[Federal Register: March 10, 2009 (Volume 74, Number 45)]
[Proposed Rules]
[Page 10211-10217]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10mr09-22]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R8-ES-2008-0078; 92210-1117-0000-B4]
RIN 1018-AV03
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Cirsium loncholepis (La Graciosa thistle)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period, 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 revised designation of
critical habitat for Cirsium loncholepis (common name La Graciosa
thistle) under the Endangered Species Act of 1973, as amended (Act). We
also announce the availability of the January 16, 2009, draft economic
analysis (DEA) of the proposed revised designation of critical habitat
for C. loncholepis and announce an amended required determinations
section of the proposal. We are reopening the comment period to allow
all interested parties an opportunity to comment simultaneously on the
proposed revised designation of critical habitat for C. loncholepis,
the associated DEA, and the amended required determinations section.
Comments previously submitted on this rulemaking do not need to be
resubmitted. These comments have already been incorporated into the
public record and will be fully considered in preparation of the final
rule.
DATES: We will accept public comments received or postmarked on or
before April 9, 2009.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: RIN 1018-AV03; Division of Policy and Directives Management; U.S.
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington,
VA 22203.
We will not accept e-mail or faxes. We will post all comments on
http://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: Diane K. Noda, Field Supervisor,
Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura,
CA 93003, (telephone 805-644-1766; facsimile 805-644-3958). If you use
a telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written comments and information during this
reopened comment period on the proposed revised designation of critical
habitat for Cirsium loncholepis published in the Federal Register on
August 6, 2008 (73 FR 45805), the DEA of the proposed revised
designation of critical habitat for Cirsium loncholepis, 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. 1533), 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.
2. Specific information on:
The amount and distribution of Cirsium loncholepis
habitat,
The importance of including habitat that provides
connectivity between extant populations of Cirsium loncholepis to the
species' conservation and recovery, and the amount and distribution of
such habitat,
What areas occupied at the time of listing and that
contain features essential for the conservation of the species should
be included in the designation and why, and
What areas not occupied at the time of listing are
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 revised
designation of critical habitat for Cirsium loncholepis.
4. Probable economic, national security, or other impacts from
designating particular areas as critical habitat. We are particularly
interested in any impacts on small entities and specific impacts on
national security, and the benefits of including or excluding areas
that exhibit these impacts.
5. Any proposed critical habitat areas covered by existing or
proposed conservation or management plans that we should consider for
exclusion from the designation under section 4(b)(2) of the Act. We
specifically request information on any final or draft habitat
conservation plans that include Cirsium loncholepis as a covered
species that have been prepared under section 10(a)(1)(B) of the Act,
or any other management plan, conservation plan, or agreement that
benefits this plant or its primary constituent elements.
6. Land use designations and current or planned activities in the
subject areas and their possible impacts on the proposed revised
designation of critical habitat for Cirsium loncholepis.
7. Additional scientific information that will help us to better
delineate areas that contain the primary constituent elements.
8. Any foreseeable environmental impacts directly or indirectly
resulting from the proposed revised designation of critical habitat for
Cirsium loncholepis.
[[Page 10212]]
9. Information on whether the DEA makes appropriate assumptions
regarding current practices and any regulatory changes that likely may
occur if we designate proposed revised critical habitat for Cirsium
loncholepis.
10. Information on whether the DEA correctly assesses the effect on
regional costs associated with any land use controls that may result
from the proposed revised designation of critical habitat for Cirsium
loncholepis.
11. Information on whether the proposed revised designation of
critical habitat will result in disproportionate economic impacts to
specific areas or small businesses that should be evaluated under
4(b)(2) of the Act for possible exclusion from the proposed revised
designation of critical habitat for Cirsium loncholepis and whether the
failure to designate such areas as critical habitat will result in the
extinction of C. loncholepis.
12. Information on the accuracy of our methodology in the DEA for
distinguishing baseline and incremental costs, and the assumptions
underlying the methodology.
13. Information on whether the DEA identifies all costs that could
result from the proposed revised designation of critical habitat for
Cirsium loncholepis.
14. Information on any quantifiable economic benefits of the
proposed revised designation of critical habitat for Cirsium
loncholepis.
15. Whether the benefits of excluding any particular area outweigh
the benefits of including that area under section 4(b)(2) of the Act,
in particular lands in Units 4, 5, and 6 covered by a draft endangered
species conservation agreement for Cirsium loncholepis that was
submitted to the Service by Vandenberg Air Force Base (VAFB) for
further evaluation and consideration during the public comment period.
16. Information on any economic impacts associated with
implementing the draft conservation agreement covering specified lands
in Units 4, 5, and 6 submitted to the Service for further evaluation
and consideration.
17. Economic data on the incremental costs of designating a
particular area as revised critical habitat.
18. Any foreseeable impacts on energy supplies, distribution, and
use resulting from the proposed revised designation of critical habitat
for Cirsium loncholepis and, in particular, any impacts on electricity
production, and the benefits of including or excluding areas that
exhibit these impacts.
19. Whether we could improve or modify our approach to designating
critical habitat to provide for greater public participation and
understanding, or to assist us in accommodating public concerns and
comments.
20. Information on potential critical habitat exclusions from the
proposed revised designation of critical habitat for Cirsium
loncholepis.
If you submitted comments or information on the proposed revised
rule (73 FR 45805) during the initial comment period from August 6,
2008, to October 6, 2008, 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 revised critical
habitat will take into consideration all written comments and any
additional information we receive during both comment periods. On the
basis of public comments, we may, during the development of our final
determination, find that areas proposed 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 our proposed
rule, the associated DEA, and our amended required determinations by
one of the methods listed in the ADDRESSES section. We will not
consider comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment, including any personal identifying information, will be posted
on the Web site. If you submit a hard copy 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. We will post all
hard copy comments on http://www.regulations.gov.
Comments and materials we receive (and have received), as well as
supporting documentation we used in preparing this notice, will be
available for public inspection on http://www.regulations.gov [Docket
Number FWS-R8-ES-2008-0078], or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT).
You may obtain copies of the proposed rule and DEA by mail from the
Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT),
by visiting the Federal eRulemaking Portal at http://
www.regulations.gov, or on our Web site at http://www.fws.gov/ventura.
Background
It is our intent to discuss only those topics directly relevant to
the proposed revised designation of critical habitat for Cirsium
loncholepis in this notice. For more information on previous Federal
actions concerning C. loncholepis, refer to the proposed revised
designation of critical habitat published in the Federal Register on
August 6, 2008 (73 FR 45805). For more information on the endangered C.
loncholepis or its habitat, refer to the proposed and final listing
rules published in the Federal Register on March 30, 1998 (63 FR
15164), and on March 20, 2000 (65 FR 14888), the proposed rule to
designate critical habitat (66 FR 57559; November 15, 2001), and the
final designation of critical habitat for C. loncholepis (69 FR 12553;
March 17, 2004), or from the Ventura Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT).
In March 2005, the Homebuilders Association of Northern California,
et al., filed suit against the Service challenging the merits of the
final critical habitat designations for several species, including C.
loncholepis. In March 2006, a settlement was reached that required us
to re-evaluate five final critical habitat designations, including
critical habitat designated for C. loncholepis. The settlement (as
modified by a court-approved amendment) stipulated that any proposed
revisions to C. loncholepis critical habitat designation would be
submitted for publication to the Federal Register on or before July 27,
2008, and final revisions would be submitted on or before July 27,
2009.
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 areas designated as critical habitat must consult with us on
the effects of their proposed actions, under section 7(a)(2) of the
Act.
Under section 4(b)(2) of the Act, we may exclude an area from
critical
[[Page 10213]]
habitat if we determine that the benefits of such exclusion outweigh
the benefits of including that particular area as critical habitat,
unless failure to designate that specific 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, including but not limited to
the value and contribution of continued, expanded, or newly forged
conservation partnerships.
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; the educational benefits of mapping
essential habitat for 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 that provides
equal to or more conservation than a critical habitat designation would
provide. In the case of Cirsium loncholepis, the benefits of critical
habitat include public awareness of C. loncholepis presence and the
importance of habitat protection, and where a Federal nexus exists,
increased habitat protection for C. loncholepis 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. Since C. loncholepis was
listed in 2000, we have had few projects on privately owned lands that
had a Federal nexus to trigger consultation under section 7 of the Act,
and have consulted only once with a Federal agency regarding its
effects to C. loncholepis on Federal lands.
When we evaluate the benefits of excluding an area being managed
under an existing conservation plan, we consider a variety of factors,
including but not limited to, whether the plan is finalized; how it
provides for the conservation of the essential physical and biological
features; whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan will be implemented into the future; whether the
conservation strategies in the plan are likely to be effective; and
whether the plan contains a monitoring program or adaptive management
to ensure that the conservation measures are effective and can be
adapted in the future in response to new information.
After evaluating the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to determine whether the
benefits of exclusion outweigh those of inclusion. If we determine that
they do, we then determine whether exclusion would result in
extinction. If exclusion of an area from critical habitat will result
in extinction, we will not exclude it from the designation.
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 our August 6, 2008 (73 FR 45805), proposed revised
designation of critical habitat for Cirsium loncholepis.
The intent of the DEA is to identify and analyze the potential
economic impacts associated with the proposed revised designation of
critical habitat for Cirsium loncholepis. Additionally, the economic
analysis looks retrospectively at costs incurred since the March 20,
2000 (65 FR 14888), listing of C. loncholepis as endangered. The DEA
quantifies the economic impacts of all potential conservation efforts
for C. loncholepis; some of these costs will likely be incurred
regardless of whether we designate revised critical habitat. The
economic impact of the proposed revised designation of critical habitat
for C. loncholepis 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 (for example,
under the Federal listing and other Federal, State, and local
regulations). The baseline, therefore, represents the costs incurred
regardless of whether critical habitat is designated and may include
costs incurred in the future. 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. The analysis looks retrospectively at baseline
impacts incurred since the species was listed, and forecasts both
baseline and incremental impacts likely to occur if we finalize the
proposed revised designation of critical habitat for C. loncholepis.
For a further description of the methodology of the analysis, see
Chapter 2, ``Framework for the Analysis'', of the DEA.
The current DEA estimates the foreseeable economic impacts of the
proposed revised designation of critical habitat for Cirsium
loncholepis by identifying the potential resulting incremental costs.
The DEA describes economic impacts of C. loncholepis conservation
efforts associated with the following categories of activity: (1)
Military activities on Vandenberg Air Force Base; (2) recreation
(primarily off-highway vehicle use); (3) residential and commercial
development; (4) agriculture and ranching; (5) oil and gas operations;
and (6) other public lands management.
Baseline economic impacts are those impacts that result from
listing and other conservation efforts for Cirsium loncholepis not
attributable to designation of critical habitat and thus are expected
to occur regardless of whether we designate critical habitat. Total
future baseline impacts are estimated to be $11.0 million ($720,000
annualized) to $320 million (approximately $20.9 million annualized) in
present value terms using a 3 percent discount rate, and $10.4 million
($915,000 annualized) to $230 million (approximately $20.3 million
annualized) in present value terms, using a 7 percent discount rate,
over the next 20 years (2009 to 2028) in areas proposed as revised
critical habitat. Impacts to recreation in Unit 1 (Callender-Guadalupe
Dunes) represent the majority of the total post-designation baseline
impacts (between 96 and 97 percent), depending on the discount rate.
Future baseline impacts for areas currently considered for
exclusion were calculated separately from other areas proposed as
revised critical habitat. The baseline impacts for VAFB were estimated
to be between $0.21 million using a 3 percent discount rate, and $0.15
million using a 7 percent discount rate over the next 20 years (2009 to
2028).
The DEA estimates total potential incremental economic impacts in
areas proposed as revised critical habitat over the next 20 years (2009
to 2028) to range from $405,000 ($26,500 annualized) to
[[Page 10214]]
$55.6 million ($3.6 million annualized) in present value terms using a
3 percent discount rate, and from $355,000 ($31,300 annualized) to
$39.6 million ($3.5 million annualized) in present value terms using a
7 percent discount rate. Almost all incremental impacts attributed to
the proposed revised designation of critical habitat are expected to be
related to recreation (approximately 99.89 percent); the remaining
incremental impacts are related to development and public lands
management (approximately 0.11 percent).
The DEA considers both economic efficiency and distributional
effects. In the case of habitat conservation, efficiency effects
generally reflect the ``opportunity costs'' associated with the
commitment of resources to comply with habitat protection measures
(e.g., lost economic opportunities associated with restrictions on land
use). The DEA also addresses how potential economic impacts are likely
to be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The DEA measures lost economic efficiency associated with
residential and commercial development, ranching and agriculture, and
off-highway vehicle recreation, and its effects on Federal lands, small
entities, and the energy industry. Decision-makers can use this
information to assess whether the effects of the revised designation
might unduly burden a particular group or economic sector.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as on all aspects of the proposed revised
designation of critical habitat and our amended required
determinations. We may revise the proposed rule or its supporting
documents to incorporate or address information we receive during this
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 as critical habitat,
provided the exclusion will not result in the extinction of the
species.
Areas Considered for Exclusion
Department of Defense Lands
Based on comments submitted during the initial public comment
period from August 6, 2008, to October 6, 2008, we are considering
exclusion of lands on VAFB (13,832 ac (5,598 ha) total) in Units 4, 5,
and 6 from critical habitat. In their comment letter, dated September
29, 2008, VAFB requested to be excluded from the revised designation of
critical habitat based on: (1) Their draft Integrated Natural Resources
Management Plan (INRMP), (2) a draft conservation agreement for Cirsium
loncholepis (included as an appendix), and (3) reasons of national
security.
Under section 4(a)(3)(B)(i) of the Act, the Secretary of the
Interior (Secretary) is prohibited from designating as critical habitat
any lands or other geographical areas owned or controlled by the
Department of Defense, or designated for its use, that are subject to
an INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation. An INRMP is currently being prepared in coordination with
the Service that will ensure conservation of the species. However,
because the INRMP is not yet final and approved by the Secretary, the
statutory prohibition on designation of these lands as critical habitat
is inapplicable.
We are also considering excluding these areas under section 4(b)(2)
of the Act based on a draft endangered species conservation agreement
for Cirsium loncholepis that proposes a C. loncholepis conservation
partnership and agreement between VAFB and the Service. This draft
conservation agreement focuses on the continuation of compliance with
Federal and State laws, conducting surveys for federally listed
species, and protecting and enhancing existing populations and habitats
of threatened and endangered species. We are currently working with
VAFB to complete this draft conservation agreement. We will assess the
benefits of excluding VAFB lands included in this conservation
agreement and consider these lands for exclusion from the revised
critical habitat final rule under section 4(b)(2) of the Act. If this
conservation agreement is finalized before the designation and our
analysis results in a determination that the benefits of excluding
lands from the final designation outweigh the benefits of designating
those lands as critical habitat, then we will exclude the lands from
the revised final designation, provided the exclusion will not result
in the extinction of the species.
You may obtain a copy of the draft conservation agreement for lands
on VAFB by visiting the Federal eRulemaking Portal at http://
www.regulations.gov, at http://www.fws.gov/ventura, or by requesting
copies of these documents by mail from the Ventura Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT).
We are also considering excluding these areas under section 4(b)(2)
of the Act for reasons of national security. Lands may be excluded from
designation as critical habitat if the Secretary determines that the
benefits of exclusion, including the benefits with respect to national
security, outweigh the benefits of inclusion, unless failure to
designate that specific area as critical habitat will result in the
extinction of the species, as explained below.
Vandenberg Air Force Base is a U.S. Air Force installation. It
operates as a missile test and aerospace center, supporting west coast
launch activities for the U.S. Air Force, Department of Defense,
National Aeronautics and Space Administration, and commercial
contractors. Vandenberg Air Force Base is headquarters for the 30th
Space Wing, the Air Force's Space Command unit that operates VAFB and
the western test range. Activities on the grounds of VAFB consist of
the following:
Mission operations such as:
[cir] Space and missile launch programs,
[cir] Security and antiterrorism operations,
[cir] Explosive ordnance management,
[cir] Air operations, and
[cir] Miscellaneous mission operations;
Infrastructure support such as:
[cir] Paved and unpaved road maintenance,
[cir] Utility installation, maintenance and removal,
[cir] Landscaping, and
[cir] Fencing installation, maintenance, and replacement;
Infrastructure development;
Environmental management programs such as:
[cir] Installation restoration,
[cir] Military munitions response,
[cir] Environmental compliance,
[cir] Archeological support,
[cir] Invasive and pest species removal,
[cir] Cropland management,
[cir] Grazing and livestock, and
[cir] Sensitive species management; and
Fire management.
Vandenberg Air Force Base stated in their comment letter submitted
September 29, 2008, regarding the proposed revised designation of
critical habitat that the need for additional consultations and
possible conservation restrictions would limit the amount of natural
infrastructure available for ongoing and future mission execution and
training needed for national security; not designating these areas on
[[Page 10215]]
VAFB as critical habitat for Cirsium loncholepis would not result in
the extinction of the species; and operations at VAFB do not constitute
either a long-term threat or adverse modification of suitable C.
loncholepis habitat. Short-notice, mission-critical activities not
previously analyzed may be delayed in order to conduct section 7
consultations under the Act.
Aside from these areas now being considered for exclusion from the
final revised designation of critical habitat, no other areas are being
considered for exclusion and the proposed revised designation of
critical habitat remains unchanged as presented.
Required Determinations--Amended
In our proposed rule dated August 6, 2008 (73 FR 45805), we
indicated that we would defer our determination of compliance with
several statutes and Executive Orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the DEA. We have now
made use of the DEA to make these determinations. In this document, we
affirm the information in our proposed rule concerning Executive Order
(E.O.) 13132 (Federalism), E.O. 12988 (Civil Justice Reform), 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.), the President's
memorandum of April 29, 1994, and ``Government-to-Government Relations
with Native American Tribal Governments'' (59 FR 22951). However, based
on the DEA data, we are amending our required determinations concerning
E.O. 12866 (Regulatory Planning and Review) and the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211 (Energy, Supply,
Distribution, and Use), E.O. 12630 (Takings), and the Unfunded Mandates
Reform Act (2 U.S.C. 1501 et seq.).
Regulatory Planning and Review (E.O. 12866)
The Office of Management and Budget (OMB) has determined that this
proposed rule is not significant and has not reviewed this proposed
rule under E.O. 12866. The OMB bases its determination upon the
following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act, as amended by the Small
Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)),
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 on our DEA of the proposed
revised 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 a final rulemaking.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
To determine if the proposed revised designation of critical
habitat for Cirsium loncholepis would affect a substantial number of
small entities, we considered the number of small entities affected
within particular types of economic activities, such as residential and
commercial development. In order to determine whether it is appropriate
for our agency to certify that this 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. Some
kinds of activities are unlikely to have any Federal involvement and so
will not be affected by critical habitat designation. In areas where
the species 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 Cirsium loncholepis. Federal
agencies also must consult with us if their activities may affect
critical habitat.
In the DEA of the proposed revised designation of critical habitat,
we evaluated the potential economic effects on small business entities
resulting from implementation of conservation actions related to the
proposed revised designation of critical habitat. The DEA identified
the estimated incremental impacts associated with the proposed revised
designation of critical habitat as described in sections 2 through 9,
and evaluated the potential for economic impacts related to activity
categories including military-related activities on VAFB, residential
and commercial development, agriculture and ranching, recreation, oil
and gas operations, and public lands management. The DEA concluded that
the incremental impacts resulting from this rulemaking that may be
borne by small businesses will be associated with agriculture and
ranching, and recreation. Incremental impacts are either not expected
for the other types of activities considered or, if expected, will not
be borne by small entities.
As discussed in Appendix A of the DEA, the potential impacts of the
proposed revised designation of critical habitat on agriculture and
ranching over the next 20 years would result from unquantified delay
costs associated with future construction of up to four cooling
facilities or processing plants in Unit 2; and future vineyard
conversion projects in Unit 3. The delay costs associated
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with future construction of cooling facilities or processing plants
will potentially affect fewer than one small agricultural entity per
year. The delay costs associated with future vineyard conversion
projects will affect one small entity (one landowner).
As discussed in Appendix A of the DEA, impacts on small businesses
associated with recreation are provided through two scenarios; the
lower bound assumes that no restrictions are placed on off-highway
vehicle (OHV) recreation at Oceano Dunes State Vehicle Recreation Area
(ODSVRA), and the upper bound assumes that five percent of critical
habitat within ODSVRA is closed to OHV recreation, and that some people
who would have made a trip to ODSVRA for OHV recreation will forego
future trips due to the closure of five percent of the riding area.
Since there are no impacts to small businesses with the lower bound
scenario, only costs for the upper bound scenario are given. In this
case, the DEA identifies estimated lost opportunity costs associated
with OHV recreation at ODSVRA over the next 20 years (2009 to 2028) at
$55.2 million in present value terms using a 3 percent discount rate,
and $39.3 million in present value terms using a 7 percent discount
rate. The costs would be borne by businesses in the region surrounding
the ODSVRA that provide lodging, food and beverage, retail shopping,
and vehicle-related services to OHV users, and is based on the
assumption in the DEA that OHV use would decline if portions of the
ODSVRA are closed to OHV use due to critical habitat. The DEA assumes
that an average of 85 percent of the businesses that supply goods and
services to OHV users are small businesses.
In summary, we have considered whether the proposed revised
designation of critical habitat would result in a significant economic
impact on a substantial number of small entities. We have identified
small businesses that may be affected within the ranching and
agriculture and recreation sectors. However, for the construction of
cooling facilities/processing plants, less than one small entity per
year may be affected; and for vineyard conversion, only one small
entity may be affected by the proposed revised designation of critical
habitat. Within the recreation sector, the DEA identifies a large
percentage of small businesses that may be impacted by the proposed
revised designation of critical habitat. Although this action has a
potential to impact small businesses that provide goods and services to
OHV users, we believe that the ODSVRA can incorporate measures to
ensure the long-term conservation of Cirsium loncholepis in proposed
critical habitat Unit 1 without closing large areas that are currently
open to OHV users. Therefore, it is likely that these small businesses
will not bear the majority of the estimated impacts, which are
associated with lost opportunity costs stemming from reduced OHV use of
ODSVRA. For the above reasons and based on currently available
information, we certify that, if promulgated, the proposed revised
designation of critical habitat for C. loncholepis would not have a
significant economic impact on a substantial number of small business
entities. Therefore, a regulatory flexibility analysis is not required.
Executive Order 13211--Energy Supply, Distribution, and Use
On May 18, 2001, the President issued E.O. 13211 on regulations
that significantly affect energy supply, distribution, and use.
Executive Order 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. The OMB's guidance for
implementing this Executive Order outlines nine outcomes that may
constitute ``a significant adverse effect'' when compared to no
regulatory action. As discussed in Appendix A, the DEA finds that none
of these criteria are relevant to this analysis. The DEA identifies
that the most likely energy-related activity to occur is the re-
activation of an existing well, which generally will not result in
incremental impacts; therefore, designation of critical habitat is not
expected to lead to any adverse outcomes (such as a reduction in
electricity production or an increase in the cost of energy production
or distribution), and a Statement of Energy Effects is not required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act, the Service
makes the following findings:
a. This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments,'' with
two exceptions. 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.
``Federal private sector mandate'' includes a regulation that ``would
impose an enforceable duty upon the private sector, except (i) a
condition of Federal assistance; or (ii) a duty arising from
participation in a voluntary Federal program.''
Critical habitat designation does not impose a legally binding duty
on non-Federal government entities or private parties. 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. Designation of critical habitat may indirectly impact non-
Federal entities that receive Federal funding, assistance, or permits,
or that otherwise require approval or authorization from a Federal
agency for an action 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. As discussed in the DEA of the proposed designation of critical
habitat for Cirsium loncholepis, we do not believe that this rule would
significantly or uniquely affect small governments because it would not
produce a Federal mandate of $100 million or greater in any year; that
is, it is not a ``significant regulatory action'' under the Unfunded
Mandates Reform Act. The DEA concludes incremental impacts may occur
due to project modifications that may need to be made for agriculture
and development activities; however, these are not expected to affect
small governments. Consequently, we do not believe that the revised
critical habitat designation would significantly or
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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 revised critical habitat for Cirsium loncholepis in a takings
implications assessment. Critical habitat designation does not affect
landowner actions that do not require Federal funding or permits, nor
does it preclude development of habitat conservation programs or
issuance of incidental take permits to permit actions that do require
Federal funding or permits to go forward. In conclusion, the proposed
revision to critical habitat for C. loncholepis does not pose
significant takings implications.
References Cited
A complete list of all references we cited in the proposed rule and
in this document is available on the Internet at http://
www.regulations.gov or by contacting the Ventura Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT section).
Authors
The primary authors of this rulemaking are the staff members of the
Ventura Fish and Wildlife Office.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: February 20, 2009.
Jane Lyder,
Assistant Deputy Secretary, Department of the Interior.
[FR Doc. E9-4788 Filed 3-9-09; 8:45 am]
BILLING CODE 4310-55-P