Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Poa atropurpurea (San Bernardino bluegrass) and Taraxacum californicum (California taraxacum), 20600-20607 [E8-8089]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 74 (Wednesday, April 16, 2008)]
[Proposed Rules]
[Pages 20600-20607]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-8089]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2007-0010]; [92210-1117-0000-B4]
RIN 1018-AV04


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Poa atropurpurea (San Bernardino bluegrass) and 
Taraxacum californicum (California taraxacum)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, notice of 
availability of draft economic analysis, and amended required 
determinations.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on the proposed designation of critical 
habitat for Poa atropurpurea (San Bernardino bluegrass) and Taraxacum 
californicum (California taraxacum) under the Endangered Species Act of 
1973, as amended (Act). We are also notifying the public that we have 
received new information concerning portions of three proposed critical 
habitat units (see ``New Information Received'' section) that may 
result in the final designation of critical habitat differing from the 
proposed rule published on August 7, 2007 (72 FR 44232). We also 
announce the availability of the draft economic analysis (DEA) of the 
proposed critical habitat designation and announce an amended required 
determinations section of the proposal. We are reopening the comment 
period to allow all interested parties an opportunity to comment 
simultaneously on the proposed rule, the associated DEA, the new 
information we have received, and the amended required determinations 
section. Comments previously submitted on this rulemaking do not need 
to be resubmitted. These comments have already been incorporated into 
the public record and will be fully considered in preparation of the 
final rule.

DATES: We will accept public comments received or postmarked on or 
before May 16, 2008.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: RIN 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 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).

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S. 
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 
Hidden Valley Road, Carlsbad, CA 92011; telephone 760-431-9440; 
facsimile 760-431-5901. If you use a telecommunications device for the 
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on the proposed critical habitat designation 
for Poa atropurpurea and Taraxacum californicum published in the 
Federal Register on August 7, 2007 (72 FR 44232), the DEA of the 
proposed designation, the new information regarding Units 1, 14, and 
15, 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 under section 4 of the Act (16 U.S.C. 1531 et seq.), 
including whether the benefit of designation would outweigh threats to 
the species caused by designation such that the designation of critical 
habitat is prudent.
    (2) Specific information on:
     The amount and distribution of Poa atropurpurea and 
Taraxacum californicum habitat (especially in Unit 1),
     What areas occupied 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
     What areas not occupied at the time of listing are 
essential to the conservation of the species and why.
    (3) Specifically, with reference to those U.S. Forest Service 
(USFS) lands that are proposed for designation, information on any 
areas covered by conservation or management plans that we should 
consider for exclusion from the designation under section 4(b)(2) of 
the Act; particularly the appropriateness of including or excluding 
lands covered by the Cleveland National Forest's (CNF) Habitat 
Management Guide for Four Sensitive Plant Species in Riparian Montane 
Meadows (CNF 1991), and the San Bernardino National Forest's (SBNF) 
Meadows Habitat Management Guide (SBNF 2002).
    (4) Any additional proposed critical habitat areas covered by 
conservation or management plans that we should consider for exclusion 
from the designation under section 4(b)(2) of the Act. We specifically 
request information on any operative or draft habitat conservation 
plans that include Poa atropurpurea or Taraxacum californicum as 
covered species that have been prepared under section 10(a)(1)(B) of 
the Act, or any other management plan, conservation plan, or agreement 
that benefits either plant or its primary constituent elements.
    (5) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (6) Additional scientific information that will help us to better 
delineate areas that contain the primary constituent elements, 
especially in proposed critical habitat Unit 1 (Pan Hot Springs), Unit 
14 (Laguna Meadow), or Unit 15 (Bear Valley) (see ``New Information 
Received'' section below).
    (7) Information on the number of individual plants observed in any 
unit of critical habitat for either Poa atropurpurea or Taraxacum 
californicum; in particular, we are seeking information on the number 
of individual T. californicum plants observed in Unit 1 since this 
species was listed in 1998.
    (8) Information as to whether State or local environmental 
conservation measures referenced in the DEA were in place at the time 
of listing, were adopted as a result of the listing of Poa atropurpurea 
or Taraxacum californicum under the Act, or were enacted for other 
reasons.
    (9) Information regarding potential impacts on Tribal resources 
from the designation of critical habitat within the proposed 
designations, especially in proposed critical habitat Unit 1 (Pan Hot 
Springs), in light of a comment we received that describes a sacred 
Tribal site of the San Miguel Band of Mission Indians.
    (10) Information on whether the DEA identifies all State and local 
costs and benefits attributable to the proposed critical habitat 
designation, and information on any costs or benefits we have 
inadvertently overlooked.
    (11) Information on any economic costs and benefits associated with 
the

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potential addition of Unit 1 (Pan Hot Springs Meadow) to the critical 
habitat designation for Taraxacum californicum announced in this 
document.
    (12) Information on whether the DEA makes appropriate assumptions 
regarding current practices and any regulatory changes likely imposed 
as a result of the designation of critical habitat.
    (13) Information on whether the DEA correctly assesses the effect 
(or lack thereof) on regional costs associated with any land use 
controls that may result from the designation of critical habitat.
    (14) Information on areas that could be disproportionately impacted 
by the designation of critical habitat for Poa atropurpurea or 
Taraxacum californicum.
    (15) 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.
    (16) Information on whether the DEA appropriately identifies all 
costs that could result from the critical habitat designation.
    (17) Information on any quantifiable economic benefits of the 
designation of critical habitat.
    (18) Whether the benefits of excluding any particular area from the 
critical habitat designation under section 4(b)(2) of the Act outweigh 
the benefits of including that area in the designation.
    (19) Economic data on the incremental costs of designating any 
particular area as critical habitat.
    (20) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Comments and information submitted on the proposed rule (72 FR 
44232) during the initial comment period from August 7, 2007, to 
October 9, 2007, or the second comment period (72 FR 70284) from 
December 11, 2007, to January 25, 2008, do not need to be resubmitted 
as they have already been incorporated into the public record. Our 
final determination concerning the designation of critical habitat will 
take into consideration all written comments and any additional 
information we receive during all comment periods, as well as verbal 
comments received during the January 10, 2008, public hearing. On the 
basis of information provided during the public comment periods on the 
critical habitat proposal and the DEA, we may, during the development 
of our final determination, find that areas proposed are not essential, 
or are appropriate for exclusion under section 4(b)(2) of the Act.
    You may submit your comments and materials concerning our proposed 
rule, the associated DEA, and our amended required determinations by 
one of the methods listed in the ADDRESSES section. We will not 
consider comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    If you submit a comment via https://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. If you submit a hard copy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hard copy comments on https://www.regulations.gov.
    Comments and materials we receive (and have received), as well as 
supporting documentation we used in preparing this notice, will be 
available for public inspection on https://www.regulations.gov [FDMS 
Docket Number FWS-R8-ES-2007-0010], or by appointment, during normal 
business hours, at the U.S. Fish and Wildlife Service, Carlsbad Fish 
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
    You may obtain copies of the proposed rule and DEA by mail from the 
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT), by visiting the Federal eRulemaking Portal at https://
www.regulations.gov, or on our Web site at https://www.fws.gov/carlsbad.

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this notice. For more 
information on the taxonomy and biology of Poa atropurpurea and 
Taraxacum californicum, refer to the final listing rule published in 
the Federal Register on September 14, 1998 (63 FR 49006) and the 
proposed critical habitat rule published on August 7, 2007 (73 FR 
44232).
    On September 13, 2004, the Center for Biological Diversity (CBD) 
and California Native Plant Society (CNPS) challenged our failure to 
designate critical habitat for Poa atropurpurea and Taraxacum 
californicum (CBD and CNPS v. Norton, 04-1150 RT SGLx; C.D. Cal.). In 
settlement of the lawsuit, the Service agreed to submit to the Federal 
Register a proposed rule to designate critical habitat, if prudent, on 
or before July 27, 2007, and a final designation by July 25, 2008. On 
August 7, 2007, we published a proposed rule to designate critical 
habitat, identifying approximately 3,014 acres (ac) (1,221 hectares 
(ha)) of land in San Bernardino and San Diego Counties, California, as 
critical habitat for P. atropurpurea, and approximately 1,930 ac (782 
ha) of land in San Bernardino County, California, as critical habitat 
for T. californicum (72 FR 44232). During the first open comment 
period, we received a request for a public hearing. To respond to this 
request, we reopened the comment period from December 11, 2007, to 
January 25, 2008 (72 FR 70284), and conducted the public hearing in San 
Bernardino, California on January 10, 2008.
    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If the proposed rule is 
made final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
affecting areas designated as critical habitat must consult with us on 
the effects of their proposed actions, in accordance with section 
7(a)(2) of the Act.

New Information Received

    During the first two comment periods, we received new information 
indicating that some portions of the proposed critical habitat in Unit 
1 (Pan Hot Springs), Unit 14 (Laguna Meadow), and Unit 15 (Bear Valley) 
may not contain the physical and biological features essential to the 
conservation of Poa atropurpurea. By this document, we are notifying 
the public that the final designation of critical habitat may differ 
from the proposed rule published on August 7, 2007 (72 FR 44232). We 
intend to use the best available science to delineate the specific 
geographic areas that contain the primary constituent elements for P. 
atropurpurea laid out in the appropriate quantity and spatial 
arrangement for the conservation

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of the species. Therefore, we are requesting any additional information 
that may be useful in reassessing the proposed boundaries of Unit 1, 
Unit 14, or Unit 15 for P. atropurpurea. In particular, information 
indicating the distribution of any primary constituent element in these 
units would be helpful to improving the final critical habitat 
designation.
    Additionally, we received several other comments related to 
proposed Unit 1 (Pan Hot Springs Meadow). We received information 
indicating that lands within or adjacent to Pan Hot Springs are 
considered sacred by the San Miguel Band of Mission Indians, and are 
seeking input from the San Miguel Band of Mission Indians and the 
public at large to better understand if the designation of critical 
habitat would have any impacts on the use of this sacred site. 
Secondly, we received information from members of the Board of 
Directors for the Big Bear City Community Services District (BBCCSD) 
indicating that they are interested in developing a conservation 
strategy or habitat management plan to conserve areas within proposed 
Unit 1. Should such a plan be submitted prior to the close of this 
public comment period, we will evaluate the appropriateness of 
excluding this area under section 4(b)(2) of the Act. Finally, we 
received new information from one of our peer reviewers indicating that 
Unit 1, which was only proposed as critical habitat for Poa 
atropurpurea, should also be considered as critical habitat for 
Taraxacum californicum because it meets our criteria for critical 
habitat. This information is explained in greater detail below in the 
``Unit 1: Pan Hot Springs Meadow'' section. At this time, we are 
considering the possibility of including this unit as critical habitat 
for T. californicum.

Unit 1: Pan Hot Springs Meadow

    We are considering the possibility of including Unit 1 as critical 
habitat for Taraxacum californicum (see Figure 1). This unit is 
currently only proposed as critical habitat for Poa atropurpurea. Unit 
1 consists of an approximately 142-ac (57-ha) meadow habitat. New 
information that we received from a peer reviewer indicates that Pan 
Hot Springs Meadow was occupied by T. californicum at the time of 
listing and that this species continues to occur within this unit. In 
the proposed rule, we incorrectly stated that ``in the last known 
survey conducted for Taraxacum californicum in 1985, fewer than 10 
individuals were also reported from Unit 1.'' Dr. Timothy Krantz, a 
recognized species expert on both P. atropurpurea and T. californicum, 
indicated in his peer review of our proposed critical habitat 
designation that in Unit 1 ``several dozen individuals of T. 
californicum have been observed on numerous occasions since 1985.'' On 
March 4, 2008, Dr. Krantz stated that although he did not have field 
notes, he believes there are approximately 15-20 individual T. 
californicum plants near the well head of Pan Hot Springs and 
additional T. californicum plants scattered in other portions of the 
meadow (Krantz 2008, p. 1). In both his peer review and follow-up 
comment, he reiterated the importance of this site to the overall 
distribution of the species and stated that the site has 
biogeographical significance because it represents one of the largest 
of three remaining sites of T. californicum at the northeast end of Big 
Bear Valley. At the time of the proposed rule, we believed that our 
proposal adequately represented the habitat needed for the conservation 
of T. californicum throughout its range. In light of the information 
provided by the peer reviewer, this area may meet our criteria for 
critical habitat. This unit appears to contain all of the features 
essential to the conservation of T. californicum, and appears to meet 
our criteria for critical habitat because the meadow is currently 
occupied by T. californicum and supports a population of greater than 
10 individuals (Krantz 2007, p. 1; 2008, p. 1). We are seeking 
additional information regarding the amount and distribution of T. 
californicum in Unit 1 (Pan Hot Springs Meadow). If it is confirmed 
that the population of T. californicum is greater than 10 individuals 
we may designate this area as critical habitat for T. californicum as 
well as Poa atropurpurea. This unit is located partially within the 
SBNF boundary, east of Big Bear Lake, and just west of Baldwin Lake. 
The majority of Unit 1 is privately owned by the BBCCSD.
BILLING CODE 4310-55-P

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[GRAPHIC] [TIFF OMITTED] TP16AP08.004

BILLING CODE 4310-55-C

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    Taraxacum californicum and features essential to its conservation 
are threatened in this unit by invasion of nonnative herbaceous 
annuals, including potential hybridization of T. californicum with T. 
officinale (Krantz 2007, p. 1; 2008, p. 1). Additionally, horse grazing 
and roadside dumping have been reported at this location (CNDDB 2006a, 
p. 12; 2006b, p. 21). Although 10 ac (4 ha) of the BBCCSD property are 
under a deed-restriction to protect known occurrences of Thelypodium 
stenopetalum and Sidalcea pedata (two federally listed pebble plains 
plants; 49 FR 34497; August 31, 1984), the drainage feeding the habitat 
was not included in the deed restriction. Without control of water 
availability, T. californicum and its essential features continue to be 
threatened (SBNF 2002a, p. 25). Therefore, special management 
considerations or protection may be required to restore, protect, and 
maintain the PCEs supported by Unit 1 due to the threats from human 
disturbance, water source alteration, and invasive nonnative plant 
species.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial data 
available, after taking into consideration the economic impact, impact 
on national security, or any other relevant impact of specifying any 
particular area as critical habitat. Based on the August 7, 2007, 
proposed rule to designate critical habitat for Poa atropurpurea and 
Taraxacum californicum (72 FR 44232), we have prepared a draft economic 
analysis (DEA) of the proposed critical habitat designation.
    The intent of the DEA is to quantify the economic impacts of all 
potential conservation efforts for Poa atropurpurea and Taraxacum 
californicum; some of these costs will likely be incurred regardless of 
whether we designate critical habitat. The DEA employs ``without 
critical habitat'' and ``with critical habitat'' scenarios. The 
``without critical habitat'' scenario represents the baseline for the 
analysis, considering protections already in place for the species. The 
``with critical habitat'' scenario describes the incremental impacts 
associated specifically with the designation of critical habitat for 
the species. The incremental conservation efforts and associated 
impacts are those not expected to occur absent the designation of 
critical habitat for the species. The analysis looks retrospectively at 
baseline impacts incurred since the species were listed (63 FR 49006, 
September 14, 1998), and forecasts both baseline and incremental 
impacts likely to occur after the designation of critical habitat. The 
DEA provides estimated costs of the foreseeable potential economic 
impacts of the proposed critical habitat designation for P. 
atropurpurea and T. californicum over the next 20 years. The DEA does 
not specifically include estimated costs that may be associated with 
the potential addition of Unit 1 to critical habitat for T. 
californicum announced in this document; however, because the costs 
were already estimated for this unit for P. atropurpurea and the unit 
boundary is identical for T. californicum, we can likely use the same 
estimate for the potential economic impact of this unit for T. 
californicum. If we determine that Unit 1 should be critical habitat 
for T. californicum, we will make all necessary changes in the final 
economic analysis to address this issue.
    Potential incremental impacts are separated according to activity 
into three impact categories: Impacts to recreation; impacts to 
transportation; and administrative costs related to the section 7 
consultation process under the Act. The proposed rule also identified 
grazing; mining; invasive, nonnative species management; and land 
development activities that could alter the hydrological regime as 
potential threats to the species (72 FR 44232, August 7, 2007). 
However, except for some baseline impacts related to grazing 
activities, the DEA concluded that impacts associated with the proposed 
designation of critical habitat on these specific activities are not 
expected.
    The pre-designation (1998 to 2007) impacts associated with species 
conservation activities for Poa atropurpurea and Taraxacum californicum 
in the areas proposed for designation range from $153,000 and $186,000, 
and were related to recreation, grazing, and section 7 consultations 
under the Act. The DEA forecasts incremental impacts associated with 
the proposed rulemaking to range from approximately $124,000 to $4.3 
million ($11,000 to $403,000 annualized) over the next 20 years in 
present value terms applying a 7 percent discount rate. The present 
value of these impacts, applying a 3 percent discount rate, is $130,000 
to $5.0 million ($8,000 to $336,000 annualized).
    The DEA considers the potential economic effects of actions 
relating to the conservation of Poa atropurpurea and Taraxacum 
californicum, including costs associated with sections 4, 7, and 10 of 
the Act, as well as costs attributable to the designation of critical 
habitat. It further considers the economic effects of protective 
measures taken as a result of other Federal, State, and local laws that 
aid habitat conservation for P. atropurpurea and T. californicum in 
areas containing features essential to the conservation of the species. 
The DEA considers both economic efficiency and distributional effects. 
In the case of habitat conservation, efficiency effects generally 
reflect the ``opportunity costs'' associated with the commitment of 
resources to comply with habitat protection measures (such as lost 
economic opportunities associated with restrictions on land use).
    The DEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on small entities and the energy industry. This 
information can be used by decision-makers to assess whether the 
effects of the designation might unduly burden a particular group or 
economic sector (see the ``Required Determinations'' section below).
    Potential impacts related to recreation management account for 
about 86 percent of the upper-bound incremental impacts applying a 7 
percent discount rate and over 79 percent of these impacts when a 3 
percent discount rate is used. The remaining incremental impacts stem 
from transportation (14 and 21 percent using 7 and 3 percent discount 
rates, respectively) and administrative costs (less than 1 percent at 
both discount rates). The baseline impacts (impacts expected to occur 
whether critical habitat is designated or not) are primarily associated 
with transportation (68 and 75 percent using 7 and 3 percent discount 
rates, respectively), followed by grazing (18 and 16 percent using 7 
and 3 percent discount rates, respectively), recreation management (13 
and 8 percent using 7 and 3 percent discount rates, respectively), and 
administrative costs (2 percent at both discount rates). The majority 
of the incremental impacts associated with the proposed designation of 
critical habitat are expected to occur in Unit 1 (Pan Hot Springs 
Meadow), which is primarily owned by the BBCCSD. The BBCCSD is expected 
to bear over 86 percent of the total anticipated upper-bound 
incremental impacts at a 7 percent discount rate and about 79 percent 
at a 3 percent discount rate, while the California Department of 
Transportation (Caltrans) is forecast to bear approximately 14 percent 
and 21 percent of these impacts at 7 and 3

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percent discount rates, respectively. The remaining incremental impacts 
(less than one percent of the total incremental impacts) are shared 
between the USFS, the Service, and the Federal Highway Administration 
(FHWA).
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as on all aspects of the proposed rule, the 
new information we have received, and our amended required 
determinations. The final designation may differ from the proposed rule 
based on new information we receive during the public comment periods. 
Our supporting record will reflect any new information used in making 
the final designation. 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 the exclusion will not result in the extinction of the 
species.

Required Determinations--Amended

    In our August 7, 2007, proposed rule (72 FR 44232), 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 became available in the DEA. We have now 
made use of the DEA data in making these determinations. In this 
document, we affirm the information in our proposed rule concerning 
Executive Order (E.O.) 13132 (Federalism), E.O. 12988 (Civil Justice 
Reform), the Paperwork Reduction Act, the National Environmental Policy 
Act, and the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR 
22951). However, based on the DEA data, we revise our required 
determinations concerning E.O. 12866 (Regulatory Planning and Review) 
and the Regulatory Flexibility Act, E.O. 13211 (Energy, Supply, 
Distribution, and Use), the Unfunded Mandates Reform Act, and E.O. 
12630 (Takings).

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under Executive 
Order 12866 (E.O. 12866). OMB bases its determination upon the 
following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities.
    Based on our DEA of the proposed designation, we provide our 
analysis for determining whether the proposed rule would result in a 
significant economic impact on a substantial number of small entities. 
Based on comments we receive, we may revise this determination as part 
of our final rulemaking.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
Poa atropurpurea and Taraxacum californicum would affect a substantial 
number of small entities, we considered the number of small entities 
affected within particular types of economic activities (such as 
residential development and dispersed recreation activities). In order 
to determine whether it is appropriate for our agency to certify that 
this rule would not have a significant economic impact on a substantial 
number of small entities, we considered each industry or category 
individually. In estimating the numbers of small entities potentially 
affected, we also considered whether their activities have any Federal 
involvement. The designation of critical habitat will not affect 
activities that do not have any Federal involvement; designation of 
critical habitat affects activities conducted, funded, permitted, or 
authorized by Federal agencies.
    If we finalize the proposed critical habitat designation, Federal 
agencies must consult with us under section 7 of the Act if their 
activities may affect designated critical habitat. Consultations to 
avoid the destruction or adverse modification of critical habitat would 
be incorporated into the existing consultation process.
    The DEA analyzes whether a particular group or economic sector is 
expected to bear an undue proportion of the impacts. Appendix B of the 
DEA describes potential impacts of proposed designation on small 
entities. Appendix B considers the extent to which the incremental 
impacts results presented in the previous sections reflect potential 
future impacts on small entities and the energy industry. The screening 
analysis is based on the estimated impacts associated with the proposed 
rulemaking as described in chapters 2 through 8 of the DEA. The 
analysis evaluates the potential for economic impacts related to 
several categories, including: (1) Recreation; (2) transportation; (3) 
mining; (4) grazing; (5) invasive, nonnative species management; and 
(6) development and hydrological regime. As summarized below and 
presented in more detail in section B.1.2 of the DEA, the BBCCSD is the 
only small entity expected to be affected by the proposed rulemaking.
    Post-designation incremental impacts associated with proposed 
critical habitat designation-related conservation activities are not 
expected for mining (Chapter 4 of the DEA); grazing (Chapter 5 of the 
DEA); invasive, nonnative

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species management (Chapter 6 of the DEA); or development and water 
source alteration activities (Chapter 7 of the DEA). The incremental 
administrative costs of post-designation section 7 consultations and 
technical assistance requests (Appendix A of the DEA) associated with 
the proposed critical habitat designation, as well as incremental 
impacts associated with transportation projects (Chapter 3 of the DEA), 
will be borne by State and Federal government agencies. These agencies 
are Caltrans, the USFS, and the Service. The State and Federal 
governments are not considered small entities by the SBA. As described 
in Chapter 2 of the DEA, post-designation incremental impacts of 
critical habitat associated with recreation are related to Phase II of 
the proposed community park in Unit 1 by BBCCSD. BBCCSD provides fire, 
water, sanitation, and refuse services to approximately 10,000 
residents in unincorporated areas of Big Bear Valley and is considered 
a small entity by the SBA.
    As described in section B.1 of the DEA, the screening analysis 
focuses on economic impacts resulting from potential modifications to 
recreation facility development activities proposed by BBCCSD within 
the area proposed for designation. The incremental impact consists of a 
percentage of costs of conducting the Environmental Review (ER) for 
Phase II of a proposed park under the California Environmental Quality 
Act (CEQA) that is attributable to the critical habitat designation and 
implementation of the anticipated mitigation or conservation measures 
stemming from the ER. The total cost of the CEQA process is expected to 
range from $150,000 to $300,000, of which approximately $100,000 to 
$200,000 is considered that incremental impact as this is the 
additional cost of the ER anticipated to stem from the designation of 
critical habitat.
    The mitigation or conservation measures under CEQA to protect the 
habitat following the final designation of critical habitat are 
anticipated to vary from a minimal modification of the park design such 
that the occurrences of Poa atropurpurea (or areas close to the 
occurrences) are well-protected and are located in the more passive 
portions of the park to a possible relocation of the park to a more 
suitable location outside of Unit 1 (or to provide land elsewhere for 
the protection of the species in lieu of this habitat). The design 
modification of the proposed park is expected to cost approximately 
$20,000. In the extreme case that the 25-ac (10-ha) park must be 
relocated, BBCCSD could potentially need to find and purchase a 25-ac 
(10-ha) tract of land outside the proposed critical habitat 
designation. Because regional land values are high, a 25-ac (10-ha) lot 
with development potential is expected to cost between $3.0 and $4.0 
million. In total, BBCCSD is expected to experience an annualized 
impact that ranges from a low of $10,000 to a high of $347,000. The 
annualized impacts are equivalent to 0.1 to 2.9 percent of BBCCSD's 
annual operating budget (approximately $12.1 million).
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. We have identified only one small entity that may be 
impacted by the proposed critical habitat designation. Although this 
action has a potential to impact the BBCCSD, we believe that the Phase 
II of their proposed park project can incorporate measures to ensure 
the long-term conservation of Poa atropurpurea in proposed critical 
habitat Unit 1 and BBCCSD may not need to relocate the project. 
Therefore, it is likely that the BBCCSD will not bear the majority of 
the estimated impacts, which are associated with the costs of 
relocating this project. For the above reasons and based on currently 
available information, we certify that, if promulgated, the proposed 
designation would not have a significant economic impact on a 
substantial number of small business entities. Therefore, an initial 
regulatory flexibility analysis is not required.

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

    On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply, distribution, and use. E.O. 
13211 requires agencies to prepare Statements of Energy Effects when 
undertaking certain actions. OMB's guidance for implementing this 
Executive Order outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to no regulatory action. The 
DEA finds none of these criteria relevant to this analysis (Appendix B 
of the DEA). Thus, based on the information in the DEA, we do not 
expect Poa atropurpurea and Taraxacum californicum conservation 
activities within proposed critical habitat to lead to energy-related 
impacts. As such, we do not expect the proposed designation of critical 
habitat 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), we make 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. 
``Federal private sector mandate'' includes a regulation that ``would 
impose an enforceable duty upon the private sector, except as (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 of the Act. Non-Federal entities that receive 
Federal funding, assistance, or permits, or that 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

[[Page 20607]]

entitlement programs listed above on to State governments.
    (b) Although this action has a potential to impact the BBCCSD, we 
believe that the Phase II of their proposed park project can 
incorporate measures to ensure the long-term conservation of Poa 
atropurpurea in Unit 1 and BBCCSD may not need to relocate the project. 
Therefore, it is likely that the BBCCSD will not bear the majority of 
the estimated impacts, which are associated with the costs of 
relocating this project. Consequently, we do not believe that critical 
habitat designation would significantly or uniquely affect small 
government entities. As such, a Small Government Agency Plan is not 
required.

Executive Order 12630--Takings

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing critical habitat for Poa atropurpurea and Taraxacum 
californicum in a takings implications assessment. Our takings 
implications assessment concludes that the proposed designation of 
critical habitat for P. atropurpurea and T. californicum does not pose 
significant takings implications.

Author

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

Authority

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

     Dated: April 4, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-8089 Filed 4-15-08; 8:45 am]
BILLING CODE 4310-55-P