[Federal Register: May 18, 2010 (Volume 75, Number 95)]
[Proposed Rules]
[Page 27690-27700]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18my10-18]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2009-0054]
[MO 92210-0-0009-B4]
RIN 1018-AW20
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Ambrosia pumila (San Diego ambrosia)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the comment period on our August 27, 2009, proposed rule
to designate critical habitat for Ambrosia pumila (San Diego ambrosia).
We also announce the availability of the draft economic analysis (DEA),
revisions to proposed critical habitat, and an amended required
determinations section of the proposal. We are reopening the comment
period to allow all interested parties an opportunity to comment
simultaneously on the proposed critical habitat, the associated DEA,
the proposed addition of three subunits based on new information, and
the amended required determinations section. If you submitted comments
previously, you do not need to resubmit them because we have already
incorporated them into the public record and will fully consider them
in preparation of the final rule.
DATES: The comment period for the proposed rule published August 27,
2009, at 74 FR 44238, is reopened. We will consider comments from all
interested parties received or postmarked on or before June 17, 2010.
Please note that if you use the Federal eRulemaking Portal (see
ADDRESSES section, below), the deadline for submitting an electronic
comment is 11:59 p.m. Eastern Time on this date. Any comments that we
receive after the closing date may not be considered in the final
decision on this action.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments on docket number FWS-
R8-ES-2009-0054.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R8-ES-2009-0054; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
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: Jim Bartel, Field Supervisor, U.S.
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010
Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone (760) 431-
9440; facsimile (760) 431-5901. Persons who use a telecommunications
device for the deaf (TDD) may call the Federal Information Relay
Service (FIRS) at (800) 877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that any final action resulting from the proposed rule is
based on the best scientific data available and will be accurate and as
effective as possible. Therefore, we request comments or information
from other concerned government agencies, the scientific community,
industry, and any other interested party during this reopened comment
period on the proposed rule to designate critical habitat for Ambrosia
pumila (San Diego ambrosia) that was published in the Federal Register
on August 27, 2009 (74 FR 44238), including comments on the addition of
subunits 3B, 4D, and 5B to the proposed critical habitat; the DEA of
the revised proposed designation; and the amended required
determinations provided in this document. 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 Endangered Species Act of
1973, as amended (Act; 16 U.S.C. 1531 et seq.), including whether there
are threats to the species from human activity, the degree of which can
be expected to increase due to the designation, and whether that
increase in threat outweighs the benefit of designation such that the
designation is not prudent.
(2) Specific information that may assist us in clarifying or
identifying more specific primary constituent elements (PCEs).
Available information does not identify a consistent pattern in
specific life-history requirements and habitat types where this species
is found. For these reasons, the PCEs in the proposed rule are broad
and based on our assessment of the ecosystem settings in which the
species has most frequently been detected and our best assessment
regarding its life-history requisites. We specifically seek information
that may assist us in defining those physical and biological features
essential to the conservation of the species which may require special
management considerations or protection, or in identifying specific
areas outside the geographical area occupied by the species at the time
it was listed that may be essential for the conservation of the
species. In particular, answers to the following questions may be
helpful to clarify or identify more specific PCEs of A. pumila habitat:
Does the species reproduce via seed? If so, does the
species rely on some aspect of its environment to trigger seed
germination?
What are the key factors determining why the species
occupies the particular areas it occupies (but not other areas with the
same habitat type)? For example, what role does proximity to waterways
or vernal pools play?
(3) Specific information on:
The amount and distribution of areas proposed as critical
habitat for Ambrosia pumila;
Areas occupied at the time of listing that contain
features essential to the conservation of the species and why we should
include or exclude these areas in the designation; and
Areas not occupied at the time of listing that are
essential for the conservation of the species and why.
(4) How the proposed critical habitat boundaries could be refined
to more closely circumscribe the areas identified as essential. We also
seek recommendations to improve the methodology used to delineate the
areas proposed as critical habitat; we especially seek comments
regarding how we might more accurately determine how much area beyond
the surface covered by above-ground stems that we need to include for
each occurrence of Ambrosia pumila in the critical habitat designation
to ensure that habitat areas include unseen underground portions
(rhizomes) of A. pumila plants (see step number 4 in the Methods
section of the proposed critical habitat rule (74 FR 44246, August 27,
2009)).
[[Page 27691]]
(5) Land use designations and current or planned activities in the
areas proposed as critical habitat and their possible impacts on the
species and the proposed critical habitat.
(6) Any special management considerations or protections that the
physical and biological features essential to the conservation of
Ambrosia pumila may require.
(7) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
(8) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation. We are particularly interested in any impacts on small
entities, and the benefits of including or excluding areas that exhibit
these impacts.
(9) Whether the benefit of an exclusion of any particular area
outweighs the benefit of inclusion under section 4(b)(2) of the Act, in
particular for those areas covered by the Western Riverside County
Multiple Species Habitat Conservation Plan (Western Riverside County
MSHCP), and Subarea Plans (City of San Diego and County of San Diego)
under the San Diego Multiple Species Conservation Program (MSCP), and
specific reasons why.
(10) Information on the extent to which the description of
potential economic impacts in the DEA is complete and accurate.
If you submitted comments or information on the proposed rule (74
FR 44238) during the initial comment period from August 27, 2009, to
October 26, 2009, please do not resubmit them. These comments are
included in the public record for this rulemaking and we will fully
consider them in the preparation of our final determination. Our final
determination concerning the critical habitat for Ambrosia pumila 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 within the proposed critical habitat
designation do not meet the definition of critical habitat, that some
modifications to the described boundaries are appropriate, or that
areas may or may not be appropriate for exclusion under section 4(b)(2)
of the Act.
You may submit your comments and materials concerning our proposed
rule, the associated DEA, the additional subunits we are proposing in
this document, and our amended required determinations by one of the
methods listed in the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
submission--including any personal identifying information--will be
posted on the website. If your submission is made via a hard copy 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 submissions on http://www.regulations.gov. Please
include sufficient information with your comments to allow us to verify
any scientific or commercial information you include.
Comments and materials we receive, as well as supporting
documentation used to prepare this notice, will be available for public
inspection at http://www.regulations.gov, or by appointment, during
normal business hours, at the U.S. Fish and Wildlife Service, Carlsbad
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). You may
obtain copies of the original proposed designation of critical habitat
(74 FR 44238) and the DEA on the Internet at http://www.regulations.gov
at Docket No. FWS-R8-ES-2009-0054, or by mail from the Carlsbad Fish
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Background
It is our intent to discuss only those topics directly relevant to
the proposed designation of critical habitat for Ambrosia pumila in
this notice. For more information on previous Federal actions
concerning A. pumila, refer to the 2009 proposed designation of
critical habitat published in the Federal Register on August 27, 2009
(74 FR 44238), or contact the Carlsbad Fish and Wildlife Office (see
FOR FURTHER INFORMATION CONTACT).
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 we finalize the
proposed critical habitat designation, Federal agencies must consult
with us under section 7 of the Act if any activity they fund,
authorize, or carry out may affect designated critical habitat.
Draft Economic Analysis
Section 4(b)(2) of the Act requires that we designate critical
habitat based on the best scientific and commercial data available,
after taking into consideration the economic impact, impact on national
security, and any other relevant impact of specifying any particular
area as critical habitat.
We prepared a DEA (Industrial Economics, Inc. 2010) that identifies
and analyzes the potential, probable economic impacts associated with
the proposed designation of critical habitat. Additionally, the DEA
looks retrospectively at costs incurred since the July 2, 2002 (67 FR
44372), listing of A. pumila as an endangered species. The DEA
quantifies the probable economic impacts of all potential conservation
efforts for A. pumila; some of these costs will likely be incurred
regardless of whether we finalize the critical habitat rule, as they
are attributable to the listing of the species under the Act. The
economic impact of the proposed critical habitat designation is
analyzed by comparing a ``with critical habitat'' scenario with a
``without critical habitat'' scenario. The ``without critical habitat''
scenario represents the baseline for the economic analysis and
considers protections already in place for the species (for example,
protections resulting from the Federal listing, and protections
provided by other Federal, State, and local regulations). The baseline
costs, therefore, represent the costs incurred regardless of whether
critical habitat is designated. The ``with critical habitat'' scenario
describes the incremental impacts associated specifically with the
designation of critical habitat for the species. The incremental
conservation efforts and associated impacts are those not expected to
occur absent the designation of critical habitat for A. pumila. 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 relative to areas that may be excluded under section
4(b)(2) of the Act. The analysis looks retrospectively at baseline
impacts incurred since the species was listed, and forecasts both
baseline and incremental impacts likely to occur if we finalize the
proposed critical habitat.
The DEA (made available with the publication of this document and
referred to throughout this document
[[Page 27692]]
unless otherwise noted) estimates the foreseeable economic impacts of
the proposed critical habitat designation for Ambrosia pumila. The
economic analysis identifies potential incremental costs as a result of
the proposed critical habitat designation, which are those costs
attributed to critical habitat over and above those baseline costs
coextensive with listing. It also discusses potential benefits that may
be derived from the designation in a qualitative manner.
Baseline economic impacts are those that result from listing and
other conservation efforts for Ambrosia pumila. Future baseline impacts
in the areas proposed as critical habitat are entirely attributed to
development activities; no future baseline impacts were attributed to
transportation construction and maintenance. Total future baseline
impacts are estimated to be $20.6 million ($1.9 million annualized
using a 7 percent discount rate over the next 20 years (2010-2029)) in
areas proposed as critical habitat (Industrial Economics, Inc. 2010, p.
ES-6).
All incremental impacts attributed to the proposed critical habitat
designation are expected to be related to development; no future
incremental impacts were attributed to transportation construction and
maintenance. The DEA estimates total potential incremental economic
impacts in areas proposed as critical habitat over the next 20 years
(2010-2029) to be $118,750 ($11,203 annualized using a 7 percent
discount rate) (Industrial Economics, Inc. 2010, p. ES-7).
In this notice, we propose to add 338 acres (ac) (137 hectares
(ha)) (Subunits 3B, 4D, and 5B) to the 802 ac (324 ha) that we proposed
as critical habitat on August 27, 2009 (74 FR 44238), bringing the
total to 1,140 ac (461 ha) of proposed critical habitat for Ambrosia
pumila (see Changes to Proposed Critical Habitat below). The additional
acreage in Subunits 3B, 4D, and 5B have not been assessed in the DEA
announced in this notice. However, all incremental costs estimated in
the DEA for all properties within the originally proposed critical
habitat are attributed to the minor administrative costs of conducting
adverse modification analyses during jeopardy analyses ($448 annualized
using a 7 percent discount rate per property). Because the three newly
proposed subunits are all occupied by the species, we only anticipate
minor incremental costs associated with adverse modification analyses
conducted during jeopardy analyses. For this reason, we do not expect
the incremental costs for the newly proposed areas to exceed those
estimated for properties included in the DEA. The final economic
analysis will reflect the baseline and incremental economic impacts of
critical habitat designation for the entire 1,140 ac (461 ha).
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 (for
example, 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 describes economic impacts of Ambrosia pumila
conservation efforts associated with residential and commercial
development, and transportation-related construction and maintenance.
The DEA also analyzes the economic impact on small entities and the
energy industry. Decision-makers can use this information to assess
whether the effects of the designation might unduly burden a particular
group or economic sector (see Regulatory Flexibility Act (5 U.S.C. 601
et seq.).
Changes to Proposed Critical Habitat
In this document, we are proposing additional subunits to Ambrosia
pumila critical habitat in Units 3, 4, and 5, which were initially
identified and described in the proposed rule that was published in the
Federal Register on August 27, 2009 (74 FR 44238). We obtained data
after the publication of the proposed rule informing us of the
existence of one occurrence not previously known to us (Subunit 3B),
and confirming the continued existence of an occurrence thought to be
extirpated (Subunit 5B). Based on a public comment received during the
public comment period, we re-evaluated all available data for A. pumila
occurrences throughout the range of the species. As a result of our re-
evaluation, we determined an additional area in San Diego County
(Subunit 4D) meets the definition of critical habitat for A. pumila
because, although it is small in size (approximately 20 ac (8 ha)), it
is occupied, and otherwise meets the definition of critical habitat and
the criteria for inclusion in critical habitat as set forth in our
proposal (see Subunit 4D: Gird Road/Monserate Hill below). The purpose
of the revisions described below is to better delineate the areas that
meet the definition of critical habitat for A. pumila. These three
additional subunits were within the geographic range occupied by the
species at the time it was listed and contain the physical and
biological features essential to the conservation of the species.
Subunits 3B, 4D, and 5B were not included in the proposed rule (74 FR
44238, August 27, 2009); therefore, this document includes the full
descriptions and maps for these subunits. As a result of these proposed
additions, the overall area proposed as critical habitat for A. pumila
is 1,140 ac (461 ha), an increase of 338 ac (137 ha) from the 802 ac
(324 ha) that we proposed as critical habitat on August 27, 2009 (74 FR
44238).
Subunit 3B: Murrieta Creek
We were not aware of the Murrieta Creek occurrence (Subunit 3B) of
Ambrosia pumila when we developed the proposed rule to designate
critical habitat for the species (74 FR 44238; August 27, 2009);
therefore, this occurrence was not included in the proposed rule. Based
on new information obtained from the California Natural Diversity
Database (CNDDB 2010), we are proposing Subunit 3B as critical habitat
because this area is within the geographical area occupied by the
species at the time of listing, contains the physical and biological
features that are essential to the conservation of the species, and
meets our criteria for inclusion in critical habitat. We have concluded
that this area was occupied at the time the species was listed because
individuals of species with a clonal growth habit like A. pumila are
usually long-lived (Watkinson and White 1985, pp. 44-45; Tanner 2001,
p. 1980). To our knowledge, the area had not been surveyed for A.
pumila previously, and we have no reason to believe the plant was
imported or had dispersed into these areas from other areas after A.
pumila was listed. Occurrences identified since listing were likely in
existence for many years and were only recently detected due to
increased awareness of this species. We mapped the boundary of this
subunit using our current mapping methodology as described in the
Methods section of the proposed rule (74 FR 44245-44247, August 27,
2009). Unit 3 as described in the proposed rule (74 FR 44248-44249) is
now Subunit 3A.
Subunit 3B is located in the City of Temecula in southwestern
Riverside County, California. This subunit is near the western end of
1\st\ Street, just west of Murrieta Creek. Subunit 3B consists
[[Page 27693]]
of approximately 44 ac (18 ha) of privately owned land. This subunit
meets the definition of critical habitat for this species because of
its contribution to the genetic diversity of the species (McGlaughlin
and Friar 2007, p. 329; see ``Genetics'' section of the proposed rule
(74 FR 44241)). Subunit 3B contains physical and biological features
that are essential to the conservation of Ambrosia pumila, including
sandy loam or clay soils located on an upper terrace of a water source,
which provide nutrients, moisture, and periodic flooding presumed
necessary for the plant's persistence (PCE 1), and nonnative grassland
habitat type, which allows adequate sunlight and airflow for A. pumila
(PCE 2). The physical and biological features essential to the
conservation of the species in this subunit may require special
management considerations or protection to address threats from
nonnative plant species in situations where nonnative species are out-
competing A. pumila for resources, from human foot and vehicle traffic
that may occur in the area, and from development. Please see the
``Special Management Considerations or Protection'' section of the
proposed rule (74 FR 44244-44245, August 27, 2009) for a discussion of
the threats to A. pumila habitat and potential management
considerations.
Subunit 4D: Gird Road/Monserate Hill
We re-evaluated all information available for Ambrosia pumila
occurrences and determined that the Gird Road/Monserate Hill area
(Subunit 4D) meets the definition of critical habitat, despite its
small size relative to other proposed units. We are proposing Subunit
4D as critical habitat because this area is within the geographical
area occupied by the species at the time of listing, contains the
physical and biological features essential to the conservation of the
species, and meets the criteria for inclusion in critical habitat. We
mapped the boundary of this subunit using our current mapping
methodology as described in the Methods section of the proposed rule
(74 FR 44245-44247, August 27, 2009).
Subunit 4D is located in the Fallbrook area of northern San Diego
County, California. This subunit is adjacent to the north side of State
Route 76, almost the same distance from both Gird Road (to the west)
and Monserate Hill Road (to the east). Subunit 4D consists of
approximately 20 ac (8 ha) of privately owned land and 1 ac (0.5 ha) of
State-owned land for a total of approximately 21 ac (9 ha). This
subunit meets the definition of critical habitat for the species
because of its contribution to the genetic diversity of the species
(McGlaughlin and Friar 2007, p. 329; see ``Genetics'' section of the
proposed rule (74 FR 44241)). Subunit 4D contains physical and
biological features that are essential to the conservation of Ambrosia
pumila, including sandy loam or clay soils located on an upper terrace
of a water source, which provide nutrients, moisture, and periodic
flooding presumed necessary for the plant's persistence (PCE 1), and
nonnative grassland habitat type, which allows adequate sunlight and
airflow for A. pumila (PCE 2). The physical and biological features
essential to the conservation of the species in this subunit may
require special management considerations or protection to address
threats from nonnative plant species in situations where nonnative
species are out-competing A. pumila for resources, from foot and
vehicle traffic in the area, and from development and road maintenance.
Please see the ``Special Management Considerations or Protection''
section of the proposed rule (74 FR 44244-44245, August 27, 2009) for a
discussion of the threats to A. pumila habitat and potential management
considerations.
Subunit 5B: Lake Hodges West - Crosby Estates
We were unaware that the Crosby Estates occurrence (Subunit 5B) of
Ambrosia pumila is extant when we developed the proposed rule to
designate critical habitat for the species (74 FR 44238, August 27,
2009); therefore, this area was not included in the proposed rule. This
occurrence was extant at the time of listing, but was thought to have
been extirpated. We have since obtained information (The Crosby at
Rancho Santa Fe Habitat Management Plan Annual Report 2008 (Rincon
Consultants, Inc. 2008)) confirming this occurrence is extant and
viable. Based on this information, we are proposing Subunit 5B as
critical habitat because it is currently occupied, is within the
geographical area occupied by the species at the time of listing,
contains the physical and biological features that are essential to the
conservation of the species, and meets the criteria for inclusion in
critical habitat. We mapped the boundary of this subunit using our
current mapping methodology as described in the Methods section of the
proposed rule (74 FR 44245-44247, August 27, 2009). Unit 5 as described
in the proposed rule (74 FR 44249-44250) is now Subunit 5A.
Subunit 5B is located just west of Lake Hodges in the western
portion of central San Diego County, California. This subunit is on and
adjacent to the west side of the Crosby National Golf Club. Subunit 5B
consists of approximately 116 ac (47 ha) of privately owned land, 2 ac
(1 ha) of local government owned land, and 155 ac (63 ha) of County-
owned land for a total of approximately 273 ac (111 ha). This subunit
is meets the definition of critical habitat for this species because of
its contribution to the genetic diversity of the species (McGlaughlin
and Friar 2007, p. 329; see ``Genetics'' section of the proposed rule
(74 FR 44241)). Subunit 5B contains physical and biological features
that are essential to the conservation of Ambrosia pumila, including
sandy loam or clay soils located on an upper terrace of a water source,
which provide nutrients, moisture, and periodic flooding presumed
necessary for the plant's persistence (PCE 1), and nonnative grassland
habitat type, which allows adequate sunlight and airflow for A. pumila
(PCE 2). The physical and biological features essential to the
conservation of the species in this subunit, including features within
the approximately 155 ac (63 ha) portion of Subunit 5B that is
conserved (57 percent), may require special management considerations
or protection to address threats from nonnative plant species in
situations where nonnative species are out-competing A. pumila for
resources, from human encroachment that may occur in the area, and from
golf course maintenance. Please see the ``Special Management
Considerations or Protection'' section of the proposed rule (74 FR
44244-44245, August 27, 2009) for a discussion of the threats to A.
pumila habitat and potential management considerations.
Additional Areas Currently Considered For Exclusion Under Section
4(b)(2) of the Act -Western Riverside County Multiple Species Habitat
Conservation Plan (Western Riverside County MSHCP)
Under section 4(b)(2) of the Act, the proposed rule discusses
approximately 263 ac (106 ha) proposed as critical habitat in Unit 1
(Subunits 1A and 1B), Unit 2, and Subunit 3A (formerly Unit 3 in the
proposed rule) that we are considering whether or not to exercise our
discretion to exclude from critical habitat designation. We are also
considering exclusion of approximately 44 ac (18 ha) of Ambrosia pumila
[[Page 27694]]
habitat on permittee-owned or controlled lands in Subunit 3B that meet
the definition of critical habitat for A. pumila within the Western
Riverside County MSHCP plan area. We are considering exercising our
discretion to exclude this subunit because the implementation of the
Western Riverside County MSHCP addresses threats to A. pumila and
features essential to its conservation through a regional planning
effort and outlines species-specific objectives and criteria for the
conservation of A. pumila and its habitat. No land in Subunit 3B is
currently conserved by the MSHCP; however, all of the subunit falls
within the Criteria Area where conservation under the habitat
conservation plan (HCP) may occur (any projects in this area should be
implemented through the Joint Project Review Process to ensure that the
requirements of the MSHCP permit and the Implementing Agreement are
properly met (Western Riverside County MSHCP, Volume 1, section 6.6.2
in Dudek 2003, p. 6-82)). Additionally, all 44 ac (18 ha) fall within
our Conceptual Reserve Design where conservation is likely to occur.
Please see ``Exclusions Based on Habitat Conservation Plans (HCPs)'' in
the proposed rule (74 FR 44253-44257, August 27, 2009) for a more
detailed discussion of the protections afforded to A. pumila by the
Western Riverside County MSHCP. We will analyze the benefits of
inclusion in and exclusion from critical habitat of this area under
section 4(b)(2) of the Act in the final rule.
Additional Areas Currently Considered For Exclusion Under Section
4(b)(2) of the Act -San Diego Multiple Species Conservation Program
(MSCP)--City and County of San Diego Subarea Plans
Under section 4(b)(2) of the Act, the proposed rule discusses 278
ac (113 ha) proposed as critical habitat in Subunit 5A (formerly Unit 5
in the proposed rule), Unit 6, and Subunits 7A, 7B, and 7C that we are
considering exercising our discretion to exclude from critical habitat
designation. We are also considering excluding approximately 273 ac
(111 ha) of non-Federal lands in Subunit 5B that meet the definition of
critical habitat for Ambrosia pumila within the County of San Diego
MSCP Subarea Plan under section 4(b)(2) of the Act. Implementation of
the County of San Diego MSCP Subarea Plan helps to address threats to
the species and the features essential to its conservation through a
regional planning effort rather than through a project-by-project
approach, and outlines species-specific objectives and criteria for the
conservation of A. pumila and its habitat. Approximately 184 ac (74 ha)
of Subunit 5B is within the MSCP Multi-Habitat Planning Area. Please
see ``Exclusions Based on Habitat Conservation Plans (HCPs)'' in the
proposed rule (74 FR 44253-44257, August 27, 2009) for a more detailed
discussion of the protections afforded to A. pumila by the County of
San Diego MSCP Subarea Plan. We will analyze the benefits of inclusion
in and exclusion from critical habitat of this area under section
4(b)(2) of the Act.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, all aspects of the proposed critical habitat rule
(including the additions of Subunits 3B, 4D, and 5B to proposed
critical habitat, and the additional areas considered for exclusion
from critical habitat designation), and our amended required
determinations. The final rule may differ from the proposed rule based
on information we receive during the public comment periods. 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.
Required Determinations---Amended
In our proposed rule published in the Federal Register on August
27, 2009 (74 FR 44238), 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.) 12866 (Regulatory
Planning and Review), E.O. 13132 (Federalism), E.O. 12988 (Civil
Justice Reform), E.O. 12630 (Takings), the Paperwork Reduction Act (44
U.S.C. 3501 et seq.), the National Environmental Policy Act (42 U.S.C.
4321 et seq.), and the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951). Based on the information in the DEA, we
are amending our required determinations concerning the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211 (Energy Supply,
Distribution, or Use), and the Unfunded Mandates Reform Act (2 U.S.C.
1501 et seq.).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions),
as described below. 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 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 designation of critical habitat for
Ambrosia pumila would affect a substantial number of small entities, we
consider 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
[[Page 27695]]
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 affects activities
conducted, funded, permitted, or authorized by Federal agencies.
If we finalize the proposed critical habitat designation, Federal
agencies must consult with us under section 7 of the Act if their
activities may affect designated critical habitat. In areas where
Ambrosia pumila is present, consultations to avoid the destruction or
adverse modification of critical habitat would be incorporated into the
existing consultation process because A. pumila is listed as an
endangered species under the Act.
Appendix A.1 of the DEA evaluates the potential economic effects on
small business entities resulting from implementation of conservation
actions related to the proposed critical habitat for Ambrosia pumila.
The analysis is based on the estimated incremental impacts associated
with the proposed rule as described in sections 1 through 3 of the DEA.
The SBREFA analysis evaluates the potential for economic impacts
related to project modifications on privately held developable land
(Industrial Economics, Inc. p. A-3). The incremental impacts considered
for the SBREFA analysis are the impacts that will affect development
companies considered to be small businesses. The DEA indicates that 3
out of a total of a possible 9,222 land development companies in the
counties where critical habitat is proposed would be affected by the
designation of critical habitat (Industrial Economics, Inc. 2010,
Appendix A, ES-8). Due to the designation of critical habitat the
annual incremental impacts to these 3 small businesses will be
approximately $448 each at a 7 percent discount rate (Industrial
Economics, Inc. 2010, Appendix A, 3-14). We do not believe these 3
small businesses represent a substantial number of the total number of
development companies or that an annual impact of $448 per company is a
significant economic impact. Therefore, we do not find that the
designation of critical habitat for A. pumila will have a significant
economic impact on a substantial number of small entities.
In summary, we considered whether the proposed designation would
result in a significant economic impact on a substantial number of
small entities. For the above reasons and based on currently available
information, we certify that, if promulgated, the proposed critical
habitat for Ambrosia pumila would not 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.
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 concludes that
no incremental impacts are forecast associated specifically with this
rulemaking on the production, distribution, or use of energy.
Therefore, designation of critical habitat for A. pumila 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). 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. First, it excludes ``a condition of federal
assistance.'' Second, 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. 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 Ambrosia pumila, 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 administrative costs of section 7 consultations for development
activities; however, these are not expected to affect small
governments. Incremental impacts stemming from species conservation and
development-control activities associated with this critical habitat
designation are not expected to significantly or uniquely affect small
government entities. As such, a Small Government Agency Plan is not
required.
References Cited
A complete list of all references we cited in the proposed rule and
in this document is available on the Internet at
[[Page 27696]]
http://www.regulations.gov or by contacting the Carlsbad Fish and
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Author(s)
The primary authors of this notice are the staff members of the
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
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 amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, 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 Ambrosia pumila (San Diego ambrosia), which
was proposed for addition to Sec. 17.96(a) on August 27, 2009, at 74
FR 44237, is proposed to be amended by:
a. Removing the index map at paragraph (5) and adding in its place
a new index map as set forth below;
b. Revising paragraph (7)(ii);
c. Revising paragraph (8); and
d. Revising paragraph (9), to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Asteraceae: Ambrosia pumila (San Diego ambrosia)
* * * * *
(5) * * *
BILLING CODE 4310-55-S
[[Page 27697]]
[GRAPHIC] [TIFF OMITTED] TP18MY10.051
[[Page 27698]]
(7) * * *
(ii) Note: Map of Units 2 and 3, with Subunits 3A and 3B, of
critical habitat for Ambrosia pumila (San Diego ambrosia), Riverside
County, California, follows:
[GRAPHIC] [TIFF OMITTED] TP18MY10.052
[[Page 27699]]
(8) Unit 4, Subunits 4A, 4B, 4C, and 4D, San Diego County,
California.
(i) [Reserved for textual description of unit.]
(ii) Note: Map of Unit 4, with Subunits 4A, 4B, 4C, and 4D, of
critical habitat for Ambrosia pumila (San Diego ambrosia), San Diego
County, California, follows:
[GRAPHIC] [TIFF OMITTED] TP18MY10.053
[[Page 27700]]
(9) Unit 5, Subunits 5A and 5B, San Diego County, California.
(i) [Reserved for textual description of unit.]
(ii) Note: Map of Unit 5, with Subunits 5A and 5B, of critical
habitat for Ambrosia pumila (San Diego ambrosia), San Diego County,
California, follows:
[GRAPHIC] [TIFF OMITTED] TP18MY10.054
* * * * *
Dated: May 7, 2010
Will Shafroth,
Acting Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-11674 Filed 5-17-10; 8:45 am]
BILLING CODE 4310-55-C