinii is associated with 
Adenostoma fasciculatum, Arctostaphylos glauca, Rhus integrifolia, 
Juniperus californica, and Rhamnus crocea; to the north is a large 
grove of Prosopis glandulosa (CNDDB 2006). Soils in this area are 
classified as badland (PCE 2) (Service GIS data 2006).
    We are proposing this subunit as critical habitat because it 
contains the features essential to conservation of Berberis nevinii, 
and it contains a relatively large natural occurrence of the species 
(CNDDB 2006). This subunit is important for conserving B. nevinii as it 
is one of several relatively large occurrences in the Vail Lake area 
and thus has a greater potential for regeneration by seed. Berberis 
nevinii occupied this subunit at the time of listing, as identified in 
the final listing rule (63 FR 54956, October 13, 1998).
    The primary threat to Berberis nevinii habitat in this area that 
may require special management considerations or protection of the PCEs 
is urban/residential development. This subunit, as well as subunits 1C, 
1E, and 1F, consists entirely of private land that may be developed, 
excluding flood easement lands held by the RCWD. This and the other 
subunits just mentioned fall within the Criteria Area of the Western 
Riverside County MSHCP and are targeted, in whole or in part, for 
acquisition and inclusion in the MSHCP Conservation Area as Additional 
Reserve Lands. Regardless, indirect effects of urban development could 
threaten B. nevinii habitat in this area, including human recreation 
activities; erosion; incursion or spread of invasive, nonnative plants; 
and changes to the natural fire regime (i.e., increased ignitions and 
fire frequency and shortened fire return intervals) that can lead to 
type conversion of shrublands to annual grasslands. Rising lake levels 
may also pose a threat, though the occurrences closest to Vail Lake 
have not been inundated or affected by rising water levels and 
fluctuations in the recent past (Boyd 2007).
    We are proposing to exclude the private lands within this subunit 
from the final designation of critical habitat for Berberis nevinii 
based on conservation measures for the species in the MSHCP (see 72 FR 
5552, ``Relationship of Critical Habitat to Approved Habitat 
Conservation Plans (HCPs)--Exclusion Under Section 4(b)(2) of the Act--
Western Riverside County Multiple Species Habitat Conservation Plan'' 
section for a detailed discussion).

Subunit 1E: South of Vail Lake/Peninsula

    Subunit 1E consists of approximately 217 ac (88 ha) of private land 
located on the south and southwest side of Vail Lake in southern 
Riverside County, California. This site has the largest known natural 
occurrence of Berberis nevinii, collectively consisting of 134 plants 
based on a 1987 survey (Boyd 1987, pp. 7, 61-72; CNDDB 2006). These 
plants are located in several stands along both sides of the southwest 
arm of Vail Lake, the south shore and peninsula, and part of the west 
shore of the southeast arm of Vail Lake. Berberis nevinii individuals 
in this area are found in canyons, in a wash of 15 percent slope, and 
on north-facing ridges and slopes between 35 and 70 percent slope (PCE 
1) (Boyd 1987, p. 61-72; CNDDB 2006), primarily in

[[Page 58799]]

association with coastal scrub, mixed chaparral, and valley foothill 
riparian communities (PCE 3) (Service GIS data 2006). Associated 
species include, but are not limited to: Artemisia californica, 
Adenostoma fasciculatum, Eriogonum fasciculatum, Salvia mellifera, 
Rhamnus crocea, Rhus ovata, Encelia farinosa, Baccharis glutinosa, and 
Yucca sp. (Boyd 1987, p. 61-72). Soils in this area are classified as 
sandy loams (Arlington and Greenfield fine sandy loams, 8 to 15 percent 
slopes, eroded; Cajalco rocky fine sandy loam, 15 to 50 percent slopes, 
eroded; Hanford coarse sandy loam, 8 to 15 percent slopes, eroded; Lodi 
rocky loam, 25 to 50 percent slopes, eroded; Monserate sandy loam, 8 to 
15 percent slopes, eroded; Monserate sandy loam, 15 to 25 percent 
slopes, severely eroded; Pachappa fine sandy loam, 2 to 8 percent 
slopes, eroded), gullied land, riverwash, and rough broken land (PCE 2) 
(Service GIS data 2006).
    We are proposing this subunit as critical habitat because it 
contains features essential to conservation of Berberis nevinii, and it 
contains the largest known natural occurrence of the species (CNDDB 
2006). This location also contains the bulk of known individuals in the 
Vail Lake/Oak Mountain area. Additionally, we interpret that 
reproduction has occurred at this site in the past based on the 
presence of several size (age) classes during Nishida's 1987 survey of 
the area (Boyd 1987, p. 62). Berberis nevinii occupied this subunit at 
the time of listing, as identified in the final listing rule (63 FR 
54956, October 13, 1998).
    The primary threat to Berberis nevinii habitat in this area that 
may require special management considerations or protection of the PCEs 
is urban/residential development. This subunit, as well as subunits 1C, 
1D, and 1F, consists entirely of private land that may be developed, 
excluding areas held as flood easement by the RCWD. This and the other 
subunits just mentioned fall within the Criteria Area of the Western 
Riverside County MSHCP and are targeted, in whole or in part, for 
acquisition and inclusion in the MSHCP Conservation Area as Additional 
Reserve Lands. Regardless, indirect effects of urban development--
including human recreation activities; erosion; incursion or spread of 
invasive, nonnative plants (including annual grasses, Tamarix sp., 
Nicotiana glauca, and others); and changes to the natural fire regime 
(i.e., increased ignitions and fire frequency and shortened fire return 
intervals) that can lead to type conversion of shrublands to annual 
grasslands--could threaten B. nevinii habitat in this area.
    This Berberis nevinii occurrence has burned in the past, and 
regeneration by stump sprouting has been observed (CNDDB 2006). Part of 
this area is fairly inaccessible, except by boat; however, other parts 
are in close proximity to roads, equestrian trails, and the boat launch 
area (Boyd 1987, pp. 61-72; CNDDB 2006), and thus may be more heavily 
impacted by recreational activities. Rising lake levels were also 
identified as a potential threat to this occurrence by Nishida (Boyd 
1987, pp. 61-72; CNNDB 2006), though the occurrences closest to Vail 
Lake have not been inundated or affected by rising water levels and 
fluctuations in the recent past (Boyd 2007).
    We are proposing to exclude the private lands within this subunit 
from the final designation of critical habitat for Berberis nevinii 
based on conservation measures for the species in the Western Riverside 
County MSHCP (see 72 FR 5552, ``Relationship of Critical Habitat to 
Approved Habitat Conservation Plans (HCPs)--Exclusion Under Section 
4(b)(2) of the Act--Western Riverside County Multiple Species Habitat 
Conservation Plan'' section for a detailed discussion).

Required Determinations--Amended

    In our February 6, 2007, proposed rule (72 FR 5552), 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 
Berberis nevinii, costs related to conservation activities for B. 
nevinii pursuant to sections 4, 7, and 10 of the Act are estimated to 
be approximately $169,000 to $172,000 in undiscounted dollars over a 
20-year period in areas proposed as critical habitat and approximately 
$1.7 to $433.5 million in undiscounted dollars over a 20-year period 
(or 40-year period for impacts related to management of Vail Lake) in 
areas proposed for exclusion from critical habitat. These impacts would 
only occur if the area proposed for exclusion is instead designated as 
critical habitat. These cost estimates are based on revisions to the 
proposed designation of critical habitat described in this notice and 
includes costs coextensive with listing and recovery.
    Discounted future costs in areas proposed as critical habitat are 
estimated to be approximately $136,000 to $139,000 ($10,000 annualized) 
at a 3 percent discount rate or approximately $107,000 to $110,000 
($11,000 annualized) at a 7 percent discount rate. Discounted future 
costs in areas proposed for exclusion from critical habitat are 
estimated to be approximately $1.2 to $232.5 million at a 3 percent 
discount rate ($82,000 to $10.1 million annualized) or approximately 
$0.9 to $118.1 million at a 7 percent discount rate ($81,000 to $8.9 
million annualized). For areas proposed for exclusion, estimated 
discounted future costs (3 percent discount rate) associated with 
management of Vail Lake range from zero to $12.2 million for the 2008 
through 2012 timeframe, from zero to $117.4 million for the 2013 
through 2027 timeframe, and from zero to $99.7 million for the 2028 
through 2047 timeframe. Similarly, estimated discounted future costs (3 
percent discount rate) associated with development range from $333,000 
to $967,000 for the 2008 through 2012 timeframe and from $873,000 to 
$2.3 million for the 2013 through 2027 timeframe in areas proposed for 
exclusion from critical habitat. Lastly, the discounted future cost (3 
percent discount rate) associated with administration is estimated at 
$19,000 for the 2008 through 2012 timeframe in these same subunits.
    Therefore, based on our draft economic analysis, we have determined 
that the proposed designation of critical habitat for Berberis nevinii 
would 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 necessary 
timeline for publication in the Federal Register, the Office of 
Management and Budget

[[Page 58800]]

(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 (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 designation 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 (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 critical habitat for 
Berberis nevinii 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 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 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 Berberis nevinii and proposed designation of its critical 
habitat.
    Impacts of conservation activities are not anticipated to affect 
small entities in the following categories: Fire management on Federal 
lands; invasive, nonnative plant species management on Federal lands; 
recreation management on Federal lands; and surveying, monitoring, and 
other activities on Federal lands. As described in Chapters 4 through 6 
of the draft economic analysis, the cost associated with modifications 
to activities on Federal lands will be borne by the USFS and BLM. The 
Federal Government is not considered a small entity by the SBA. As 
described in Chapter 3 of the draft economic analysis, potential 
impacts related to management of Vail Lake will be borne entirely by 
the RCWD and account for the majority of the total anticipated upper-
bound future impacts in areas proposed for exclusion from the final 
designation of critical habitat (up to $429.1 million over the next 40 
years in undiscounted dollars). The RCWD is not considered a small 
entity/governmental jurisdiction by the SBA because it services a 
population exceeding the criteria for a ``small entity.'' Additionally, 
transportation projects that are reasonably foreseeable within the 20-
year analysis period are not anticipated to impact areas proposed as 
critical habitat. Only impacts to land development activities (Chapter 
2) are expected to be borne by small entities. Accordingly, the small 
business analysis (Appendix B of the economic analysis) focuses on the 
economic impacts of land development activities on private lands.
    Seventy percent of the development-related impacts are expected to 
be borne by private landowners ($2.3 million), with the remainder borne 
by local government (25 percent or $810,000) and State and Federal 
government (5 percent or $180,000). Three private landowners in 
Riverside County will be directly impacted by the proposed regulation, 
with one landowner owning the majority (approximately 85 percent or 291 
ac (118 ha)) of the 341 ac (138 ha) of private (non-RCWD) lands 
proposed as critical habitat. Chapter 2 of the draft economic analysis 
concludes that some residential/commercial development is likely in or 
adjacent to proposed critical habitat on private lands near Vail Lake. 
Current zoning laws limit the type of development that may take place 
on these private lands to one single-family home per 10 ac (4 ha) or 20 
ac (8 ha), depending on specific zoning. Also, RCWD's flood easement 
for Vail Lake precludes development from approximately 34 ac (14 ha) of 
private land within proposed critical

[[Page 58801]]

habitat adjacent to Vail Lake. Lastly, the topography (steepness) of 
much of this area makes it unlikely that the land will be used for 
dense development in the future. Still, the likelihood and eventual 
density of houses in or near proposed critical habitat, and whether 
such development will pose a threat to Berberis nevinii habitat is 
unknown.
    The private land proposed as critical habitat for Berberis nevinii 
is located within the Criteria Area of the Western Riverside County 
MSHCP and is targeted, in whole or in part, for acquisition and 
inclusion in the MSHCP Conservation Area as Additional Reserve Lands. 
Based on the MSHCP, the economic analysis assumes 90 percent or 
approximately 277 ac (112 ha) of the privately-owned land within 
potential critical habitat and outside RCWD's flood easement (which is 
approximately 307 of 341 ac (or 124 of 138 ha) of private land) will be 
targeted for acquisition as Additional Reserve Lands, with compensation 
to the private landowners. The economic analysis considers the cost of 
land acquisition, reserve management (including fire, invasive species, 
and recreation management), biological monitoring, adaptive management, 
and program administration for preserving these 277 ac (112 ha) of 
private land with long-term conservation value for B. nevinii as the 
total economic impact of the proposed critical habitat designation as 
it relates to development. The total economic impact for these 
activities over the next 20 years is estimated to range from $1.6 to 
$4.4 million in undiscounted dollars, or $1.2 to $3.3 million per year 
and $0.8 to $2.3 million per year at the 3 percent and 7 percent 
discount rate, respectively.
    Every small land subdivision and construction business in the MSHCP 
Plan Area is expected to be indirectly affected by conservation efforts 
for Berberis nevinii due to mitigation and density bonus fees that will 
be required for all new development. The economic analysis estimates 
that there are 3,146 small land subdivision and building construction 
businesses in Riverside County, but it is unknown how many of these are 
within the MSHCP Plan Area, which encompasses only the western part of 
the County. However, it is expected that these small entities would 
pass any additional costs associated with conservation measures to the 
consumer (i.e., the purchaser of the finished building), and thus we do 
not anticipate that this proposed regulation 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 Berberis nevinii 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 
information in the draft economic analysis, energy-related impacts 
associated with B. nevinii 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 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, 
anticipated future impacts in areas proposed for final designation as 
critical habitat will be borne by the Federal Government; in areas 
proposed for exclusion from the final designation, the majority of the

[[Page 58802]]

total anticipated upper-bound future impacts will be borne by the RCWD, 
with private landowners, local government, and Federal and State 
governments bearing the rest. The Federal government is not considered 
a small governmental jurisdiction or entity by the SBA, and neither is 
the RCWD because it services a population exceeding the criteria for a 
``small entity.'' 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 Berberis nevinii in a takings 
implications assessment. The takings implications assessment concludes 
that this proposed designation of critical habitat for B. nevinii does 
not pose significant takings implications.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Carlsbad Fish and 
Wildlife Office (see ADDRESSES).

Authors

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as proposed to 
be amended at 72 FR 5552, February 6, 2007, as set forth below:

PART 17--[AMENDED]

    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.

    2. Critical habitat for Berberis nevinii (Nevin's barberry) in 
Sec.  17.96(a), which was proposed to be added on February 6, 2007, at 
72 FR 5552, is proposed to be amended by revising paragraphs (5)(ii), 
(5)(iv), and (5)(v), and by revising Map 1 in paragraph (5)(vii), as 
follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    Family Berberidaceae: Berberis nevinii (Nevin's barberry)
* * * * *
    (5) Unit 1. Agua Tibia/Vail Lake, Riverside County, California.
* * * * *
    (ii) Subunit 1B for Berberis nevinii, Agua Tibia Mountain Foothills 
Subunit, Riverside County, California. From USGS 1:24,000 quadrangle 
Vail Lake, lands bounded by the following UTM NAD27 coordinates (E, N): 
504200, 3702900; 504300, 3702900; 504300, 3702800; 504200, 3702800; 
thence returning to 504200, 3702900.
* * * * *
    (iv) Subunit 1D for Berberis nevinii, North of Vail Lake Subunit, 
Riverside County, Cal