[Federal Register: June 1, 2006 (Volume 71, Number 105)]
[Proposed Rules]               
[Page 31137-31141]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT92

Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for Monardella linoides ssp. viminea 
(willowy monardella)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of public comment period and notice of 
availability of draft economic analysis.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the proposed designation of 
critical habitat for Monardella linoides ssp. viminea (willowy 
monardella) and the availability of a draft economic analysis of the 
proposed designation of critical habitat. We are reopening the comment 
period to allow all interested parties an opportunity to comment 
simultaneously on the proposed rule and the associated draft economic 
analysis. Comments previously submitted on the November 9, 2005, 
proposed critical habitat rule need not be resubmitted as they have 
already been incorporated into the public record and will be fully 
considered in our final determination.

DATES: Comments must be submitted directly to the Service (see 
ADDRESSES section) on or before July 3, 2006.

ADDRESSES: If you wish to comment on the proposed rule or draft 
economic analysis, you may submit your comments and materials 
identified by RIN 1018-AT92, by any of the following methods:
    (1) E-mail: fw8cfwomolivi@fws.gov. Include ``RIN 1018-AT92'' in the 
subject line.
    (2) Fax: 760/431-9624.
    (3) Mail: Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife 
Office, 6010 Hidden Valley Road, Carlsbad, CA 92011.
    (4) Hand Delivery/Courier: You may hand-deliver written documents 
to our office (see ADDRESSES).
    (5) Federal eRulemaking Portal:  http://www.regulations.gov. Follow 

the instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, telephone, 760/431-9440; facsimile, 760/431-


Public Comments Solicited

    We will accept written comments and information during this 

[[Page 31138]]

comment period. We intend that any final action resulting from our 
critical habitat proposal be as accurate and effective as possible. 
Therefore, we solicit comments or suggestions from the public, other 
concerned governmental agencies, Tribes, the scientific community, 
industry, or any other interested party concerning the proposed rule 
and/or the associated draft economic analysis. On the basis of public 
comment on the proposed rule and the draft economic analysis, and the 
conclusions of the final economic analysis, we may find during the 
development of our final determination that some areas do not contain 
the necessary features essential to the conservation of the species, 
are appropriate for exclusion under section 4(b)(2) of the Act, or are 
not appropriate for exclusion. We particularly seek comments 
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Endangered Species 
Act of 1973, as amended (Act) (16 U.S.C. 1531 et al.), including 
whether it is prudent to designate critical habitat;
    (2) Specific information on the amount and distribution of willowy 
monardella habitat, and what habitat contains the necessary features 
essential to the conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) The proposed exclusion of habitat on Federal and non-Federal 
lands within the San Diego Multiple Species Habitat Conservation 
Program (MSCP) and the Memorandum of Understanding (MOU) established 
between the Bureau of Land Management, the Service, the County of San 
Diego, the City of San Diego, and California Department of Fish and 
Game, in cooperation with the San Diego Association of Governments 
under section 4(b)(2) of the Act (please see Application of Sections 
3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act for 
details on the MSCP and MOU section of the proposed rule (70 FR 67956; 
November 9, 2005)). Please provide information demonstrating the 
benefits of including or excluding these lands from the critical 
habitat designation. If the Secretary determines the benefits of 
including the lands outweigh the benefits of excluding them, they will 
not be excluded from critical habitat;
    (5) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities;
    (6) 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.
    (7) Whether the economic analysis identifies all State and local 
costs. If not, what other costs should be included;
    (8) Whether the economic analysis makes appropriate assumptions 
regarding current practices and likely regulatory changes imposed as a 
result of the listing of the species or the designation of critical 
    (9) Whether the economic analysis correctly assesses the effect on 
regional costs associated with land and water use controls that derive 
from the designation;
    (10) Whether the designation will result in disproportionate 
economic impacts to specific areas that should be evaluated for 
possible exclusion from any final designation;
    (11) Whether the economic analysis appropriately identifies all 
costs that could result from the designation or coextensively from the 
    (12) Whether there is information about areas that could be used as 
substitutes for the economic activities planned in critical habitat 
areas that would offset the costs and allow for the conservation of 
critical habitat areas; and
    (13) Whether the benefit of exclusion in any particular area 
outweigh the benefits of inclusion under Section 4(b)(2) of the Act.
    All previous comments and information submitted during the initial 
comment period on the proposed rule need not be resubmitted. If you 
wish to comment, you may submit your comments and materials concerning 
the draft economic analysis and the proposed rule by any one of several 
methods (see ADDRESSES). Our final determination concerning designation 
of critical habitat for willowy monardella will take into consideration 
all comments and any additional information received during the 
previous comment period and this reopened comment period (70 FR 67956). 
On the basis of public comment on the critical habitat proposal, the 
draft economic analysis, and the final economic analysis, we may during 
the development of our final determination find that areas proposed do 
not contain the necessary features essential to the conservation of the 
species, are appropriate for exclusion under section 4(b)(2) of the 
Act, or are not appropriate for exclusion.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. We will not consider anonymous comments and we will 
make all comments available for public inspection in their entirety. 
Comments and materials received, as well as supporting documentation 
used in preparation of the proposal to designate critical habitat, will 
be available for public inspection, by appointment during normal 
business hours at the Carlsbad Fish and Wildlife Office (see 
ADDRESSES). Copies of the proposed critical habitat rule for willowy 
monardella and the draft economic analysis are also available on the 
Internet at http://www.fws.gov/carlsbad. In the event that our Internet 

connection is not functional, please obtain copies of documents 
directly from the Carlsbad Fish and Wildlife Office (see ADDRESSES).


    On November 9, 2005, we published a proposed rule in the Federal 
Register (70 FR 67956) to designate critical habitat for willowy 
monardella under the Act. We identified approximately 2,539 acres (ac) 
(1,028 hectares (ha)) of habitat occupied at the time of listing and 
containing the necessary features essential to the conservation of the 
species. We proposed to designate approximately 115 ac (47 ha) of 
critical habitat in one unit in San Diego County, California. 
Approximately 1,863 ac (754 ha) of the 2,539 ac (1,028 ha) of habitat 
are covered under an Integrated Natural Resource Management Plan 
(INRMP) for Marine Corps Air Station Miramar; therefore, this area is 
exempted from critical habitat under section 4(a)(3) of the Act. 
Approximately 560 ac (227 ha) is proposed for exclusion from critical 
habitat under section 4(b)(2) of the Act because this area is covered 
under the Multiple Species Conservation Program for southwestern San 
Diego County or conserved as open space (Otay Mountain Wilderness). The 
first public comment period for the willowy monardella proposed 
critical habitat rule closed on January 9, 2006. For more information 
on this species, refer to the final rule listing this species as 
endangered, published in the Federal Register on October 13, 1998 (63 
FR 54938).
    Critical habitat is defined in section 3 of the Act as the specific 
areas within the geographic area occupied by a species, at the time it 
is listed in accordance with the Act, on which are found those physical 
or biological

[[Page 31139]]

features essential to the conservation of the species and that may 
require special management considerations or protection, and specific 
areas outside the geographic area occupied by a species at the time it 
is listed, upon a determination that such areas are essential for the 
conservation of the species. If the proposed rule is made final, 
section 7 of the Act will prohibit destruction or adverse modification 
of critical habitat by any activity funded, authorized, or carried out 
by any Federal agency. Federal agencies proposing actions affecting 
areas designated as critical habitat must consult with us on the 
effects of their proposed actions, pursuant to section 7(a)(2) of the 
    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat on the basis of the best scientific and commercial 
data available, after taking into consideration the economic impact, 
impact to national security, and any other relevant impacts of 
specifying any particular area as critical habitat. We have prepared a 
draft economic analysis of the November 9, 2005 (70 FR 67956), proposed 
designation of critical habitat for willowy monardella.
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of willowy monardella, 
including costs associated with sections 4, 7, and 10 of the Act, and 
including those attributable to designating critical habitat. It 
further considers the economic effects of protective measures taken as 
a result of other Federal, State, and local laws that aid habitat 
conservation for willowy monardella in proposed critical habitat areas 
and areas proposed for exclusion. The analysis 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 (e.g., lost economic opportunities 
associated with restrictions on land use). This analysis also addresses 
how potential economic impacts are likely to be distributed, including 
an assessment of any local or regional impacts of habitat conservation 
and the potential effects of conservation activities on small entities 
and the energy industry. This information can be used by decision-
makers to assess whether the effects of the designation might unduly 
burden a particular group or economic sector. Finally, this analysis 
considered those costs that may occur in the 20 years following the 
final designation of critical habitat.
    The draft economic analysis estimates that, because all of the 
proposed critical habitat is conserved or will be conserved under the 
Multi Species Conservation Program and there are no effects to future 
development, and there are no potential economic impacts anticipated 
from the critical designation as proposed. There are some costs 
associated with plant monitoring and management on preserve lands; 
however, these costs are minimal. Additionally, the Otay Mountain 
wilderness area, if designated as critical habitat, would also 
presumably result in small administrative costs resulting from the 
inclusion of critical habitat analyses in future Section 7 
consultations involving the plant. Give the wilderness status of the 
lands, the number of future consultations would likely be very low and 
likely conservation measures minimal. But there would likely be some 
small cost. We will evaluate any potential costs associated with the 
Otay Mountain wilderness area in the final rulemaking.
    Of the approximately 2,539 acres (ac) (1,028 hectares (ha)) 
identified as proposed critical habitat for this species, approximately 
560 ac (227 ha) are covered under the MSCP or conserved as open space 
(Otay Mountain Wilderness) and are proposed for exclusion from critical 
habitat under section 4(b)(2) of the Act. Furthermore, since the MSCP 
was approved in 1997 before the 1998 listing of willowy monardella 
there are no coextensive costs associated with the listing of the 
species as endangered since conservation measures benefiting the 
species were incorporated into the Multi Species Conservation Program 
prior to its listing. Also, the analysis estimates that there will be 
no future development costs for the 115 ac (47 ha) of proposed critical 
habitat not proposed for exclusion under 4(b)(2) of the Act. Please 
refer to Section III.3.2 of the draft economic analysis and the 
``Application of Section 4(a)(3) and Possible Exclusions Under Section 
4(b)(2) of the Act'' section of the proposed rule (70 FR 67956) for a 
more detailed discussion of the Multi Species Conservation Program.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues. 
However, because the draft economic analysis indicates that the 
potential economic impacts associated with the proposed designation of 
critical habitat are negligent, we do not anticipate that this final 
rule will have an annual effect on the economy of $100 million or more 
or affect the economy in a material way. Due to the timeline for 
publication in the Federal Register, the Office of Management and 
Budget (OMB) did not formally review the proposed rule.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (e.g., 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. In our proposed rule, 
we withheld our determination of whether this designation would result 
in a significant effect as defined under SBREFA until we completed our 
draft economic analysis of the proposed designation so that we would 
have the factual basis for our determination.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if this proposed designation of critical habitat for

[[Page 31140]]

willowy monardella would affect a substantial number of small entities, 
we considered the number of small entities affected within particular 
types of economic activities (e.g., residential, industrial, and 
commercial development). We considered each industry or category 
individually to determine if certification is appropriate. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement; some 
kinds of activities are unlikely to have any Federal involvement and so 
will not be affected by the designation of critical habitat. 
Designation of critical habitat only affects activities conducted, 
funded, permitted, or authorized by Federal agencies; non-Federal 
activities are not affected by the designation.
    If this proposed critical habitat designation is made final, 
Federal agencies must consult with us if their activities may affect 
designated critical habitat. Consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
existing consultation process. Our analysis determined that potential 
costs involving conservation measures for willowy monardella incurred 
for activities involving non-Federal agencies (residential, commercial, 
and industrial development) would be negligible due to the fact that 
there are minimal economic effects of the proposed critical habitat. 
These minimal costs are associated with plant monitoring and management 
on preserve lands.
    Based on this data, we have determined that this proposed 
designation would not result in a significant economic impact on a 
substantial number of small entities, in particular to land developers 
or farmers in San Diego County since private lands proposed for 
critical habitat are part of a designated open space preserve with no 
plans for farming or development as stated earlier in the Background 
section. As such, we are certifying that this proposed designation of 
critical habitat would not result in a significant economic impact on a 
substantial number of small entities. Please refer to Section V.2 of 
our draft economic analysis of this proposed designation for a more 
detailed discussion of potential economic impacts to small business 

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211 
on regulations that significantly affect energy supply, distribution, 
and use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This proposed rule is 
considered a significant regulatory action under E.O. 12866 because it 
raises novel legal and policy issues. On the basis of our draft 
economic analysis, the proposed critical habitat designation is not 
expected to significantly affect energy supplies, distribution, or use. 
Therefore, this action is not a significant action, and no Statement of 
Energy Effects is required. Please refer to Section V.1 of our draft 
economic analysis of the proposed designation for a more detailed 
discussion of potential effects on energy supply.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. Non-Federal entities that receive Federal 
funding, assistance, permits, or otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat. However, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments. As discussed in the draft economic analysis, 
all proposed critical habitat areas are already identified and/or 
conserved as open space or covered by a habitat conservation plan. 
Consequently, we do not believe that critical habitat designation would 
significantly or uniquely affect small government entities. As such, 
Small Government Agency Plan is not required.


    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing critical habitat for willowy monardella. Critical habitat 
designation does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. In 
conclusion, the designation of critical habitat for willowy monardella 
does not pose significant takings implications.


    The primary authors of this notice are the staff of the Carlsbad 
Fish and Wildlife Office (see ADDRESSES).

[[Page 31141]]


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

    Dated: May 19, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-8459 Filed 5-31-06; 8:45 am]