Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Arctostaphylos franciscana, 38897-38911 [2013-15487]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 78, Number 125 (Friday, June 28, 2013)]
[Proposed Rules]
[Pages 38897-38911]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15487]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2012-0067; 4500030114]
RIN 1018-AY63


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Arctostaphylos franciscana

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; revision and reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the September 5, 2012, 
proposed designation of critical habitat for Arctostaphylos franciscana 
(Franciscan manzanita) under the Endangered Species Act of 1973, as 
amended (Act). We also announce the availability of the draft economic 
analysis (DEA) for the proposed critical habitat designation and an 
amended required determinations section of the proposal. In addition, 
in this document, we have corrected the acreage calculations for our 
September 5, 2012, proposal due to a mapping error. We also propose to 
increase the September 5, 2012, proposed designation of critical 
habitat for A. franciscana by approximately 73 acres (30 hectares) by 
adding two additional units in the City and County of San Francisco, 
California. We are reopening the comment period on the September 5, 
2012, proposed rule for an additional 30 days to allow all interested 
parties an opportunity to comment simultaneously on that proposed 
critical habitat, the revisions to proposed critical habitat described 
in this document, the associated DEA, and the amended required 
determinations section. Comments previously submitted need not be 
resubmitted and will be fully considered in preparation of the final 
rule.

DATES: The comment period for the proposed rule published September 5, 
2012 (77 FR 54517), is reopened. We will consider comments received or 
postmarked on or before July 29, 2013. 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. Any comments that we receive after the closing date may 
not be considered in the final decision on this action.

ADDRESSES: Document availability: You may obtain copies of the DEA and 
this document on the internet at https://www.regulations.gov at Docket 
No. FWS-R8-ES-2012-0067, or by mail from the Sacramento Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
    Written Comments: 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-2012-0067, 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-2012-0067; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    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: Karen Leyse, Listing Coordinator, U.S. 
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 
Cottage

[[Page 38898]]

Way, W-2605, Sacramento, California 95825; telephone 916-414-6600; 
facsimile 916-414-6612. 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 comment 
period on our proposed designation of critical habitat for 
Arctostaphylos franciscana that was published in the Federal Register 
on September 5, 2012 (77 FR 54517), the revisions to that proposed 
designation of critical habitat that are described in this document, 
our DEA of the proposed designation, and the amended required 
determinations provided in this document. We will consider information 
and recommendations from all interested parties. We are particularly 
interested in comments concerning:
    (1) The reasons why 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 species 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 may not be 
prudent.
    (2) Specific information on:
    (a) Areas containing the physical and biological features essential 
to the conservation of A. franciscana 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;
    (b) Areas proposed as revised critical habitat that do not contain 
the physical and biological features essential for the conservation of 
the species and that should not be designated as critical habitat;
    (c) Areas not occupied or not known to be occupied at the time of 
listing that are essential for the conservation of the species and why; 
and
    (d) Information on the projected and reasonably likely impacts of 
climate change on A. franciscana and proposed critical habitat and 
whether the critical habitat may adequately account for these potential 
effects.
    (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 new areas that we are proposing for critical 
habitat designation in this document.
    (5) Information that may assist us identifying or clarifying the 
physical and biological features essential to the conservation of A. 
franciscana.
    (6) Whether any specific areas being proposed as critical habitat 
for A. franciscana should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act. See the Exclusions section of the September 
5, 2012, proposed rule (77 FR 54517) for further discussion. We have 
not proposed to exclude any areas from critical habitat. However, we 
have received requests from the Presidio Trust and the National Park 
Service (NPS) to exclude some areas within the proposed Units 1, 2, and 
some areas within proposed Subunits 3A, 4B, and 5A and all of Subunit 
3A at the Presidio. We will examine conservation actions for A. 
franciscana, including current management planning documents, in our 
consideration of these areas for exclusion from the final designation 
of critical habitat for A. franciscana, under section 4(b)(2) of the 
Act. We specifically solicit comments on the inclusion or exclusion of 
these areas.
    (7) 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.
    (8) Information on the extent to which the description of probable 
economic impacts in the DEA is complete and accurate, and specifically:
    (a) Whether there are incremental costs of critical habitat 
designation (for example, costs attributable solely to the designation 
of critical habitat for A. franciscana) 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
    (b) Whether there are additional project modifications that may 
result from the designation of critical habitat for A. franciscana and 
what those potential project modifications might represent.
    (9) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you submitted comments or information on the proposed rule (77 
FR 54517) during the initial comment period from September 5, 2012, to 
November 5, 2012, please do not resubmit them. We will incorporate them 
into the public record as part of this comment period, and we will 
fully consider them in the preparation of our final determination. Our 
final determination concerning critical habitat will take into 
consideration all written comments and any additional information we 
receive during both comment periods. On the basis of public comments, 
we may, during the development of our final determination, find that 
areas proposed are not essential, are appropriate for exclusion under 
section 4(b)(2) of the Act, or are not appropriate for exclusion.
    You may submit your comments and materials concerning the proposed 
revised rule or DEA by one of the methods listed in ADDRESSES. We 
request that you send comments only by the methods described in 
ADDRESSES.
    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, this document, 
and the DEA, will be available for public inspection on https://www.regulations.gov at Docket No. FWS-R8-ES-2012-0067, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Sacramento Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT). You may obtain copies of the proposed rule (77 FR 
54517), this document, and the DEA on the Internet at https://www.regulations.gov at Docket No. FWS-R8-ES-2012-0067, or by mail from 
the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the

[[Page 38899]]

designation of critical habitat for Arctostaphylos franciscana in this 
document. For more information on previous Federal actions concerning 
A. franciscana, refer to the proposed designation of critical habitat 
published in the Federal Register on September 5, 2012 (77 FR 54517). 
For more information on the taxonomy or biology of A. franciscana or 
its habitat, refer to the final listing rule published in the Federal 
Register on September 5, 2012 (77 FR 54434), which is available online 
at https://www.regulations.gov (at Docket No. FWS-R8-ES-2010-0049 or 
from the Sacramento Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT). More information on A. franciscana and its 
habitat is also available in the Recovery Plan for Coastal Plants of 
the Northern San Francisco Peninsula (Service 2003), which is available 
from the Environmental Conservation Online System (ECOS) (https://ecos.fws.gov/ecos) and the Sacramento Fish and Wildlife Office Web site 
(https://www.fws.gov/sacramento/).

Previous Federal Actions

    On September 5, 2012, we published a final rule to list A. 
franciscana (77 FR 54434) and a proposed rule to designate critical 
habitat for A. franciscana (77 FR 54517). We proposed to designate as 
critical habitat approximately 318 acres (ac) (197 hectares (ha)) that 
we have now corrected to 197 ac (80 ha) in 11 units located in the City 
and County of San Francisco, California. That proposal had a 60-day 
comment period, ending November 5, 2012. We will submit for publication 
in the Federal Register a final critical habitat designation for A. 
franciscana after we receive public comment on the revisions to the 
proposed critical habitat described in this document, the DEA, and the 
amended required determinations provided in this document.

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 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.

Corrections to the Proposed Critical Habitat

    We have corrected the acreage calculations for our September 5, 
2012, proposal (77 FR 54517) due to a mapping error. The September 5, 
2012, proposal identified 318 ac (129 (ha); the corrected total acreage 
is 197 ac (80 ha) for the 11 units proposed (see Revisions to Proposed 
Critical Habitat). We are providing corrected acreage because we have 
learned that our original acreage calculations were inadvertently made 
using a map projection that is used for web-based mapping (WGS84) 
rather than the local area projection used as a standard by the Service 
(UTM NAD83). The WGS84 projection is not designed for accurate local 
area measurement and resulted in inflated acreages, which have been 
corrected. The total acreage that we proposed has been recalculated, 
resulting in a total acreage of 197 ac (80 ha) proposed in the 
September 5, 2012, proposed rule (77 FR 54517). Please see Table 1 for 
revised acreages for each of these units.

   Table 1--Critical Habitat Units for Arctostaphylos Franciscana Proposed on September 5, 2012 (77 FR 54517):
                                        Published and Corrected Acreages
                   [Area estimates reflect all land within critical habitat unit boundaries.]
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                                                                            Published acres     Corrected acres
           Critical habitat unit               Land ownership by type         (hectares)          (hectares)
----------------------------------------------------------------------------------------------------------------
1. Fort Point.............................  Federal.....................              12 (5)           7.7 (3.1)
                                            State.......................                  0                   0
                                            Local.......................                  0                   0
                                            Private.....................                  0                   0
2. Fort Point Rock........................  Federal.....................             36 (15)          21.3 (8.6)
                                            State.......................                  0                   0
                                            Local.......................                  0                   0
                                            Private.....................                  0                   0
3A. World War II Memorial.................  Federal.....................             1 (0.6)           0.8 (0.3)
                                            State.......................                  0                   0
                                            Local.......................                  0                   0
                                            Private.....................                  0                   0
3B. World War II Memorial.................  Federal.....................             2 (0.7)           1.1 (0.5)
                                            State.......................                  0                   0
                                            Local.......................                  0                   0
                                            Private.....................                  0                   0
4A. Immigrant Point.......................  Federal.....................           0.7 (0.3)           0.4 (0.2)
                                            State.......................                  0                   0
                                            Local.......................                  0                   0
                                            Private.....................                  0                   0
4B. Immigrant Point.......................  Federal.....................               6 (3)           4.0 (1.6)
                                            State.......................                  0                   0
                                            Local.......................                  0                   0
                                            Private.....................                  0                   0
5A. Inspiration Point.....................  Federal.....................              21 (9)          13.2 (5.4)
                                            State.......................                  0                   0
                                            Local.......................                  0                   0
                                            Private.....................                  0                   0
5B. Inspiration Point.....................  Federal.....................               3 (1)           2.1 (0.9)
                                            State.......................                  0                   0

[[Page 38900]]

 
                                            Local.......................                  0                   0
                                            Private.....................                  0                   0
6. Corona Heights.........................  Federal.....................                  0                   0
                                            State.......................                  0                   0
                                            Local.......................              10 (4)           6.1 (2.5)
                                            Private.....................                  0                   0
7. Twin Peaks.............................  Federal.....................                  0                   0
                                            State.......................                  0                   0
                                            Local.......................             62 (25)         42.2 (17.1)
                                            Private.....................               9 (4)           1.6 (0.6)
8. Mount Davidson.........................  Federal.....................                  0                   0
                                            State.......................                  0                   0
                                            Local.......................              11 (4)           6.6 (2.6)
                                            Private.....................             1 (0.5)           0.7 (0.3)
9. Diamond Heights........................  Federal.....................                  0                   0
                                            State.......................                  0                   0
                                            Local.......................             34 (14)          21.3 (8.6)
                                            Private.....................           0.3 (0.1)                 0*
10. Bernal Heights........................  Federal.....................                  0                   0
                                            State.......................                  0                   0
                                            Local.......................             24 (10)          14.9 (6.0)
                                            Private.....................           0.3 (0.1)                  0
11. Bayview Park..........................  Federal.....................                  0                   0
                                            State.......................                  0                   0
                                            Local.......................             56 (23)         42.2 (17.1)
                                            Private.....................             29 (12)          11.0 (4.4)
Total.....................................  Federal.....................             83 (34)  ..................
                                            State.......................                  0                   0
                                            Local.......................            196 (79)  ..................
                                            Private.....................             40 (16)  ..................
                                                                         ---------------------------------------
                                               Total acreage............           318 (129)        197.3 (79.8)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding. Acreages are carried out to one decimal place to show small units.
  Areas less than 0.1 ac are denoted as 0*.

Revisions to Proposed Critical Habitat Designation

    On September 5, 2012, we proposed 11 units, consisting of 
approximately 318 ac (129 ha) in City and County of San Francisco, 
California, as critical habitat for Arctostaphylos franciscana (77 FR 
54517). As stated above, we are correcting the acreage of the original 
proposal to a total of 197 ac (80 ha).
    We are now proposing to increase the designation by approximately 
73 ac (30 ha) to a total of approximately 270 ac (109 ha) in 13 
critical habitat units in the City and County of San Francisco, 
California. We propose this increase based on additional information on 
habitat suitability that San Francisco Parks and Recreation Department 
(SFPRD) staff provided to us. The additional areas include: Two 
subunits in Unit 9 (Diamond Heights) so that the unit now consists of 
three subunits; and two new units at McLaren Park: Unit 12 (McLaren 
Park East), which consists of two subunits, and Unit 13 (McLaren Park 
West). Below, under Revised Proposed Critical Habitat: Additional 
Units, we provide an updated unit description for proposed Unit 9 and 
unit descriptions for proposed Units 12 and 13. We also modified the 
methods we used to delineate the proposed critical habitat; see 
``Methods'' below.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. We review 
available information pertaining to the habitat requirements of the 
species. In accordance with the Act and its implementing regulations at 
50 CFR 424.12(e), we consider whether designating additional areas--
outside those currently occupied as well as those occupied at the time 
of listing, if listing occurs before the designation of critical 
habitat--are necessary to ensure the conservation of the species. We 
are proposing to designate critical habitat in areas within the 
geographical area currently occupied by the species (see final listing 
determination published in the Federal Register on September 5, 2012 
(77 FR 54434)). We also are proposing to designate specific areas 
outside the geographical area occupied by the species at the time of 
listing (in this case, the geographical area currently occupied by the 
species), which were historically occupied but are presently 
unoccupied, because such areas are essential for the conservation of 
the species.
    This section provides details of the criteria and process we used 
to delineate the proposed critical habitat for Arctostaphylos 
franciscana. The areas being proposed for critical habitat within this 
document and previous proposed rule are based largely on habitat 
characteristics identified from the ``rediscovery site'' near Doyle 
Drive, the currently occupied transplantation site, and historically 
occupied areas identified in voucher specimens and historical records. 
We also used the Recovery Plan for Coastal Plants of the Northern San 
Francisco Peninsula (Service 2003, pp. 1-322); the Conservation Plan 
for Arctostaphylos franciscana (the Franciscan Manzanita)

[[Page 38901]]

(Chasse et al. 2009, pp. 1-44); the Raven's Manzanita Recovery Plan 
(Service 1984, pp. 1-73), which provide habitat characteristics of the 
historically co-occurring species; and information received from peer 
reviewers and the public on our proposed listing for A. franciscana (76 
FR 55623; September 8, 2011). Due to the rapid development of the San 
Francisco peninsula and limited historical information on plant 
location and distribution, it is difficult to determine the exact range 
of the species. Given the amount of remaining habitat available with 
the appropriate characteristics, we looked at all areas within the 
vicinity of San Francisco that met our criteria as potential habitat. 
Based on this information, we propose to designate critical habitat in 
areas within the geographical area currently occupied by A. franciscana 
(which is the same as the geographical area occupied by the species at 
the time of listing) and unoccupied areas that are essential for the 
conservation of the species (see the Distribution and Habitat section 
in the September 5, 2012, proposed designation (77 FR 54517) for more 
information on the range of the species.
    Although a recovery plan for Arctostaphylos franciscana has not 
been developed, the species is discussed along with the endangered A. 
hookeri ssp. ravenii (Raven's manzanita) in the Recovery Plan for 
Coastal Plants of the Northern San Francisco Peninsula (Service 2003). 
The taxonomic name for Raven's manzanita has been changed to A. montana 
ssp. ravenii. The recovery plan calls for a three-part strategy in 
conserving A. montana ssp. ravenii, as well as additional 
recommendations for establishment in areas outside the Presidio at 
historic and other rock outcrop sites in conjunction with A. 
franciscana (Service 2003, pp. 75-77). The strategy includes: (1) 
Protecting the existing plant and surrounding habitat; (2) increasing 
the number of independent populations throughout suitable habitat 
within the Presidio; and (3) restoring the natural ecological 
interactions of the species with its habitat, including allowing gene 
flow with A. franciscana. As mentioned above, the recovery plan also 
identifies establishing additional areas, along with populations of A. 
franciscana, within rock outcrops throughout suitable habitat. We 
believe that a recovery strategy for A. franciscana would be similar to 
the recovery strategy for A. montana ssp. ravenii in many aspects, 
based on: (1) The existence of only one ``wild'' individual of each 
species; (2) the species' co-occurrence in similar habitat within the 
Presidio and elsewhere at historical locations; and (3) the seeming 
dependence of A. montana ssp. ravenii on A. franciscana to produce 
viable seed and maintain gene flow with A. franciscana in the absence 
of more than the single individual or clones of A. montana ssp. 
ravenii. In order to accomplish portions of this strategy, we have 
identified areas we believe are essential to the conservation of A. 
franciscana through the following criteria:
    (1) Determine, in accordance with section 3(5)(A)(i) of the Act and 
regulations at 50 CFR 424.12, the physical or biological habitat 
features essential to the conservation of the species and which may 
require special management considerations or protection.
    (2) Identify multiple independent sites for A. franciscana. These 
sites should be throughout the historic range of the species (generally 
on the San Francisco peninsula north of Mount Davidson) within or near 
rock outcrops of various origins but especially on ridges or slopes 
within serpentine or greenstone formations along the Franciscan fault 
zone between Potrero Hills and the Golden Gate (see Figure 2 in the 
September 5, 2012, proposed rule at 77 FR 54517).
    (3) In accordance with section 2(b) of the Act, select areas that 
would conserve the ecosystem upon which the species depends. This 
includes areas that contain the natural ecological interactions of the 
species with its habitat or areas with additional management that may 
be enhanced. The conservation of A. franciscana is dependent on several 
factors including, but not limited to, selection of areas of sufficient 
size and configuration to sustain natural ecosystem components, 
functions, and processes (such as full sun exposure, summer fog, 
natural fire and hydrologic regimes, intact mycorrhizal or edaphic 
interactions); protection of existing substrate continuity and 
structure; connectivity among groups of plants of this species within 
geographic proximity to facilitate gene flow among the sites through 
pollinator activity and seed dispersal; and sufficient adjacent 
suitable habitat for vegetative reproduction and population expansion.
    (4) In selecting areas to propose as critical habitat, consider 
factors such as size, connectivity to other habitats, and rangewide 
recovery considerations. We rely upon principles of conservation 
biology, including: (a) Resistance and resiliency, to ensure sufficient 
habitat is protected throughout the range of the species to support 
population viability (e.g., demographic parameters); (b) redundancy, to 
ensure multiple viable populations are conserved throughout the 
species' range; and (c) representation, to ensure the representative 
genetic and life history of A. franciscana are conserved.
    We have determined that the additional units and subunits we are 
proposing as critical habitat in this document are essential for the 
conservation and recovery of A. franciscana because they provide the 
physical or biological features necessary for the reestablishment of 
wild populations of A. franciscana within the species' historical 
range. Due to the small number of individual plants and low population 
size, suitable habitat and space for expansion or reintroduction are 
essential to achieving population levels that would be necessary for 
recovery.
    We have identified the additional units and subunits in part 
because of information indicating that some critical habitat units may 
be or may become unsuitable for A. franciscana because of soilborne 
pathogens or plant diseases. Therefore, it is important to identify as 
many independent units as feasible to increase the odds that at least 
some of these would remain free of these pathogens into the foreseeable 
future (Swiecki 2013, p. 3). The additional units proposed below 
provide further resistance, resiliency, and redundancy. Additionally, 
the McLaren Park West and McLaren Park East units would provide 
connectivity between the Bayview Park and Diamond Heights units.

Methods

    In order to identify the physical or biological features on the 
ground based on our criteria outlined above, we used the following 
methods to delineate the proposed critical habitat:
    (1) We compiled and reviewed all available information on A. 
franciscana habitat and distribution from historic voucher specimens, 
literature, and reports.
    (2) We also compiled and reviewed all available information on A. 
montana ssp. ravenii habitat and distribution from similar sources, as 
these two species have similar habitat requirements and often occurred 
together historically.
    (3) We reviewed available information on rock outcrops, bedrock, 
and areas identified as serpentine, greenstone, or of Franciscan 
formation within the San Francisco peninsula and surrounding areas 
south of Mount Davidson and north into Marin County to determine

[[Page 38902]]

the extent of these features on the landscape.
    (4) We compiled species occurrence information including historic 
record locations, the current occupied site within the Presidio, and 
information on the ``rediscovery site'' near Doyle Drive.
    (5) We then compiled all this information into a Geographic 
Information System (GIS) database using ESRI ArcMap 10.0.
    (6) We screen digitized and mapped the specific areas on which are 
found those physical or biological features essential to the 
conservation of the species or other areas determined to be essential 
for the conservation of the species.
    Additionally, in the analysis for the additional areas we are 
proposing as critical habitat in this document, we used the following 
methods to delineate the proposed critical habitat:
    (1) We used additional information we received about the 
suitability of habitat through our November 15, 2012, site visit and 
discussions with SFPRD staff. In our analysis for the proposed rule we 
had missed portions of Diamond Heights and McLaren Park as appropriate 
habitat.
    (2) We examined higher-resolution imagery (0.3 meter pixel 
resolution versus 1.0 meter pixel resolution that was used in the 
September 5, 2012, proposed critical habitat). We used U.S. Geological 
Survey High Resolution Orthoimage USNG 10SEG325910. Orthoimage are 
remotely sensed image data in which the displacement of features in the 
image caused by terrain relief and sensor orientation have been 
mathematically removed. The natural color orthoimages were produced at 
0.3-meter (approximately 1-foot) pixel resolution. We reviewed the 
remaining habitat available with the appropriate characteristics. We 
looked at all additional areas within San Francisco City and County 
that met our criteria as potential critical habitat. We double-checked 
suitable habitat we located against imagery that was used in the 
September 5, 2012, critical habitat.
    (3) We mapped critical habitat. The image data were acquired 
between October 20, 2003, and January 21, 2004, using North American 
Datum (NAD) 83 Universal Transverse Mercator Zone 10N coordinates.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical and biological features for A. franciscana. The scale of the 
maps we prepared under the parameters for publication within the Code 
of Federal Regulations may not reflect the exclusion of such developed 
lands, especially within such an urbanized area as San Francisco. Any 
such lands inadvertently left inside critical habitat boundaries shown 
on the maps of the proposed rule have been excluded by text in the 
proposed rule and are not proposed for designation as critical habitat. 
Therefore, if the critical habitat is finalized as proposed, a Federal 
action involving these lands would not trigger section 7 consultation 
with respect to critical habitat and the requirement of no adverse 
modification unless the specific action would affect the physical and 
biological features in the adjacent critical habitat.
    The units of critical habitat are proposed for designation based on 
sufficient elements of physical or biological features being present to 
support life-history processes for A. franciscana. Some units contain 
all of the identified elements of physical or biological features and 
support multiple life-history processes. Some units contain only some 
elements of the physical or biological features necessary to support 
the use of that habitat by A. franciscana.
    The critical habitat designation is defined by the maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the Proposed Regulation Promulgation section. We 
include more detailed information on the boundaries of the critical 
habitat designation in the preamble of this document. We will make the 
coordinates or plot points, or both, on which each map is based 
available to the public on https://www.regulations.gov at Docket No. 
FWS-R8-ES-2012-0067, on our Internet site at https://www.fws.gov/sacramento, and at the Fish and Wildlife office responsible for the 
designation (see FOR FURTHER INFORMATION CONTACT above).

Revised Proposed Critical Habitat: Additional Units

    We are now proposing to increase the proposed critical habitat 
designation for Arctostaphylos franciscana by: Adding two subunits to 
Unit 9 (Diamond Heights) so that the unit now consists of three 
subunits; and by adding two additional units at McLaren Park: Unit 12 
(McLaren Park East), which consists of two subunits, and Unit 13 
(McLaren Park West). The additional units provide an increase of 
approximately 73 ac (30 ha) above the September 5, 2012, proposed 
designation (77 FR 54517). We have updated the unit description for 
proposed Unit 9, and we have added unit descriptions for proposed Units 
12 and 13. Please refer to the September 5, 2012, proposed designation 
(77 FR 54517) for information on the other proposed units. Table 2 
shows the occupancy status of the newly proposed subunits of Unit 9, 
and Units 12, and 13, while Table 3 provides the acreage of each of 
those areas, by subunit.

  Table 2--Occupancy of Arctostaphylos Franciscana in Revised and Newly
                     Proposed Critical Habitat Units
------------------------------------------------------------------------
                                 Occupied at time of       Currently
              Unit                     listing?            occupied?
------------------------------------------------------------------------
9. Diamond Heights.............  No.................  No.
12. McLaren Park East..........  No.................  No.
13. McLaren Park West..........  No.................  No.
------------------------------------------------------------------------


     Table 3--Revised and Newly Proposed Critical Habitat Units for
                       Arctostaphylos Franciscana
  [Area estimates reflect all land within critical habitat boundaries]
------------------------------------------------------------------------
                                   Land ownership by
      Critical habitat unit               type         Acres  (hectares)
------------------------------------------------------------------------
9A. Diamond Heights *...........  Federal............              0 (0)
                                  State..............              0 (0)
                                  Local..............         21.3 (8.6)

[[Page 38903]]

 
                                  Private............                0 *
9B. Diamond Heights.............  Federal............              0 (0)
                                  State..............              0 (0)
                                  Local..............          5.7 (2.3)
                                  Private............              0 (0)
9C. Diamond Heights.............  Federal............              0 (0)
                                  State..............              0 (0)
                                  Local..............          8.2 (3.3)
                                  Private............          3.2 (1.3)
12A. McLaren Park East..........  Federal............              0 (0)
                                  State..............              0 (0)
                                  Local..............         14.3 (5.8)
                                  Private............              0 (0)
12B. McLaren Park East..........  Federal............              0 (0)
                                  State..............              0 (0)
                                  Local..............         12.3 (5.0)
                                  Private............              0 (0)
13. McLaren Park West...........  Federal............              0 (0)
                                  State..............              0 (0)
                                  Local..............        29.7 (12.0)
                                  Private............              0 (0)
Total...........................  Federal............              0 (0)
                                  State..............              0 (0)
                                  Local..............          91.5 (37)
                                  Private............         3.2 (1.3)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding. Total includes subunit 9A
  which was included in the September 5, 2012 proposal (77 FR 54517).
  Acreages are carried out to one decimal place to show small units.
  Areas less than 0.1 ac are denoted as 0*.
* Subunit 9A was known as Unit 9 in the September 5, 2012, proposed
  critical habitat. Subunit 9A has not changed in acreage or
  configuration.

Unit 9: Diamond Heights

    Unit 9 consists of a total of approximately 38 ac (16 ha) and is 
located near Diamond Heights Boulevard (Blvd.) south of Turquoise Way, 
and O'Shaughnessy Blvd. This unit is comprised of three subunits. 
Subunit 9A (22 ac (9 ha)), which is located near Diamond Heights Blvd. 
south of Turquoise Way, was proposed as Unit 9 in the proposed rule 
published on September 5, 2012 (77 FR 54517). Subunit 9B (6 ac (2 ha)) 
is located east of O'Shaughnessy Blvd., and subunit 9C (11 ac (4 ha)) 
is located west of O'Shaughnessy Blvd. Unit 9 is currently unoccupied. 
The unit is within an area that: Experiences summer fog; is located on 
sloping terrain; and contains Franciscan Complex (greenstone) bedrock 
outcrops of chert, volcanic, and sedimentary materials, as well as 
soils derived from these formations; and open grassland habitat. The 
unit represents one of several areas identified for the species within 
the Mount Davidson area. Mount Davidson is the only site still 
remaining that was known to be previously occupied by the species. The 
units in this area would assist in establishing populations of A. 
franciscana outside the Presidio. The additional subunits provide 
additional rock outcrop areas within the matrix of natural land. As a 
result, we have determined that the area is essential for the 
conservation of the species, because it provides for one of multiple 
independent sites for A. franciscana and contains some of the last 
remaining appropriate habitat within the area.

Unit 12: McLaren Park East

    Unit 12 consists of a total of approximately 27 ac (11 ha) and is 
located at McLaren Park south of Mansell Street (St.) near Visitacion 
Avenue (Ave.). This unit is comprised of two subunits. Subunit 12A (14 
ac (6 ha)) is located south of Mansell St. and west of Visitacion Ave. 
Subunit 12B (12 ac (5 ha)) is located south of Mansell St. and east of 
Visitacion Ave. This unit is currently unoccupied. The unit is within 
an area that experiences summer fog and is located on sloping terrain. 
It contains Franciscan Complex (greenstone) bedrock and serpentine 
outcrops, soils derived from these formations, and open grassland 
habitat. This unit would assist in establishing an additional 
population of A. franciscana outside the Presidio and Mount Davidson 
areas. This unit and Unit 13 (McLaren Park West) are located roughly 
midway between the remaining appropriate habitat at Diamond Heights and 
Bayview Park and thereby provide increased connectivity between these 
units. As a result, we have determined that the area is essential for 
the conservation of the species, because it provides for one of 
multiple independent sites for A. franciscana, contains some of the 
last remaining appropriate habitat within the area, and provides 
additional connectivity between Unit 9 (Diamond Heights) and Unit 11 
(Bayview Park).

Unit 13: McLaren Park West

    Unit 13 consists of approximately 30 ac (12 ha) and is located at 
McLaren Park between Geneva Ave. and Sunnydale Ave. This unit is 
currently unoccupied. The unit is within an area that experiences 
summer fog; is located on sloping terrain; and contains Franciscan 
Complex (greenstone) bedrock outcrops of volcanic materials, soils 
derived from these formations, and open grassland habitat. Including 
this unit would assist in establishing additional populations of A. 
franciscana outside the Presidio and Mount Davidson areas. This unit 
and Unit 12 (McLaren Park East) are located roughly midway between 
remaining appropriate habitat at Diamond Heights and Bayview Park. As a 
result, we have determined that the area is essential for the 
conservation of the species, because

[[Page 38904]]

it provides for one of multiple independent sites for A. franciscana, 
contains some of the last remaining appropriate habitat within the 
area, and provides connectivity between Unit 9 (Diamond Heights) and 
Unit 11 (Bayview Park).

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 A. 
franciscana, the benefits of critical habitat include public awareness 
of the presence of A. franciscana and the importance of habitat 
protection, and, where a Federal nexus exists, increased habitat 
protection for A. franciscana 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.
    We have not proposed to exclude any areas from critical habitat. 
However, we will review the requests from NPS, the Presidio Trust, and 
the public to exclude some areas within proposed Units 1, and 2, and 
some areas within proposed Subunits 3B, 4B, and 5A, as well as all of 
Subunit 3A at the Presidio. NPS wrote in support of an exclusion for 
portions of Units 1 and 2 where NPS plans remediation of contaminated 
soils and other cultural resource management. NPS and the Presidio 
Trust requested an exclusion for portions of Subunit 3B and all of 
Subunit 3A because of concerns that designating these subunits will 
impair their abilities to manage habitat for the federally endangered 
A. montana ssp. ravenii (Ravens' manzanita), threatened Hesperolinon 
congestum (Marin dwarf-flax), and endangered Presidio clarkia (Clarkia 
franciscana); H. congestum and C. franciscana require a more open 
serpentine grassland habitat than does A. franciscana. The Presidio 
Trust requested an exclusion for portions of Subunits 4B and 5A due to 
their designations as an historic forest zone within their vegetation 
management plan, the lack of suitable soils for A. franciscana, and/or 
concerns that designating these subunits will impair the Trust's 
abilities to manage habitat for H. congestum and C. franciscana. 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 DEA concerning the proposed critical habitat 
designation, which is available for review and comment (see ADDRESSES).

Draft Economic Analysis

    The purpose of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed critical habitat 
designation for A. franciscana. The DEA describes the economic impacts 
of all potential conservation efforts for A. franciscana; some of these 
costs will likely be incurred regardless of whether we designate 
critical habitat. The economic impact of the proposed critical habitat 
designation is analyzed by comparing scenarios both ``with critical 
habitat'' and ``without critical habitat.'' The ``without critical 
habitat'' scenario represents the baseline for the analysis, 
considering protections already in place for the species (e.g., 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 designation of critical habitat for the species. 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 when evaluating the benefits of excluding particular 
areas 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 critical habitat designation. For a 
further description of the methodology of the analysis, see Chapter 2, 
``Methodology,'' of the DEA.
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for A. 
franciscana over the next 20 years (2013 to 2032), 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 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. franciscana conservation 
efforts associated with the following categories of activity: (1) NPS 
and Presidio Trust management and habitat restoration activities; (2) 
NPS and Presidio Trust soil remediation activities; (3) road 
maintenance and construction activities; (4) broadcast facility 
maintenance and construction activities; and (5) other activities, such 
as SFPRD trail maintenance and species reintroduction. The DEA 
considers both economic efficiency and distributional effects that may 
result from efforts to protect A. franciscana and its habitat. Economic 
efficiency effects generally reflect the ``opportunity costs'' 
associated with the commitment of resources required to accomplish 
species and habitat conservation. The DEA also addresses how potential 
economic impacts are likely to be distributed.
    The DEA concludes that incremental impacts resulting from the 
critical habitat designation would be limited to additional 
administrative costs of section 7 consultation. Estimating the impact 
of a regulation on future outcomes is inherently uncertain. 
Administrative time for consultations and other additional costs are 
project dependent and exhibit wide variability. The timing of future 
projects affects the present value of the cost estimates because of the 
time value of money, but the precise timing is uncertain. The

[[Page 38905]]

quantity and type of future consultations will be influenced by 
economic, demographic, political, and biological variables that cannot 
be forecast precisely.
    The DEA estimates total potential incremental economic impacts in 
areas proposed as critical habitat over the next 20 years (2013 to 
2032) to be approximately $28,222 ($1,411 annualized) in present-value 
terms applying a 7 percent discount rate (RTI International 2013, pp. 
ES-2 and 3-2). NPS and the Presidio Trust manage lands within the four 
proposed unoccupied critical habitat units (Units 1, 2, 3, and 4) and 
the one proposed occupied critical habitat unit (Unit 5) on Federal 
lands at the Presidio. The remaining proposed critical habitat units 
(Units 6 through 13) occur on non-Federal lands unoccupied by A. 
franciscana. The primary incremental economic impacts are 
administrative costs associated with section 7 consultations with NPS 
and the Presidio Trust on their activities within proposed Units 1, 2, 
3, and 4.
    Administrative costs associated with section 7 consultations on a 
variety of NPS and Presidio Trust activities (including NPS and 
Presidio Trust management plans, soil remediation, and unspecified 
activities) on Federal lands in proposed occupied and unoccupied 
critical habitat (Units 1, 2, 3, 4, and 5) account for approximately 91 
percent of the forecast undiscounted incremental impacts (RTI 
International 2013, pp. ES-2 and 3-2). Within these administrative 
costs, the largest incremental economic impacts are associated with 
section 7 consultations with NPS and the Presidio Trust for unspecified 
activities within Units 1, 2, 3, 4, and 5; these unspecified 
consultations represent approximately 75 percent of the total 
undiscounted incremental costs and are expected to total $32,672 
(undiscounted) over the 20-year period, with costs of formal 
consultations distributed evenly among all 5 units and costs of 
informal consultations distributed evenly among the 4 unoccupied units 
(RTI International 2013, pp. ES-2 and p. 3-2).
    The second largest incremental economic impact is associated with 
section 7 consultations with NPS and the Presidio Trust for soil 
remediation activities within Units 1 and 2. These consultations 
represent approximately 19 percent of the total undiscounted 
incremental costs and are expected to total $8,083 over the 20-year 
period distributed evenly between the two units (RTI International 
2013, p. ES-2) (all soil remediation activities are anticipated to 
occur within the first year, and, therefore are not discounted) (RTI 
International 2013, p. 3-5).
    The third largest incremental economic impact is associated with 
section 7 consultations on federally funded trail maintenance on SFRPD 
lands within proposed unoccupied critical habitat Units 12 and 13. 
These consultations represent approximately 6 percent of the total 
undiscounted incremental costs and are expected to total $2,690 
(undiscounted) over the next 20 years distributed evenly between the 
two units (RTI International 2013, p. ES-2). The SFRPD is estimated to 
incur costs of approximately $363 from these consultations, with the 
remaining costs accruing to the Service and the Federal action agency 
(RTI International 2013, p. ES-3).
    The fourth largest incremental economic impact is associated with 
the reinitiation of section 7 consultation with NPS and the Presidio 
Trust for their management plans within proposed critical habitat Units 
1 through 5. This consultation represents approximately 0.4 percent of 
the total incremental costs and is expected to total $115 over the 20-
year period, distributed evenly among the five units (the reinitiation 
of consultation on the NPS and Presidio Trust management plans is 
anticipated to occur within the first year and, therefore, is not 
discounted).
    With regard to other activities on non-Federal lands, the potential 
for Federal nexus is very low. Therefore, no consultations were 
estimated for miscellaneous activities on non-Federal land within Units 
6 through 11. Thus, there are no anticipated incremental economic 
impacts associated with the designation of critical habitat within 
Units 6 through 11. The only other consultations that may be 
anticipated on non-Federal lands include reintroduction of A. 
franciscana into areas where other endangered species, such as the 
mission blue butterfly (Icaricia icarioides missionensis), are present. 
Reintroduction consultations are likely to be intra-Service, and costs 
are likely to be minimal and administrative in nature. Furthermore, the 
costs would be considered baseline costs.
    Regarding road maintenance and construction, the California 
Department of Transportation indicated in a personal communication that 
any projects on the roads adjacent to the proposed units would not 
likely affect the A. franciscana or the proposed critical habitat; 
additionally, no projects are anticipated (RTA International 2013, pp. 
3-1, 3-6). Similarly, no maintenance and construction projects related 
to radio and broadcast towers are expected to affect A. franciscana or 
the proposed critical habitat (RTA International 2013, pp. 3-1, 3-6). 
Lastly, any consultation regarding species reintroduction would be 
considered intra-Service consultation and consist of little (if any) 
administrative effort.
    As stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as on all aspects of the proposed rule, the 
revisions to that proposed rule that are described in this document, 
and our amended required determinations. We may revise the proposed 
rule or supporting documents 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 
species.

Required Determinations--Amended

    In our September 5, 2012, proposed rule (77 FR 54517), 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 Orders (E.O.s) 12866 and 13563 (Regulatory Planning and 
Review), 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.) and E.O. 12630 (Takings).

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

[[Page 38906]]

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 designation, 
we provide our analysis for determining whether the proposed rule would 
result in a significant economic impact on a substantial number of 
small entities. Based on comments we receive, we may revise this 
determination as part of our final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the proposed designation of critical habitat for A. 
franciscana would affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities, such as habitat restoration activities; 
road maintenance and construction; broadcast facility maintenance and 
construction; and trail maintenance. 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. franciscana 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 
species. If we finalize this proposed 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 designation of critical habitat for A. franciscana. 
Because the Service, Presidio Trust, NPS, and the SFRPD are the only 
entities with expected direct compliance costs and are not considered 
small entities, this rule would not result in any impact to small 
entities. Please refer to the DEA of the proposed critical habitat 
designation for a more detailed discussion of potential economic 
impacts.
    The Service's current understanding of recent case law is that 
Federal agencies are only required to evaluate the potential impacts of 
rulemaking on those entities directly regulated by the rulemaking; 
therefore, they are not required to evaluate the potential impacts to 
those entities not directly regulated. The designation of critical 
habitat for an endangered or threatened species only has a regulatory 
effect where a Federal action agency is involved in a particular action 
that may affect the designated critical habitat. Under these 
circumstances, only the Federal action agency is directly regulated by 
the designation, and, therefore, consistent with the Service's current 
interpretation of RFA and recent case law, the Service may limit its 
evaluation of the potential impacts to those identified for Federal 
action agencies. Under this interpretation, there is no requirement 
under the RFA to evaluate potential impacts to entities not directly 
regulated, such as small businesses. However, Executive Orders 12866 
and 13563 direct Federal agencies to assess the costs and benefits of 
available regulatory alternatives in quantitative (to the extent 
feasible) and qualitative terms. Consequently, it is the current 
practice of the Service to assess to the extent practicable these 
potential impacts, if sufficient data are available, whether or not 
this analysis is believed by the Service to be strictly required by the 
RFA. In other words, while the effects analysis required under the RFA 
is limited to entities directly regulated by the rulemaking, the 
effects analysis under the Act, consistent with the E.O. regulatory 
analysis requirements, can take into consideration impacts to both 
directly and indirectly impacted entities, where practicable and 
reasonable.
    In summary, we have considered whether the proposed 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 the Service. Because 
the Service, Presidio Trust, NPS and SFRPD are the only entities with 
expected direct compliance costs and are not considered small entities, 
this rule would not result in a significant 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 
critical habitat designation would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

Executive Order 12630 (Takings)

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for Arctostaphylos franciscana 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 allow actions that do require Federal 
funding or permits to go forward. The takings implications assessment 
concludes that this proposed designation of critical habitat does not 
pose significant takings implications for lands within or affected by 
the designation. However, we will further evaluate this issue as we 
complete our final economic analysis, and review and revise this 
assessment as appropriate.

[[Page 38907]]

References Cited

    A complete list of all references we cited in the September 5, 
2012, proposed rule and in this document is available on the Internet 
at https://www.regulations.gov under Docket No. FWS-R8-ES-2012-0067 or 
by contacting the Sacramento Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this notice are the staff members of the 
Sacramento Fish and Wildlife Office, Region 8, U.S. Fish and Wildlife 
Service.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, which was 
proposed to be amended at 77 FR 54517, September 5, 2012, as set forth 
below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; unless otherwise noted.

0
2. In Sec.  17.96(a), amend the entry for ``Family Ericaceae: 
Arctostaphylos franciscana (Franciscan manzanita)'' by:
0
a. Revising the index map at paragraph (a)(5);
0
b. Revising paragraph (a)(14); and
0
c. Adding paragraphs (a)(17) and (18).
    These revisions and additions read as follows:


Sec.  17.96  Critical habitat--plants.

* * * * *
    (a) * * *
    Family Ericaceae: Arctostaphylos franciscana (Franciscan manzanita)
* * * * *
    (5) Index map follows:
BILLING CODE 4310-55-P

[[Page 38908]]

[GRAPHIC] [TIFF OMITTED] TP28JN13.004

* * * * *

[[Page 38909]]

    (14) Unit 9: Diamond Heights, San Francisco County, California. Map 
of Unit 9 follows:
[GRAPHIC] [TIFF OMITTED] TP28JN13.005

* * * * *

[[Page 38910]]

    (17) Unit 12: McLaren Park East, San Francisco County, California. 
Map of Unit 12 follows:
[GRAPHIC] [TIFF OMITTED] TP28JN13.006


[[Page 38911]]


    (18) Unit 13: McLaren Park West, San Francisco County, California. 
Map of Unit 13 follows:
[GRAPHIC] [TIFF OMITTED] TP28JN13.007

* * * * *

    Dated: June 20, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-15487 Filed 6-27-13; 8:45 am]
BILLING CODE 4310-55-P