Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for Brodiaea filifolia, 42054-42059 [2010-17708]

Download as PDF 42054 Federal Register / Vol. 75, No. 138 / Tuesday, July 20, 2010 / Proposed Rules to the third element in the process, which is to evaluate the population segment’s conservation status in relation to the Act’s standards for listing as an endangered or threatened species. The DPS evaluation in this finding concerns the Amargosa toad that we were petitioned to list as threatened or endangered. Discreteness Under the DPS Policy, a population segment of a vertebrate taxon may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation. (2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act. wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1 Markedly Separated From Other Populations of the Taxon As described previously (see Species Information above), the Amargosa toad is characterized by metapopulations across its range. Individual Amargosa toads move among these metapopulations, and there is no indication that physical, physiological, ecological, or behavioral barriers exist that would render any portions of the species’ range markedly separate from other portions. Furthermore, we have no quantitative data such as genetic information to suggest any portions of the species to be markedly separate from others. Therefore, we conclude there are no portions of the species’ range that meet the discreteness criterion of the Service’s DPS policy. Since both discreteness and significance are required to satisfy the DPS policy, we have determined that there are no populations of the Amargosa toad that qualify as a DPS under our policy. As a result, no further analysis under the DPS policy is necessary. Significant Portion of the Range Having determined that the Amargosa toad does not meet the definition of a threatened or endangered species, we must next consider whether there are any significant portions of the range where the Amargosa toad is in danger of extinction or is likely to become endangered in the foreseeable future. We considered whether any portions of the Amargosa toad’s range warrant VerDate Mar<15>2010 15:03 Jul 19, 2010 Jkt 220001 further consideration. We found that there is no area within the range of the Amargosa toad where the potential threat of development or groundwater withdrawal is significantly concentrated or may be substantially greater than in other portions of the range. Some sites including Crystal and Lower Indian Springs may become overgrown with vegetation and cause the site to become unsuitable and require rehabilitation. Cattle and feral burros may provide the necessary disturbance to improve and maintain Amargosa toad habitat but may cause short-term overuse of some sites. Use by OHVs may cause localized impacts but we do not anticipate these effects to result in population declines. Although nonnative toad predators such as crayfish, bullfrogs, and mosquito fish occur throughout much of the range of the toad and likely impact the toad to some extent, we have found that toads have, and will continue to coexist with these predators. There is no indication that stochastic events, climate change, or environmental contaminants differentially affect any given site. On the basis of our review, we found no areas within the species’ range where threats are geographically concentrated. The species is characterized by metapopulations across its range which allows for an individual site to be extirpated and become repopulated from neighboring populations. The factors affecting the species are essentially uniform throughout its range, indicating that no portion of the Amargosa toad’s range warrants further consideration of possible threatened or endangered status. We do not find that the Amargosa toad is in danger of extinction now, nor is it likely to become endangered within the foreseeable future throughout all or a significant portion of its range. Therefore, listing the Amargosa toad as threatened or endangered under the Act is not warranted throughout all or a significant portion of its range at this time. We request that you submit any new information concerning the status of, or threats to, the Armargosa toad to our Nevada Fish and Wildlife Office (see ADDRESSES section) whenever it becomes available. New information will help us monitor the Amargosa toad and encourage its conservation. If an emergency situation develops for the Amargosa toad, we will act to provide immediate protection. References Cited A complete list of references cited is available on the Internet at https:// www.regulations.gov and upon request PO 00000 Frm 00055 Fmt 4702 Sfmt 4702 from the Nevada Fish and Wildlife Office (see ADDRESSES section). Author(s) The primary authors of this notice are staff with the Nevada Fish and Wildlife Office, Las Vegas. Authority The authority for this section is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). Dated: July 9, 2010 Wendi Weber, Acting Director, Fish and Wildlife Service. [FR Doc. 2010–17647 Filed 7–19– 10; 8:45 am] BILLING CODE S DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R8–ES–2009–0073] [92210–1117–0000–B4] RIN 1018–AW54 Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for Brodiaea filifolia (Thread-leaved Brodiaea) AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule; reopening of comment period. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on our December 8, 2009, proposed revised designation of critical habitat for Brodiaea filifolia (thread-leaved brodiaea) under the Endangered Species Act of 1973, as amended. We also announce the availability of a draft economic analysis (DEA) and an amended required determinations section of the proposal. We are reopening the comment period for an additional 30 days to allow all interested parties an opportunity to comment on all of the above. If you submitted comments previously, you do not need to resubmit them because we have already incorporated them into the public record and will fully consider them in our final determination. DATES: We will consider public comments received on or before August 19, 2010. Any comments that we receive after the closing date may not be considered in the final decision on this action. ADDRESSES: You may submit comments by one of the following methods: E:\FR\FM\20JYP1.SGM 20JYP1 Federal Register / Vol. 75, No. 138 / Tuesday, July 20, 2010 / Proposed Rules conservation of B. filifolia that we should include in the final critical habitat designation and why. Include information on the distribution of these essential features and what special management considerations or protections may be required to maintain or enhance them. • Areas we proposed as revised critical habitat that do not contain the physical and biological features essential to the conservation of the species and that should therefore not be designated as critical habitat. • Areas not occupied at the time of listing that are essential for the conservation of the species and why. (3) Land use designations and current or planned activities in the areas occupied by the species, and their possible impacts on proposed revised critical habitat. (4) How the proposed revised critical habitat boundaries could be refined to more closely circumscribe landscapes identified as containing the physical and biological features essential to the conservation of the species. Public Comments (5) Any foreseeable economic, national security, or other relevant We intend that any final action impacts that may result from resulting from the proposed rule is designating particular areas as critical based on the best scientific data habitat, and, in particular, any impacts available and will be accurate and as to small entities (e.g., small businesses effective as possible. Therefore, we or small governments), and the benefits request comments or information from of including or excluding areas from the other concerned government agencies, the scientific community, industry, or proposed revised designation that any other interested parties during this exhibit these impacts. (6) Whether any specific subunits reopened comment period on our being proposed as revised critical proposed rule to revise critical habitat habitat should be excluded under for Brodiaea filifolia, which we section 4(b)(2) of the Act, and whether published in the Federal Register on the benefits of potentially excluding any December 8, 2009 (74 FR 64930), the particular area outweigh the benefits of DEA of the proposed designation, and including that area in critical habitat. the amended required determinations (7) The likelihood of adverse social provided in this document. We are reactions to the designation of critical particularly interested in comments habitat, and how the consequences of concerning: such reactions, if they occur, would (1) The reasons why we should or relate to the conservation of the species should not revise the critical habitat and regulatory benefits of the proposed under section 4 of the Endangered revised critical habitat designation. Species Act of 1973, as amended (Act) (8) Information on the extent to which (16 U.S.C. 1531 et seq.), including the description of potential economic whether there are threats to Brodiaea filifolia from human activity, the type of impacts in the DEA is complete and accurate, and specifically: human activity causing these threats, • Whether there are incremental costs the degree of which can be expected to of critical habitat designation (e.g., costs increase due to the designation, and attributable solely to the designation of whether that increase in threats critical habitat for Brodiaea filifolia) that outweighs the benefit of designation, have not been appropriately identified such that the designation of critical or considered in our economic analysis, habitat is not prudent. including costs associated with future (2) Specific information on: administrative costs or project • Areas that provide habitat for Brodiaea filifolia that we did not discuss modifications that may be required by Federal agencies related to section 7 in our proposed revised critical habitat consultation under the Act; and rule (December 8, 2009; 74 FR 64930). • Whether there are incremental • Areas containing the physical and economic benefits of critical habitat biological features essential to the wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1 Federal eRulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting comments on Docket No. FWS–R8–ES–2009–0073. U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS–R8– ES–2009–0073; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203. We will post all comments on https:// 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, Suite 101, Carlsbad, CA 92011; telephone (760) 431–9440; facsimile (760) 431–5901. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at (800) 877–8339. SUPPLEMENTARY INFORMATION: VerDate Mar<15>2010 15:03 Jul 19, 2010 Jkt 220001 PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 42055 designation that are not appropriately identified or considered in our economic analysis. (9) The potential effects of climate change on this species and its habitat and whether the critical habitat may adequately account for these potential effects. (10) 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 concerns and comments. If you submitted comments or information on the proposed revised rule (74 FR 64930) during the initial comment period from December 8, 2009, to February 8, 2010, please do not resubmit them. These comments are included in the public record for this rulemaking, and we will fully consider them in the preparation of our final determination. Our final determination concerning the revised critical habitat for Brodiaea filifolia will take into consideration all written comments and any additional information we receive during both comment periods. On the basis of public comments, we may, during the development of our final determination, find that areas within the proposed revised critical habitat designation do not meet the definition of critical habitat, that some modifications to the described boundaries are appropriate, or that areas may or may not be 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 section by one of the methods listed in the ADDRESSES section. If you submit a comment via https:// www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hard copy 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. Please include sufficient information with your comments to allow us to verify any scientific or commercial information you include. Comments and materials we receive, as well as supporting documentation used to prepare this notice, will be available for public inspection at https:// www.regulations.gov, or by appointment, during normal business E:\FR\FM\20JYP1.SGM 20JYP1 42056 Federal Register / Vol. 75, No. 138 / Tuesday, July 20, 2010 / Proposed Rules wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1 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 revision of critical habitat (74 FR 64930) and the DEA on the Internet at https://www.regulations.gov at Docket No. FWS–R8–ES–2009–0073, or by mail from the Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Background It is our intent to discuss only those topics directly relevant to the proposed revised designation of critical habitat for Brodiaea filifolia in this notice. For more information on previous Federal actions concerning B. filifolia, see the 2005 designation of critical habitat published in the Federal Register on December 13, 2005 (70 FR 73820), see the proposed revised designation of critical habitat published in the Federal Register on December 8, 2009 (74 FR 64930), or contact the Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). The Center for Biological Diversity filed a complaint in the U.S. District Court for the Southern District of California on December 19, 2007, challenging our designation of critical habitat for Brodiaea filifolia and Navarretia fossalis (Center for Biological Diversity v. United States Fish and Wildlife Service et al., Case No. 07–CV– 2379–W–NLS). This lawsuit challenged the validity of the information and reasoning we used to exclude areas from the 2005 critical habitat designation for B. filifolia. We reached a settlement agreement on July 25, 2008, in which we agreed to reconsider critical habitat designation for B. filifolia. The settlement stipulated that we submit a proposed revised critical habitat designation for B. filifolia to the Federal Register for publication by December 1, 2009, and submit a final critical habitat designation to the Federal Register for publication by December 1, 2010. We published the proposed revised critical habitat designation in the Federal Register on December 8, 2009 (74 FR 64930). 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 which 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 VerDate Mar<15>2010 15:03 Jul 19, 2010 Jkt 220001 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 critical habitat must consult with us on the effects of their proposed actions under section 7(a)(2) of the Act. Draft Economic Analysis Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available after taking into consideration the economic impact, impact on national security, and any other relevant impact of specifying any particular area as critical habitat. We prepared a DEA (Industrial Economics, Incorporated (IEc) 2010) that identifies and analyzes the potential impacts associated with the proposed revised designation of critical habitat for Brodiaea filifolia that we published in the Federal Register on December 8, 2009 (74 FR 64930). The DEA looks retrospectively at costs incurred since the October 13, 1998 (63 FR 54975), listing of B. filifolia as threatened. The DEA quantifies the economic impacts of all potential conservation efforts for B. filifolia; some of these costs will likely be incurred regardless of whether or not we finalize the revised critical habitat rule. The economic impact of the proposed revised critical habitat designation is analyzed by comparing a ‘‘without critical habitat’’ scenario with a ‘‘with critical habitat’’ scenario. The ‘‘without critical habitat’’ scenario represents the baseline for the analysis, considering protections already in place for the species (for example, under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. 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 critical habitat designation for B. filifolia. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we may consider in the final designation of critical habitat relative to areas that may be excluded under section 4(b)(2) of the Act. The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts both baseline and PO 00000 Frm 00057 Fmt 4702 Sfmt 4702 incremental impacts likely to occur if we finalize the proposed revised critical habitat. The 2010 DEA (made available with the publication of this notice and referred to as the DEA throughout this document unless otherwise noted) estimates the foreseeable economic impacts of the proposed revised critical habitat designation for Brodiaea filifolia. The economic analysis identifies potential incremental costs as a result of the proposed revised critical habitat designation, which are those costs attributed to critical habitat over and above those baseline costs coextensive with listing. It also discusses the benefits of critical habitat designation. These benefits are primarily presented in a qualitative manner. The DEA describes economic impacts of B. filifolia conservation efforts associated with the following categories of activity: (1) Residential and commercial development; (2) transportation, utility, and flood control projects; and (3) public and conservancy lands management. Baseline economic costs are those that result from listing and other conservation efforts for Brodiaea filifolia. The baseline costs are assuming a 7 percent discount rate and are identified in Appendix E of the DEA (IEc 2010, Appendix E–1). Impacts associated with baseline protection for B. filifolia within the proposed revised critical habitat designation are estimated to be $5.31 million to $8.16 million (approximately $486,000 to $720,000 annualized) over the next 20 years (2011–2030). Baseline impacts to development are estimated to be $4.60 million to $7.46 million. This represents approximately 83 to 89 percent of the total baseline impacts. Baseline impacts to transportation, utility, and flood control activities are estimated to be $657,000. This represents approximately 8 to 12 percent of the total baseline impacts. Baseline impacts to public and conservancy lands management are estimated to be $49,500. This represents approximately 0.6 to 0.9 percent of the total baseline impacts. Incremental impacts associated with the proposed revised critical habitat designation are estimated to be $425,000 to $529,000 (approximately $37,500 to $46,700 annualized), assuming a 7 percent discount rate, over the next 20 years (2011–2030). These impacts are due to a reduction in land value following the designation of critical habitat for Brodiaea filifolia and the cost of section 7 consultation for pipeline maintenance activities (IEc 2010, p. ES– 9). Incremental impacts to development E:\FR\FM\20JYP1.SGM 20JYP1 Federal Register / Vol. 75, No. 138 / Tuesday, July 20, 2010 / Proposed Rules wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1 are estimated to be $207,000 to $311,000. This represents approximately 49 to 59 percent of the total incremental impacts. No incremental costs related to public and conservancy lands management are expected from the designation (IEc 2010, p. ES–10). 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 government agencies, private businesses, and individuals. The DEA measures lost economic efficiency associated with residential and commercial development and public projects and activities, such as economic impacts on transportation, utility, flood control projects, Federal lands, small entities, and the energy industry. Decisionmakers can use this information to assess whether the effects of the revised designation might unduly burden a particular group or economic sector. Required Determinations–—Amended In our proposed rule published in the Federal Register on December 8, 2009 (74 FR 64930), 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 to make these determinations. In this document, we affirm the information in our December 8, 2009, proposed rule (74 FR 64930) concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), 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 are amending our required determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211 (Energy Supply, Distribution, or Use), VerDate Mar<15>2010 15:03 Jul 19, 2010 Jkt 220001 E.O. 12630 (Takings), and the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.). Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 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), as described below. However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based on our DEA of the proposed revised designation, we provide the analysis for our determination whether or not 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 a 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 revised designation of critical habitat for Brodiaea filifolia would affect a substantial number of small entities, we considered the number of small entities PO 00000 Frm 00058 Fmt 4702 Sfmt 4702 42057 affected within particular types of economic activities, such as residential and commercial development. In order to determine whether it is appropriate for our agency to certify that the rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. If we finalize the proposed revised critical habitat designation, Federal agencies must consult with us under section 7 of the Act if their activities may affect designated critical habitat. Incremental impacts to small entities may occur as a direct result of a required consultation under section 7 of the Act. Additionally, even in the absence of a Federal nexus, indirect incremental impacts may still result because, for example, a city may request project modifications due to the designation of critical habitat via its review under the California Environmental Quality Act (CEQA). Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process because Brodiaea filifolia is federally listed as a threatened species under the Act. In the DEA, we evaluated the potential economic effects on small business entities resulting from implementation of conservation actions related to the proposed revision to critical habitat for Brodiaea filifolia (IEc 2010, Appendix A, pp. 1–7). The analysis was based on the estimated incremental impacts associated with the proposed rulemaking as described in sections 3 through 5 of the DEA. The SBREFA analysis evaluated the potential for economic impacts related to several categories, including: (1) Residential and commercial development; (2) transportation, utility, and flood control projects; and (3) management of public and conservation lands (IEc 2010, Appendix A, p. 4). The DEA found there are no incremental impacts related to the management of public and conservation lands. Impacts to small entities are only anticipated due to residential and commercial development. No impacts are anticipated due to transportation, utility, and flood control because the incremental costs are associated with activities conducted by the Metropolitan Water District of Southern California, which is not a small business or government as defined by the Small Business Administration (IEc 2010, Appendix A, p. 4). The DEA estimated that there will be approximately 23 landowners impacted over the next 20 years with an incremental impact estimated to be E:\FR\FM\20JYP1.SGM 20JYP1 42058 Federal Register / Vol. 75, No. 138 / Tuesday, July 20, 2010 / Proposed Rules wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1 $311,000 assuming a 7 percent discount rate. This impact is related to the decrease in land value for areas designated as critical habitat and may be borne by the current landowner in the form of percent of average value lost. In a regional context, we looked at the number of homeowners in each county as a representation of the total number of property owners in Los Angeles, San Bernardino, Riverside, Orange, and San Diego Counties. There are approximately 443,000 to over 1.6 million homeowners in these counties (IEc 2010, Appendix A, p. 5). The 23 landowners that may be impacted represent approximately less than 1 percent of the total number of landowners in Los Angeles, San Bernardino, Riverside, Orange, and San Diego Counties. We do not believe that this represents a substantial number of landowners. Additionally, we evaluated the decrease in property value by looking at the average parcel value by county and the percent of the value lost. We found that the land value lost ranged from 0.02 to 17.3 percent of the total value (IEc 2010, Appendix A, pp. 5–6). To some individual property owners this may represent a significant impact, but on a regional scale we do not believe an incremental impact of $311,000 in reduced land value represents a significant economic impact. As a result of this analysis, we find that the designation of critical habitat for Brodiaea filifolia will not have a significant economic impact on a substantial number of small entities. In summary, we considered whether the proposed revised designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed revised critical habitat for Brodiaea filifolia will not have a significant economic impact on a substantial number of small entities. Therefore, an initial regulatory flexibility analysis is not required. Executive Order 13211—Energy Supply, Distribution, and Use On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The Office of Management and Budget’s guidance for implementing this Executive Order outlines nine outcomes that may constitute ‘‘a significant adverse effect’’ when compared to no regulatory action. As discussed in Appendix A, the DEA VerDate Mar<15>2010 15:03 Jul 19, 2010 Jkt 220001 finds that none of these outcomes are possible in the context of this analysis (IEc 2010, Appendix A, pp. 7–8). The DEA concludes that no incremental impacts on the production, distribution, or use of energy are forecast associated specifically with this rulemaking (IEc 2010, Appendix A, p. 7). Therefore, designation of critical habitat is not expected to lead to any adverse outcomes (such as a reduction in electricity production or an increase in the cost of energy production or distribution), 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, 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. First, it excludes ‘‘a condition of federal assistance.’’ Second, 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 (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.’’ Critical habitat designation does not impose a legally binding duty on nonFederal government entities or private parties. The only regulatory effect is that under section 7 of the Act, which requires that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat. Designation of critical habitat may indirectly impact non-Federal entities PO 00000 Frm 00059 Fmt 4702 Sfmt 4702 that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action that may be indirectly impacted by the designation of critical habirat. 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) As discussed in the DEA of the proposed revised designation of critical habitat for Brodiaea filifolia, 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 DEA concludes that incremental impacts may occur due to conservation costs associated with residential and commercial development, and with transportation, utility, and flood control projects; however, these are not expected to affect small governments (IEc 2010, Appendix A, p. 4). Incremental impacts associated with these activities are expected to be borne by the Transportation Corridor Agencies and San Diego Gas and Electric, which are not considered small governments. Consequently, we do not believe that the proposed revised 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 analyzed the potential takings implications of proposing revised critical habitat for Brodiaea filifolia in a takings implications assessment. 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. The proposed revised critical habitat for B. filifolia does not pose significant takings implications for the above reasons. E:\FR\FM\20JYP1.SGM 20JYP1 Federal Register / Vol. 75, No. 138 / Tuesday, July 20, 2010 / Proposed Rules References Cited A complete list of all references we cited in the proposed rule and in this document is available on the Internet at https://www.regulations.gov or by contacting the Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Authors The primary authors of this notice are staff members of the Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). Dated: July 7, 2010 Eileen Sobeck, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2010–17708 Filed 7–19– 10; 8:45 am] BILLING CODE S DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R1–ES–2010–0023] [MO 92210–0–0008–B2] Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Giant Palouse Earthworm (Driloleirus americanus) as Threatened or Endangered wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1 AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of petition finding and initiation of status review. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90–day finding on a petition to list the giant Palouse earthworm (Driloleirus americanus) as threatened or endangered under the Endangered Species Act of 1973, as amended, (Act) and to designate critical habitat. Based on our review, we find that the petition presents substantial scientific or commercial information indicating that listing the giant Palouse earthworm as threatened or endangered may be warranted. Therefore, with the publication of this notice, we are initiating a review of the status of the species to determine if listing the giant Palouse earthworm is warranted. To ensure that this status review is comprehensive, we are requesting scientific and commercial data and other information regarding this species. VerDate Mar<15>2010 15:03 Jul 19, 2010 Jkt 220001 Based on the status review, we will issue a 12–month finding on the petition, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act. DATES: To allow us adequate time to conduct this review, we request that we receive information on or before September 20, 2010. Please note that if you are using the Federal eRulemaking Portal (see ADDRESSES section, below), the deadline for submitting an electronic comment is Eastern Time on this date. ADDRESSES: You may submit information by one of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. In the box that reads ‘‘Enter Keyword or ID,’’ enter the docket number for this notice, which is docket number FWS–R1–ES–2010– 0023. Check the box that reads ‘‘Open for Comment/Submission,’’ and then click the Search button. You should then see an icon that reads ‘‘Submit a Comment.’’ Please ensure that you have found the correct rulemaking before submitting your comment. • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS–R1– ES–2010–0023; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203. We will post all information received on https://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Information Solicited section below for more details). After the date specified in DATES, you must submit information directly to the Field Office (see FOR FURTHER INFORMATION CONTACT section below). Please note that we might not be able to address or incorporate information that we receive after the above requested date. FOR FURTHER INFORMATION CONTACT: Ken Berg, Manager, Washington Fish and Wildlife Office, 510 Desmond Dr. SE, Suite 102, Lacey, WA 98503; by telephone (360–753–9440); or by facsimile (360–753–9405). If you use a telecommunications device for the deaf (TDD) please call the Federal Information Relay Service (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: Request for Information When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly review the status of the species (status review). For the PO 00000 Frm 00060 Fmt 4702 Sfmt 4702 42059 status review to be complete and based on the best available scientific and commercial information, we request information on the giant Palouse earthworm (GPE) from governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties. We seek information on: (1) The species’ biology, range, and population trends, including: (a) Habitat requirements for feeding, breeding, and sheltering; (b) Genetics and taxonomy; (c) Historical and current range including distribution patterns; (d) Historical and current population levels, and current and projected trends; and (e) Past and ongoing conservation measures for the species and/or its habitat. (2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which are: (a) The present or threatened destruction, modification, or curtailment of its habitat or range; (b) Overutilization for commercial, recreational, scientific, or educational purposes; (c) Disease or predation; (d) The inadequacy of existing regulatory mechanisms; or (e) Other natural or manmade factors affecting its continued existence. (3) Information on grassland or other natural habitats within the range of the species including distribution of known or potential habitats; information on ongoing or future activities in potential GPE habitat; information on life history of the GPE and evidence supporting its endogeic (earthworms that live in mineral soil and consume organic matter within the soil or at the soil-litter interface) or anecic (earthworms that inhabit deep vertical burrows and emerge at night to consume relatively fresh plant detritus on the surface) lifehistory mode; and information on other native or nonnative earthworm distributions in the range of the species. If, after the status review, we determine that listing the GPE is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act), under section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, within the geographical range currently occupied by the GPE, we request data and information on: E:\FR\FM\20JYP1.SGM 20JYP1

Agencies

[Federal Register Volume 75, Number 138 (Tuesday, July 20, 2010)]
[Proposed Rules]
[Pages 42054-42059]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-17708]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2009-0073]
[92210-1117-0000-B4]
RIN 1018-AW54

Endangered and Threatened Wildlife and Plants; Revised Critical
Habitat for Brodiaea filifolia (Thread-leaved Brodiaea)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on our December 8, 2009,
proposed revised designation of critical habitat for Brodiaea filifolia
(thread-leaved brodiaea) under the Endangered Species Act of 1973, as
amended. We also announce the availability of a draft economic analysis
(DEA) and an amended required determinations section of the proposal.
We are reopening the comment period for an additional 30 days to allow
all interested parties an opportunity to comment on all of the above.
If you submitted comments previously, you do not need to resubmit them
because we have already incorporated them into the public record and
will fully consider them in our final determination.

DATES: We will consider public comments received on or before August
19, 2010. Any comments that we receive after the closing date may not
be considered in the final decision on this action.

ADDRESSES: You may submit comments by one of the following methods:

[[Page 42055]]

Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions for submitting comments on Docket No. FWS-R8-ES-2009-0073.
U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-
R8-ES-2009-0073; Division of Policy and Directives Management; U.S.
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington,
VA 22203.
We will post all comments on https://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, Suite 101, Carlsbad, CA 92011; telephone (760) 431-
9440; facsimile (760) 431-5901. Persons who use a telecommunications
device for the deaf (TDD) may call the Federal Information Relay
Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

We intend that any final action resulting from the proposed rule is
based on the best scientific data available and will be accurate and as
effective as possible. Therefore, we request comments or information
from other concerned government agencies, the scientific community,
industry, or any other interested parties during this reopened comment
period on our proposed rule to revise critical habitat for Brodiaea
filifolia, which we published in the Federal Register on December 8,
2009 (74 FR 64930), the DEA of the proposed designation, and the
amended required determinations provided in this document. We are
particularly interested in comments concerning:
(1) The reasons why we should or should not revise the critical
habitat under section 4 of the Endangered Species Act of 1973, as
amended (Act) (16 U.S.C. 1531 et seq.), including whether there are
threats to Brodiaea filifolia from human activity, the type of human
activity causing these threats, the degree of which can be expected to
increase due to the designation, and whether that increase in threats
outweighs the benefit of designation, such that the designation of
critical habitat is not prudent.
(2) Specific information on:
Areas that provide habitat for Brodiaea filifolia that we
did not discuss in our proposed revised critical habitat rule (December
8, 2009; 74 FR 64930).
Areas containing the physical and biological features
essential to the conservation of B. filifolia that we should include in
the final critical habitat designation and why. Include information on
the distribution of these essential features and what special
management considerations or protections may be required to maintain or
enhance them.
Areas we proposed as revised critical habitat that do not
contain the physical and biological features essential to the
conservation of the species and that should therefore not be designated
as critical habitat.
Areas not occupied at the time of listing that are
essential for the conservation of the species and why.
(3) Land use designations and current or planned activities in the
areas occupied by the species, and their possible impacts on proposed
revised critical habitat.
(4) How the proposed revised critical habitat boundaries could be
refined to more closely circumscribe landscapes identified as
containing the physical and biological features essential to the
conservation of the species.
(5) Any foreseeable economic, national security, or other relevant
impacts that may result from designating particular areas as critical
habitat, and, in particular, any impacts to small entities (e.g., small
businesses or small governments), and the benefits of including or
excluding areas from the proposed revised designation that exhibit
these impacts.
(6) Whether any specific subunits being proposed as revised
critical habitat should be excluded under section 4(b)(2) of the Act,
and whether the benefits of potentially excluding any particular area
outweigh the benefits of including that area in critical habitat.
(7) The likelihood of adverse social reactions to the designation
of critical habitat, and how the consequences of such reactions, if
they occur, would relate to the conservation of the species and
regulatory benefits of the proposed revised critical habitat
designation.
(8) Information on the extent to which the description of potential
economic impacts in the DEA is complete and accurate, and specifically:
Whether there are incremental costs of critical habitat
designation (e.g., costs attributable solely to the designation of
critical habitat for Brodiaea filifolia) that have not been
appropriately identified or considered in our economic analysis,
including costs associated with future administrative costs or project
modifications that may be required by Federal agencies related to
section 7 consultation under the Act; and
Whether there are incremental economic benefits of
critical habitat designation that are not appropriately identified or
considered in our economic analysis.
(9) The potential effects of climate change on this species and its
habitat and whether the critical habitat may adequately account for
these potential effects.
(10) 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 concerns and comments.
If you submitted comments or information on the proposed revised
rule (74 FR 64930) during the initial comment period from December 8,
2009, to February 8, 2010, please do not resubmit them. These comments
are included in the public record for this rulemaking, and we will
fully consider them in the preparation of our final determination. Our
final determination concerning the revised critical habitat for
Brodiaea filifolia will take into consideration all written comments
and any additional information we receive during both comment periods.
On the basis of public comments, we may, during the development of our
final determination, find that areas within the proposed revised
critical habitat designation do not meet the definition of critical
habitat, that some modifications to the described boundaries are
appropriate, or that areas may or may not be 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
section by one of the methods listed in the ADDRESSES section.
If you submit a comment via https://www.regulations.gov, your entire
submission--including any personal identifying information--will be
posted on the website. If your submission is made via a hard copy 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. Please
include sufficient information with your comments to allow us to verify
any scientific or commercial information you include.
Comments and materials we receive, as well as supporting
documentation used to prepare this notice, will be available for public
inspection at https://www.regulations.gov, or by appointment, during
normal business

[[Page 42056]]

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 revision of critical habitat (74 FR 64930) and
the DEA on the Internet at https://www.regulations.gov at Docket No.
FWS-R8-ES-2009-0073, or by mail from the Carlsbad Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT).

Background

It is our intent to discuss only those topics directly relevant to
the proposed revised designation of critical habitat for Brodiaea
filifolia in this notice. For more information on previous Federal
actions concerning B. filifolia, see the 2005 designation of critical
habitat published in the Federal Register on December 13, 2005 (70 FR
73820), see the proposed revised designation of critical habitat
published in the Federal Register on December 8, 2009 (74 FR 64930), or
contact the Carlsbad Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
The Center for Biological Diversity filed a complaint in the U.S.
District Court for the Southern District of California on December 19,
2007, challenging our designation of critical habitat for Brodiaea
filifolia and Navarretia fossalis (Center for Biological Diversity v.
United States Fish and Wildlife Service et al., Case No. 07-CV-2379-W-
NLS). This lawsuit challenged the validity of the information and
reasoning we used to exclude areas from the 2005 critical habitat
designation for B. filifolia. We reached a settlement agreement on July
25, 2008, in which we agreed to reconsider critical habitat designation
for B. filifolia. The settlement stipulated that we submit a proposed
revised critical habitat designation for B. filifolia to the Federal
Register for publication by December 1, 2009, and submit a final
critical habitat designation to the Federal Register for publication by
December 1, 2010. We published the proposed revised critical habitat
designation in the Federal Register on December 8, 2009 (74 FR 64930).
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
which 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 critical habitat must consult with us on the effects of their
proposed actions under section 7(a)(2) of the Act.

Draft Economic Analysis

Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific data available after
taking into consideration the economic impact, impact on national
security, and any other relevant impact of specifying any particular
area as critical habitat.
We prepared a DEA (Industrial Economics, Incorporated (IEc) 2010)
that identifies and analyzes the potential impacts associated with the
proposed revised designation of critical habitat for Brodiaea filifolia
that we published in the Federal Register on December 8, 2009 (74 FR
64930). The DEA looks retrospectively at costs incurred since the
October 13, 1998 (63 FR 54975), listing of B. filifolia as threatened.
The DEA quantifies the economic impacts of all potential conservation
efforts for B. filifolia; some of these costs will likely be incurred
regardless of whether or not we finalize the revised critical habitat
rule. The economic impact of the proposed revised critical habitat
designation is analyzed by comparing a ``without critical habitat''
scenario with a ``with critical habitat'' scenario. The ``without
critical habitat'' scenario represents the baseline for the analysis,
considering protections already in place for the species (for example,
under the Federal listing and other Federal, State, and local
regulations). The baseline, therefore, represents the costs incurred
regardless of whether critical habitat is designated. 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 critical habitat
designation for B. filifolia. In other words, the incremental costs are
those attributable solely to the designation of critical habitat above
and beyond the baseline costs; these are the costs we may consider in
the final designation of critical habitat relative to areas that may be
excluded under section 4(b)(2) of the Act. The analysis looks
retrospectively at baseline impacts incurred since the species was
listed, and forecasts both baseline and incremental impacts likely to
occur if we finalize the proposed revised critical habitat.
The 2010 DEA (made available with the publication of this notice
and referred to as the DEA throughout this document unless otherwise
noted) estimates the foreseeable economic impacts of the proposed
revised critical habitat designation for Brodiaea filifolia. The
economic analysis identifies potential incremental costs as a result of
the proposed revised critical habitat designation, which are those
costs attributed to critical habitat over and above those baseline
costs coextensive with listing. It also discusses the benefits of
critical habitat designation. These benefits are primarily presented in
a qualitative manner. The DEA describes economic impacts of B.
filifolia conservation efforts associated with the following categories
of activity: (1) Residential and commercial development; (2)
transportation, utility, and flood control projects; and (3) public and
conservancy lands management.
Baseline economic costs are those that result from listing and
other conservation efforts for Brodiaea filifolia. The baseline costs
are assuming a 7 percent discount rate and are identified in Appendix E
of the DEA (IEc 2010, Appendix E-1). Impacts associated with baseline
protection for B. filifolia within the proposed revised critical
habitat designation are estimated to be $5.31 million to $8.16 million
(approximately $486,000 to $720,000 annualized) over the next 20 years
(2011-2030). Baseline impacts to development are estimated to be $4.60
million to $7.46 million. This represents approximately 83 to 89
percent of the total baseline impacts. Baseline impacts to
transportation, utility, and flood control activities are estimated to
be $657,000. This represents approximately 8 to 12 percent of the total
baseline impacts. Baseline impacts to public and conservancy lands
management are estimated to be $49,500. This represents approximately
0.6 to 0.9 percent of the total baseline impacts.
Incremental impacts associated with the proposed revised critical
habitat designation are estimated to be $425,000 to $529,000
(approximately $37,500 to $46,700 annualized), assuming a 7 percent
discount rate, over the next 20 years (2011-2030). These impacts are
due to a reduction in land value following the designation of critical
habitat for Brodiaea filifolia and the cost of section 7 consultation
for pipeline maintenance activities (IEc 2010, p. ES-9). Incremental
impacts to development

[[Page 42057]]

are estimated to be $207,000 to $311,000. This represents approximately
49 to 59 percent of the total incremental impacts. No incremental costs
related to public and conservancy lands management are expected from
the designation (IEc 2010, p. ES-10).
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 government agencies, private businesses, and
individuals. The DEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on transportation, utility, flood
control projects, Federal lands, small entities, and the energy
industry. Decisionmakers can use this information to assess whether the
effects of the revised designation might unduly burden a particular
group or economic sector.

Required Determinations---Amended

In our proposed rule published in the Federal Register on December
8, 2009 (74 FR 64930), 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 to make these
determinations.
In this document, we affirm the information in our December 8,
2009, proposed rule (74 FR 64930) concerning Executive Order (E.O.)
12866 (Regulatory Planning and Review), 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 are
amending our required determinations concerning the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211 (Energy Supply,
Distribution, or Use), E.O. 12630 (Takings), and the Unfunded Mandates
Reform Act (2 U.S.C. 1501 et seq.).

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

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), 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),
as described below. However, no regulatory flexibility analysis is
required if the head of an agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
Based on our DEA of the proposed revised designation, we provide the
analysis for our determination whether or not 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 a 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 revised designation of critical
habitat for Brodiaea filifolia would affect a substantial number of
small entities, we considered the number of small entities affected
within particular types of economic activities, such as residential and
commercial development. In order to determine whether it is appropriate
for our agency to certify that the rule would not have a significant
economic impact on a substantial number of small entities, we
considered each industry or category individually.
If we finalize the proposed revised critical habitat designation,
Federal agencies must consult with us under section 7 of the Act if
their activities may affect designated critical habitat. Incremental
impacts to small entities may occur as a direct result of a required
consultation under section 7 of the Act. Additionally, even in the
absence of a Federal nexus, indirect incremental impacts may still
result because, for example, a city may request project modifications
due to the designation of critical habitat via its review under the
California Environmental Quality Act (CEQA). Consultations to avoid the
destruction or adverse modification of critical habitat would be
incorporated into the existing consultation process because Brodiaea
filifolia is federally listed as a threatened species under the Act.
In the DEA, we evaluated the potential economic effects on small
business entities resulting from implementation of conservation actions
related to the proposed revision to critical habitat for Brodiaea
filifolia (IEc 2010, Appendix A, pp. 1-7). The analysis was based on
the estimated incremental impacts associated with the proposed
rulemaking as described in sections 3 through 5 of the DEA. The SBREFA
analysis evaluated the potential for economic impacts related to
several categories, including: (1) Residential and commercial
development; (2) transportation, utility, and flood control projects;
and (3) management of public and conservation lands (IEc 2010, Appendix
A, p. 4).
The DEA found there are no incremental impacts related to the
management of public and conservation lands. Impacts to small entities
are only anticipated due to residential and commercial development. No
impacts are anticipated due to transportation, utility, and flood
control because the incremental costs are associated with activities
conducted by the Metropolitan Water District of Southern California,
which is not a small business or government as defined by the Small
Business Administration (IEc 2010, Appendix A, p. 4).
The DEA estimated that there will be approximately 23 landowners
impacted over the next 20 years with an incremental impact estimated to
be

[[Page 42058]]

$311,000 assuming a 7 percent discount rate. This impact is related to
the decrease in land value for areas designated as critical habitat and
may be borne by the current landowner in the form of percent of average
value lost. In a regional context, we looked at the number of
homeowners in each county as a representation of the total number of
property owners in Los Angeles, San Bernardino, Riverside, Orange, and
San Diego Counties. There are approximately 443,000 to over 1.6 million
homeowners in these counties (IEc 2010, Appendix A, p. 5). The 23
landowners that may be impacted represent approximately less than 1
percent of the total number of landowners in Los Angeles, San
Bernardino, Riverside, Orange, and San Diego Counties. We do not
believe that this represents a substantial number of landowners.
Additionally, we evaluated the decrease in property value by looking at
the average parcel value by county and the percent of the value lost.
We found that the land value lost ranged from 0.02 to 17.3 percent of
the total value (IEc 2010, Appendix A, pp. 5-6). To some individual
property owners this may represent a significant impact, but on a
regional scale we do not believe an incremental impact of $311,000 in
reduced land value represents a significant economic impact. As a
result of this analysis, we find that the designation of critical
habitat for Brodiaea filifolia will not have a significant economic
impact on a substantial number of small entities.
In summary, we considered whether the proposed revised designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if promulgated, the proposed
revised critical habitat for Brodiaea filifolia will not have a
significant economic impact on a substantial number of small entities.
Therefore, an initial regulatory flexibility analysis is not required.

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

On May 18, 2001, the President issued E.O. 13211 on regulations
that significantly affect energy supply, distribution, and use.
Executive Order 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. The Office of Management and
Budget's guidance for implementing this Executive Order outlines nine
outcomes that may constitute ``a significant adverse effect'' when
compared to no regulatory action. As discussed in Appendix A, the DEA
finds that none of these outcomes are possible in the context of this
analysis (IEc 2010, Appendix A, pp. 7-8). The DEA concludes that no
incremental impacts on the production, distribution, or use of energy
are forecast associated specifically with this rulemaking (IEc 2010,
Appendix A, p. 7). Therefore, designation of critical habitat is not
expected to lead to any adverse outcomes (such as a reduction in
electricity production or an increase in the cost of energy production
or distribution), 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, 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. First, it excludes ``a condition of federal
assistance.'' Second, 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 (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
Critical habitat designation does not impose a legally binding duty
on non-Federal government entities or private parties. The only
regulatory effect is that under section 7 of the Act, which requires
that Federal agencies must ensure that their actions do not destroy or
adversely modify critical habitat. Designation of critical habitat may
indirectly impact non-Federal entities that receive Federal funding,
assistance, or permits, or that otherwise require approval or
authorization from a Federal agency for an action that may be
indirectly impacted by the designation of critical habirat. 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) As discussed in the DEA of the proposed revised designation of
critical habitat for Brodiaea filifolia, 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 DEA concludes that incremental
impacts may occur due to conservation costs associated with residential
and commercial development, and with transportation, utility, and flood
control projects; however, these are not expected to affect small
governments (IEc 2010, Appendix A, p. 4). Incremental impacts
associated with these activities are expected to be borne by the
Transportation Corridor Agencies and San Diego Gas and Electric, which
are not considered small governments. Consequently, we do not believe
that the proposed revised 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 analyzed the potential takings implications of proposing
revised critical habitat for Brodiaea filifolia in a takings
implications assessment. 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. The proposed revised critical habitat for
B. filifolia does not pose significant takings implications for the
above reasons.

[[Page 42059]]

References Cited

A complete list of all references we cited in the proposed rule and
in this document is available on the Internet at https://www.regulations.gov or by contacting the Carlsbad Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT).

Authors

The primary authors of this notice are staff members of the
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).

Authority

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

Dated: July 7, 2010
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-17708 Filed 7-19- 10; 8:45 am]
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