Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Pecos Sunflower (Helianthus paradoxus, 70269-70284 [07-5973]

Download as PDF Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules FSC group, provided the exchange transaction is documented and certified by the head of your agency to be in the best interests of the Government and all other provisions of this part are met. The documentation must contain a determination that the item exchanged and the item acquired are historic items. 14. Revise newly redesignated § 102– 39.80 to read as follows: § 102–39.80 What are the accounting requirements for exchange allowances or proceeds of sale? You must account for exchange allowances or proceeds of sale in accordance with the general finance and accounting rules applicable to you. Except as otherwise authorized by law, all exchange allowances or proceeds of sale under this part will be available during the fiscal year in which the property was sold and for one fiscal year thereafter for the purchase of replacement property. Any proceeds of sale not applied to replacement purchases during this time must be deposited in the United States Treasury as miscellaneous receipts. 15. Amend newly redesignated § 102– 39.85 by adding paragraph (a)(3) to read as follows: § 102–39.85 What information am I required to report? * * * * * (3) A list by Federal Supply Classification Group of property acquired under this part, to include: (i) Number of items acquired; (ii) Acquisition cost. * * * * * [FR Doc. E7–23887 Filed 12–10–07; 8:45 am] BILLING CODE 6820–14–S DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018–AV02 Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Pecos Sunflower (Helianthus paradoxus) Fish and Wildlife Service, Interior. ACTION: Proposed rule; reopening of comment period and revisions to proposal. pwalker on PROD1PC71 with PROPOSALS AGENCY: 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 Helianthus paradoxus (Pecos VerDate Aug<31>2005 16:55 Dec 10, 2007 Jkt 214001 sunflower) under the Endangered Species Act of 1973, as amended (Act). We also announce a revision to proposed critical habitat Unit 4 and clarification of Unit 5, the availability of a draft economic analysis and draft environmental assessment, and an amended required determinations section of the proposal. The draft economic analysis estimates costs associated with conservation activities for H. paradoxus to be approximately $3.9 to $4.4 million in undiscounted dollars over the next 20 years ($193,000 to $221,000 annualized). 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 environmental assessment, and the amended required determinations section. You do not have to resend comments sent earlier. We will incorporate them into the public record as part of this comment period, and we will fully consider them when preparing our final determination. DATES: We will accept public comments until January 10, 2008. ADDRESSES: You may submit comments by one of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • U.S. mail or hand-delivery: Public Comments Processing, Attn: RIN 1018– AV02; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203. We will not accept e-mail or faxes. We will post all comments on http:// www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments Solicited section below for more information). FOR FURTHER INFORMATION CONTACT: Wally ‘‘J’’ Murphy, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna Rd NE., Albuquerque, NM 87113; telephone 505/346–2525; facsimile 505/346–2542. 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 original proposed critical habitat designation for H. paradoxus published in the Federal Register on March 27, 2007 (72 FR 14328), the revisions to proposed PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 70269 critical habitat described herein (see ‘‘Changes to the Proposed Rule’’ section), the draft economic analysis and draft environmental assessment of the proposed designation, and the amended required determinations provided in this document. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning: (1) The reasons why habitat should or should not be designated as ‘‘critical habitat’’ for H. paradoxus under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether the designation of critical habitat is prudent. (2) Specific information on the amount and distribution of H. paradoxus habitat, including which areas occupied by the species at the time of listing and that contain features essential for the conservation of the species should be included in the designation and why, and which areas that were not occupied by the species 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) 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. (5) The existence of lands included in the proposed designation that are covered under any conservation or management plans, which we should consider for exclusion from the designation pursuant to section 4(b)(2) of the Act. (6) Information on the benefits of including or excluding lands managed by Bitter Lake National Wildlife Refuge from the final critical habitat designation. (7) Information on any direct or indirect impacts to the human environment as a result of designating critical habitat for H. paradoxus. (8) Information on whether the draft economic analysis identifies all local costs attributable to the proposed critical habitat designation and information on any costs that have been inadvertently overlooked. (9) 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) Whether the draft economic analysis or draft environmental assessment makes appropriate E:\FR\FM\11DEP1.SGM 11DEP1 pwalker on PROD1PC71 with PROPOSALS 70270 Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules assumptions regarding current practices and likely regulatory changes imposed as a result of the designation of critical habitat. (11) Whether the draft economic analysis and draft environmental assessment appropriately identify all costs and benefits that could result from the designation. (12) Information on whether there are any quantifiable economic benefits that could result from the designation of critical habitat. (13) 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 critical habitat designation in the final economic analysis. (14) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments. If you submitted comments or information during the initial comment period from March 27, 2007, to May 29, 2007, on the proposed rule (72 FR 14328), please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in preparation of our final determination. Our final determination concerning critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. On the basis of public comment, 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 materials concerning this proposed rule, our revisions to the proposed rule, the associated draft economic analysis and draft environmental assessment of the proposed designation, and the amended required determinations section by one of the methods listed in the ADDRESSES section. We will not accept comments you send by e-mail or fax. Please note that we may not consider comments we receive after the date specified in the DATES section in our final determination. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that we will post your entire comment— including your personal identifying information—on http:// VerDate Aug<31>2005 16:55 Dec 10, 2007 Jkt 214001 www.regulations.gov. 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 we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna Rd NE., Albuquerque, NM 87113; telephone 505/346–2525. You may obtain copies of the original proposed rule, the draft economic analysis, and the draft environmental assessment by mail from the New Mexico Ecological Services Field Office at the address listed above or by visiting our Web site at http://www.fws.gov/ southwest/es/NewMexico/. Background It is our intent to discuss only those topics directly relevant to designation of critical habitat in this proposal. For more information on H. paradoxus, refer to the final listing rule published in the Federal Register on October 20, 1999 (64 FR 56582), the Pecos Sunflower Recovery Plan posted at http:// ecos.fws.gov/docs/recovery_plans/2005/ 050915.pdf, and the original proposed critical habitat designation published on March 27, 2007 (72 FR 14328). Helianthus paradoxus was listed as a threatened species on October 20, 1999 (64 FR 56582). At the time this plant was federally listed, the Service determined that the designation of critical habitat was not prudent because we believed publication of critical habitat maps would increase the degree of threats to the species by vandalism and commercial collection. On September 27, 2005, the Forest Guardians filed suit against the Service for failure to designate critical habitat for this species (Forest Guardians v. Hall 2005). On March 20, 2006, a settlement was reached that requires the Service to re-evaluate our original prudency determination. The settlement stipulated that, if prudent, a proposed rule would be submitted to the Federal Register for publication on or before March 16, 2007, and a final rule by March 16, 2008. On March 15, 2007, we determined that critical habitat for Helianthus paradoxus was prudent and we subsequently published a proposed rule (72 FR 14328) to designate critical habitat for H. paradoxus on March 27, 2007. We proposed five units as critical habitat in the original proposal, PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 encompassing approximately 1,579.3 acres (ac) (639.1 hectares (ha)). We now revise our original March 27, 2007, proposed rule (72 FR 14328) to add areas to one of the units and clarify the boundaries of another unit, as described in the ‘‘Changes to the Proposed Rule’’ section. As a result of these additions and revisions, the proposed critical habitat now encompasses 5,745.5 ac (3,733.4 ha). Critical habitat is defined in section 3 of the Act as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act. Draft Economic Analysis Section 4(b)(2) of the Act requires that we designate critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We have prepared a draft economic analysis based on the March 27, 2007, proposed rule (72 FR 14328) and the revised units described in this document. The draft economic analysis considers the potential economic effects of all actions related to the conservation of Helianthus paradoxus, including costs associated with sections 4, 7, and 10 of the Act, as well as those attributable to designating 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 H. paradoxus in proposed critical habitat units. The draft analysis considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect lost economic opportunities associated with restrictions on land use (opportunity costs). This analysis also E:\FR\FM\11DEP1.SGM 11DEP1 Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules pwalker on PROD1PC71 with PROPOSALS addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by decision makers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, this draft analysis looks retrospectively at costs that have been incurred since the date this species was listed as threatened (October 20, 1999; 64 FR 56582), and considers those costs that may occur in the 20 years following designation of critical habitat (i.e., 2007 to 2026). The draft economic analysis is intended to quantify the economic impacts of all potential conservation efforts for Helianthus paradoxus; some of these costs will likely be incurred regardless of whether critical habitat is designated. This analysis estimated economic impacts resulting from the implementation of H. paradoxus conservation efforts in four categories: (a) Treatment of non-native species; (b) wetland filling and development; (c) livestock management; and (d) road maintenance. Over the 20-year period 2007 to 2026, the draft economic analysis finds that costs associated with conservation activities within these four categories are estimated at $3.9 to $4.4 million in undiscounted dollars over the next 20 years ($193,000 to $221,000 annualized). The present value of these impacts is $3.3 million to $3.6 million ($186,000 to $213,000 annualized), using a discount rate of three percent; or $2.5 million to $2.9 million ($205,000 to $225,000 annualized), using a discount rate of seven percent. As stated earlier, we solicit data and comments from the public on this draft economic analysis, as well as on all aspects of the proposal. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species. Changes to the Proposed Rule We proposed five units as critical habitat for Helianthus paradoxus. The original proposed critical habitat in our March 27, 2007, proposed rule (72 FR 14328), and the additional proposed areas of critical habitat as described below, constitute our best assessment of areas that meet the definition of critical VerDate Aug<31>2005 16:55 Dec 10, 2007 Jkt 214001 habitat under section 3(5)(a) of the Act. In the proposed regulation section of this notice, we provide maps and textual descriptions of the boundaries for Subunits 4a and 4b. These descriptions and maps are in addition to those published in our March 27, 2007, proposed rule, and thus included in the proposed critical habitat designation. We have also provided clarification on our Unit 5 description below. Subunits 4a and 4b are in close proximity with or connected to Unit 4 described in the original proposed rule. Below, we present brief descriptions of the two subunits, the primary constituent elements (PCEs) they contain, and reasons why they meet the definition of critical habitat for Helianthus paradoxus. Within areas occupied by H. paradoxus at the time of listing and containing sufficient PCEs to support H. paradoxus’s life processes, we previously identified the Bitter Lake National Wildlife Refuge (portion of Subunit 4a) and the associated Refuge Farm (Subunit 4b) as areas that do not require special management or protections. As a result, these areas were not originally proposed to be included in the critical habitat designation. However, we have reconsidered our preliminary analysis of section 3(5)(a) of the Act and special management or protection needs of the PCEs on these refuge lands, and are now proposing to include these areas as critical habitat. However, we are considering their exclusion from the final designation pursuant to section 4(b)(2) of the Act. In addition to the revision of proposed critical habitat, we have provided a clarified unit description for Unit 5. In the Unit 5 description found in the preamble of the proposed rule (72 FR 14328), we identified that Unit 5 contained a small group of plants downstream of The Nature Conservancy’s Diamond Y Spring Preserve at a nearby highway right-ofway. This right-of-way site should not have been included in the unit description, for this small area is not known to be able to support sufficient numbers of plants to be considered stable (Blue Earth Ecological Consultants, Inc., 2007b, p 3; Poole 2006, p. 3). While the Unit 5 description in the preamble of the proposed rule was incorrect, the map and textual boundary description for Unit 5 found in the proposed regulation section did not include the right-of-way site and thus is still accurate. Below, we present brief descriptions of these three areas (Subunits 4a and 4b, and Unit 5), and reasons why they meet the definition of critical habitat for Helianthus paradoxus (see ‘‘Criteria PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 70271 Used To Identify Critical Habitat’’ in the March 27, 2007, proposed rule (72 FR 14328)). Revised and New Unit Descriptions Unit 4: Roswell/Dexter Subunit 4a includes 3,572.2 ac (1,445.6 ha) of Bitter Lake National Wildlife Refuge/City of Roswell land located in Chaves County, New Mexico. This subunit is located approximately 5 miles (mi) (8 kilometers (km)) northeast of the city of Roswell. One of the largest Helianthus paradoxus populations occurs on the Bitter Lake National Wildlife Refuge in New Mexico on Federal lands managed by the Service. Several hundred thousand to a few million plants occur nearly continuously along the shores and small islands of all the artificial lakes in the southern unit of the refuge. Also, a few small patches of plants occur on the west side of Bitter Lake Playa and adjacent springs on Lost River. This area was occupied at the time of listing and has been visited by species experts during four or more seasons. These experts found the site occupied by Helianthus paradoxus on every visit (Ulibarri 2006a, p. 1; Sivinski 2007a, p. 2; Blue Earth Ecological Consultants, Inc. 2007a, p. 3). This area is currently occupied by the species and contains all of the PCEs essential to the conservation of the species. As noted, the portion of this subunit within Bitter Lake National Wildlife Refuge is proposed as critical habitat, but is being considered for exclusion from the final designation. Please see ‘‘Application of Section 4(b)(2) of the Act’’ section below for additional discussion. Subunit 4b includes 686.2 ac (277.7 ha) of land within the Bitter Lake National Wildlife Refuge Farm (Refuge Farm). This subunit is located in Chaves County, New Mexico, approximately 5 mi (8 km) east of Roswell on the west side of the Pecos River. Subunit 4b consists of a few large patches with several thousand plants on alkaline seeps behind the dikes on the western edge of the Refuge Farm south of Highway 380. This land is owned and managed by the Service as a grain farm and feeding area for migratory birds. The eastern portion of the Refuge Farm is a marshy spring-seep area that contains a large population of Helianthus paradoxus. The wet soils in this population are not cultivated. This Refuge Farm subunit was occupied at the time of listing and has been visited by species experts during four or more seasons. The experts found the site occupied by Helianthus E:\FR\FM\11DEP1.SGM 11DEP1 70272 Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules paradoxus on every visit (Ulibarri 2006b, p. 1; Sivinski 2007a, p. 2; Blue Earth Ecological Consultants, Inc. 2007a, p. 3). This subunit is currently occupied by the species and contains all of the PCEs essential to the conservation of the species. As noted, the portion of this subunit within Bitter Lake National Wildlife Refuge is proposed as critical habitat, but is being considered for exclusion from the final designation. Please see ‘‘Application of Section 4(b)(2) of the Act’’ section below for additional discussion. Unit 5: West Texas Unit 5 includes 239.7 ac (97.0 ha) located solely on Diamond Y Spring in Pecos County, Texas. The unit is located approximately 12 mi (20 km) northnorthwest of Fort Stockton, Texas. Unit 5 consists of several hundred thousand to one million plants found on The Nature Conservancy’s Diamond Y Spring Preserve and a contiguous parcel of private land. This site was occupied by the species at the time of its listing. This site has been visited by species experts during four or more seasons and has been documented to be occupied by Helianthus paradoxus on every visit (Poole 2006, p. 2). This unit is currently occupied by the species (Blue Earth Ecological Consultants, Inc. 2007b, p. 3) and contains all of the PCEs essential to the conservation of the species. The land within The Nature Conservancy’s Diamond Y Spring Preserve was purchased to protect Diamond Y Spring Preserve and other rare or endangered aquatic species in the Diamond Y Spring system. This habitat is managed for the conservation of such species (Service 2005, p. 12). Diamond Y Spring Preserve has recently expanded from 1,500 to 4,000 ac (607 to 1619 ha). However, Helianthus paradoxus on the Preserve is threatened by water withdrawal occurring outside the Preserve. On the adjacent private land, H. paradoxus is also threatened by water withdrawal, plus wetland filling and development, and livestock grazing during the growing and flowering season. As a result, special management or protections may be required to minimize these threats. At this time, we are not aware of any completed management plans that address H. paradoxus in this area. Table 1 shows the areas occupied by Helianthus paradoxus at the time of listing, those areas that are currently occupied, and the threats to the primary constituent elements that may require special management or protections. TABLE 1.—THREATS AND OCCUPANCY IN AREAS CONTAINING FEATURES ESSENTIAL TO THE CONSERVATION OF HELIANTHUS PARADOXUS Occupied at the time of listing Threats requiring special management or protections Geographic area/unit Currently occupied Unit 1. West-Central New Mexico Subunit 1a. Rancho del Padre Spring Cienega ................. Subunit 1b. Grants Salt Flat Wetland ................................. Subunit 1c. Pueblo of Laguna ............................................ Unit 2. La Joya-La Joya State Wildlife Management Area Water withdrawal, wetland filling and development, incompatible livestock management. Wetland filling and development, encroachment by nonnative vegetation, incompatible livestock management. Water withdrawal, incompatible livestock management, encroachment by nonnative vegetation. Encroachment by nonnative vegetation ............................ Yes .......... Yes. Yes .......... Yes. Yes .......... Yes. No ............ Yes. Yes .......... Yes. No ............ Yes. Yes .......... Yes. Yes .......... Yes .......... Yes. Yes. Yes .......... Yes. Yes .......... Yes. Yes .......... Yes. Unit 3. Santa Rosa Subunit 3a. Blue Hole Cienega/Blue Hole Fish Hatchery Ponds. Subunit 3b. Westside Spring .............................................. Encroachment by nonnative vegetation; on City land, wetland filling and recreation use, mowing to edges of ponds, dredging ponds and filling of wetlands. Next to major road, water withdrawal, wetland filling and development, encroachment by nonnative vegetation. Unit 4. Roswell/Dexter Subunit 4a. Bitter Lake National Wildlife Refuge/City of Roswell Land. Subunit 4b. Bitter Lake National Wildlife Refuge Farm ...... Subunit 4c. Oasis Dairy ...................................................... Subunit 4d. Lea Lake at Bottomless Lakes State Park ...... Subunit 4e. Dexter Cienega ................................................ pwalker on PROD1PC71 with PROPOSALS Unit 5. West Texas-Diamond Y Spring ............................... Water withdrawal; on City land, wetland filling and development, incompatible livestock management. Water withdrawal ............................................................... Water withdrawal, wetland filling and development, incompatible livestock management. Campgrounds and human trampling, encroachment by nonnative vegetation. Water withdrawal, wetland filling and development, incompatible livestock management. Water withdrawal, wetland filling and development, incompatible livestock management. The approximate area encompassed within each proposed critical habitat unit is shown in Table 2. VerDate Aug<31>2005 16:55 Dec 10, 2007 Jkt 214001 PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 E:\FR\FM\11DEP1.SGM 11DEP1 Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules 70273 TABLE 2.—CRITICAL HABITAT UNITS PROPOSED FOR HELIANTHUS PARADOXUS AND AREAS CONSIDERED FOR EXCLUSION FROM THE FINAL DESIGNATION [Area estimates reflect all land within proposed critical habitat unit boundaries.] Geographic area/unit Proposed critical habitat areas in acres (hectares) Land ownership Areas considered for exclusion in acres (hectares) Unit 1. West-Central New Mexico Subunit Subunit Subunit Unit 2. Area. 1a. Rancho del Padre Spring Cienega .............. 1b. Grants Salt Flat Wetland ............................. 1c. Pueblo of Laguna ......................................... La Joya-La Joya State Wildlife Management Private and Tribal .............. Private ............................... Tribal .................................. State of New Mexico ......... 25.5 (10.3 ). 62.5 (25.3 ). Undefined 1 ........................ 854.3 (345.7). Undefined.1 Unit 3. Santa Rosa Subunit 3a. Blue Hole Cienega/Blue Hole Fish Hatchery Ponds. Subunit 3b. Westside Spring ........................................... State of New Mexico and City of Roswell. Private ............................... 133.9 (54.2). 6.4 (2.6). Unit 4. Roswell/Dexter Subunit 4a. Bitter Lake National Wildlife Refuge/ City of Roswell Land. Subunit 4b. Bitter Lake National Wildlife Refuge Farm .. Subunit 4c. Oasis Dairy ................................................... Subunit 4d. Lea Lake at Bottomless Lakes State Park .. Subunit 4e. Dexter Cienega ............................................ Unit 5. West Texas-Diamond Y Spring ........................... Total Acres (Hectares) ............................................. U.S. Fish and Wildlife Service and City of Roswell. U.S. Fish and Wildlife Service. Private ............................... State of New Mexico ......... Private ............................... Private ............................... ............................................ 3,572.2 (1,445.6) ............... 3,480 (1408.3). 686.2 (277.7) ..................... 686.2 (277.7). 103.9 (42.0). 19.5 (7.9). 41.4 (16.8). 239.7 (97.0). 5,745.5 (3,733.4) ............... 4,166.2 (3094.3). 1 This subunit consists of areas along the Rio San Jose located on the Pueblo of Laguna. Due to the sensitivity of tribal lands, the acreage for this subunit is undetermined at this time. However, on the basis of our partnership with the Pueblo, and in anticipation of completion of the Pecos Sunflower Draft Management Plan, Pueblo of Laguna, this subunit is being considered for exclusion from the final critical habitat designation under section 4(b)(2) of the Act. pwalker on PROD1PC71 with PROPOSALS Application of Section 4(b)(2) of the Act—Bitter Lake National Wildlife Refuge Under section 4(b)(2), in considering whether to exclude a particular area from designation, we must identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and determine whether the benefits of exclusion outweigh the benefits of inclusion. If exclusion is contemplated, then we must determine whether excluding the area would result in the extinction of the species. In the original proposed rule, we addressed a number of general issues that are relevant to the exclusions under section 4(b)(2) of the Act that we are considering (72 FR 14328). In addition, we have conducted a draft economic analysis and draft environmental assessment analyzing the potential impacts of the proposed critical habitat designation and related factors, which are available for public review and comment. Based on public comment on these documents and the proposed designation, additional areas may be excluded from final critical habitat by the Secretary under the provisions of section 4(b)(2) of the Act. This is provided for in the Act and in VerDate Aug<31>2005 16:55 Dec 10, 2007 Jkt 214001 our implementing regulations at 50 CFR 424.19. We have determined that areas managed by Bitter Lake National Wildlife Refuge (Refuge) meet the definition of critical habitat for Helianthus paradoxus. The Refuge has developed and completed a Comprehensive Conservation Plan (CCP) that provides the framework for protection and management of all trust resources, including federally listed species and sensitive natural habitats. We believe that there is minimal benefit from designating critical habitat for H. paradoxus within Refuge lands because these lands are protected areas for wildlife, and are currently managed for the conservation of wildlife, including threatened and endangered species, specifically H. paradoxus. Below we provide a description of the management being provided by the Refuge for the conservation of H. paradoxus within areas proposed for designation as critical habitat. The Refuge was established on October 8, 1937, by Executive Order 7724 ‘‘as a refuge and breeding ground for migratory birds and other wildlife.’’ The Refuge Recreation Act (16 U.S.C. 460k et seq.) identifies the refuge as PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 being suitable for incidental fish and wildlife-oriented recreational development, the protection of natural resources, and the conservation of endangered species or threatened species. The Wilderness Act of 1964 (16 U.S.C. 1131–1136) directs the Service to ‘‘maintain wilderness as a naturally functioning ecosystem’’ on portions of the Refuge. While the Refuge was originally established to save wetlands vital to the perpetuation of migratory birds, the isolated gypsum springs, seeps, and associated wetlands protected by the Refuge have been recognized as providing the last known habitats in the world for several unique species. Management emphasis of the Refuge is placed on the protection and enhancement of habitat for endangered species and Federal candidate species, maintenance and improvement of wintering crane and waterfowl habitat, and monitoring and maintenance of natural ecosystem values. The Refuge sits at a juncture between the Roswell Artesian Groundwater Basin and the Pecos River. These two systems and their interactions account for the diversity of water resources on the Refuge, including sinkholes, springs, wetlands, oxbow lakes, and riverine E:\FR\FM\11DEP1.SGM 11DEP1 pwalker on PROD1PC71 with PROPOSALS 70274 Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules habitats. The federally reserved water right for Bitter Lake National Wildlife Refuge has been signed by the State of New Mexico but awaits final approval by the Federal government, a procedural process. The Refuge is currently in negotiations with the New Mexico Office of the State Engineer, a State agency responsible for administering New Mexico’s water resources, to quantify these reserved rights. This water right allows for an in-stream flow in Bitter Creek and allows the Refuge to manage impounded springs for the benefit of many species, including Helianthus paradoxus. This water right protects against the threat of a future water user purchasing a Pecos River Basin water right and moving the use to a location that would be detrimental to the Refuge’s ability to manage for the conservation of H. paradoxus. While the water right does not specifically protect water for the purposes of H. paradoxus conservation, it combines with management under the Refuge’s CCP (discussed below) to remove the threat of water withdrawal on Refuge lands. The National Wildlife Refuge System Improvement Act of 1997 (Pub. L. 105– 57) (Refuge Improvement Act) establishes a conservation mission for refuges, gives policy direction to the Secretary of the Interior and refuge managers, and contains other provisions such as the requirement to integrate scientific principles into the management of the refuges. According to section 7(e)(1)(E) of the Refuge Improvement Act, all lands of the Refuge System are to be managed in accordance with an approved CCP that will guide management decisions and set forth strategies for achieving refuge purposes. In general, the purpose of the CCP is to provide long-range guidance for the management of National Wildlife Refuges. The Refuge Improvement Act requires all refuges to have a CCP and provides the following legislative mandates to guide the development of the CCP: (1) Wildlife has first priority in the management of refuges; (2) wildlifedependent recreation, including hunting, fishing, wildlife observation, wildlife photography, environmental education, and environmental interpretation, are the priority public uses of the refuge system, and shall be allowed when compatible with the refuge purpose; and (3) other uses have lower priority in the refuge system and are only allowed if not in conflict with any of the priority uses and determined appropriate and compatible with the refuge purpose. The CCP must also be revised if the Secretary determines that conditions that affect the refuge or planning unit VerDate Aug<31>2005 16:55 Dec 10, 2007 Jkt 214001 have changed significantly. In other words, a CCP must be followed once it is approved, and regularly updated in response to environmental changes or new scientific information. The Bitter Lake National Wildlife Refuge has a final CCP that was approved in September 1998. The CCP serves as a management tool to be used by the Refuge staff and its partners in the preservation and restoration of the ecosystem’s natural resources. The plan is intended to guide management decisions for 15 years, and sets forth strategies for achieving Refuge goals and objectives within that timeframe. In 2013, the plan will not expire, but will undergo review, and any needed revisions will be incorporated at that time. Key goals of the CCP related to Helianthus paradoxus include the following: (1) To restore, enhance, and protect the natural diversity on the Refuge including threatened and endangered species by: (a) Appropriate management of habitat and wildlife resources on Refuge lands and (b) Strengthening existing and establishing new cooperative efforts with public and private stakeholders and partners; and (2) To restore and maintain selected portions of a hydrological system that more closely mimics the natural processes along the reach of the Pecos River adjacent to the Refuge by: (a) Restoration of the river channel, as well as restoration of threatened, endangered, and special concern species, and (b) Control of exotic species and management of trust responsibilities for maintenance of plant and animal communities and to satisfy traditional recreational demands (Service 1998, pp. 5, 46–52). Specific objectives related to these goals include: (1) The restoration of populations of aquatic species designated as endangered, threatened, or of special concern to a sustainable level (Helianthus paradoxus is specifically mentioned in this goal); and (2) following existing recovery plan objectives to monitor and study threatened or endangered species, their habitat requirements, exotic species encroachment, and human-induced impacts to prevent further decline and loss (Service 1998, pp. 49–52). In summary, we believe that the Refuge lands are being adequately protected and managed for the conservation of Helianthus paradoxus and that current management provides a conservation benefit to this species and its PCEs. Furthermore, we believe that PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 there is minimal benefit from designating critical habitat for H. paradoxus on Refuge lands because, as explained in detail above, these lands are already managed for the conservation of the species. On the basis of this management, we intend to consider lands within the Bitter Lake National Wildlife Refuge and the associated Refuge Farm containing populations of H. paradoxus for exclusion from the final critical habitat designation pursuant to section 4(b)(2) of the Act. We will complete a full analysis of the benefits of excluding and the benefits of including these lands prior to making a final decision. Required Determinations—Amended In our March 27, 2007, proposed rule (72 FR 14328), 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 Helianthus paradoxus, costs related to conservation activities for H. paradoxus pursuant to sections 4, 7, and 10 of the Act are estimated at $3.9 to $4.4 million in undiscounted dollars over the next 20 years ($193,000 to $221,000 annualized). The present value of these impacts is $3.3 million to $3.6 million ($186,000 to $213,000 annualized), using a discount rate of three percent; or $2.5 million to $2.9 million ($205,000 to $225,000 annualized), using a discount rate of seven percent. Therefore, based on our draft economic analysis, we have determined that the proposed E:\FR\FM\11DEP1.SGM 11DEP1 Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules pwalker on PROD1PC71 with PROPOSALS designation of critical habitat for H. paradoxus 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 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 need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement pursuant to the Act, we must then evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat. In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts pursuant to section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat providing that the benefits of such exclusion outweigh the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the species. 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 (SBREFA) (5 U.S.C. 802(2)), 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 governmental 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. In our proposed rule, we withheld our determination of whether this designation would result in a significant effect as defined under SBREFA until VerDate Aug<31>2005 16:55 Dec 10, 2007 Jkt 214001 we completed our draft economic analysis of the proposed designation so that we would have the factual basis for our determination. According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as 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 Helianthus paradoxus critical habitat designation would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (e.g., residential and commercial development and agriculture). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies; non-Federal activities are not affected by the designation. In the 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 Helianthus paradoxus and proposed designation of its critical habitat. This analysis estimated prospective economic impacts due to the implementation of H. paradoxus conservation efforts in four PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 70275 categories: (a) Treatment of non-native species; (b) wetland filling and development; (c) livestock management; and (d) road maintenance. We determined from our analysis that the economic impacts of the designation on small entities are expected to be borne primarily by modifications to wetland filling and development activities. We assumed that if owners of parcels containing designated critical habitat face land use restrictions that preclude development on some or all of the parcel, the value of the properties will be reduced, essentially eliminating the option that those areas be developed. This draft economic analysis assumes that, in a high-end scenario, the entirety of forecast impacts would be borne by one small developer. The one small developer estimated to be affected represents approximately 20 percent of total small developers in the region. The total potential impact resulting from land use restrictions on development activities is forecast to be, at most, $290,000 over 20 years, or approximately $20,000 annually. Assuming the annual revenues of an average small developer in Cibola County are $400,000, the total potential impact resulting from the proposed designation would amount to approximately 5.0 percent of typical annual sales of one entity. Consequently, we certify that the designation of critical habitat for H. paradoxus will not result in a significant economic impact on a substantial number of small business entities. Please see the ‘‘Economic Analysis’’ section above and the draft economic analysis itself for a more detailed discussion of potential economic impacts. Executive Order 13211—Energy Supply, Distribution, or Use On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, or use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed designation of critical habitat for Helianthus paradoxus is considered a significant regulatory action under Executive Order 12866 because it raises 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 E:\FR\FM\11DEP1.SGM 11DEP1 70276 Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules pwalker on PROD1PC71 with PROPOSALS the draft economic analysis, energyrelated impacts associated with H. paradoxus 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 VerDate Aug<31>2005 16:55 Dec 10, 2007 Jkt 214001 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 nonFederal 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 onto State governments. (b) We do not believe that this rule will significantly or uniquely affect small governments because it will not produce a Federal mandate of $100 million or greater in any year; that is, it is not a ‘‘significant regulatory action’’ under the Unfunded Mandates Reform Act. The proposed designation of critical habitat imposes no obligations on State or local governments. By definition, Federal agencies are not considered small entities, although the activities they fund or permit may be proposed or carried out by small 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 Helianthus paradoxus. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. We conclude that this designation of critical habitat for H. paradoxus does not pose significant takings implications. National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) It is our position that, outside the Jurisdiction of the Tenth Federal Circuit, we do not need to prepare environmental analyses as defined by NEPA in connection with designating critical habitat under the Endangered Species Act of 1973, as amended. We published a notice outlining our reasons for this determination in the Federal PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 Register on October 25, 1983 (48 FR 49244). This assertion was upheld by the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 516 U. S. 1042 (1996)). However, when the range of the species includes States within the Tenth Circuit, such as that of H. paradoxus, under the Tenth Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we conduct an environmental assessment under NEPA for the proposed critical habitat designation. The draft environmental assessment for this proposal is now available (http://www.fws.gov/ southwest/es/NewMexico/). We solicit data and comments from the public on this draft document (See FOR FURTHER INFORMATION CONTACT section). References Cited To obtain a complete list of all references we cited in this rulemaking, contact the Field Supervisor, New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT section). Author(s) The primary authors of this package are staff of the New Mexico Ecological Services Field 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 14328, March 27, 2009, 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 Helianthus paradoxus (Pecos sunflower) in § 17.96(a), which was proposed to be added on March 27, 2007, at 72 FR 14346, is proposed to be amended by: a. Revising paragraph (5), including the text and the map; b. Revising the text in paragraphs (6)(iii) and (v); c. Revising the text in paragraph (7)(ii); d. Revising the text in paragraphs (8)(ii) and (iv); E:\FR\FM\11DEP1.SGM 11DEP1 Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules pwalker on PROD1PC71 with PROPOSALS e. Revising the text in paragraph (9)(i) and the text and map in paragraph (9)(ii); f. Redesignating paragraphs (9)(iii) through (9)(viii) as paragraphs (9)(v) through (9)(x); g. Adding new paragraphs (9)(iii) and (iv), including a map; VerDate Aug<31>2005 16:55 Dec 10, 2007 Jkt 214001 h. Revising the text in newly designated paragraphs (9)(vi), (viii), and (x); and i. Revising the text in paragraph (10)(ii) as follows: § 17.96 Critical habitat—plants. (a) Flowering plants. * * * * * PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 70277 Family Asteraceae: Helianthus paradoxus (Pecos sunflower) * * * * * (5) Note: Index map for Helianthus paradoxus (Pecos sunflower) critical habitat units follows: BILLING CODE 4310–55–P E:\FR\FM\11DEP1.SGM 11DEP1 VerDate Aug<31>2005 Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules 16:55 Dec 10, 2007 Jkt 214001 PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 E:\FR\FM\11DEP1.SGM 11DEP1 EP11DE07.000</GPH> pwalker on PROD1PC71 with PROPOSALS 70278 pwalker on PROD1PC71 with PROPOSALS Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules (6) * * * (iii) Note: Map of subunits 1a and 1b for Helianthus paradoxus (Pecos sunflower) critical habitat follows: * * * * * (v) Note: Map of subunit 1c for Helianthus paradoxus (Pecos sunflower) critical habitat follows: * * * * * (7) * * * (ii) Note: Map of unit 2 for Helianthus paradoxus (Pecos sunflower) critical habitat follows: * * * * * (8) * * * (ii) Note: Map of subunit 3a for Helianthus paradoxus (Pecos sunflower) critical habitat follows: * * * * * (iv) Note: Map of subunit 3b for Helianthus paradoxus (Pecos sunflower) critical habitat follows: * * * * * (9) * * * (i) Subunit 4a for Helianthus paradoxus, Bitter Lake National Wildlife Refuge/City of Roswell Land, Chaves County, New Mexico. From USGS 1:24,000 quadrangle Bitter Lake, lands bounded by the following UTM NAD83 coordinates (meters E, meters N): 553362, 3705257; 553381, 3705283; 553418, 3705283; 553444, 3705255; 553427, 3705221; 553405, 3705160; 553392, 3705130; 553383, 3705102; 553383, 3705076; 553392, 3705037; 553442, 3705004; 553457, 3704987; 553465, 3704961; 553437, 3704931; 553429, 3704909; 553407, 3704896; 553357, 3704881; 553329, 3704836; 553316, 3704760; 553316, 3704643; 553342, 3704529; 553349, 3704455; 553347, 3704404; 553334, 3704362; 553342, 3704308; 553370, 3704265; 553418, 3704241; 553470, 3704235; 553528, 3704291; 553621, 3704345; 553686, 3704358; 553805, 3704429; 553841, 3704466; 553887, 3704557; 553947, 3704609; 553982, 3704710; 554021, 3704786; 554079, 3704838; 554168, 3704829; 554224, 3704775; 554280, 3704790; 554334, 3704868; 554351, 3704926; 554410, 3705025; 554492, 3705034; 554589, 3705001; 554658, 3704947; 554775, 3704878; 554900, 3704854; 554943, 3704785; 554974, 3704688; 555032, 3704604; 555062, 3704547; 555121, 3704483; 555242, 3704500; 555354, 3704431; 555376, 3704347; 555417, 3704164; 555455, 3704115; 555557, 3704108; 555687, 3704087; 555819, 3704076; 555873, 3704071; 556022, 3704067; 556134, 3704058; 556067, 3703922; 555998, 3703765; 555998, 3703596; 556082, 3703488; 556177, 3703418; 556255, 3703455; 556311, 3703524; 556385, 3703591; 556529, 3703530; VerDate Aug<31>2005 16:55 Dec 10, 2007 Jkt 214001 556618, 3703340; 556713, 3703182; 556726, 3703059; 556657, 3703014; 556557, 3703066; 556447, 3703094; 556333, 3703022; 556313, 3702910; 556357, 3702620; 556411, 3702491; 556417, 3702298; 556462, 3702212; 556560, 3702177; 556683, 3702246; 556793, 3702298; 557145, 3702303; 557402, 3702296; 557569, 3702205; 557731, 3702134; 557867, 3702053; 557891, 3701921; 557804, 3701807; 557739, 3701670; 557659, 3701502; 557541, 3701350; 557344, 3701250; 557227, 3701203; 557109, 3701136; 557083, 3701006; 557204, 3700872; 557115, 3700872; 556711, 3700874; 556778, 3700069; 556370, 3700063; 556331, 3699254; 555939, 3699246; 555907, 3698435; 555918, 3697997; 555924, 3697540; 555935, 3697100; 555937, 3696816; 555704, 3696812; 555235, 3696803; 554632, 3696803; 554336, 3696805; 554338, 3697211; 553934, 3697207; 553930, 3697605; 553988, 3697664; 554012, 3697698; 554053, 3697715; 554075, 3697746; 554066, 3697806; 554060, 3697828; 554075, 3697908; 554075, 3698003; 554090, 3698141; 554109, 3698215; 554120, 3698308; 554055, 3698447; 554010, 3698587; 553999, 3698673; 554001, 3698719; 554045, 3698771; 554092, 3698816; 554157, 3698851; 554194, 3698881; 554233, 3698942; 554256, 3698968; 554293, 3698994; 554371, 3699029; 554390, 3699052; 554427, 3699115; 554453, 3699147; 554505, 3699202; 554535, 3699258; 554580, 3699323; 554617, 3699364; 554678, 3699411; 554706, 3699446; 554729, 3699498; 554755, 3699558; 554781, 3699619; 554816, 3699654; 554844, 3699678; 554900, 3699704; 554935, 3699719; 554967, 3699738; 554984, 3699779; 554989, 3699851; 554995, 3699885; 555004, 3699928; 555034, 3699952; 555060, 3699982; 555073, 3700019; 555092, 3700052; 555103, 3700073; 555118, 3700101; 555127, 3700127; 555157, 3700147; 555179, 3700144; 555205, 3700151; 555222, 3700160; 555235, 3700185; 555244, 3700224; 555248, 3700248; 555207, 3700268; 555172, 3700277; 555157, 3700284; 555166, 3700318; 555203, 3700340; 555218, 3700381; 555185, 3700409; 555162, 3700422; 555183, 3700459; 555196, 3700500; 555175, 3700515; 555175, 3700545; 555203, 3700556; 555207, 3700584; 555242, 3700614; 555248, 3700655; 555270, 3700690; 555283, 3700733; 555287, 3700778; 555287, 3700815; 555287, 3700862; 555296, 3700940; 555319, 3700979; 555343, 3701035; 555373, 3701069; 555369, 3701118; 555363, 3701142; 555380, 3701188; 555417, 3701173; 555438, 3701196; PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 70279 555434, 3701231; 555440, 3701272; 555449, 3701296; 555492, 3701317; 555514, 3701348; 555525, 3701384; 555516, 3701460; 555499, 3701477; 555494, 3701490; 555529, 3701523; 555592, 3701574; 555605, 3701596; 555618, 3701644; 555641, 3701692; 555639, 3701754; 555600, 3701798; 555581, 3701830; 555622, 3701865; 555598, 3701908; 555628, 3701925; 555618, 3701958; 555644, 3701970; 555620, 3702057; 555568, 3702074; 555592, 3702107; 555598, 3702126; 555551, 3702128; 555553, 3702150; 555570, 3702167; 555564, 3702191; 555555, 3702215; 555527, 3702219; 555514, 3702254; 555535, 3702267; 555551, 3702273; 555535, 3702310; 555492, 3702411; 555449, 3702446; 555434, 3702487; 555427, 3702544; 555389, 3702611; 555369, 3702650; 555358, 3702693; 555358, 3702743; 555360, 3702791; 555350, 3702838; 555313, 3702873; 555233, 3702907; 555134, 3702973; 555030, 3703038; 554969, 3703100; 554911, 3703159; 554853, 3703191; 554840, 3703226; 554827, 3703273; 554775, 3703342; 554725, 3703392; 554704, 3703472; 554663, 3703500; 554580, 3703528; 554550, 3703494; 554526, 3703448; 554550, 3703414; 554550, 3703377; 554535, 3703323; 554498, 3703271; 554436, 3703260; 554282, 3703332; 554222, 3703377; 554163, 3703396; 554036, 3703489; 553995, 3703520; 553958, 3703517; 553945, 3703545; 553945, 3703612; 553870, 3703705; 553807, 3703727; 553787, 3703744; 553766, 3703736; 553744, 3703736; 553736, 3703775; 553714, 3703792; 553593, 3703837; 553545, 3703878; 553440, 3704013; 553368, 3704067; 553301, 3704125; 553260, 3704173; 553249, 3704246; 553208, 3704287; 553208, 3704332; 553221, 3704365; 553217, 3704432; 553193, 3704469; 553182, 3704551; 553165, 3704637; 553165, 3704758; 553176, 3704802; 553180, 3704902; 553193, 3704988; 553236, 3705027; 553271, 3705042; 553303, 3705083; 553321, 3705144; 553338, 3705213; thence returning to 553362, 3705257. 553930, 3697605; 553934, 3697207; 554338, 3697211; 554336, 3696806; 554330, 3696733; 554330, 3696665; 554327, 3696605; 554268, 3696635; 554205, 3696666; 554127, 3696699; 554092, 3696768; 554089, 3696787; 554084, 3696811; 554048, 3696856; 554021, 3696861; 553990, 3696861; 553957, 3696849; 553925, 3696849; 553881, 3696851; 553847, 3696860; 553809, 3696885; 553793, 3696903; 553765, 3696930; 553751, 3696954; 553740, 3696972; 553738, 3696995; 553733, 3697019; 553718, 3697038; E:\FR\FM\11DEP1.SGM 11DEP1 70280 Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules pwalker on PROD1PC71 with PROPOSALS 553716, 3697053; 553710, 3697067; 553702, 3697088; 553691, 3697115; 553689, 3697128; 553684, 3697150; 553673, 3697170; 553652, 3697201; 553624, 3697231; 553617, 3697248; 553614, 3697266; 553601, 3697291; 553600, 3697304; 553580, 3697324; 553571, 3697335; 553567, 3697359; VerDate Aug<31>2005 16:55 Dec 10, 2007 Jkt 214001 553567, 3697381; 553569, 3697402; 553577, 3697416; 553587, 3697427; 553601, 3697453; 553627, 3697474; 553647, 3697485; 553663, 3697495; 553689, 3697518; 553709, 3697535; 553731, 3697546; 553765, 3697552; 553808, 3697556; 553866, 3697558; 553895, 3697563; 553916, 3697574; PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 553923, 3697590; thence returning to 553930, 3697605. (ii) Note: Map of subunit 4a for Helianthus paradoxus (Pecos sunflower) critical habitat follows: BILLING CODE 4310–55–P E:\FR\FM\11DEP1.SGM 11DEP1 VerDate Aug<31>2005 16:55 Dec 10, 2007 Jkt 214001 PO 00000 Frm 00045 Fmt 4702 Sfmt 4725 E:\FR\FM\11DEP1.SGM 11DEP1 70281 EP11DE07.001</GPH> pwalker on PROD1PC71 with PROPOSALS Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules 70282 Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules pwalker on PROD1PC71 with PROPOSALS (iii) Subunit 4b for Helianthus paradoxus, Bitter Lake National Wildlife Refuge Farm, Chaves County, New Mexico. From USGS 1:24,000 quadrangles Bottomless Lakes and South Spring, lands bounded by the following UTM NAD83 coordinates (meters E, meters N): 555093, 3693168; 555018, 3693338; 555018, 3693440; 555053, 3693558; 554996, 3693646; 554948, 3693704; 554930, 3693796; 554886, 3694091; 555317, 3694170; 555203, 3694254; 555137, 3694364; 555137, 3694447; 555159, 3694535; 555129, 3694614; 554983, 3694672; 554890, 3694698; 554899, 3694810; 554897, 3694841; 554894, 3694878; 554885, 3694912; 554882, 3694940; 554868, 3695008; 554856, 3695090; 554839, 3695191; 554971, 3695198; 555042, 3695216; 555087, 3695235; 555104, 3695208; 555159, 3695215; VerDate Aug<31>2005 16:55 Dec 10, 2007 Jkt 214001 555176, 3695212; 555225, 3695291; 555339, 3695326; 555511, 3695287; 555515, 3695190; 555559, 3695133; 555599, 3695031; 555599, 3694930; 555581, 3694820; 555599, 3694732; 555643, 3694648; 555669, 3694556; 555652, 3694468; 555616, 3694402; 555573, 3694345; 555515, 3694288; 555462, 3694235; 555405, 3694164; 555339, 3694072; 555247, 3693901; 555247, 3693818; 555282, 3693712; 555278, 3693624; 555229, 3693457; 555216, 3693382; 555229, 3693303; 555295, 3693241; 555361, 3693219; 555441, 3693250; 555529, 3693228; 555630, 3693188; 555718, 3693118; 555771, 3693027; 555907, 3692714; 555889, 3692626; 555859, 3692547; 555709, 3692613; 555476, 3692530; 555301, 3692484; 555040, 3692613; 554657, 3692591; 554428, 3692763; 554336, 3693027; 554243, 3693128; PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 554133, 3693338; 554001, 3693444; 553861, 3693563; 553733, 3693721; 553667, 3693888; 553597, 3694029; 553597, 3694122; 553619, 3694219; 553619, 3694293; 553715, 3694377; 553887, 3694351; 554023, 3694355; 554142, 3694434; 554191, 3694491; 554164, 3694601; 554120, 3694681; 554142, 3694747; 554067, 3694777; 554032, 3694817; 554081, 3694881; 554230, 3694835; 554283, 3694672; 554375, 3694601; 554380, 3694456; 554296, 3694315; 554402, 3694126; 554547, 3694029; 554520, 3693841; 554555, 3693720; 554604, 3693624; 554666, 3693541; 554710, 3693396; 554780, 3693272; 554882, 3693167; 554930, 3693118; thence returning to 555093, 3693168. (iv) Note: Map of subunit 4b for Helianthus paradoxus (Pecos sunflower) critical habitat follows: E:\FR\FM\11DEP1.SGM 11DEP1 VerDate Aug<31>2005 16:55 Dec 10, 2007 Jkt 214001 PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 E:\FR\FM\11DEP1.SGM 11DEP1 70283 EP11DE07.002</GPH> pwalker on PROD1PC71 with PROPOSALS Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules 70284 Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Proposed Rules * * * * * (vi) Note: Map of subunit 4c for Helianthus paradoxus (Pecos sunflower) critical habitat follows: * * * * * (viii) Note: Map of subunit 4d for Helianthus paradoxus (Pecos sunflower) critical habitat follows: * * * * * (x) Note: Map of subunit 4e for Helianthus paradoxus (Pecos sunflower) critical habitat follows: * * * * * (10) * * * (ii) Note: Map of unit 5 for Helianthus paradoxus (Pecos sunflower) critical habitat follows: * * * * * Dated: November 30, 2007. Mitchell Butler, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 07–5973 Filed 12–10–07; 8:45 am] BILLING CODE 4310–55–C DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018–AV07; 1018–AV04 Endangered and Threatened Wildlife and Plants; Designations of Critical Habitat for the San Bernardino Kangaroo Rat (Dipodomys merriami parvus), Poa atropurpurea (San Bernardino bluegrass), and Taraxacum californicum (California taraxacum) Fish and Wildlife Service, Interior. ACTION: Proposed rule; notice of reopening of public comment periods, and notice of public hearings. pwalker on PROD1PC71 with PROPOSALS AGENCY: SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period and the scheduling of public hearings on the proposed rule to revise critical habitat for the San Bernardino kangaroo rat (Dipodomys merriami parvus), and on the proposed rule to designate critical habitat for Poa atropurpurea (San Bernardino bluegrass) and Taraxacum californicum (California taraxacum) under the Endangered Species Act of 1973, as amended (Act). The reopened comment periods will provide the public; Federal, State, and local agencies; and Tribes with an additional opportunity to submit written comments on these proposed rules. Comments previously submitted for the proposed critical habitat designations for the San Bernardino VerDate Aug<31>2005 16:55 Dec 10, 2007 Jkt 214001 kangaroo rat, P. atropurpurea, or T. californicum need not be resubmitted as they have already been incorporated into the public record and will be fully considered in any final decisions. DATES: Written Comments: We will accept comments and information until January 25, 2008, or at the public hearing. Any comments received after the closing date may not be considered in the final decisions on the designations of critical habitat. Public Hearings: The public hearings will take place on January 10, 2008, from 1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m. in San Bernardino, California. ADDRESSES: Written Comments: You may submit comments by one of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • U.S. mail or hand-delivery: Public Comments Processing, Attn: RIN 1018– AV07 or 1018–AV04; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222, Arlington, VA 22203. We will not accept e-mail or faxes. We will accept written comments at the public hearing. We will post all comments on http:// www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information). Public Hearings: The public hearings will be held at the Clarion Hotel and Convention Center, 295 North E Street, San Bernardino, CA 92401. FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92011; telephone 760–431–9440; facsimile 760–431–9624. 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 We intend that any final actions resulting from these proposals will be as accurate and as effective as possible. Therefore, we solicit comments or suggestions on these proposed rules from the public, other concerned governmental agencies, Tribes, the scientific community, industry, or any other interested parties concerning the proposed rules. We particularly seek comments on the proposed revised critical habitat designation for the San Bernardino kangaroo rat, and the proposed critical habitat designations PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 for Poa atropurpurea and Taraxacum californicum 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 is outweighed by the threats to each species caused by their respective designations such that the designation of critical habitat is prudent; (2) Specific information on: • The amount and distribution of habitat for each species; • What areas that were occupied at the time of listing and that contain the features essential for the conservation of the species should be included in their respective designations and why; and • What areas not occupied at the time of listing are essential to the conservation of each species and why; (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat for each species; (4) Any foreseeable economic, national security, or other potential impacts resulting from the proposed revised designation for the San Bernardino kangaroo rat, and proposed critical habitat for Poa atropurpurea and Taraxacum californicum and, in particular, any impacts on small entities, and the benefits of including or excluding areas that exhibit these impacts; and (5) Whether our approach to designating critical habitat could be improved or modified in any way as to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments. In addition, we seek the following specific comments on the proposed revised designation of critical habitat for the San Bernardino kangaroo rat: (1a) Specific information on dispersal areas important for habitat connectivity, their role in the conservation and recovery of the subspecies, and reasons why such areas should or should not be included in the critical habitat designation; (2a) Our proposed exclusions totaling 2,544 acres (ac) (1,029 hectares (ha)) of San Bernardino kangaroo rat habitat and whether the benefits of excluding these areas would outweigh the benefits of their inclusion under section 4(b)(2) of the Act. If the Secretary determines that the benefits of including these lands are not outweighed by the benefits of excluding them, they will not be excluded from final critical habitat; (3a) Any proposed critical habitat areas covered by existing or proposed conservation or management plans that E:\FR\FM\11DEP1.SGM 11DEP1

Agencies

[Federal Register Volume 72, Number 237 (Tuesday, December 11, 2007)]
[Proposed Rules]
[Pages 70269-70284]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-5973]


=======================================================================
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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AV02


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the Pecos Sunflower (Helianthus 
paradoxus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period and revisions to 
proposal.

-----------------------------------------------------------------------

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 Helianthus paradoxus (Pecos sunflower) under the Endangered 
Species Act of 1973, as amended (Act). We also announce a revision to 
proposed critical habitat Unit 4 and clarification of Unit 5, the 
availability of a draft economic analysis and draft environmental 
assessment, and an amended required determinations section of the 
proposal. The draft economic analysis estimates costs associated with 
conservation activities for H. paradoxus to be approximately $3.9 to 
$4.4 million in undiscounted dollars over the next 20 years ($193,000 
to $221,000 annualized). 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 environmental assessment, and the amended required 
determinations section. You do not have to resend comments sent 
earlier. We will incorporate them into the public record as part of 
this comment period, and we will fully consider them when preparing our 
final determination.

DATES: We will accept public comments until January 10, 2008.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: RIN 1018-AV02; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.

    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments Solicited 
section below for more information).

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field 
Office, 2105 Osuna Rd NE., Albuquerque, NM 87113; telephone 505/346-
2525; facsimile 505/346-2542. 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 original proposed critical habitat 
designation for H. paradoxus published in the Federal Register on March 
27, 2007 (72 FR 14328), the revisions to proposed critical habitat 
described herein (see ``Changes to the Proposed Rule'' section), the 
draft economic analysis and draft environmental assessment of the 
proposed designation, and the amended required determinations provided 
in this document. We will consider information and recommendations from 
all interested parties. We are particularly interested in comments 
concerning:
    (1) The reasons why habitat should or should not be designated as 
``critical habitat'' for H. paradoxus under section 4 of the Act (16 
U.S.C. 1531 et seq.), including whether the designation of critical 
habitat is prudent.
    (2) Specific information on the amount and distribution of H. 
paradoxus habitat, including which areas occupied by the species at the 
time of listing and that contain features essential for the 
conservation of the species should be included in the designation and 
why, and which areas that were not occupied by the species 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) 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.
    (5) The existence of lands included in the proposed designation 
that are covered under any conservation or management plans, which we 
should consider for exclusion from the designation pursuant to section 
4(b)(2) of the Act.
    (6) Information on the benefits of including or excluding lands 
managed by Bitter Lake National Wildlife Refuge from the final critical 
habitat designation.
    (7) Information on any direct or indirect impacts to the human 
environment as a result of designating critical habitat for H. 
paradoxus.
    (8) Information on whether the draft economic analysis identifies 
all local costs attributable to the proposed critical habitat 
designation and information on any costs that have been inadvertently 
overlooked.
    (9) 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) Whether the draft economic analysis or draft environmental 
assessment makes appropriate

[[Page 70270]]

assumptions regarding current practices and likely regulatory changes 
imposed as a result of the designation of critical habitat.
    (11) Whether the draft economic analysis and draft environmental 
assessment appropriately identify all costs and benefits that could 
result from the designation.
    (12) Information on whether there are any quantifiable economic 
benefits that could result from the designation of critical habitat.
    (13) 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 critical 
habitat designation in the final economic analysis.
    (14) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you submitted comments or information during the initial comment 
period from March 27, 2007, to May 29, 2007, on the proposed rule (72 
FR 14328), please do not resubmit them. We will incorporate them into 
the public record as part of this comment period, and we will fully 
consider them in preparation of our final determination. Our final 
determination concerning critical habitat will take into consideration 
all written comments and any additional information we receive during 
both comment periods. On the basis of public comment, 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 materials concerning this proposed 
rule, our revisions to the proposed rule, the associated draft economic 
analysis and draft environmental assessment of the proposed 
designation, and the amended required determinations section by one of 
the methods listed in the ADDRESSES section. We will not accept 
comments you send by e-mail or fax. Please note that we may not 
consider comments we receive after the date specified in the DATES 
section in our final determination.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that we will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. 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 we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, New Mexico Ecological Services Field Office, 2105 
Osuna Rd NE., Albuquerque, NM 87113; telephone 505/346-2525.
    You may obtain copies of the original proposed rule, the draft 
economic analysis, and the draft environmental assessment by mail from 
the New Mexico Ecological Services Field Office at the address listed 
above or by visiting our Web site at http://www.fws.gov/southwest/es/
NewMexico/.

Background

    It is our intent to discuss only those topics directly relevant to 
designation of critical habitat in this proposal. For more information 
on H. paradoxus, refer to the final listing rule published in the 
Federal Register on October 20, 1999 (64 FR 56582), the Pecos Sunflower 
Recovery Plan posted at http://ecos.fws.gov/docs/recovery_plans/2005/
050915.pdf, and the original proposed critical habitat designation 
published on March 27, 2007 (72 FR 14328).
    Helianthus paradoxus was listed as a threatened species on October 
20, 1999 (64 FR 56582). At the time this plant was federally listed, 
the Service determined that the designation of critical habitat was not 
prudent because we believed publication of critical habitat maps would 
increase the degree of threats to the species by vandalism and 
commercial collection. On September 27, 2005, the Forest Guardians 
filed suit against the Service for failure to designate critical 
habitat for this species (Forest Guardians v. Hall 2005). On March 20, 
2006, a settlement was reached that requires the Service to re-evaluate 
our original prudency determination. The settlement stipulated that, if 
prudent, a proposed rule would be submitted to the Federal Register for 
publication on or before March 16, 2007, and a final rule by March 16, 
2008.
    On March 15, 2007, we determined that critical habitat for 
Helianthus paradoxus was prudent and we subsequently published a 
proposed rule (72 FR 14328) to designate critical habitat for H. 
paradoxus on March 27, 2007. We proposed five units as critical habitat 
in the original proposal, encompassing approximately 1,579.3 acres (ac) 
(639.1 hectares (ha)). We now revise our original March 27, 2007, 
proposed rule (72 FR 14328) to add areas to one of the units and 
clarify the boundaries of another unit, as described in the ``Changes 
to the Proposed Rule'' section. As a result of these additions and 
revisions, the proposed critical habitat now encompasses 5,745.5 ac 
(3,733.4 ha).
    Critical habitat is defined in section 3 of the Act as the specific 
areas within the geographical area occupied by a species, at the time 
it is listed in accordance with the Act, on which are found those 
physical or biological features essential to the conservation of the 
species and that may require special management considerations or 
protection, and specific areas outside the geographical area occupied 
by a species at the time it is listed, upon a determination that such 
areas are essential for the conservation of the species. If the 
proposed rule is made final, section 7 of the Act will prohibit 
destruction or adverse modification of critical habitat by any activity 
funded, authorized, or carried out by any Federal agency. Federal 
agencies proposing actions affecting areas designated as critical 
habitat must consult with us on the effects of their proposed actions, 
pursuant to section 7(a)(2) of the Act.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate critical 
habitat based upon the best scientific and commercial data available, 
after taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We have prepared a draft economic analysis 
based on the March 27, 2007, proposed rule (72 FR 14328) and the 
revised units described in this document.
    The draft economic analysis considers the potential economic 
effects of all actions related to the conservation of Helianthus 
paradoxus, including costs associated with sections 4, 7, and 10 of the 
Act, as well as those attributable to designating 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 H. paradoxus in proposed critical habitat units. The 
draft analysis considers both economic efficiency and distributional 
effects. In the case of habitat conservation, efficiency effects 
generally reflect lost economic opportunities associated with 
restrictions on land use (opportunity costs). This analysis also

[[Page 70271]]

addresses how potential economic impacts are likely to be distributed, 
including an assessment of any local or regional impacts of habitat 
conservation and the potential effects of conservation activities on 
small entities and the energy industry. This information can be used by 
decision makers to assess whether the effects of the designation might 
unduly burden a particular group or economic sector. Finally, this 
draft analysis looks retrospectively at costs that have been incurred 
since the date this species was listed as threatened (October 20, 1999; 
64 FR 56582), and considers those costs that may occur in the 20 years 
following designation of critical habitat (i.e., 2007 to 2026).
    The draft economic analysis is intended to quantify the economic 
impacts of all potential conservation efforts for Helianthus paradoxus; 
some of these costs will likely be incurred regardless of whether 
critical habitat is designated. This analysis estimated economic 
impacts resulting from the implementation of H. paradoxus conservation 
efforts in four categories: (a) Treatment of non-native species; (b) 
wetland filling and development; (c) livestock management; and (d) road 
maintenance. Over the 20-year period 2007 to 2026, the draft economic 
analysis finds that costs associated with conservation activities 
within these four categories are estimated at $3.9 to $4.4 million in 
undiscounted dollars over the next 20 years ($193,000 to $221,000 
annualized). The present value of these impacts is $3.3 million to $3.6 
million ($186,000 to $213,000 annualized), using a discount rate of 
three percent; or $2.5 million to $2.9 million ($205,000 to $225,000 
annualized), using a discount rate of seven percent.
    As stated earlier, we solicit data and comments from the public on 
this draft economic analysis, as well as on all aspects of the 
proposal. We may revise the proposal, or its supporting documents, to 
incorporate or address new information received during the comment 
period. In particular, we may exclude an area from critical habitat if 
we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.

Changes to the Proposed Rule

    We proposed five units as critical habitat for Helianthus 
paradoxus. The original proposed critical habitat in our March 27, 
2007, proposed rule (72 FR 14328), and the additional proposed areas of 
critical habitat as described below, constitute our best assessment of 
areas that meet the definition of critical habitat under section 
3(5)(a) of the Act. In the proposed regulation section of this notice, 
we provide maps and textual descriptions of the boundaries for Subunits 
4a and 4b. These descriptions and maps are in addition to those 
published in our March 27, 2007, proposed rule, and thus included in 
the proposed critical habitat designation. We have also provided 
clarification on our Unit 5 description below.
    Subunits 4a and 4b are in close proximity with or connected to Unit 
4 described in the original proposed rule. Below, we present brief 
descriptions of the two subunits, the primary constituent elements 
(PCEs) they contain, and reasons why they meet the definition of 
critical habitat for Helianthus paradoxus. Within areas occupied by H. 
paradoxus at the time of listing and containing sufficient PCEs to 
support H. paradoxus's life processes, we previously identified the 
Bitter Lake National Wildlife Refuge (portion of Subunit 4a) and the 
associated Refuge Farm (Subunit 4b) as areas that do not require 
special management or protections. As a result, these areas were not 
originally proposed to be included in the critical habitat designation. 
However, we have reconsidered our preliminary analysis of section 
3(5)(a) of the Act and special management or protection needs of the 
PCEs on these refuge lands, and are now proposing to include these 
areas as critical habitat. However, we are considering their exclusion 
from the final designation pursuant to section 4(b)(2) of the Act.
    In addition to the revision of proposed critical habitat, we have 
provided a clarified unit description for Unit 5. In the Unit 5 
description found in the preamble of the proposed rule (72 FR 14328), 
we identified that Unit 5 contained a small group of plants downstream 
of The Nature Conservancy's Diamond Y Spring Preserve at a nearby 
highway right-of-way. This right-of-way site should not have been 
included in the unit description, for this small area is not known to 
be able to support sufficient numbers of plants to be considered stable 
(Blue Earth Ecological Consultants, Inc., 2007b, p 3; Poole 2006, p. 
3). While the Unit 5 description in the preamble of the proposed rule 
was incorrect, the map and textual boundary description for Unit 5 
found in the proposed regulation section did not include the right-of-
way site and thus is still accurate.
    Below, we present brief descriptions of these three areas (Subunits 
4a and 4b, and Unit 5), and reasons why they meet the definition of 
critical habitat for Helianthus paradoxus (see ``Criteria Used To 
Identify Critical Habitat'' in the March 27, 2007, proposed rule (72 FR 
14328)).

Revised and New Unit Descriptions

Unit 4: Roswell/Dexter

    Subunit 4a includes 3,572.2 ac (1,445.6 ha) of Bitter Lake National 
Wildlife Refuge/City of Roswell land located in Chaves County, New 
Mexico. This subunit is located approximately 5 miles (mi) (8 
kilometers (km)) northeast of the city of Roswell.
    One of the largest Helianthus paradoxus populations occurs on the 
Bitter Lake National Wildlife Refuge in New Mexico on Federal lands 
managed by the Service. Several hundred thousand to a few million 
plants occur nearly continuously along the shores and small islands of 
all the artificial lakes in the southern unit of the refuge. Also, a 
few small patches of plants occur on the west side of Bitter Lake Playa 
and adjacent springs on Lost River.
    This area was occupied at the time of listing and has been visited 
by species experts during four or more seasons. These experts found the 
site occupied by Helianthus paradoxus on every visit (Ulibarri 2006a, 
p. 1; Sivinski 2007a, p. 2; Blue Earth Ecological Consultants, Inc. 
2007a, p. 3). This area is currently occupied by the species and 
contains all of the PCEs essential to the conservation of the species. 
As noted, the portion of this subunit within Bitter Lake National 
Wildlife Refuge is proposed as critical habitat, but is being 
considered for exclusion from the final designation. Please see 
``Application of Section 4(b)(2) of the Act'' section below for 
additional discussion.
    Subunit 4b includes 686.2 ac (277.7 ha) of land within the Bitter 
Lake National Wildlife Refuge Farm (Refuge Farm). This subunit is 
located in Chaves County, New Mexico, approximately 5 mi (8 km) east of 
Roswell on the west side of the Pecos River.
    Subunit 4b consists of a few large patches with several thousand 
plants on alkaline seeps behind the dikes on the western edge of the 
Refuge Farm south of Highway 380. This land is owned and managed by the 
Service as a grain farm and feeding area for migratory birds. The 
eastern portion of the Refuge Farm is a marshy spring-seep area that 
contains a large population of Helianthus paradoxus. The wet soils in 
this population are not cultivated.
    This Refuge Farm subunit was occupied at the time of listing and 
has been visited by species experts during four or more seasons. The 
experts found the site occupied by Helianthus

[[Page 70272]]

paradoxus on every visit (Ulibarri 2006b, p. 1; Sivinski 2007a, p. 2; 
Blue Earth Ecological Consultants, Inc. 2007a, p. 3). This subunit is 
currently occupied by the species and contains all of the PCEs 
essential to the conservation of the species. As noted, the portion of 
this subunit within Bitter Lake National Wildlife Refuge is proposed as 
critical habitat, but is being considered for exclusion from the final 
designation. Please see ``Application of Section 4(b)(2) of the Act'' 
section below for additional discussion.

Unit 5: West Texas

    Unit 5 includes 239.7 ac (97.0 ha) located solely on Diamond Y 
Spring in Pecos County, Texas. The unit is located approximately 12 mi 
(20 km) north-northwest of Fort Stockton, Texas.
    Unit 5 consists of several hundred thousand to one million plants 
found on The Nature Conservancy's Diamond Y Spring Preserve and a 
contiguous parcel of private land. This site was occupied by the 
species at the time of its listing. This site has been visited by 
species experts during four or more seasons and has been documented to 
be occupied by Helianthus paradoxus on every visit (Poole 2006, p. 2). 
This unit is currently occupied by the species (Blue Earth Ecological 
Consultants, Inc. 2007b, p. 3) and contains all of the PCEs essential 
to the conservation of the species.
    The land within The Nature Conservancy's Diamond Y Spring Preserve 
was purchased to protect Diamond Y Spring Preserve and other rare or 
endangered aquatic species in the Diamond Y Spring system. This habitat 
is managed for the conservation of such species (Service 2005, p. 12). 
Diamond Y Spring Preserve has recently expanded from 1,500 to 4,000 ac 
(607 to 1619 ha). However, Helianthus paradoxus on the Preserve is 
threatened by water withdrawal occurring outside the Preserve. On the 
adjacent private land, H. paradoxus is also threatened by water 
withdrawal, plus wetland filling and development, and livestock grazing 
during the growing and flowering season. As a result, special 
management or protections may be required to minimize these threats. At 
this time, we are not aware of any completed management plans that 
address H. paradoxus in this area.
    Table 1 shows the areas occupied by Helianthus paradoxus at the 
time of listing, those areas that are currently occupied, and the 
threats to the primary constituent elements that may require special 
management or protections.

    Table 1.--Threats and Occupancy in Areas Containing Features Essential to the Conservation of Helianthus
                                                    paradoxus
----------------------------------------------------------------------------------------------------------------
                                        Threats requiring special    Occupied at the time
        Geographic area/unit            management or protections         of listing         Currently occupied
----------------------------------------------------------------------------------------------------------------
                                         Unit 1. West-Central New Mexico
----------------------------------------------------------------------------------------------------------------
Subunit 1a. Rancho del Padre Spring   Water withdrawal, wetland     Yes..................  Yes.
 Cienega.                              filling and development,
                                       incompatible livestock
                                       management.
Subunit 1b. Grants Salt Flat Wetland  Wetland filling and           Yes..................  Yes.
                                       development, encroachment
                                       by nonnative vegetation,
                                       incompatible livestock
                                       management.
Subunit 1c. Pueblo of Laguna........  Water withdrawal,             Yes..................  Yes.
                                       incompatible livestock
                                       management, encroachment by
                                       nonnative vegetation.
Unit 2. La Joya-La Joya State         Encroachment by nonnative     No...................  Yes.
 Wildlife Management Area.             vegetation.
----------------------------------------------------------------------------------------------------------------
                                               Unit 3. Santa Rosa
----------------------------------------------------------------------------------------------------------------
Subunit 3a. Blue Hole Cienega/Blue    Encroachment by nonnative     Yes..................  Yes.
 Hole Fish Hatchery Ponds.             vegetation; on City land,
                                       wetland filling and
                                       recreation use, mowing to
                                       edges of ponds, dredging
                                       ponds and filling of
                                       wetlands.
Subunit 3b. Westside Spring.........  Next to major road, water     No...................  Yes.
                                       withdrawal, wetland filling
                                       and development,
                                       encroachment by nonnative
                                       vegetation.
----------------------------------------------------------------------------------------------------------------
                                             Unit 4. Roswell/Dexter
----------------------------------------------------------------------------------------------------------------
Subunit 4a. Bitter Lake National      Water withdrawal; on City     Yes..................  Yes.
 Wildlife Refuge/City of Roswell       land, wetland filling and
 Land.                                 development, incompatible
                                       livestock management.
Subunit 4b. Bitter Lake National      Water withdrawal............  Yes..................  Yes.
 Wildlife Refuge Farm.
Subunit 4c. Oasis Dairy.............  Water withdrawal, wetland     Yes..................  Yes.
                                       filling and development,
                                       incompatible livestock
                                       management.
Subunit 4d. Lea Lake at Bottomless    Campgrounds and human         Yes..................  Yes.
 Lakes State Park.                     trampling, encroachment by
                                       nonnative vegetation.
Subunit 4e. Dexter Cienega..........  Water withdrawal, wetland     Yes..................  Yes.
                                       filling and development,
                                       incompatible livestock
                                       management.
Unit 5. West Texas-Diamond Y Spring.  Water withdrawal, wetland     Yes..................  Yes.
                                       filling and development,
                                       incompatible livestock
                                       management.
----------------------------------------------------------------------------------------------------------------

    The approximate area encompassed within each proposed critical 
habitat unit is shown in Table 2.

[[Page 70273]]



 Table 2.--Critical Habitat Units Proposed for Helianthus Paradoxus and Areas Considered for Exclusion From the
                                                Final designation
               [Area estimates reflect all land within proposed critical habitat unit boundaries.]
----------------------------------------------------------------------------------------------------------------
                                                                   Proposed critical       Areas considered for
         Geographic area/unit               Land ownership       habitat areas in acres     exclusion in acres
                                                                       (hectares)               (hectares)
----------------------------------------------------------------------------------------------------------------
                                         Unit 1. West-Central New Mexico
----------------------------------------------------------------------------------------------------------------
Subunit 1a. Rancho del Padre Spring    Private and Tribal.....  25.5 (10.3 )...........
 Cienega.
Subunit 1b. Grants Salt Flat Wetland.  Private................  62.5 (25.3 )...........
Subunit 1c. Pueblo of Laguna.........  Tribal.................  Undefined \1\..........  Undefined.\1\
Unit 2. La Joya-La Joya State          State of New Mexico....  854.3 (345.7)..........
 Wildlife Management Area.
----------------------------------------------------------------------------------------------------------------
                                               Unit 3. Santa Rosa
----------------------------------------------------------------------------------------------------------------
Subunit 3a. Blue Hole Cienega/Blue     State of New Mexico and  133.9 (54.2)...........
 Hole Fish Hatchery Ponds.              City of Roswell.
Subunit 3b. Westside Spring..........  Private................  6.4 (2.6)..............
----------------------------------------------------------------------------------------------------------------
                                             Unit 4. Roswell/Dexter
----------------------------------------------------------------------------------------------------------------
Subunit 4a. Bitter Lake National       U.S. Fish and Wildlife   3,572.2 (1,445.6)......  3,480 (1408.3).
 Wildlife Refuge/ City of Roswell       Service and City of
 Land.                                  Roswell.
Subunit 4b. Bitter Lake National       U.S. Fish and Wildlife   686.2 (277.7)..........  686.2 (277.7).
 Wildlife Refuge Farm.                  Service.
Subunit 4c. Oasis Dairy..............  Private................  103.9 (42.0)...........
Subunit 4d. Lea Lake at Bottomless     State of New Mexico....  19.5 (7.9).............
 Lakes State Park.
Subunit 4e. Dexter Cienega...........  Private................  41.4 (16.8)............
Unit 5. West Texas-Diamond Y Spring..  Private................  239.7 (97.0)...........
    Total Acres (Hectares)...........  .......................  5,745.5 (3,733.4)......  4,166.2 (3094.3).
----------------------------------------------------------------------------------------------------------------
\1\ This subunit consists of areas along the Rio San Jose located on the Pueblo of Laguna. Due to the
  sensitivity of tribal lands, the acreage for this subunit is undetermined at this time. However, on the basis
  of our partnership with the Pueblo, and in anticipation of completion of the Pecos Sunflower Draft Management
  Plan, Pueblo of Laguna, this subunit is being considered for exclusion from the final critical habitat
  designation under section 4(b)(2) of the Act.

Application of Section 4(b)(2) of the Act--Bitter Lake National 
Wildlife Refuge

    Under section 4(b)(2), in considering whether to exclude a 
particular area from designation, we must identify the benefits of 
including the area in the designation, identify the benefits of 
excluding the area from the designation, and determine whether the 
benefits of exclusion outweigh the benefits of inclusion. If exclusion 
is contemplated, then we must determine whether excluding the area 
would result in the extinction of the species. In the original proposed 
rule, we addressed a number of general issues that are relevant to the 
exclusions under section 4(b)(2) of the Act that we are considering (72 
FR 14328). In addition, we have conducted a draft economic analysis and 
draft environmental assessment analyzing the potential impacts of the 
proposed critical habitat designation and related factors, which are 
available for public review and comment. Based on public comment on 
these documents and the proposed designation, additional areas may be 
excluded from final critical habitat by the Secretary under the 
provisions of section 4(b)(2) of the Act. This is provided for in the 
Act and in our implementing regulations at 50 CFR 424.19.
    We have determined that areas managed by Bitter Lake National 
Wildlife Refuge (Refuge) meet the definition of critical habitat for 
Helianthus paradoxus. The Refuge has developed and completed a 
Comprehensive Conservation Plan (CCP) that provides the framework for 
protection and management of all trust resources, including federally 
listed species and sensitive natural habitats. We believe that there is 
minimal benefit from designating critical habitat for H. paradoxus 
within Refuge lands because these lands are protected areas for 
wildlife, and are currently managed for the conservation of wildlife, 
including threatened and endangered species, specifically H. paradoxus. 
Below we provide a description of the management being provided by the 
Refuge for the conservation of H. paradoxus within areas proposed for 
designation as critical habitat.
    The Refuge was established on October 8, 1937, by Executive Order 
7724 ``as a refuge and breeding ground for migratory birds and other 
wildlife.'' The Refuge Recreation Act (16 U.S.C. 460k et seq.) 
identifies the refuge as being suitable for incidental fish and 
wildlife-oriented recreational development, the protection of natural 
resources, and the conservation of endangered species or threatened 
species. The Wilderness Act of 1964 (16 U.S.C. 1131-1136) directs the 
Service to ``maintain wilderness as a naturally functioning ecosystem'' 
on portions of the Refuge. While the Refuge was originally established 
to save wetlands vital to the perpetuation of migratory birds, the 
isolated gypsum springs, seeps, and associated wetlands protected by 
the Refuge have been recognized as providing the last known habitats in 
the world for several unique species. Management emphasis of the Refuge 
is placed on the protection and enhancement of habitat for endangered 
species and Federal candidate species, maintenance and improvement of 
wintering crane and waterfowl habitat, and monitoring and maintenance 
of natural ecosystem values.
    The Refuge sits at a juncture between the Roswell Artesian 
Groundwater Basin and the Pecos River. These two systems and their 
interactions account for the diversity of water resources on the 
Refuge, including sinkholes, springs, wetlands, oxbow lakes, and 
riverine

[[Page 70274]]

habitats. The federally reserved water right for Bitter Lake National 
Wildlife Refuge has been signed by the State of New Mexico but awaits 
final approval by the Federal government, a procedural process. The 
Refuge is currently in negotiations with the New Mexico Office of the 
State Engineer, a State agency responsible for administering New 
Mexico's water resources, to quantify these reserved rights. This water 
right allows for an in-stream flow in Bitter Creek and allows the 
Refuge to manage impounded springs for the benefit of many species, 
including Helianthus paradoxus. This water right protects against the 
threat of a future water user purchasing a Pecos River Basin water 
right and moving the use to a location that would be detrimental to the 
Refuge's ability to manage for the conservation of H. paradoxus. While 
the water right does not specifically protect water for the purposes of 
H. paradoxus conservation, it combines with management under the 
Refuge's CCP (discussed below) to remove the threat of water withdrawal 
on Refuge lands.
    The National Wildlife Refuge System Improvement Act of 1997 (Pub. 
L. 105-57) (Refuge Improvement Act) establishes a conservation mission 
for refuges, gives policy direction to the Secretary of the Interior 
and refuge managers, and contains other provisions such as the 
requirement to integrate scientific principles into the management of 
the refuges. According to section 7(e)(1)(E) of the Refuge Improvement 
Act, all lands of the Refuge System are to be managed in accordance 
with an approved CCP that will guide management decisions and set forth 
strategies for achieving refuge purposes. In general, the purpose of 
the CCP is to provide long-range guidance for the management of 
National Wildlife Refuges. The Refuge Improvement Act requires all 
refuges to have a CCP and provides the following legislative mandates 
to guide the development of the CCP: (1) Wildlife has first priority in 
the management of refuges; (2) wildlife-dependent recreation, including 
hunting, fishing, wildlife observation, wildlife photography, 
environmental education, and environmental interpretation, are the 
priority public uses of the refuge system, and shall be allowed when 
compatible with the refuge purpose; and (3) other uses have lower 
priority in the refuge system and are only allowed if not in conflict 
with any of the priority uses and determined appropriate and compatible 
with the refuge purpose.
    The CCP must also be revised if the Secretary determines that 
conditions that affect the refuge or planning unit have changed 
significantly. In other words, a CCP must be followed once it is 
approved, and regularly updated in response to environmental changes or 
new scientific information.
    The Bitter Lake National Wildlife Refuge has a final CCP that was 
approved in September 1998. The CCP serves as a management tool to be 
used by the Refuge staff and its partners in the preservation and 
restoration of the ecosystem's natural resources. The plan is intended 
to guide management decisions for 15 years, and sets forth strategies 
for achieving Refuge goals and objectives within that timeframe. In 
2013, the plan will not expire, but will undergo review, and any needed 
revisions will be incorporated at that time. Key goals of the CCP 
related to Helianthus paradoxus include the following:
    (1) To restore, enhance, and protect the natural diversity on the 
Refuge including threatened and endangered species by:
    (a) Appropriate management of habitat and wildlife resources on 
Refuge lands and
    (b) Strengthening existing and establishing new cooperative efforts 
with public and private stakeholders and partners; and
    (2) To restore and maintain selected portions of a hydrological 
system that more closely mimics the natural processes along the reach 
of the Pecos River adjacent to the Refuge by:
    (a) Restoration of the river channel, as well as restoration of 
threatened, endangered, and special concern species, and
    (b) Control of exotic species and management of trust 
responsibilities for maintenance of plant and animal communities and to 
satisfy traditional recreational demands (Service 1998, pp. 5, 46-52).
    Specific objectives related to these goals include: (1) The 
restoration of populations of aquatic species designated as endangered, 
threatened, or of special concern to a sustainable level (Helianthus 
paradoxus is specifically mentioned in this goal); and (2) following 
existing recovery plan objectives to monitor and study threatened or 
endangered species, their habitat requirements, exotic species 
encroachment, and human-induced impacts to prevent further decline and 
loss (Service 1998, pp. 49-52).
    In summary, we believe that the Refuge lands are being adequately 
protected and managed for the conservation of Helianthus paradoxus and 
that current management provides a conservation benefit to this species 
and its PCEs. Furthermore, we believe that there is minimal benefit 
from designating critical habitat for H. paradoxus on Refuge lands 
because, as explained in detail above, these lands are already managed 
for the conservation of the species. On the basis of this management, 
we intend to consider lands within the Bitter Lake National Wildlife 
Refuge and the associated Refuge Farm containing populations of H. 
paradoxus for exclusion from the final critical habitat designation 
pursuant to section 4(b)(2) of the Act. We will complete a full 
analysis of the benefits of excluding and the benefits of including 
these lands prior to making a final decision.

Required Determinations--Amended

    In our March 27, 2007, proposed rule (72 FR 14328), 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 
Helianthus paradoxus, costs related to conservation activities for H. 
paradoxus pursuant to sections 4, 7, and 10 of the Act are estimated at 
$3.9 to $4.4 million in undiscounted dollars over the next 20 years 
($193,000 to $221,000 annualized). The present value of these impacts 
is $3.3 million to $3.6 million ($186,000 to $213,000 annualized), 
using a discount rate of three percent; or $2.5 million to $2.9 million 
($205,000 to $225,000 annualized), using a discount rate of seven 
percent. Therefore, based on our draft economic analysis, we have 
determined that the proposed

[[Page 70275]]

designation of critical habitat for H. paradoxus 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 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 need to consider alternative regulatory 
approaches. Since the determination of critical habitat is a statutory 
requirement pursuant to the Act, we must then evaluate alternative 
regulatory approaches, where feasible, when promulgating a designation 
of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. 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 
(SBREFA) (5 U.S.C. 802(2)), 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 governmental 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. In our proposed rule, 
we withheld our determination of whether this designation would result 
in a significant effect as defined under SBREFA until we completed our 
draft economic analysis of the proposed designation so that we would 
have the factual basis for our determination.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as 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 Helianthus paradoxus critical habitat 
designation would affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities (e.g., residential and commercial 
development and agriculture). We considered each industry or category 
individually to determine if certification is appropriate. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement; some 
kinds of activities are unlikely to have any Federal involvement and so 
will not be affected by the designation of critical habitat. 
Designation of critical habitat only affects activities conducted, 
funded, permitted, or authorized by Federal agencies; non-Federal 
activities are not affected by the designation.
    In the 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 Helianthus paradoxus and proposed designation of its 
critical habitat. This analysis estimated prospective economic impacts 
due to the implementation of H. paradoxus conservation efforts in four 
categories: (a) Treatment of non-native species; (b) wetland filling 
and development; (c) livestock management; and (d) road maintenance. We 
determined from our analysis that the economic impacts of the 
designation on small entities are expected to be borne primarily by 
modifications to wetland filling and development activities. We assumed 
that if owners of parcels containing designated critical habitat face 
land use restrictions that preclude development on some or all of the 
parcel, the value of the properties will be reduced, essentially 
eliminating the option that those areas be developed. This draft 
economic analysis assumes that, in a high-end scenario, the entirety of 
forecast impacts would be borne by one small developer. The one small 
developer estimated to be affected represents approximately 20 percent 
of total small developers in the region. The total potential impact 
resulting from land use restrictions on development activities is 
forecast to be, at most, $290,000 over 20 years, or approximately 
$20,000 annually. Assuming the annual revenues of an average small 
developer in Cibola County are $400,000, the total potential impact 
resulting from the proposed designation would amount to approximately 
5.0 percent of typical annual sales of one entity. Consequently, we 
certify that the designation of critical habitat for H. paradoxus will 
not result in a significant economic impact on a substantial number of 
small business entities. Please see the ``Economic Analysis'' section 
above and the draft economic analysis itself for a more detailed 
discussion of potential economic impacts.

Executive Order 13211--Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply, distribution, or use. E.O. 
13211 requires agencies to prepare Statements of Energy Effects when 
undertaking certain actions. This proposed designation of critical 
habitat for Helianthus paradoxus is considered a significant regulatory 
action under Executive Order 12866 because it raises 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

[[Page 70276]]

the draft economic analysis, energy-related impacts associated with H. 
paradoxus 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 onto State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year; that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The proposed designation of critical habitat imposes no 
obligations on State or local governments. By definition, Federal 
agencies are not considered small entities, although the activities 
they fund or permit may be proposed or carried out by small 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 Helianthus paradoxus. Critical habitat 
designation does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. We 
conclude that this designation of critical habitat for H. paradoxus 
does not pose significant takings implications.

National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)

    It is our position that, outside the Jurisdiction of the Tenth 
Federal Circuit, we do not need to prepare environmental analyses as 
defined by NEPA in connection with designating critical habitat under 
the Endangered Species Act of 1973, as amended. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This assertion was upheld by the Ninth 
Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), 
cert. denied 516 U. S. 1042 (1996)). However, when the range of the 
species includes States within the Tenth Circuit, such as that of H. 
paradoxus, under the Tenth Circuit ruling in Catron County Board of 
Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th 
Cir. 1996), we conduct an environmental assessment under NEPA for the 
proposed critical habitat designation. The draft environmental 
assessment for this proposal is now available (http://www.fws.gov/
southwest/es/NewMexico/). We solicit data and comments from the public 
on this draft document (See FOR FURTHER INFORMATION CONTACT section).

References Cited

    To obtain a complete list of all references we cited in this 
rulemaking, contact the Field Supervisor, New Mexico Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT section).

Author(s)

    The primary authors of this package are staff of the New Mexico 
Ecological Services Field 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 14328, March 27, 2009, 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 Helianthus paradoxus (Pecos sunflower) in 
Sec.  17.96(a), which was proposed to be added on March 27, 2007, at 72 
FR 14346, is proposed to be amended by:
    a. Revising paragraph (5), including the text and the map;
    b. Revising the text in paragraphs (6)(iii) and (v);
    c. Revising the text in paragraph (7)(ii);
    d. Revising the text in paragraphs (8)(ii) and (iv);

[[Page 70277]]

    e. Revising the text in paragraph (9)(i) and the text and map in 
paragraph (9)(ii);
    f. Redesignating paragraphs (9)(iii) through (9)(viii) as 
paragraphs (9)(v) through (9)(x);
    g. Adding new paragraphs (9)(iii) and (iv), including a map;
    h. Revising the text in newly designated paragraphs (9)(vi), 
(viii), and (x); and
    i. Revising the text in paragraph (10)(ii) as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *

Family Asteraceae: Helianthus paradoxus (Pecos sunflower)
* * * * *
    (5) Note: Index map for Helianthus paradoxus (Pecos sunflower) 
critical habitat units follows:
BILLING CODE 4310-55-P

[[Page 70278]]

[GRAPHIC] [TIFF OMITTED] TP11DE07.000


[[Page 70279]]


    (6) * * *
    (iii) Note: Map of subunits 1a and 1b for Helianthus paradoxus 
(Pecos sunflower) critical habitat follows:
* * * * *
    (v) Note: Map of subunit 1c for Helianthus paradoxus (Pecos 
sunflower) critical habitat follows:
* * * * *
    (7) * * *
    (ii) Note: Map of unit 2 for Helianthus paradoxus (Pecos sunflower) 
critical habitat follows:
* * * * *
    (8) * * *
    (ii) Note: Map of subunit 3a for Helianthus paradoxus (Pecos 
sunflower) critical habitat follows:
* * * * *
    (iv) Note: Map of subunit 3b for Helianthus paradoxus (Pecos 
sunflower) critical habitat follows:
* * * * *
    (9) * * *
    (i) Subunit 4a for Helianthus paradoxus, Bitter Lake National 
Wildlife Refuge/City of Roswell Land, Chaves County, New Mexico. From 
USGS 1:24,000 quadrangle Bitter Lake, lands bounded by the following 
UTM NAD83 coordinates (meters E, meters N): 553362, 3705257; 553381, 
3705283; 553418, 3705283; 553444, 3705255; 553427, 3705221; 553405, 
3705160; 553392, 3705130; 553383, 3705102; 553383, 3705076; 553392, 
3705037; 553442, 3705004; 553457, 3704987; 553465, 3704961; 553437, 
3704931; 553429, 3704909; 553407, 3704896; 553357, 3704881; 553329, 
3704836; 553316, 3704760; 553316, 3704643; 553342, 3704529; 553349, 
3704455; 553347, 3704404; 553334, 3704362; 553342, 3704308; 553370, 
3704265; 553418, 3704241; 553470, 3704235; 553528, 3704291; 553621, 
3704345; 553686, 3704358; 553805, 3704429; 553841, 3704466; 553887, 
3704557; 553947, 3704609; 553982, 3704710; 554021, 3704786; 554079, 
3704838; 554168, 3704829; 554224, 3704775; 554280, 3704790; 554334, 
3704868; 554351, 3704926; 554410, 3705025; 554492, 3705034; 554589, 
3705001; 554658, 3704947; 554775, 3704878; 554900, 3704854; 554943, 
3704785; 554974, 3704688; 555032, 3704604; 555062, 3704547; 555121, 
3704483; 555242, 3704500; 555354, 3704431; 555376, 3704347; 555417, 
3704164; 555455, 3704115; 555557, 3704108; 555687, 3704087; 555819, 
3704076; 555873, 3704071; 556022, 3704067; 556134, 3704058; 556067, 
3703922; 555998, 3703765; 555998, 3703596; 556082, 3703488; 556177, 
3703418; 556255, 3703455; 556311, 3703524; 556385, 3703591; 556529, 
3703530; 556618, 3703340; 556713, 3703182; 556726, 3703059; 556657, 
3703014; 556557, 3703066; 556447, 3703094; 556333, 3703022; 556313, 
3702910; 556357, 3702620; 556411, 3702491; 556417, 3702298; 556462, 
3702212; 556560, 3702177; 556683, 3702246; 556793, 3702298; 557145, 
3702303; 557402, 3702296; 557569, 3702205; 557731, 3702134; 557867, 
3702053; 557891, 3701921; 557804, 3701807; 557739, 3701670; 557659, 
3701502; 557541, 3701350; 557344, 3701250; 557227, 3701203; 557109, 
3701136; 557083, 3701006; 557204, 3700872; 557115, 3700872; 556711, 
3700874; 556778, 3700069; 556370, 3700063; 556331, 3699254; 555939, 
3699246; 555907, 3698435; 555918, 3697997; 555924, 3697540; 555935, 
3697100; 555937, 3696816; 555704, 3696812; 555235, 3696803; 554632, 
3696803; 554336, 3696805; 554338, 3697211; 553934, 3697207; 553930, 
3697605; 553988, 3697664; 554012, 3697698; 554053, 3697715; 554075, 
3697746; 554066, 3697806; 554060, 3697828; 554075, 3697908; 554075, 
3698003; 554090, 3698141; 554109, 3698215; 554120, 3698308; 554055, 
3698447; 554010, 3698587; 553999, 3698673; 554001, 3698719; 554045, 
3698771; 554092, 3698816; 554157, 3698851; 554194, 3698881; 554233, 
3698942; 554256, 3698968; 554293, 3698994; 554371, 3699029; 554390, 
3699052; 554427, 3699115; 554453, 3699147; 554505, 3699202; 554535, 
3699258; 554580, 3699323; 554617, 3699364; 554678, 3699411; 554706, 
3699446; 554729, 3699498; 554755, 3699558; 554781, 3699619; 554816, 
3699654; 554844, 3699678; 554900, 3699704; 554935, 3699719; 554967, 
3699738; 554984, 3699779; 554989, 3699851; 554995, 3699885; 555004, 
3699928; 555034, 3699952; 555060, 3699982; 555073, 3700019; 555092, 
3700052; 555103, 3700073; 555118, 3700101; 555127, 3700127; 555157, 
3700147; 555179, 3700144; 555205, 3700151; 555222, 3700160; 555235, 
3700185; 555244, 3700224; 555248, 3700248; 555207, 3700268; 555172, 
3700277; 555157, 3700284; 555166, 3700318; 555203, 3700340; 555218, 
3700381; 555185, 3700409; 555162, 3700422; 555183, 3700459; 555196, 
3700500; 555175, 3700515; 555175, 3700545; 555203, 3700556; 555207, 
3700584; 555242, 3700614; 555248, 3700655; 555270, 3700690; 555283, 
3700733; 555287, 3700778; 555287, 3700815; 555287, 3700862; 555296, 
3700940; 555319, 3700979; 555343, 3701035; 555373, 3701069; 555369, 
3701118; 555363, 3701142; 555380, 3701188; 555417, 3701173; 555438, 
3701196; 555434, 3701231; 555440, 3701272; 555449, 3701296; 555492, 
3701317; 555514, 3701348; 555525, 3701384; 555516, 3701460; 555499, 
3701477; 555494, 3701490; 555529, 3701523; 555592, 3701574; 555605, 
3701596; 555618, 3701644; 555641, 3701692; 555639, 3701754; 555600, 
3701798; 555581, 3701830; 555622, 3701865; 555598, 3701908; 555628, 
3701925; 555618, 3701958; 555644, 3701970; 555620, 3702057; 555568, 
3702074; 555592, 3702107; 555598, 3702126; 555551, 3702128; 555553, 
3702150; 555570, 3702167; 555564, 3702191; 555555, 3702215; 555527, 
3702219; 555514, 3702254; 555535, 3702267; 555551, 3702273; 555535, 
3702310; 555492, 3702411; 555449, 3702446; 555434, 3702487; 555427, 
3702544; 555389, 3702611; 555369, 3702650; 555358, 3702693; 555358, 
3702743; 555360, 3702791; 555350, 3702838; 555313, 3702873; 555233, 
3702907; 555134, 3702973; 555030, 3703038; 554969, 3703100; 554911, 
3703159; 554853, 3703191; 554840, 3703226; 554827, 3703273; 554775, 
3703342; 554725, 3703392; 554704, 3703472; 554663, 3703500; 554580, 
3703528; 554550, 3703494; 554526, 3703448; 554550, 3703414; 554550, 
3703377; 554535, 3703323; 554498, 3703271; 554436, 3703260; 554282, 
3703332; 554222, 3703377; 554163, 3703396; 554036, 3703489; 553995, 
3703520; 553958, 3703517; 553945, 3703545; 553945, 3703612; 553870, 
3703705; 553807, 3703727; 553787, 3703744; 553766, 3703736; 553744, 
3703736; 553736, 3703775; 553714, 3703792; 553593, 3703837; 553545, 
3703878; 553440, 3704013; 553368, 3704067; 553301, 3704125; 553260, 
3704173; 553249, 3704246; 553208, 3704287; 553208, 3704332; 553221, 
3704365; 553217, 3704432; 553193, 3704469; 553182, 3704551; 553165, 
3704637; 553165, 3704758; 553176, 3704802; 553180, 3704902; 553193, 
3704988; 553236, 3705027; 553271, 3705042; 553303, 3705083; 553321, 
3705144; 553338, 3705213; thence returning to