Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Astragalus lentiginosus, 28846-28850 [2012-11671]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 77, Number 95 (Wednesday, May 16, 2012)]
[Proposed Rules]
[Pages 28846-28850]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11671]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2011-0064; 4500030114]
RIN 1018-AX40


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Astragalus lentiginosus var. coachellae (Coachella 
Valley Milk-Vetch)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening 
of the public comment period on the August 25, 2011, proposed revised 
designation of critical habitat for Astragalus lentiginosus var. 
coachellae (Coachella Valley milk-vetch) under the Endangered Species 
Act of 1973, as amended (Act). We also announce the availability of a 
draft economic analysis (DEA) of the proposed revised designation of 
critical habitat for A. l. var. coachellae and 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 revised designation, the associated DEA, 
and the amended required determinations section. We are also announcing 
the location and time of a public hearing to receive public comments on 
the proposal. Comments previously submitted need not be resubmitted, as 
they will be fully considered in preparation of the final rule.

DATES: We will consider comments received or postmarked on or before 
June 15, 2012. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES section, below) must be received by 
11:59 p.m. Eastern Time on the closing date.
    Public Hearing: We will hold a public hearing on this proposed rule 
on May 31, 2012, from 1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m.

ADDRESSES: You may submit written comments by one of the following 
methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. Search for Docket No. FWS-R8-ES-2011-0064, which 
is the docket number for this rulemaking.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2011-0064; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    Public hearing: We will hold a public hearing in the Palm Springs 
City Hall Council Chamber, 3200 E. Tahquitz Canyon Way, Palm Springs, 
CA 92263.
    We request that you send comments only by the methods described 
above. 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 Rd., Ste. 101, Carlsbad, CA 92011; telephone 760-431-
9440; facsimile 760-431-5902. 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 will accept written comments and information during this 
reopened comment period on our proposed revised designation of critical 
habitat for Astragalus lentiginosus var. coachellae that was published 
in the Federal Register on August 25, 2011 (76 FR 53224), our DEA of 
the proposed revised designation, and the amended required 
determinations provided in this document. We will consider information 
and recommendations from all interested parties. We are particularly 
interested in comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the taxon (the term 
taxon, as used herein, refers to any taxonomic rank that is not a 
species (for example, a genus, a subspecies, or a variety); Astragalus 
lentiginosus var. coachellae is a variety) from human activity, the 
degree of which can be expected to increase due to the designation, and 
whether that increase in threat outweighs the benefit of designation 
such that the designation of critical habitat is not prudent.
    (2) Specific information on:
    (a) The distribution of Astragalus lentiginosus var. coachellae;
    (b) The amount and distribution of Astragalus lentiginosus var. 
coachellae habitat;
    (c) What areas within the geographical area occupied by the taxon 
at the time of listing that contain physical or biological features 
essential to the conservation of the taxon we should include in the 
designation and why; and
    (d) What areas outside the geographical area occupied by the taxon 
at the time of listing are essential for the conservation of the taxon 
and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts 
associated with climate change on Astragalus lentiginosus var. 
coachellae and proposed critical habitat.
    (5) What areas, extent, and quality of the unoccupied fluvial 
(water) sand transport systems in the Coachella Valley and surrounding 
hills and mountains are essential for the conservation of Astragalus 
lentiginosus var. coachellae and should be included in the designation 
and why.
    (6) Any foreseeable economic, national security, or other relevant 
impacts that may result from designating any area that may be included 
in the final designation. We are particularly interested in any impacts 
on small entities, and the benefits of including or excluding areas 
from the proposed designation that are subject to these impacts.
    (7) Which specific areas within tribal lands proposed for critical 
habitat should be considered for exclusion under section 4(b)(2) of the 
Act, and

[[Page 28847]]

whether the benefits of potentially excluding any specific tribal lands 
outweigh the benefits of including that area, in particular for tribal 
lands owned or managed by the Morongo Band of Mission Indians (formerly 
the Morongo Band of Cahuilla Mission Indians of the Morongo 
Reservation) or the Agua Caliente Band of Cahuilla Indians of the Agua 
Caliente Indian Reservation.
    (8) Which specific lands covered by the Coachella Valley Multiple 
Species Habitat Conservation Plan/Natural Community Conservation Plan 
(Coachella Valley MSHCP/NCCP) proposed as critical habitat should be 
considered for exclusion under section 4(b)(2) of the Act, and whether 
the benefits of potentially excluding any specific area covered by the 
Coachella Valley MSHCP/NCCP outweigh the benefits of including that 
area. We are currently considering all lands covered by the Coachella 
Valley MSHCP/NCCP and proposed as critical habitat for exclusion under 
section 4(b)(2) of the Act (see the Habitat Conservation Plan Lands--
Exclusions under Section 4(b)(2) of the Act section below).
    (9) What specific actions the Coachella Valley Association of 
Governments (CVAG) has undertaken to meet the objectives and goals set 
out in the Coachella Valley MSHCP/NCCP specific to Astragalus 
lentiginosus var. coachellae since CVAG began implementing the MSHCP/
NCCP.
    (10) Whether there are any other lands covered by habitat 
conservation plans or other conservation actions that benefit 
Astragalus lentiginosus var. coachellae and should be considered for 
exclusion under section 4(b)(2) of the Act, where the benefits of 
potentially excluding any specific area outweigh the benefits of 
including that area.
    (11) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    (12) The validity of our approach for determining the extent of the 
fluvial sand transport system, and differentiating between fluvial sand 
transport and fluvial sand source areas. We identified fluvial sand 
source areas (areas where sediment is eroded from parent rock by moving 
water) as portions of drainages where slope is 10 percent or greater 
and fluvial sand transport areas (corridors along which water 
transports sediment, but little erosion of parent rock takes place) as 
portions of drainages where slope is less than 10 percent. This 
approach was informed by Griffiths et al. (2002, p. 21), who found that 
sediment production in the drainage areas supplying sand to Astragalus 
lentiginosus var. coachellae habitat is much lower in areas where the 
ground slope is less than 10 percent.
    (13) Information on the extent to which the description of economic 
impacts in the DEA is complete and accurate.
    If you submitted comments or information on the proposed rule (76 
FR 53224) during the initial comment period from August 25, 2011, to 
October 24, 2011, please do not resubmit them. We have incorporated 
them into the public record, and we will fully consider them in the 
preparation of our final determination. Our final determination 
concerning revised critical habitat 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 proposed do not 
meet the definition of critical habitat, are appropriate for exclusion 
under section 4(b)(2) of the Act, or are not appropriate for exclusion.
    You may submit your comments and materials concerning the proposed 
rule or DEA by one of the methods listed in the ADDRESSES section. We 
request that you send comments only by the methods described 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. We will post all hardcopy comments on https://www.regulations.gov as well. If you submit a hardcopy 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.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the proposed rule and DEA, will be 
available for public inspection on https://www.regulations.gov at Docket 
No. FWS-R8-ES-2011-0064, 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 the DEA on the Internet at https://www.regulations.gov at Docket Number FWS-R8-ES-2011-0064, or by mail 
from the Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT section).

Public Hearings

    The public hearings will take place on May 31, 2012, from 1 p.m. to 
3 p.m. and from 6 p.m. to 8 p.m. in the Palm Springs City Hall Council 
Chamber, 3200 E. Tahquitz Canyon Way, Palm Springs, CA 92263. The 
public hearing location is wheelchair-accessible. If you plan to attend 
the public hearing and need special assistance such as sign language 
interpretation or other reasonable accommodation, please notify the 
U.S. FWS (see FOR FURTHER INFORMATION CONTACT) at least 3 business days 
in advance. Include your contact information as well as information 
about your specific needs.

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for Astragalus lentiginosus var. 
coachellae in this document. For more information on previous Federal 
actions concerning A. l. var. coachellae, refer to the proposed revised 
designation of critical habitat published in the Federal Register on 
August 25, 2011 (76 FR 53224). For more information on A. l. var. 
coachellae or its habitat, refer to the final listing rule published in 
the Federal Register on October 6, 1998 (63 FR 53596), which is 
available online at https://www.regulations.gov (at Docket Number FWS-
R8-ES-2011-0064) or from the Carlsbad Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT).

Previous Federal Actions

    The following section summarizes the previous Federal actions since 
Astragalus lentiginosus var. coachellae was listed as endangered on 
October 6, 1998 (63 FR 53596); please refer to this final listing rule 
for a discussion of Federal actions that occurred prior to the taxon's 
listing.
    At the time of listing, we determined that designation of critical 
habitat was ``not prudent'' (63 FR 53596). On November 15, 2001, the 
Center for Biological Diversity (CBD) and the California Native Plant 
Society (CNPS) filed a lawsuit against the Secretary of the Interior 
and the Service challenging our ``not prudent'' determinations for 
eight plant taxa, including Astragalus lentiginosus var. coachellae 
(Center for Biological Diversity, et al. v. Norton, case number 01-cv-
2101 (S.D. Cal.)). A second lawsuit asserting the same challenge was 
filed on November 21, 2001, by the Building Industry Legal Defense 
Foundation (Building Industry Legal Defense Foundation v. Norton, case 
number 01-cv-2145 (S.D. Cal.)).

[[Page 28848]]

The parties in both cases agreed to remand the critical habitat 
determinations for the eight plant taxa at issue to the Service for 
reconsideration. On July 1, 2002, the Court directed us to reconsider 
our not prudent determination and if we determined that designation was 
prudent, submit to the Federal Register for publication a proposed 
critical habitat designation for A. l. var. coachellae by November 30, 
2004, and to submit to the Federal Register for publication a final 
rule designating critical habitat by November 30, 2005. The proposed 
rule to designate critical habitat for A. l. var. coachellae published 
in the Federal Register on December 14, 2004 (69 FR 74468). The final 
rule designating critical habitat for A. l. var. coachellae published 
in the Federal Register on December 14, 2005 (70 FR 74112).
    The Center for Biological Diversity filed a lawsuit on January 14, 
2009, claiming the Service failed to designate adequate critical 
habitat for Astragalus lentiginosus var. coachellae (CBD v. Kempthorne, 
case number ED-cv-09-0091 VAP(AGRx) (C.D. Cal.)). In a settlement 
agreement dated November 14, 2009, we agreed to reconsider the critical 
habitat designation for A. l. var. coachellae. The settlement required 
the Service to submit a proposed revised critical habitat designation 
for A. l. var. coachellae to the Federal Register by August 18, 2011, 
and submit a final revised critical habitat designation to the Federal 
Register by February 14, 2013.
    On August 25, 2011, we published a proposed rule to revise critical 
habitat for Astragalus lentiginosus var. coachellae (76 FR 53224). We 
proposed to designate approximately 25,704 acres (ac) (10,402 hectares 
(ha)) in 4 unit(s) located in Riverside County, California, as critical 
habitat. That proposal had a 60-day comment period, ending October 24, 
2011. We will submit for publication in the Federal Register a final 
critical habitat designation for A. l. var. coachellae on or before 
February 14, 2013.

Critical Habitat

    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 the designated critical habitat by any activity funded, 
authorized, or carried out by any Federal agency. Federal agencies 
proposing actions that may affect critical habitat must consult with us 
on the effects of their proposed actions, under section 7(a)(2) of the 
Act.

Consideration of Impacts Under Section 4(b)(2) of the Act

    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, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from designation due 
to State or Federal laws that may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan. In the case of 
Astragalus lentiginosus var. coachellae, the benefits of critical 
habitat include public awareness of the presence of A. l. var. 
coachellae and the importance of habitat protection, and, where a 
Federal nexus exists, increased habitat protection for A. l. var. 
coachellae due to protection from adverse modification or destruction 
of critical habitat. In practice, situations with a Federal nexus exist 
primarily on Federal lands or for projects undertaken by Federal 
agencies.
    The final decision on whether to exclude any areas will be based on 
the best scientific data available at the time of the final 
designation, including information obtained during the comment period 
and information about the economic impact of designation. Accordingly, 
we have prepared a draft economic analysis concerning the proposed 
revised critical habitat designation (DEA), which is available for 
review and comment (see ADDRESSES section).

Draft Economic Analysis

    The purpose of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed revised critical habitat 
designation for Astragalus lentiginosus var. coachellae. The DEA 
separates conservation measures into two distinct categories according 
to ``without critical habitat'' and ``with critical habitat'' 
scenarios. The ``without critical habitat'' scenario represents the 
baseline for the analysis, considering protections otherwise afforded 
to A. l. var. coachellae (e.g., under the Federal listing and other 
Federal, State, and local regulations). The ``with critical habitat'' 
scenario describes the incremental impacts specifically due to 
designation of critical habitat for the taxon. In other words, these 
incremental conservation measures and associated economic impacts would 
not occur but for the designation. Conservation measures implemented 
under the baseline (without critical habitat) scenario are described 
qualitatively within the DEA, but economic impacts associated with 
these measures are not quantified. Economic impacts are only quantified 
for conservation measures implemented specifically due to the 
designation of critical habitat (i.e., incremental impacts). For a 
further description of the methodology of the analysis, see Chapter 2, 
``Framework for the Analysis,'' of the DEA.
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed revised critical habitat designation 
for Astragalus lentiginosus var. coachellae over the next 20 years, 
which was determined to be the appropriate period for analysis because 
limited planning information is available for most activities to 
forecast activity levels for projects beyond a 20-year timeframe. It 
identifies potential incremental costs as a result of the proposed 
revised critical habitat designation; these are those costs attributed 
to critical habitat over and above those baseline costs attributed to 
listing. The DEA quantifies economic impacts of A. l. var. coachellae 
conservation efforts associated with the following categories of 
activity: (1) Residential, commercial, and industrial development; (2) 
water management and use; (3) transportation activities; (4)

[[Page 28849]]

energy development; (5) sand and gravel mining; and (6) tribal 
activities.
    Baseline economic impacts are those impacts that result from 
listing and other conservation efforts for Astragalus lentiginosus var. 
coachellae. The DEA does not quantify baseline economic impacts, but 
does include a qualitative discussion of activities likely to be 
undertaken to protect A. l. var. coachellae absent the designation of 
critical habitat as a result of Federal, State, and local regulations 
as well as the Coachella Valley MSHCP/NCCP, the California Desert 
Conservation Area Plan (on BLM lands), wilderness designation (on BLM 
and USFS lands) and the Coachella Valley National Wildlife Refuge (on 
Service lands).
    The DEA estimates total potential incremental economic impacts in 
areas proposed as revised critical habitat over the 20 years following 
the designation (2013 to 2032) to be $220,000 to $820,000 ($20,000 to 
$73,000 annualized) in present value terms applying a 7 percent 
discount rate (IEc 2012, p. ES-2). Conservation efforts related to 
residential, commercial, and industrial development projects account 
for the largest share of impacts under the high-end ($820,000) 
estimate. These costs, $590,000 in project modification costs (assuming 
a 7 percent discount rate) plus administrative costs resulting from the 
consideration of adverse modification in section 7 consultations, are 
projected to occur in the unoccupied portion of Unit 3, within the City 
of Desert Hot Springs. The DEA estimates that proponents of 
transportation activities, such as road and bridge construction and 
maintenance, are likely to experience the next largest impacts after 
residential, commercial, and industrial development, including 
approximately $1,300 in project modification costs (7 percent discount 
rate), plus administrative costs. Water management and use, energy 
development, and sand and gravel mining projects are projected to incur 
only administrative costs due to the critical habitat designation. The 
DEA predicts only administrative costs to the Agua Caliente Band of 
Cahuilla Indians as a result of the designation, and no incremental 
impacts to the Morongo Band of Mission Indians, because no future 
section 7 consultations are anticipated on the portion of their lands 
proposed as critical habitat.
    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 water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. Decision-makers can use this information to assess whether 
the effects of the revised critical habitat designation might unduly 
burden a particular group or economic sector.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed rule and our 
amended required determinations. We may revise the proposed rule to 
incorporate or address information we receive during the public comment 
period. In particular, we may exclude an area from critical habitat if 
we determine that the benefits of excluding the area outweigh the 
benefits of including the area, provided the exclusion will not result 
in the extinction of this taxon.

Changes to Proposed Revised Critical Habitat

    In this document, we are making a correction to the proposed 
revised critical habitat for Astragalus lentiginosus var. coachellae as 
identified and described in the preamble to the proposed rule that we 
published in the Federal Register on August 25, 2011 (76 FR 53224). The 
correction is in regard to the description of Unit 1 (76 FR 53240). 
Unit 1 contains 316 ac (128 ha) of tribal land (Morongo Band of Mission 
Indians) and 1,791 ac (725 ha) of private land. Of this area, we 
characterized 156 ac (63 ha) of tribal land and 1 ac (0.4 ha) of 
private land as being covered under the Western Riverside County 
Multiple Species Habitat Conservation Plan (Western Riverside County 
MSHCP), due to an incorrect interpretation of GIS data. These lands are 
within the boundaries of the Western Riverside County MSHCP, but they 
are ``inholdings'' (that is, they are not covered by or subject to the 
provisions of the Western Riverside County MSHCP or any other Habitat 
Conservation Plan). All other acreages reported in the proposed rule 
are correct to the best of our knowledge, and the boundaries of the 
proposed revised critical habitat remain the same as described in the 
proposed rule. No part of the proposed critical habitat for A. l. var. 
coachellae is covered by the Western Riverside County MSHCP.

Required Determinations--Amended

    In our August 25, 2011, proposed rule (76 FR 53224), 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 to make these determinations. In this 
document, we affirm the information in our proposed rule concerning 
Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice 
Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the 
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.), 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 determination concerning the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

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 of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 effects 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. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that 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 our analysis for determining whether the

[[Page 28850]]

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, 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 Astragalus lentiginosus var. coachellae 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, commercial, and industrial development. In order to 
determine whether it is appropriate for our agency to certify that this 
proposed 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. Critical habitat designation will not affect 
activities that do not have any Federal involvement; designation of 
critical habitat only affects activities conducted, funded, permitted, 
or authorized by Federal agencies. In areas where A. l. var. coachellae 
is present, Federal agencies already are required to consult with us 
under section 7 of the Act on activities they fund, permit, or 
implement that may affect the taxon. If we finalize this proposed 
revised critical habitat designation, consultations to avoid the 
destruction or adverse modification of critical habitat would be 
incorporated into the existing consultation process.
    In the DEA, we evaluated the potential economic effects on small 
entities resulting from implementation of conservation actions related 
to the proposed revised designation of critical habitat for Astragalus 
lentiginosus var. coachellae. The DEA is based on the estimated 
incremental impacts associated with the proposed rulemaking as 
described in Chapters 3 through 5 of the DEA. The SBREFA analysis 
evaluates the potential for economic impacts related to several 
categories, including: (1) Residential, commercial, and industrial 
development; (2) water management and use; (3) transportation 
activities; (4) energy development; (5) sand and gravel mining; and (6) 
tribal activities (IEc 2012, p. A-4). On the basis of our draft 
analysis, we have determined that no incremental impacts attributed to 
water management and use, transportation activities, energy 
development, sand and gravel mining, and tribal activities are expected 
to be borne by entities that meet the definition of small entities (IEc 
2010, pp. A-4-5). Potential impacts in these sectors are expected to be 
borne by water management agencies, State agencies, Federal agencies, 
other governmental agencies, and nongovernmental agencies that are not 
considered to be small business entities.
    However, the DEA concludes that the proposed rulemaking potentially 
may affect small entities in the residential, commercial, and 
industrial development sector (IEc 2010, p. A-6). There are 6,151 
businesses involved in development activities within San Bernardino, 
Riverside, Orange, and Los Angeles Counties and, of these, 6,076 are 
considered small. Because information on the number of projects or 
developers likely to be affected is not available, the DEA presents a 
bounding analysis, assuming that a single developer bears all costs 
associated with growth in proposed critical habitat. Under this 
assumption, $52,260 in incremental costs would accrue to one developer 
per year. Assuming the average small entity has annual revenues of 
approximately $5.1 million, this annualized impact represents 
approximately 1 percent of annual revenues. The assumption that all 
costs accrue to one developer likely overstates the impact 
significantly; thus, the DEA estimates incremental impacts to small 
developers of less than 1 percent of annual revenues (IEc 2010, pp. A-
8-9). For development activities, potential impacts to small 
development firms may also be overstated because much or all of the 
costs of milk-vetch conservation efforts may ultimately be borne by 
current landowners. Many of these landowners may be individuals or 
families that are not legally considered to be businesses. No NAICS 
code exists for landowners, and the SBA does not provide a definition 
of a small landowner. Additionally, the development projected for 
Desert Hot Springs may not occur, as those lands fall within the 100-
year floodplain (IEc 2010, p. A-9). Please refer to the DEA of the 
proposed revised critical habitat designation for a more detailed 
discussion of potential economic impacts.
    In summary, we have considered whether the proposed revised 
designation would result in a significant economic impact on a 
substantial number of small entities. Information for this analysis was 
gathered from the Small Business Administration, stakeholders, and our 
files. For the above reasons and based on currently available 
information, we certify that, if promulgated, the proposed revised 
critical habitat designation would result in incremental impacts to 
small developers of less than 1 percent of annual revenues; and, thus, 
would not have a significant economic impact on a substantial number of 
small business entities. Therefore, an initial regulatory flexibility 
analysis is not required.

Authors

    The primary authors of this notice are the staff members of the 
Carlsbad Fish and Wildlife Office, Pacific Southwest Region, U.S. Fish 
and Wildlife Service.

Authority

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

    Dated: May 7, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-11671 Filed 5-15-12; 8:45 am]
BILLING CODE 4310-55-P