2007 Federal Register, 72 FR 58793; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: October 17, 2007 (Volume 72, Number 200)]
[Proposed Rules]
[Page 58793-58803]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17oc07-21]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU84

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Berberis nevinii (Nevin's barberry)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, revisions to
proposed critical habitat, notice of availability of draft economic
analysis, and amended Required Determinations.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the comment period on the proposed designation of critical
habitat for Berberis nevinii (Nevin's barberry) under the Endangered
Species Act of 1973, as amended (Act). We are also using this comment
period to announce revisions to proposed critical habitat subunits 1B,
1D, and 1E as described in the proposed rule published in the Federal
Register on February 6, 2007, and announce the availability of the
draft economic analysis for the proposed critical habitat designation
and an amended Required Determinations section of the proposal. The
draft economic analysis estimates potential costs to be approximately
$169,000 to $172,000 in undiscounted dollars over a 20-year period in
areas proposed as critical habitat and approximately $1.7 to $433.5
million in undiscounted dollars over a 20-year period (or 40-year
period for impacts related to management of Vail Lake) in areas
proposed for exclusion from critical habitat under section 4(b)(2) of

[[Page 58794]]

the Act. We are reopening the comment period to allow all interested
parties to comment simultaneously on the proposed rule, our revisions
to the proposed rule, the associated draft economic analysis, and the
amended Required Determinations section. Comments previously submitted
need not be resubmitted as they will be incorporated into the public
record as part of this comment period and will be fully considered in
preparation of the final rule.

DATES: We will accept public comments until November 16, 2007.

ADDRESSES: You may submit written comments and materials to us by any
one of the following methods:
(1) E-mail: Please submit electronic comments to
fw8cfwocomments@fws.gov. Include ``Nevin's barberry'' in the subject

line. For more information, please see the Public Comments Solicited
section under SUPPLEMENTARY INFORMATION.
(2) Facsimile: You may fax your comments to 760/431-5901.
(3) U.S. mail or hand-delivery: You may submit written comments and
information to Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife
Office, 6010 Hidden Valley Road, Carlsbad, CA 92011.
(4) 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, at the address listed in the ADDRESSES
section (telephone: 760/431-9440). 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 Solicited

We will accept written comments and information during this
reopened comment period on the proposed critical habitat designation
for Berberis nevinii published in the Federal Register on February 6,
2007 (72 FR 5552), the revisions to proposed critical habitat described
herein (see Revisions to Proposed Critical Habitat section), and the
draft economic analysis of the revised proposed designation. We will
consider information and recommendations from all interested parties.
We are particularly interested in comments concerning:
(1) Critical Habitat Subunits 1B, 1D, and 1E as revised in this
notice (see Revisions to Proposed Critical Habitat section).
(2) The reasons why habitat should or should not be designated as
critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq.),
including whether the benefit of designation would outweigh threats to
the species caused by the designation such that the designation of
critical habitat is prudent.
(3) Specific information on the amount and distribution of Berberis
nevinii habitat; what habitat or habitat features are essential to the
conservation of this species and why; which areas occupied at the time
of listing containing these features should be included in the critical
habitat designation and why; and which areas not occupied at the time
of listing but currently occupied should be included in the final
designation and why.
(4) The geographical extent, number of plants, and/or reproductive
status of native Berberis nevinii occurrences, particularly those in
the Loma Linda Hills area (vicinity of San Timoteo Canyon and Scott
Canyon) in San Bernardino County and those in western Riverside County
(including in the vicinity of Vail Lake, the Agua Tibia Mountain
foothills on the Cleveland National Forest (CNF), in the Soboba
Badlands east of the San Jacinto Wildlife Area, the Jurupa Hills area,
and near the City of Temecula).
(5) Specific information on three historical Berberis nevinii
records from Los Angeles County--two from the Arroyo Seco near the City
of Pasadena (California Natural Diversity Database (CNDDB) element
occurrences 8 and 9) and one from the Big Tujunga Wash near San
Fernando (CNDDB element occurrence 10)--such as whether the species
still exists in these areas and where.
(6) Whether any areas not currently known to be occupied by
Berberis nevinii, but essential to the conservation of the species,
should be included in the designation.
(7) Information that demonstrates a species-specific pollinator-
plant relationship for Berberis nevinii; information on seed dispersal
mechanisms and dispersal distance for B. nevinii; whether seed banks
exist for this species and, if so, for how long and under what
conditions; and whether such information should be applied to or
considered a primary constituent element for the species.
(8) Land use designations and current or planned activities in the
mapped critical habitat subunits and their possible impact on proposed
critical habitat.
(9) Our proposed exclusion of Berberis nevinii habitat covered
under the approved Western Riverside County Multiple Species Habitat
Conservation Plan (MSHCP) and whether the benefits of excluding these
areas outweigh the benefits of their inclusion under section 4(b)(2) of
the Act (see 72 FR 5552, ``Relationship of Critical Habitat to Approved
Habitat Conservation Plans (HCPs)--Exclusion Under Section 4(b)(2) of
the Act'' section for details on the Western Riverside County MSHCP).
If the Secretary determines the benefits of including these lands
outweigh the benefits of excluding them, they will not be excluded from
final critical habitat.
(10) Additional information regarding management plans covering
lands managed by the Bureau of Land Management (BLM) on Oak Mountain
and by the U.S. Forest Service (USFS) on the CNF, and whether these
plans provide specific management for Berberis nevinii such that
consideration of exclusion of these lands under section 4(b)(2) of the
Act would be appropriate.
(11) Whether the benefits of exclusion of any particular area
outweigh the benefits of inclusion under section 4(b)(2) of the Act.
(12) Information on the extent to which any State and local
environmental protection measures referred to in the draft economic
analysis may have been adopted largely as a result of the listing of
Berberis nevinii.
(13) Information on whether the draft economic analysis identifies
all State and local costs attributable to the proposed critical habitat
designation, and information on any costs that have been inadvertently
overlooked.
(14) Information on whether the draft economic analysis makes
appropriate assumptions regarding current practices and likely
regulatory changes imposed as a result of the designation of critical
habitat.
(15) Information on whether the draft economic analysis correctly
assesses the effect on regional costs associated with any land use
controls that may derive from the designation of critical habitat.
(16) Information on whether there are any quantifiable economic
benefits that could result from the designation of critical habitat.
(17) Information on areas that could potentially be
disproportionately impacted by designation of critical habitat for
Berberis nevinii.
(18) Any foreseeable economic, national security, or other
potential impacts resulting from the proposed designation, and, in
particular, any impacts on small entities, and the benefits of
including or excluding areas that exhibit these impacts.
(19) Information on whether the draft economic analysis
appropriately

[[Page 58795]]

identifies all costs that could result from the designation.
(20) Economic data on the incremental effects that would result
from designating any particular area as critical habitat, since it is
our intent to include the incremental costs attributed to the revised
critical habitat designation in the final economic analysis.
(21) Information on whether our approach to critical habitat
designation could be improved or modified in any way to provide for
greater public participation and understanding, or to assist us in
accommodating public concern and comments.
Pursuant to section 4(b)(2) of the Act, an area may be excluded
from critical habitat if it is determined that the benefits of such
exclusion outweigh the benefits of including a particular area as
critical habitat, unless the failure to designate such area as critical
habitat will result in the extinction of the species. We may exclude an
area from designated critical habitat based on economic impacts,
national security, or any other relevant impact.
All previous comments and information submitted during the initial
comment period from February 6, 2007, to April 9, 2007, on the proposed
rule (72 FR 5552) need not be resubmitted as they will be incorporated
into the public record as part of this comment period and will be fully
considered in preparation of the final rule. If you wish to comment,
you may submit your comments and materials concerning proposed rule,
draft economic analysis, or the amended Required Determinations
provided in this document by any one of several methods (see
ADDRESSES). Our final designation of critical habitat will take into
consideration all written comments and any additional information we
have received during both comment periods. On the basis of public
comment on this analysis, the revised critical habitat proposal, and
the final economic analysis, 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 material concerning the above
actions by any one of several methods (see ADDRESSES). If you use e-
mail to submit your comments, please include ``Attn: Nevin's barberry''
in your e-mail subject header, preferably with your name and return
address in the body of your message. If you do not receive a
confirmation from the system that we have received your e-mail, contact
us directly by calling our Carlsbad Fish and Wildlife Office at (760)
431-9440.
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
You may obtain copies of the proposed rule and draft economic
analysis by mail from the Carlsbad Fish and Wildlife Office (see
ADDRESSES) or by visiting our website at http://www.fws.gov/carlsbad/.

Background

On August 10, 2004, the Center for Biological Diversity and
California Native Plant Society challenged our failure to designate
critical habitat for Berberis nevinii and four other plant species
(Center for Biological Diversity et al. v. Gale Norton, Secretary of
the Department of the Interior et al., C-04-3240 JL, N. D. Cal.). In a
court approved settlement agreement, the Service agreed to propose
critical habitat for B. nevinii, if prudent, on or before January 30,
2007, and finalize the designation on or before January 30, 2008. On
February 6, 2007, we published a proposed rule to withdraw our previous
not prudent finding and designate critical habitat for B. nevinii (72
FR 5552), identifying approximately 417 acres (ac) (169 hectares (ha))
in Riverside County, California, that met the definition of critical
habitat for this species. Of this, we proposed to exclude 385 ac (156
ha) of non-Federal land from the final designation under section
4(b)(2) of the Act because these lands are protected by an approved
Habitat Conservation Plan (HCP) (see 72 FR 5552, ``Relationship of
Critical Habitat to Approved Habitat Conservation Plans--Exclusion
Under Section 4(b)(2) of the Act'' section for details), leaving a
proposed final designation of 32 ac (13 ha) of Federal land.
We are now proposing revisions to three of the proposed critical
habitat subunits: 1B, 1D, and 1E (see ``Revisions to Proposed Critical
Habitat'' section); accordingly, approximately 361 ac (146 ha) in
Riverside County, California, meets the definition of critical habitat
for this species, a reduction of 56 ac (23 ha). Of this, we propose to
exclude approximately 344 ac (139 ha) of non-Federal land protected by
an approved HCP from the final designation under section 4(b)(2) of the
Act. These 344 ac (139 ha) are a subset of the 385 ac (156 ha) proposed
for exclusion in the proposed rule. Other than these changes, the
proposed rule of February 6, 2007, remains intact.
Critical habitat is defined in section 3 of the Act 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 as revised herein 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 Act.

Draft Economic Analysis

Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific and commercial data
available, after taking into consideration the economic impact, impact
on national security, or any other relevant impact of specifying any
particular area as critical habitat. We have prepared a draft economic
analysis of the proposed critical habitat designation based on the
February 6, 2007, proposed rule to designate critical habitat for
Berberis nevinii (72 FR 5552) and subsequent revisions to the proposed
rule described herein (see Revisions to Proposed Critical Habitat).
The draft economic analysis is intended to quantify the economic
impacts of all potential conservation efforts for Berberis nevinii;
some of these costs will likely be incurred regardless of whether
critical habitat is designated. Potential economic impacts in areas
proposed as critical habitat are estimated over a 20-year period,
whereas estimated economic impacts in areas proposed for exclusion from
critical habitat follow various timeframes, depending on the activity
(e.g., a 5-year period for economic impacts related to administration,
a 20-year period for economic impacts related to development, and a 40-
year period for economic impacts related to management of Vail Lake).
The draft economic analysis estimates potential costs to be
approximately $169,000 to

[[Page 58796]]

$172,000 in undiscounted dollars over a 20-year period in areas
proposed as critical habitat and approximately $1.7 to $433.5 million
in undiscounted dollars over a 20-year period (or 40-year period for
impacts related to management of Vail Lake) in areas proposed for
exclusion from critical habitat under section 4(b)(2) of the Act. These
impacts would only occur if the area proposed for exclusion is instead
designated as critical habitat. The cost estimates are based on
revisions to the proposed designation of critical habitat described in
this notice and include costs coextensive with listing and recovery.
Discounted future costs in areas proposed as critical habitat are
estimated to be approximately $136,000 to $139,000 ($10,000 annualized)
at a 3 percent discount rate or approximately $107,000 to $110,000
($11,000 annualized) at a 7 percent discount rate. Discounted future
costs in areas proposed for exclusion from critical habitat are
estimated to be approximately $1.2 to $232.5 million at a 3 percent
discount rate ($82,000 to $10.1 million annualized) or approximately
$0.9 to $118.1 million at a 7 percent discount rate ($81,000 to $8.9
million annualized). For areas proposed for exclusion, the economic
analysis provides an analysis of potential economic impacts related to
residential/urban development, management of Vail Lake, and
administration, with the timeframe for analysis varying based on the
activity (1-5 years, 6-20 years, and 21-40 years). Estimated discounted
future costs (3 percent discount rate) associated with management of
Vail Lake range from zero to $12.2 million for the 2008 through 2012
timeframe, from zero to $117.4 million for the 2013 through 2027
timeframe, and from zero to $99.7 million for the 2028 through 2047
timeframe. Similarly, estimated discounted future costs (3 percent
discount rate) associated with development range from $333,000 to
$967,000 for the 2008 through 2012 timeframe and from $873,000 to $2.3
million for the 2013 through 2027 timeframe in areas proposed for
exclusion from critical habitat. Lastly, the discounted future cost (3
percent discount rate) associated with administration is estimated at
$19,000 for the 2008 through 2012 timeframe in these same subunits.
The draft economic analysis considers the potential economic
effects of actions relating to the conservation of Berberis nevinii,
including costs associated with sections 4, 7, and 10 of the Act, and
including those attributable to the designation of critical habitat. It
further considers the economic effects of protective measures taken as
a result of other Federal, State, and local laws that aid habitat
conservation for B. nevinii in areas containing features essential to
the conservation of the species. The draft 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 (such as 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 government agencies, private businesses, and
individuals. The analysis measures lost economic efficiency associated
with residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. 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 draft analysis looks
retrospectively at costs that have been incurred since the date
Berberis nevinii was listed as endangered (October 13, 1998; 63 FR
54956), and considers those costs that may occur in the years following
the designation of critical habitat, with the timeframes for this
analysis varying by activity. Because the draft economic analysis
considers the potential economic effects of all actions relating to the
conservation of B. nevinii, including costs associated with sections 4,
7, and 10 of the Act and those attributable to designating critical
habitat, this may result in an overestimate of the potential economic
impacts of the designation.
As stated earlier, we are soliciting data and comments from the
public on this draft economic analysis, as well as on all aspects of
the proposal. We may revise the proposal or its supporting documents to
incorporate or address new information received during the 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 as critical habitat, provided such
exclusion will not result in the extinction of the species.

Changes to the Proposed Rule

By this notice, we are also advising the public of revisions to
three of the subunits described in the February 6, 2007, proposed rule
(72 FR 5552): Subunit 1B (Agua Tibia Mountain Foothills), Subunit 1D
(North of Vail Lake), and Subunit 1E (South of Vail Lake/Peninsula).
During the first comment period for the proposed rule, we were
informed by Cleveland National Forest (CNF) that proposed Subunit 1B
(Agua Tibia Mountain Foothills), which we had identified as including
approximately 17 ac (7 ha) of USFS land and approximately 5 ac (2 ha)
of adjacent private land, was inaccurately mapped because it was based
on inexact location information for the Berberis nevinii occurrence on
CNF lands. Hence, we are revising the location and boundaries of
proposed critical habitat Subunit 1B to reflect new location
information provided by the CNF, and we are now proposing to designate
less than 3 ac (1 ha) of Federal (CNF) land in Subunit 1B, rather than
the approximately 22 ac (9 ha) of Federal and private land identified
in the proposed rule. We delineated critical habitat based on the
criteria outlined in the February 6, 2007, proposed rule, which
resulted in this subunit no longer including any private land. Revised
Subunit 1B was occupied at the time of listing and contains the primary
constituent elements (PCEs), those physical or biological features
essential to conservation of the species.
We also reevaluated proposed critical habitat subunits bordering
Vail Lake based on updated aerial photographs and Vail Lake storage/
volume data provided by Rancho California Water District (RCWD) for the
economic analysis. We removed areas along the shoreline from subunits
1D (North of Vail Lake) and 1E (South of Vail Lake/Peninsula) that do
not contain the PCEs required by Berberis nevinii and are not occupied
by the species due to lake-level fluctuations and recurrent, episodic
inundation, sometimes for relatively long periods of time. We removed
approximately 1 ac (1 ha) from proposed Subunit 1D and approximately 34
ac (14 ha) from proposed Subunit 1E, leaving approximately 21 ac (8 ha)
and approximately 217 ac (88 ha) in proposed subunits 1D and 1E,
respectively.
When delineating proposed critical habitat (72 FR 5552), we tried
to exclude areas from proposed subunits near Vail Lake that were
identified as being under water, and therefore did not contain the
PCEs. We based subunit delineations in

[[Page 58797]]

the proposed rule on USGS 1-meter resolution color-balanced, color
infrared aerial photography acquired in May/June 2002 for the Vail Lake
area, western Riverside County. Based on information provided by RCWD
for the draft economic analysis, the lake was storing between
approximately 19,750 acre-feet (May 1, 2002) and 19,180 acre-feet (June
30, 2002) of water during this time period. However, water levels at
Vail Lake can fluctuate greatly, depending on the amount of local
runoff reaching the lake, both within any given year and annually,
frequently exceeding the 2002 water levels for relatively long periods
of time. The RCWD, the entity that owns and operates/manages Vail Dam
and Vail Lake, has a surface water storage permit in the lake for up to
40,000 acre-feet from November 1 to April 30, annually. Thus, we
revised proposed critical habitat boundaries for subunits bordering
Vail Lake based on lake levels at RCWD's permitted storage capacity,
resulting in boundary changes to proposed subunits 1D and 1E.
Water volume in Vail Lake has been known to exceed 40,000 acre-
feet, even filling and surpassing lake storage capacity (50,000 acre-
feet) with water flowing over the spillway. The creation of Vail Lake
in 1948 may have resulted in the loss of some Berberis nevinii
individuals; however, the occurrences that are now located closest to
Vail Lake have not been inundated or affected by rising water levels
and fluctuations in the recent past (Boyd 2007). Thus, the revisions to
proposed critical habitat subunits 1D and 1E are not likely to result
in B. nevinii individuals in this area falling outside the revised
subunit boundaries. These revisions will, on the other hand, more
accurately represent B. nevinii habitat in subunits 1D and 1E.
Table 1 contains the corrected area values based on revisions to
proposed critical habitat subunits 1B, 1D, and 1E. The revisions to
these three proposed subunits change the legal description published in
the February 6, 2007, proposed rule. This notice republishes the legal
descriptions for subunits 1B, 1D, and 1E based on the revisions
described herein, along with a map depicting the revised location of
proposed critical habitat for Berberis nevinii.

Table 1.--Areas Proposed as Critical Habitat for Berberis nevinii and Areas Being Considered for Exclusion From
the Final Critical Habitat Designation Under Section 4(b)(2) of the Act
[Area is displayed in acres (ac) (hectares (ha)).]
----------------------------------------------------------------------------------------------------------------
Area proposed for
Area proposed as exclusion from Area proposed as
Critical habitat unit Land ownership critical habitat final critical final critical
habitat habitat
----------------------------------------------------------------------------------------------------------------
1. Agua Tibia/Vail Lake
----------------------------------------------------------------------------------------------------------------
1A. Big Oak Mountain Summit..... BLM............... 14.8 ac (6.0 ha).. 0 ac (0 ha)....... 14.8 ac (6.0 ha).
1B. Agua Tibia Mountain USFS.............. 2.5 ac (1.0 ha)... 0 ac (0 ha)....... 2.5 ac (1.0 ha).
Foothills.
1C. South Flank Big Oak Mountain Private........... 86.5 ac (35.0 ha). 86.5 ac (35.0 ha). 0 ac (0 ha).
1D. North of Vail Lake.......... Private \1\....... 20.8 ac (8.4 ha).. 20.8 ac (8.4 ha).. 0 ac (0 ha).
1E. South of Vail Lake/Peninsula Private \1\....... 216.7 ac (87.7 ha) 216.7 ac (87.7 ha) 0 ac (0 ha).
1F. Temecula Creek East......... Private........... 19.8 ac (8.0 ha).. 19.8 ac (8.0 ha).. 0 ac (0 ha).
-----------------------------------------------------------
Total....................... .................. 361.1 ac (146.1 343.8 ac (139.1 17.3 ac (7.0 ha).
ha). ha).
----------------------------------------------------------------------------------------------------------------
\1\ Private lands in Subunits 1D and 1E include a total of 2.8 ac (1.1 ha) owned by the Rancho California Water
District.

Below, we present brief descriptions of the revised proposed
subunits and reasons why they meet the definition of critical habitat
for Berberis nevinii. These revised subunit descriptions replace those
provided in the February 6, 2007, proposed rule (72 FR 5552).

Unit Descriptions

Subunit 1B: Agua Tibia Mountain Foothills

Subunit 1B consists of approximately 3 ac (1 ha) of federally-owned
land managed by the USFS on the CNF near the Agua Tibia Wilderness Area
in southern Riverside County, California. Five Berberis nevinii
individuals are known from this area and are located at the edge of a
stream channel (PCE 1) growing in association with coast live oak and
riparian woodland species (PCE 3). Nearby chaparral includes such
species as Quercus berberidifolia, Adenostoma fasciculatum, and
Haplopappus squarrosus, and nearby desert species include Yucca
schidigera (CNDDB 2006). These B. nevinii plants are growing under a
canopy of Quercus agrifolia and Platanus racemosa with the following
species: Heteromeles arbutifolia, Q. berberidifolia, Elymus
condensatus, Mimulus aurantiacus, Lonicera subspicata, Pterostegia
drymarioides, and Epilobium canum. Soils in this area are classified as
rough broken land and Visalia gravelly sandy loam, with 5 to 9 percent
slopes (PCE 2) (Service GIS data 2007).
We are proposing this subunit as critical habitat because it
contains features essential to conservation of Berberis nevinii and it
contains a relatively large natural occurrence of the species.
Additionally, Service personnel visited this site in June 2006 while B.
nevinii was in fruit and found that several of the fruits had three to
four seeds, which may be significant for a species that appears to
rarely set seed. Berberis nevinii occupied this subunit at the time of
listing, as identified in the final listing rule (63 FR 54956, October
13, 1998).
The Berberis nevinii occurrence on the CNF is not as well protected
as the occurrence on the Angeles National Forest (USFS 2005, p. 238).
The primary threats to B. nevinii habitat in this area are human
recreation (off-highway vehicle use, shooting); wildland fire,
including an increased risk of fire ignition due to the proximity of
State Highway 79 (USFS 2005, pp. 232, 237); fuels and fire management
activities (USFS 2005, p. 237); and invasive, nonnative plants,
including potential short-term adverse effects associated with control
efforts (USFS 2005, p. 234). The CNF occurrence burned in 1996 followed
by vigorous resprouting (USFS 2005, p. 237), and this location has also
shown signs of disturbance from road

[[Page 58798]]

activities, with unauthorized use of off-highway vehicles occurring
close to but not within the area occupied by the species (USFS 2005, p.
235). Nonetheless, the magnitude of impacts associated with roads and
recreational activity in this area appears to be low (USFS 2005, p.
238). Also, the USFS does not anticipate substantial camping and
hiking-related impacts to B. nevinii habitat, and these impacts will be
avoided or mitigated by use of Forest Plan standards (USFS 2005, p.
234).
The February 6, 2007, proposed rule (72 FR 5552) identified the
proximity of Highway 79 as a potential threat to the Berberis nevinii
occurrence and habitat on the CNF, in part due to proposed highway
widening and realignment activities. However, we no longer anticipate
that these activities, if or when they occur, will affect Subunit 1B as
the revised subunit is now more than one-tenth mile (160 meters) south
of the highway. Invasive, nonnative plants and their management may
also impact the B. nevinii occurrence and habitat at this site. Based
on the weed management strategy in the USFS' Revised Land Management
Plan for the four Southern California National Forests (USFS 2005), the
CNF anticipates an eradication effort of the nonnative Arundo and other
invasive grasses present in this subunit.
One of the greatest threats to occupied habitat and the PCEs
contained therein on the CNF is from wildland fire and the management
of fire and fuels (i.e., fire suppression and prevention activities).
The Wildland-Urban Interface (WUI) Defense Zone overlaps about 43
percent of occupied habitat on the CNF (USFS 2005, p. 237; Service
2005, p. 127). Some plants or habitat within the WUI Defense Zone could
be removed or degraded under the Revised Land and Resource Management
Plan due to fuel removal for fire protection or overly frequent fuel
treatments (Service 2005, p. 127). Special management considerations or
protection of the PCEs may be required to minimize disturbance to the
vegetation and soils within this subunit; control invasive, nonnative
plants; and maintain the natural fire regime of the area.
Subunit 1B is included in the Western Riverside County Multiple
Species Habitat Conservation Plan's (MSHCP) Conservation Area as
existing Public/Quasi-Public (PQP) Conserved Lands. Since the CNF is
not a signatory to the MSHCP and is not required to comply with the
MSHCP's conservation measures, we are not proposing lands within this
subunit for exclusion under section 4(b)(2) of the Act (see 72 FR 5552,
``Exclusions under Section 4(b)(2) of the Act for Berberis nevinii''
section for a detailed discussion).
During the first comment period for the proposed rule, we were
informed that the Species Management Guide for Mahonia [Berberis]
nevinii (Gray) Fedde (Mistretta and Brown 1989) developed for the
Angeles National Forest was subsequently adopted by the CNF (Fege 1992,
p. 1; Holtrop 2007, p. 2). Additionally, the CNF informed us that the
species account for Berberis nevinii developed to support the
environmental analysis for the USFS Land Management Plans for four
southern California National Forests (USFS 2005) is meant to provide
guidance for conservation and management of B. nevinii on USFS lands
(Young 2007). However, these documents provide general guidance only
and do not direct decisions regarding USFS site-specific project
proposals. Additionally, these documents do not provide specific
recommendations for the B. nevinii occurrence on the CNF. Therefore, as
stated in the February 6, 2007, proposed rule (72 FR 5552), we are not
proposing USFS lands within this subunit for exclusion under section
4(b)(2) of the Act based on these plans.

Subunit 1D: North of Vail Lake

Subunit 1D consists of approximately 21 ac (8 ha) of private land
located immediately north of Vail Lake in southern Riverside County,
California. The Berberis nevinii occurrence at this location is mapped
along a canyon just above the high water line of Vail Lake, and
consists of seven plants based on a 1989 survey (CNNDB 2006). Berberis
nevinii individuals in this area are found in sandy and gravelly soils
in a drainage bottom (PCE 1 and 2). The vegetation community is
classified as coastal scrub and valley foothill riparian (PCE 3)
(Service GIS data 2006). At this site, B. nevinii is associated with
Adenostoma fasciculatum, Arctostaphylos glauca, Rhus integrifolia,
Juniperus californica, and Rhamnus crocea; to the north is a large
grove of Prosopis glandulosa (CNDDB 2006). Soils in this area are
classified as badland (PCE 2) (Service GIS data 2006).
We are proposing this subunit as critical habitat because it
contains the features essential to conservation of Berberis nevinii,
and it contains a relatively large natural occurrence of the species
(CNDDB 2006). This subunit is important for conserving B. nevinii as it
is one of several relatively large occurrences in the Vail Lake area
and thus has a greater potential for regeneration by seed. Berberis
nevinii occupied this subunit at the time of listing, as identified in
the final listing rule (63 FR 54956, October 13, 1998).
The primary threat to Berberis nevinii habitat in this area that
may require special management considerations or protection of the PCEs
is urban/residential development. This subunit, as well as subunits 1C,
1E, and 1F, consists entirely of private land that may be developed,
excluding flood easement lands held by the RCWD. This and the other
subunits just mentioned fall within the Criteria Area of the Western
Riverside County MSHCP and are targeted, in whole or in part, for
acquisition and inclusion in the MSHCP Conservation Area as Additional
Reserve Lands. Regardless, indirect effects of urban development could
threaten B. nevinii habitat in this area, including human recreation
activities; erosion; incursion or spread of invasive, nonnative plants;
and changes to the natural fire regime (i.e., increased ignitions and
fire frequency and shortened fire return intervals) that can lead to
type conversion of shrublands to annual grasslands. Rising lake levels
may also pose a threat, though the occurrences closest to Vail Lake
have not been inundated or affected by rising water levels and
fluctuations in the recent past (Boyd 2007).
We are proposing to exclude the private lands within this subunit
from the final designation of critical habitat for Berberis nevinii
based on conservation measures for the species in the MSHCP (see 72 FR
5552, ``Relationship of Critical Habitat to Approved Habitat
Conservation Plans (HCPs)--Exclusion Under Section 4(b)(2) of the Act--
Western Riverside County Multiple Species Habitat Conservation Plan''
section for a detailed discussion).

Subunit 1E: South of Vail Lake/Peninsula

Subunit 1E consists of approximately 217 ac (88 ha) of private land
located on the south and southwest side of Vail Lake in southern
Riverside County, California. This site has the largest known natural
occurrence of Berberis nevinii, collectively consisting of 134 plants
based on a 1987 survey (Boyd 1987, pp. 7, 61-72; CNDDB 2006). These
plants are located in several stands along both sides of the southwest
arm of Vail Lake, the south shore and peninsula, and part of the west
shore of the southeast arm of Vail Lake. Berberis nevinii individuals
in this area are found in canyons, in a wash of 15 percent slope, and
on north-facing ridges and slopes between 35 and 70 percent slope (PCE
1) (Boyd 1987, p. 61-72; CNDDB 2006), primarily in

[[Page 58799]]

association with coastal scrub, mixed chaparral, and valley foothill
riparian communities (PCE 3) (Service GIS data 2006). Associated
species include, but are not limited to: Artemisia californica,
Adenostoma fasciculatum, Eriogonum fasciculatum, Salvia mellifera,
Rhamnus crocea, Rhus ovata, Encelia farinosa, Baccharis glutinosa, and
Yucca sp. (Boyd 1987, p. 61-72). Soils in this area are classified as
sandy loams (Arlington and Greenfield fine sandy loams, 8 to 15 percent
slopes, eroded; Cajalco rocky fine sandy loam, 15 to 50 percent slopes,
eroded; Hanford coarse sandy loam, 8 to 15 percent slopes, eroded; Lodi
rocky loam, 25 to 50 percent slopes, eroded; Monserate sandy loam, 8 to
15 percent slopes, eroded; Monserate sandy loam, 15 to 25 percent
slopes, severely eroded; Pachappa fine sandy loam, 2 to 8 percent
slopes, eroded), gullied land, riverwash, and rough broken land (PCE 2)
(Service GIS data 2006).
We are proposing this subunit as critical habitat because it
contains features essential to conservation of Berberis nevinii, and it
contains the largest known natural occurrence of the species (CNDDB
2006). This location also contains the bulk of known individuals in the
Vail Lake/Oak Mountain area. Additionally, we interpret that
reproduction has occurred at this site in the past based on the
presence of several size (age) classes during Nishida's 1987 survey of
the area (Boyd 1987, p. 62). Berberis nevinii occupied this subunit at
the time of listing, as identified in the final listing rule (63 FR
54956, October 13, 1998).
The primary threat to Berberis nevinii habitat in this area that
may require special management considerations or protection of the PCEs
is urban/residential development. This subunit, as well as subunits 1C,
1D, and 1F, consists entirely of private land that may be developed,
excluding areas held as flood easement by the RCWD. This and the other
subunits just mentioned fall within the Criteria Area of the Western
Riverside County MSHCP and are targeted, in whole or in part, for
acquisition and inclusion in the MSHCP Conservation Area as Additional
Reserve Lands. Regardless, indirect effects of urban development--
including human recreation activities; erosion; incursion or spread of
invasive, nonnative plants (including annual grasses, Tamarix sp.,
Nicotiana glauca, and others); and changes to the natural fire regime
(i.e., increased ignitions and fire frequency and shortened fire return
intervals) that can lead to type conversion of shrublands to annual
grasslands--could threaten B. nevinii habitat in this area.
This Berberis nevinii occurrence has burned in the past, and
regeneration by stump sprouting has been observed (CNDDB 2006). Part of
this area is fairly inaccessible, except by boat; however, other parts
are in close proximity to roads, equestrian trails, and the boat launch
area (Boyd 1987, pp. 61-72; CNDDB 2006), and thus may be more heavily
impacted by recreational activities. Rising lake levels were also
identified as a potential threat to this occurrence by Nishida (Boyd
1987, pp. 61-72; CNNDB 2006), though the occurrences closest to Vail
Lake have not been inundated or affected by rising water levels and
fluctuations in the recent past (Boyd 2007).
We are proposing to exclude the private lands within this subunit
from the final designation of critical habitat for Berberis nevinii
based on conservation measures for the species in the Western Riverside
County MSHCP (see 72 FR 5552, ``Relationship of Critical Habitat to
Approved Habitat Conservation Plans (HCPs)--Exclusion Under Section
4(b)(2) of the Act--Western Riverside County Multiple Species Habitat
Conservation Plan'' section for a detailed discussion).

Required Determinations--Amended

In our February 6, 2007, proposed rule (72 FR 5552), 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 was available in the draft economic
analysis. Those data are now available for our use in making these
determinations. In this notice we are affirming the information
contained in the proposed rule concerning Executive Order (E.O.) 13132,
E.O. 12988, the Paperwork Reduction Act, and the President's memorandum
of April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951). Based on the information
made available to us in the draft economic analysis, we are amending
our Required Determinations, as provided below, concerning E.O. 12866
and the Regulatory Flexibility Act, E.O. 13211, E.O. 12630, and the
Unfunded Mandates Reform Act.

Regulatory Planning and Review

In accordance with E.O. 12866, this document is a significant rule
because it may raise novel legal and policy issues. Based on our draft
economic analysis of the proposed designation of critical habitat for
Berberis nevinii, costs related to conservation activities for B.
nevinii pursuant to sections 4, 7, and 10 of the Act are estimated to
be approximately $169,000 to $172,000 in undiscounted dollars over a
20-year period in areas proposed as critical habitat and approximately
$1.7 to $433.5 million in undiscounted dollars over a 20-year period
(or 40-year period for impacts related to management of Vail Lake) in
areas proposed for exclusion from critical habitat. These impacts would
only occur if the area proposed for exclusion is instead designated as
critical habitat. These cost estimates are based on revisions to the
proposed designation of critical habitat described in this notice and
includes costs coextensive with listing and recovery.
Discounted future costs in areas proposed as critical habitat are
estimated to be approximately $136,000 to $139,000 ($10,000 annualized)
at a 3 percent discount rate or approximately $107,000 to $110,000
($11,000 annualized) at a 7 percent discount rate. Discounted future
costs in areas proposed for exclusion from critical habitat are
estimated to be approximately $1.2 to $232.5 million at a 3 percent
discount rate ($82,000 to $10.1 million annualized) or approximately
$0.9 to $118.1 million at a 7 percent discount rate ($81,000 to $8.9
million annualized). For areas proposed for exclusion, estimated
discounted future costs (3 percent discount rate) associated with
management of Vail Lake range from zero to $12.2 million for the 2008
through 2012 timeframe, from zero to $117.4 million for the 2013
through 2027 timeframe, and from zero to $99.7 million for the 2028
through 2047 timeframe. Similarly, estimated discounted future costs (3
percent discount rate) associated with development range from $333,000
to $967,000 for the 2008 through 2012 timeframe and from $873,000 to
$2.3 million for the 2013 through 2027 timeframe in areas proposed for
exclusion from critical habitat. Lastly, the discounted future cost (3
percent discount rate) associated with administration is estimated at
$19,000 for the 2008 through 2012 timeframe in these same subunits.
Therefore, based on our draft economic analysis, we have determined
that the proposed designation of critical habitat for Berberis nevinii
would not result in an annual effect on the economy of $100 million or
more or affect the economy in a material way. Due to the necessary
timeline for publication in the Federal Register, the Office of
Management and Budget

[[Page 58800]]

(OMB) has not formally reviewed the proposed rule or accompanying
economic analysis.
Further, E.O. 12866 directs Federal agencies promulgating
regulations to evaluate regulatory alternatives (Office of Management
and Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-
4, once it has been determined that the Federal regulatory action is
appropriate, the agency will then need to consider alternative
regulatory approaches. Since the designation of critical habitat is a
statutory requirement pursuant to the Act, we must then evaluate
alternative regulatory approaches, where feasible, when promulgating a
designation of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweigh the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or combination thereof, in a
designation constitutes our regulatory alternative analysis.

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

Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act (5
U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a
notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. Based upon our draft
economic analysis 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 received, this determination is subject to revision as part of
the final rulemaking.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
To determine if the proposed designation of critical habitat for
Berberis nevinii would affect a substantial number of small entities,
we considered the number of small entities affected within particular
types of economic activities, such as residential and commercial
development. 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 thus 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 under section 7 of the Act if
their activities may affect designated critical habitat. Consultations
to avoid the destruction or adverse modification of critical habitat
would be incorporated into the existing consultation process.
In our draft economic analysis of the proposed critical habitat
designation, we evaluated the potential economic effects on small
business entities resulting from conservation actions related to the
listing of Berberis nevinii and proposed designation of its critical
habitat.
Impacts of conservation activities are not anticipated to affect
small entities in the following categories: Fire management on Federal
lands; invasive, nonnative plant species management on Federal lands;
recreation management on Federal lands; and surveying, monitoring, and
other activities on Federal lands. As described in Chapters 4 through 6
of the draft economic analysis, the cost associated with modifications
to activities on Federal lands will be borne by the USFS and BLM. The
Federal Government is not considered a small entity by the SBA. As
described in Chapter 3 of the draft economic analysis, potential
impacts related to management of Vail Lake will be borne entirely by
the RCWD and account for the majority of the total anticipated upper-
bound future impacts in areas proposed for exclusion from the final
designation of critical habitat (up to $429.1 million over the next 40
years in undiscounted dollars). The RCWD is not considered a small
entity/governmental jurisdiction by the SBA because it services a
population exceeding the criteria for a ``small entity.'' Additionally,
transportation projects that are reasonably foreseeable within the 20-
year analysis period are not anticipated to impact areas proposed as
critical habitat. Only impacts to land development activities (Chapter
2) are expected to be borne by small entities. Accordingly, the small
business analysis (Appendix B of the economic analysis) focuses on the
economic impacts of land development activities on private lands.
Seventy percent of the development-related impacts are expected to
be borne by private landowners ($2.3 million), with the remainder borne
by local government (25 percent or $810,000) and State and Federal
government (5 percent or $180,000). Three private landowners in
Riverside County will be directly impacted by the proposed regulation,
with one landowner owning the majority (approximately 85 percent or 291
ac (118 ha)) of the 341 ac (138 ha) of private (non-RCWD) lands
proposed as critical habitat. Chapter 2 of the draft economic analysis
concludes that some residential/commercial development is likely in or
adjacent to proposed critical habitat on private lands near Vail Lake.
Current zoning laws limit the type of development that may take place
on these private lands to one single-family home per 10 ac (4 ha) or 20
ac (8 ha), depending on specific zoning. Also, RCWD's flood easement
for Vail Lake precludes development from approximately 34 ac (14 ha) of
private land within proposed critical

[[Page 58801]]

habitat adjacent to Vail Lake. Lastly, the topography (steepness) of
much of this area makes it unlikely that the land will be used for
dense development in the future. Still, the likelihood and eventual
density of houses in or near proposed critical habitat, and whether
such development will pose a threat to Berberis nevinii habitat is
unknown.
The private land proposed as critical habitat for Berberis nevinii
is located within the Criteria Area of the Western Riverside County
MSHCP and is targeted, in whole or in part, for acquisition and
inclusion in the MSHCP Conservation Area as Additional Reserve Lands.
Based on the MSHCP, the economic analysis assumes 90 percent or
approximately 277 ac (112 ha) of the privately-owned land within
potential critical habitat and outside RCWD's flood easement (which is
approximately 307 of 341 ac (or 124 of 138 ha) of private land) will be
targeted for acquisition as Additional Reserve Lands, with compensation
to the private landowners. The economic analysis considers the cost of
land acquisition, reserve management (including fire, invasive species,
and recreation management), biological monitoring, adaptive management,
and program administration for preserving these 277 ac (112 ha) of
private land with long-term conservation value for B. nevinii as the
total economic impact of the proposed critical habitat designation as
it relates to development. The total economic impact for these
activities over the next 20 years is estimated to range from $1.6 to
$4.4 million in undiscounted dollars, or $1.2 to $3.3 million per year
and $0.8 to $2.3 million per year at the 3 percent and 7 percent
discount rate, respectively.
Every small land subdivision and construction business in the MSHCP
Plan Area is expected to be indirectly affected by conservation efforts
for Berberis nevinii due to mitigation and density bonus fees that will
be required for all new development. The economic analysis estimates
that there are 3,146 small land subdivision and building construction
businesses in Riverside County, but it is unknown how many of these are
within the MSHCP Plan Area, which encompasses only the western part of
the County. However, it is expected that these small entities would
pass any additional costs associated with conservation measures to the
consumer (i.e., the purchaser of the finished building), and thus we do
not anticipate that this proposed regulation will result in a
significant impact to a substantial number of small business entities.
Please refer to our draft economic analysis of the proposed critical
habitat designation for a more detailed discussion of potential
economic impacts.
In summary, we have considered whether this proposed rule would
result in a significant economic effect on a substantial number of
small entities. For the above reasons and based on currently available
information, we certify that the rule will not, if promulgated, have a
significant economic impact on a substantial number of small entities.
Therefore, an initial regulatory flexibility analysis is not required.

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

On May 18, 2001, the President issued E.O. 13211 on regulations
that significantly affect energy supply, distribution, and use. E.O.
13211 requires agencies to prepare Statements of Energy Effects when
undertaking certain actions. This proposed designation of critical
habitat for Berberis nevinii is considered a significant regulatory
action under E.O. 12866 due to its potentially raising novel legal and
policy issues. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared without the regulatory
action under consideration. The draft economic analysis finds that none
of these criteria are relevant to this analysis. Thus, based on
information in the draft economic analysis, energy-related impacts
associated with B. nevinii conservation activities within proposed
critical habitat are not expected. As such, the proposed designation of
critical habitat is not expected to significantly affect energy
supplies, distribution, or use, and a Statement of Energy Effects is
not required.

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

In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments,'' with
two exceptions. 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; Aid to
Families with Dependent Children 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 on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments. As discussed in the draft economic analysis,
anticipated future impacts in areas proposed for final designation as
critical habitat will be borne by the Federal Government; in areas
proposed for exclusion from the final designation, the majority of the

[[Page 58802]]

total anticipated upper-bound future impacts will be borne by the RCWD,
with private landowners, local government, and Federal and State
governments bearing the rest. The Federal government is not considered
a small governmental jurisdiction or entity by the SBA, and neither is
the RCWD because it services a population exceeding the criteria for a
``small entity.'' Consequently, we do not believe that critical habitat
designation would significantly or uniquely affect small government
entities. As such, a Small Government Agency Plan is not required.

Executive Order 12630--Takings

In accordance with E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing critical habitat for Berberis nevinii in a takings
implications assessment. The takings implications assessment concludes
that this proposed designation of critical habitat for B. nevinii does
not pose significant takings implications.

References Cited

A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, Carlsbad Fish and
Wildlife Office (see ADDRESSES).

Authors

The primary authors of this notice are the staff of the Nevada Fish
and Wildlife Office and the Carlsbad Fish and Wildlife Office.

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, as proposed to
be amended at 72 FR 5552, February 6, 2007, as set forth below:

PART 17--[AMENDED]

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; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Critical habitat for Berberis nevinii (Nevin's barberry) in
Sec. 17.96(a), which was proposed to be added on February 6, 2007, at
72 FR 5552, is proposed to be amended by revising paragraphs (5)(ii),
(5)(iv), and (5)(v), and by revising Map 1 in paragraph (5)(vii), as
follows:

Sec. 17.96 Critical habitat--plants.

(a) Flowering plants.
* * * * *
Family Berberidaceae: Berberis nevinii (Nevin's barberry)
* * * * *
(5) Unit 1. Agua Tibia/Vail Lake, Riverside County, California.
* * * * *
(ii) Subunit 1B for Berberis nevinii, Agua Tibia Mountain Foothills
Subunit, Riverside County, California. From USGS 1:24,000 quadrangle
Vail Lake, lands bounded by the following UTM NAD27 coordinates (E, N):
504200, 3702900; 504300, 3702900; 504300, 3702800; 504200, 3702800;
thence returning to 504200, 3702900.
* * * * *
(iv) Subunit 1D for Berberis nevinii, North of Vail Lake Subunit,
Riverside County, California. From USGS 1:24,000 quadrangles Sage and
Vail Lake, lands bounded by the following UTM NAD27 coordinates (E, N):
502600, 3706600; 502900, 3706600; 502900, 3706300; 502626, 3706300;
thence follow the 1,461 foot Vail lake contour to 502600, 3706368;
thence returning to 502600, 3706600.
(v) Subunit 1E for Berberis nevinii, South of Vail Lake/Peninsula
Subunit, Riverside County, California. From USGS 1:24,000 quadrangle
Vail Lake, lands bounded by the following UTM NAD27 coordinates (E, N):
503300, 3704300; 503600, 3704300; 503600, 3704100; 503500, 3704100;
503500, 3703900; 503200, 3703900; 503200, 3704100; 503100, 3704100;
503100, 3704600; 502700, 3704600; 502700, 3704700; 502300, 3704700;
502300, 3704500; 502200, 3704500; 502200, 3704200; 502000, 3704200;
502000, 3704000; 501600, 3704000; 501600, 3704290; thence follow the
1,461 foot Vail lake contour to 503300, 3704595; thence returning to
503300, 3704300. Continuing to lands bounded by the following UTM NAD27
coordinates (E, N): 501700, 3705100; 501812.94, 3705100; thence follow
the 1,461 foot Vail lake contour to 501700, 370444.25; thence returning
to 501700, 3705100.
* * * * *
(vii) Map of Subunits 1A through 1F (Map 1) follows:
BILLING CODE 4310-55-P

[[Page 58803]]

[GRAPHIC] [TIFF OMITTED] TP17OC07.015

* * * * *

Dated: October 5, 2007.
David M. Verhey,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-5063 Filed 10-16-07; 8:45 am]

BILLING CODE 4310-55-C