Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Acanthomintha ilicifolia (San Diego Thornmint), 66122-66128 [E7-22971]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 72, Number 227 (Tuesday, November 27, 2007)]
[Proposed Rules]
[Pages 66122-66128]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-22971]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU86


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Acanthomintha ilicifolia (San Diego Thornmint)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, corrections 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

[[Page 66123]]

proposed designation of critical habitat for Acanthomintha ilicifolia 
(San Diego thornmint) under the Endangered Species Act of 1973, as 
amended (Act). We also announce corrections to proposed critical 
habitat subunits 3C, 3D, 3F, 4A, 4B, and 4C as described in the 
preamble to the proposed rule published in the Federal Register on 
March 14, 2007 (72 FR 11946); announce the availability of the draft 
economic analysis for the proposed critical habitat designation; and 
announce amended Required Determinations for the proposal. The draft 
economic analysis provides information about the pre-designation costs 
and forecasts post-designation costs associated with conservation 
efforts for Acanthomintha ilicifolia. The draft economic analysis 
estimates potential future costs to be approximately $0.6 to $2.8 
million in undiscounted dollars over a 20-year period in areas proposed 
as final critical habitat and approximately $1.6 to $5.1 million in 
undiscounted dollars over a 20-year period in areas proposed for 
exclusion from critical habitat under section 4(b)(2) of the Act. 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 the proposal was available.
    We are reopening the comment period to allow all interested parties 
an opportunity to comment simultaneously on the proposed rule, 
corrections to the preamble of 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 December 27, 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: Jim Bartel, Field Supervisor, U.S. 
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 
Hidden Valley Road, Carlsbad, CA 92011.
    (2) By electronic mail (e-mail) to: fw8cfwocomments@fws.gov. Please 
see the Public Comments Solicited section below for other information 
about electronic filing.
    (3) By fax to: the attention of Jim Bartel at 760-431-5901.
    (4) Via the Federal eRulemaking Portal: at 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; facsimile 760-431-5901). 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 critical habitat designation 
for Acanthomintha ilicifolia published in the Federal Register on March 
14, 2007 (72 FR 11946), the corrections to the proposed critical 
habitat described herein (see Corrections to Proposed Critical Habitat 
section), and our draft economic analysis of the proposed designation. 
We will consider information and recommendations from all interested 
parties. We are particularly interested in comments concerning:
    (1) The reasons why 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 Acanthomintha ilicifolia 
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.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Our proposed exclusion of 1,134 acres (ac) (459 hectares (ha)) 
of lands already conserved or targeted for conservation within subarea 
plans under the San Diego Multiple Species Conservation Program (MSCP) 
and the San Diego Multiple Habitat Conservation Program (MHCP) from the 
final designation of critical habitat for Acanthomintha ilicifolia 
under section 4(b)(2) of the Act (see Exclusions Under Section 4(b)(2) 
of the Act in the proposed critical habitat rule for details of these 
habitat conservation plans (HCPs)). Please note that in the March 14, 
2007, proposed rule (72 FR 11946), we sought comments on our proposed 
exclusion of 1,302 ac (527 ha) of non-Federal lands from the final 
designation. In this notice, we have made several corrections that have 
resulted in reductions in the areas being proposed as critical habitat 
and the area being proposed for exclusion (see Corrections to the 
Proposed Rule below for a detailed discussion of these corrections).
    We are specifically seeking public comment on our proposed 
exclusion of lands covered under the City of Encinitas subarea plan of 
the MHCP (see Exclusions Under Section 4(b)(2) of the Act in the 
proposed critical habitat rule for details of this HCP). It is our 
understanding that little progress has been made by the City of 
Encinitas to finalize their subarea plan since the 2001 release of the 
draft plan. Based on information received during the public comment 
period, the Secretary may determine that sufficient progress has not 
been made and that lands within the City of Encinitas' subarea plan 
should not be excluded from the final designation. Specifically, useful 
information would include: whether essential lands within Encinitas are 
being managed, or are reasonably assured of being managed, to conserve 
Acanthomintha ilicifolia, and the outlook for completion of the draft 
subarea plan.
    Please provide information concerning whether the benefit of 
excluding any of these specific areas from the critical habitat 
designation outweighs the benefit of including these areas in the 
designation under section 4(b)(2). If the Secretary determines that the 
benefits of including these lands outweigh the benefits of excluding 
them, they will not be excluded from final critical habitat.
    (5) Our corrections to proposed critical habitat subunits 3C, 3D, 
3F, 4A, 4B, and 4C as described in this notice (see Corrections to 
Proposed Critical Habitat section below).
    (6) Information on whether, and, if so, the extent to which any 
State and local environmental protection measures referenced in the 
draft economic analysis were adopted largely as a result of the listing 
of Acanthomintha ilicifolia, and which were either already in place at 
the time of listing or enacted for other reasons.
    (7) Information on whether the draft economic analysis identifies 
all State and local costs and benefits attributable to the proposed 
critical habitat

[[Page 66124]]

designation, and information on any costs or benefits that have been 
inadvertently overlooked.
    (8) 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.
    (9) 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.
    (10) Information on areas that could potentially be 
disproportionately impacted by designation of critical habitat for 
Acanthomintha ilicifolia.
    (11) 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; the reasons 
why our conclusion that the proposed designation of critical habitat 
will not result in a disproportionate impact on small businesses should 
or should not warrant further consideration; and other information that 
would indicate that the designation of critical habitat would or would 
not have any impacts on small entities.
    (12) Information on whether the draft economic analysis 
appropriately identifies all costs that could result from the 
designation.
    (13) Information on whether there are any quantifiable economic 
benefits that could result from the designation of critical habitat.
    (14) Whether the benefit of excluding any particular area from the 
critical habitat designation under section 4(b)(2) of the Act outweighs 
the benefit of including the area in the designation.
    (15) Economic data on the incremental impacts that would result 
from designating any particular area as critical habitat, since it is 
our intent to include the incremental costs attributed to the critical 
habitat designation in the final economic analysis.
    (16) 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. 
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 the 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.
    Comments and information submitted during the initial comment 
period from March 14, 2007, to May 14, 2007, on the proposed rule (72 
FR 11946) 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 have 
received 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: 
San Diego thornmint'' 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, please contact the person listed under FOR FURTHER INFORMATION 
CONTACT.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.
    Comments and materials received, as well as supporting 
documentation used in preparation of the proposal to designate critical 
habitat, will be available for public inspection, by appointment during 
normal business hours, at the Carlsbad Fish and Wildlife Office (see 
ADDRESSES). You may obtain copies of the proposed critical habitat rule 
and the draft economic analysis by mail from the Carlsbad Fish and 
Wildlife Office (see ADDRESSES) or by visiting our Web site 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 this species as well as four other plant species 
(Center for Biological Diversity, et al. v. Norton, C-04-3240 JL (N. D. 
Cal.)). In settlement of the lawsuit, the Service agreed to submit to 
the Federal Register a proposed rule to designate critical habitat, if 
prudent, on or before February 28, 2007, and a final designation by 
February 28, 2008. On March 14, 2007, we published a proposed rule to 
designate critical habitat for Acanthomintha ilicifolia (72 FR 11946), 
identifying a total of approximately 1,936 ac (783 ha) of land in San 
Diego County, California. Of the total area proposed, we proposed to 
exclude from the final critical habitat designation 1,302 ac (527 ha) 
of land under section 4(b)(2) of the Act.
    Critical habitat is defined in section 3 of the Act as the specific 
areas within the geographical area occupied by a species, at the time 
it is listed in accordance with the Act, on which are found those 
physical or biological features essential to the conservation of the 
species and that may require special management considerations or 
protection, and specific areas outside the geographical area occupied 
by a species at the time it is listed, upon a determination that such 
areas are essential for the conservation of the species. If the 
proposed rule is made final, section 7 of the Act will prohibit 
destruction or adverse modification of critical habitat by any activity 
funded, authorized, or carried out by any Federal agency. Federal 
agencies proposing actions affecting areas designated as critical 
habitat must consult with us on the effects of their proposed actions, 
in accordance with section 7(a)(2) of the Act.

Corrections to Proposed Critical Habitat

    By this notice, we are advising the public of corrections in area, 
land ownership, and San Diego MSCP boundary associations within six of 
the subunits described in the March 14, 2007, proposed rule (72 FR 
11946): Subunit 3C (Viejas Mountain), Subunit 3D (Viejas Mountain), 
Subunit 3F (Poser Mountain), Subunit 4A (McGinty Mountain), Subunit 4B 
(McGinty Mountain), and Subunit 4C (McGinty Mountain).

[[Page 66125]]

    In our March 14, 2007, proposed rule (72 FR 11946) we proposed to 
exclude a total of 95 ac (38 ha) of private lands in subunits 3C, 3D, 
and 3F from the final critical habitat designation under section 
4(b)(2) of the Act. We believed that these lands were within the 
planning boundary for the San Diego MSCP (see ``Relationship of 
Critical Habitat to Habitat Conservation Plan Lands--Exclusions Under 
Section 4(b)(2) of the Act'' section of the proposed rule (72 FR 11946, 
March 14, 2007) for a detailed discussion of this proposed exclusion). 
However, the private lands in subunits 3C, 3D, and 3F are not within 
the planning boundary for the San Diego MSCP, and we are no longer 
proposing to exclude these lands from the final designation under 
section 4(b)(2) of the Act. The draft economic analysis reflects that 
we are no longer proposing to exclude these 95 ac (38 ha) of lands.
    In this notice, we are also correcting errors within subunits 4A 
and 4B. The maps and boundary descriptions of subunits 4A and 4B were 
delineated correctly in the March 14, 2007, proposed rule (72 FR 
11946); however, the area estimates in the preamble were incorrect. The 
correct area for subunit 4A is 20 ac (8 ha) rather than 18 ac (7 ha), 
and the correct area for subunit 4B is 148 ac (60 ha) rather than 220 
ac (89 ha). The draft economic analysis reflects these corrections to 
area estimates.
    Furthermore, the March 14, 2007, proposed rule (72 FR 11946), did 
not identify that subunit 4A contains 2 ac (1 ha) of federally owned 
land and subunit 4C contains 1 ac (less then \1/2\ ha) of federally 
owned land. Both of these subunits overlap slightly with the Service's 
San Diego National Wildlife Refuge. We proposed to exclude all private 
and State/local lands in subunits 4A and 4C from the final designation 
based on the benefits provided to Acanthomintha ilicifolia by the MSCP 
(see ``Relationship of Critical Habitat to Habitat Conservation Plan 
Lands--Exclusions Under Section 4(b)(2) of the Act'' section of the 
proposed rule (72 FR 11946, March 14, 2007) for a detailed discussion 
of this proposed exclusion). While we are continuing to propose to 
exclude all private and State/local lands covered by the MSCP, we are 
clarifying that this proposed exclusion does not include Federal lands, 
and, therefore, we overestimated the proposed exclusion by 3 acres (1 
ha). The draft economic analysis does not reflect this change; however, 
the final economic analysis will be revised to address the 
incorporation of 3 ac (1 ha) of the San Diego National Wildlife Refuge 
into the proposed designation.
    As a result of these corrections, the total identified critical 
habitat area has been reduced from 1,936 ac (783 ha) to 1,867 ac (756 
ha). The total area being proposed for exclusion from the final 
designation has been reduced from 1,302 ac (527 ha) to 1,134 ac (459 
ha). The draft economic analysis states that we are proposing to 
exclude 1,137 ac (460 ha) of critical habitat; however, that figure 
erroneously includes 3 ac (1 ha) of federally owned lands in subunits 
4A and 4C. Other than these corrections, the proposed rule of March 14, 
2007, remains intact.

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 March 14, 2007, 
proposed rule to designate critical habitat for Acanthomintha 
ilicifolia, (72 FR 11946), we have prepared a draft economic analysis 
of the proposed critical habitat designation.
    The draft economic analysis is intended to quantify the economic 
impacts of all potential conservation efforts for Acanthomintha 
ilicifolia; some of these costs will likely be incurred regardless of 
whether critical habitat is designated. The draft economic analysis 
provides estimated costs of the foreseeable potential economic impacts 
of the proposed critical habitat designation and other conservation-
related actions for this species over the next 20 years. It also 
considers past costs associated with conservation of the species from 
the time it was listed (63 FR 54938, October 13, 1998), until the year 
the proposed critical habitat rule was published (72 FR 11946, March 
14, 2007).
    Activities associated with the conservation of Acanthomintha 
ilicifolia are likely to primarily impact future land development, 
recreation management, and exotic plant species management. Pre-
designation (1998-2007) impacts associated with species conservation 
activities in areas proposed for final designation are estimated at 
$53,000 in 2007 dollars. The draft economic analysis forecasts post-
designation impacts in the areas proposed for final designation at $0.6 
to $2.8 million (undiscounted dollars) over the next 20 years. The 
present value of these impacts, applying a 3 percent discount rate, is 
$0.4 to $2.1 million ($25,000 to $137,000 annualized); or $0.3 to $1.5 
million ($25,000 to $136,000 annualized) using a 7 percent discount 
rate. Total undiscounted future impacts in areas proposed for exclusion 
according to section 4(b)(2) of the Act are forecast at approximately 
$1.6 to $5.1 million over the next 20 years. The present value of these 
impacts applying a 3 percent discount rate is approximately $1.2 to 
$3.7 million or approximately $0.8 to $2.6 million applying a 7 percent 
discount rate. In annualized terms, potential impacts are expected to 
range from $77,000 to $253,000 (annualized at 3 percent) and $72,000 to 
$248,000 (annualized at 7 percent) in areas proposed for exclusion. The 
cost estimates are based on the proposed designation of critical 
habitat published in the Federal Register on March 14, 2007 (72 FR 
11946) as well as the corrections we have identified above in subunits 
3C, 3D, 3F, 4A, and 4B. The cost estimates assume that we are proposing 
to exclude 3 ac (1 ha) of federally owned lands in subunits 4A and 4C; 
we are not proposing to exclude any federally owned lands from this 
designation. We will address the costs associated with this last 
correction in more detail in the final economic analysis.
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of Acanthomintha 
ilicifolia, 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 Acanthomintha ilicifolia 
in areas containing features essential to the conservation of the 
species. The draft economic analysis considers both economic efficiency 
and distributional effects. In the case of habitat conservation, 
efficiency effects generally reflect the ``opportunity costs'' 
associated with the commitment of resources to comply with habitat 
protection measures (such as lost economic opportunities associated 
with restrictions on land use).
    This analysis also addresses how potential economic impacts are 
likely to be distributed, including an assessment of any local or 
regional impacts of habitat conservation and the potential effects of 
conservation activities on small entities and the energy industry. This 
information can be used by decision-makers to assess whether the 
effects of the designation might unduly burden a particular group or 
economic sector. Finally, the draft analysis looks retrospectively at 
costs that have been incurred since the date Acanthomintha

[[Page 66126]]

ilicifolia was listed as threatened (63 FR 54938; October 13, 1998) and 
considers those costs that may occur in the 20 years following the 
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 will 
not result in the extinction of the species.

Required Determinations--Amended

    In our March 14, 2007 proposed rule (72 FR 11946), we indicated 
that we would be deferring 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 
Acanthomintha ilicifolia, post-designation impacts are estimated to be 
approximately $0.6 to $2.8 million (undiscounted dollars) over the next 
20 years in the areas proposed as final critical habitat and 
approximately $1.6 to $5.1 million (undiscounted dollars) over the next 
20 years in areas proposed for exclusion from the final critical 
habitat designation. These impacts would occur only if the area 
proposed for exclusion is instead designated as critical habitat. The 
cost estimates are based on the proposed designation of critical 
habitat published in the Federal Register on March 14, 2007 (72 FR 
11946), as well as the corrections we have identified above in subunits 
3C, 3D, 3F, 4A, and 4B. The cost estimates assume that we are proposing 
to exclude 3 ac (1 ha) of federally owned lands in subunits 4A and 4C; 
we are not proposing to exclude any federally owned lands from this 
designation. We will address the costs associated with this last 
correction in more detail in the final economic analysis.
    Discounted future costs in areas proposed as final critical habitat 
are estimated to be approximately $0.4 to $2.1 million ($25,000 to 
$137,000 annualized) at a 3 percent discount rate or approximately $0.3 
to $1.5 million ($25,000 to $136,000 annualized) at a 7 percent 
discount rate. In areas proposed for exclusion from the final critical 
habitat designation, the discounted future costs are estimated to be 
approximately $1.2 to $3.7 million ($77,000 to $253,000 annualized) at 
a 3 percent discount rate or approximately $0.8 to $2.6 million 
($72,000 to $248,000 annualized) over the next 20 years.
    Therefore, based on our draft economic analysis, we have determined 
that the proposed designation of critical habitat for Acanthomintha 
ilicifolia 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 
timeline for publication in the Federal Register, the Office of 
Management and Budget (OMB) has not formally reviewed the proposed rule 
or accompanying draft 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 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

[[Page 66127]]

small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
Acanthomintha ilicifolia would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities (such as residential 
development and dispersed recreational activities). We considered each 
industry or category individually to determine if certification is 
appropriate. In estimating the numbers of small entities potentially 
affected, we also considered whether their activities have any Federal 
involvement; some kinds of activities are unlikely to have any Federal 
involvement and thus will not be affected by the designation of 
critical habitat. Designation of critical habitat affects only 
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 (including those areas proposed for exclusion), we 
evaluated the potential economic effects on small business entities 
resulting from conservation actions related to the listing of 
Acanthomintha ilicifolia and the proposed designation of critical 
habitat. The analysis is based on the estimated impacts associated with 
the proposed rulemaking as described in Chapters 2 through 4 and 
Appendices A, B, C, and F of the analysis and evaluates the potential 
for economic impacts related to three categories: development and HCP 
implementation; recreation management; and invasive, nonnative plant 
management.
    The U.S. Forest Service (USFS), the California Department of Fish 
and Game (CDFG), and the U.S. Fish and Wildlife Service are not 
considered small entities by the Small Business Administration. Two 
nonprofit organizations, The Nature Conservancy (TNC) and the Center 
for Natural Lands Management (CNLM), are involved with conservation 
activities for Acanthomintha ilicifolia; however, the primary mission 
of both of these organizations is to preserve, restore, and protect 
natural resources. Therefore, impacts from species conservation on 
these organizations is not considered in the small business impacts 
analysis.
    Additionally, the boundaries of four city governments encompass 
portions of the proposed critical habitat--Carlsbad, Encinitas, San 
Diego, and Poway--with the remainder of the proposed critical habitat 
located within unincorporated San Diego County. All four cities and the 
County exceed the criteria to be considered a ``small entity'' under 
the RFA.
    The draft analysis identified 18 privately owned, undeveloped 
parcels within areas proposed as critical habitat. The 18 parcels are 
owned by 9 individual landowners. For the nine individual landowners 
that may be affected by the proposed designation of critical habitat, 
the DEA could not determine if any of these landowners qualify as small 
businesses. However, for the purposes of estimating potential costs 
associated with the proposed designation of critical habitat, the DEA 
determine that two landowners own four parcels that are in proposed 
subunits 3D, 3E, and 3F, and the remaining seven landowners own parcels 
in subunits we are proposing to exclude from the final designation.
    For the two landowners of proposed subunits 3D, 3E, and 3F, the DEA 
estimates annualized impacts associated with conservation activities 
for Acanthomintha ilicifolia could range from a low of $700 to $35,700, 
with an average range of annualized impact of $5,300 to $42,300 per 
landowner over the next 20 years. The remaining seven landowners of the 
14 parcels in subunits we are proposing to exclude from the final 
designation, annualized impacts are estimated to range from a low of 
$300 in subunit 4D up to $18,700 in subunit 2C, with an average 
annualized impact ranging from $17,000 to $84,000.
    With only nine private landowners, it is not considered a 
substantial number. However, even if the landowners were to represent 
small development businesses, any developer directly impacted by the 
proposed designation of critical habitat would not be expected to bear 
the additional cost of conservation measures for Acanthomintha 
ilicifolia. We anticipate that additional costs that could arise from 
the designation would be passed on to individual homebuyers if the 
parcels were to be developed. Please refer to our DEA of the proposed 
critical habitat designation for a more detailed discussion of 
potential economic impacts.
    In summary, we have considered whether this proposed designation of 
critical habitat would result in a significant economic impact on a 
substantial number of small entities. We have determined, and 
therefore, certify that, for the above reasons and based on currently 
available information, the proposed designation will not have a 
significant economic impact on a substantial number of small business 
entities.

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 Acanthomintha ilicifolia 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 
E.O. 13211 that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared without the regulatory 
action under consideration. The draft economic analysis finds that none 
of these criteria are relevant to this analysis. Thus, based on the 
information in the draft economic analysis, energy-related impacts 
associated with Acanthomintha ilicifolia 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

[[Page 66128]]

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 DEA, approximately 59 
percent of the lands proposed as critical habitat are owned or managed 
by Federal, State, or local governments, none of which qualify as a 
small government. 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 Acanthomintha ilicifolia in a takings 
implications assessment. The takings implications assessment concludes 
that this proposed designation of critical habitat for Acanthomintha 
ilicifolia does not pose significant takings implications.

Author

    The primary author of this notice is staff of the Carlsbad Fish and 
Wildlife Office.

Authority

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

    Dated: November 15, 2007.
Todd Willens,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E7-22971 Filed 11-26-07; 8:45 am]
BILLING CODE 4310-55-P