2011 Federal Register, 76 FR 59990; Centralized Library: U.S. Fish and Wildlife Service - Federal Register, Volume 76 Issue 188 (Wednesday, September 28, 2011)

[Federal Register Volume 76, Number 188 (Wednesday, September 28, 2011)]
[Proposed Rules]
[Pages 59990-59996]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-24608]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2010-0076; MO 92210-0-0009]
RIN 1018-AX18

Endangered and Threatened Wildlife and Plants; Revised Endangered
Status, Revised Critical Habitat Designation, and Taxonomic Revision
for Monardella linoides ssp. viminea

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the comment period on the June 9, 2011, proposed rule to
revise the listing and critical habitat designation for Monardella
viminea (willowy monardella) under the Endangered Species Act of 1973,
as amended (Act) (76 FR 33880). We also announce the availability of a
draft economic analysis (DEA) of the proposed revised designation of
critical habitat for Monardella viminea and an amended required
determinations section of the proposal. In the proposed rule that
published June 9, 2011 (76 FR 33880), we recognized the taxonomic split
of the listed entity, Monardella linoides ssp. viminea, into two
distinct full species: Monardella viminea (willowy monardella) and
Monardella stoneana (Jennifer's monardella). We proposed to retain the
listing status of Monardella viminea as endangered; we proposed to
remove protections afforded by the Act from those individuals now
recognized as a separate species, Monardella stoneana, because the new
species does not meet the definition of endangered or threatened under
the Act; and we proposed revised critical habitat for Monardella
viminea. We are reopening the comment period to allow all interested
parties an opportunity to comment simultaneously on the proposed
listing determinations and critical habitat designation, the associated
DEA, and the amended required determinations section. Comments
previously submitted need not be resubmitted, as they will be fully
considered in preparation of the final rule.

DATES: We will consider comments received on or before October 28,
2011. Comments must be received by 11:59 p.m. Eastern Time on the
closing date. Any comments that we receive after the closing date may
not be considered in the final decision on this action.

ADDRESSES: You may submit written comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R8-ES-2010-0076, which
is the docket number for this rulemaking.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R8-ES-2010-0076; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; 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 will accept written comments and information during this
reopened comment period on our proposed revised designation of critical
habitat for Monardella viminea published in the Federal Register on
June 9, 2011 (76 FR 33880), our DEA of the proposed designation, and
the amended required determinations provided in this document. We will
consider comments and information from all interested parties. We are
particularly interested in comments and information concerning:
(1) Specific information regarding our recognition of Monardella
viminea and M. stoneana at the species rank, on the segregation of
ranges of M. stoneana and M. viminea, and on our proposals that M.
viminea should remain listed as endangered and that M. stoneana does
not warrant listing under the Act (16 U.S.C. 1531 et seq.).
(2) Any available information on known or suspected threats and
proposed or ongoing development projects with the potential to threaten
either Monardella viminea or M. stoneana.
(3) The effects of potential threat factors to both Monardella
viminea and M. stoneana that are the basis for a listing determination
under section 4(a) of the Act, which are:
(a) The present or threatened destruction, modification, or
curtailment of the species' habitat or range;
(b) Overutilization for commercial, recreational, scientific, or
educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued
existence.
(4) Specific information regarding impacts of fire on Monardella
viminea or M. stoneana individuals or their habitat.
(5) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act for Monardella viminea
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 threats outweighs the benefit of
designation such that the designation of critical habitat may not be
prudent.
(6) Specific information on:

[[Page 59991]]

(a) The amount and distribution of Monardella viminea or M.
stoneana habitat,
(b) What areas that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of these species, should be included in the designation
and why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change, and
(d) What areas not occupied at the time of listing are essential
for the conservation of the species and why.
(7) Information that may assist us in identifying or clarifying the
physical and biological features essential to the conservation of
Monardella viminea.
(8) How the proposed critical habitat boundaries could be refined
to more closely or accurately circumscribe the areas identified as
containing the physical and biological features essential to the
conservation of Monardella viminea.
(9) How we could improve or modify our design of critical habitat
units, particularly our criteria for width of essential habitat for
Monardella viminea. We especially request information on West Sycamore
Canyon and Unit 2 (where two groups of M. viminea were not included
under the criteria used to draw proposed critical habitat boundaries)
and areas such as Elanus, Lopez, and Rose Canyons that we have
identified as not meeting the definition of critical habitat.
(10) Information on pollinators of Monardella viminea or M.
stoneana that may be essential for the conservation of these species,
including information on areas that provide habitat for these
pollinators.
(11) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(12) Information on the projected and reasonably likely impacts of
climate change on the two species and the proposed critical habitat.
(13) Information on any quantifiable economic costs or benefits of
the proposed designation of critical habitat.
(14) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, any impacts on small entities or families,
and the benefits of including or excluding areas that exhibit these
impacts.
(15) Whether any specific areas we are proposing for critical
habitat designation for Monardella viminea should be considered for
exclusion under section 4(b)(2) of the Act, and whether the benefits of
potentially excluding any specific area outweigh the benefits of
including that area under section 4(b)(2) of the Act, in particular for
those lands covered by the County of San Diego Subarea Plan or the City
of San Diego Subarea Plan under the Multiple Species Conservation
Program (MSCP). Information on obtaining copies of these plans will be
provided by the U.S. Fish and Wildlife Service, Carlsbad Fish and
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
(16) 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.
(17) Information on the extent to which the description of
potential economic impacts in the DEA is complete and accurate.
(18) Whether the DEA appropriately identifies all costs and
benefits that could result from the designation.
If you submitted comments or information on the proposed rule (76
FR 33880) during the initial comment period from June 9, 2011, to
August 8, 2011, 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 listing Monardella viminea as an
endangered species, delisting the portion of the previously listed
entity (Monardella linoides ssp. viminea) now considered to be M.
stoneana, and designating critical habitat for M. viminea will take
into consideration all written comments and any additional information
we receive during the comment period. 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 this proposed
rule or DEA by one of the methods listed in the ADDRESSES section. We
request that you submit information ONLY by one of the methods 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. We will post
all hardcopy comments on http://www.regulations.gov as well. 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.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule and DEA, will be
available for public inspection on http://www.regulations.gov at Docket
No. FWS-R8-ES-2010-0076, 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 proposed listing and proposed critical habitat (76 FR
33880) and the DEA on the Internet at http://www.regulations.gov at
Docket No. FWS-R8-ES-2010-0076, or by mail from the Carlsbad Fish and
Wildlife Office (see the FOR FURTHER INFORMATION CONTACT).

Background

In the proposed rule (76 FR 33880; June 9, 2011), we recognized the
taxonomic split of Monardella linoides ssp. viminea into two distinct
taxa: Monardella viminea (willowy monardella) and Monardella stoneana
(Jennifer's monardella); we proposed the retention of M. viminea as
endangered; proposed critical habitat for M. viminea; and concluded
that M. stoneana does not meet the definition of endangered or
threatened. We did not include an analysis of whether M. stoneana
warrants listing based on it being threatened or endangered in a
significant portion of its range (SPR) in the June 9, 2011 Federal
Register notice. We have included that analysis here. Apart from the
SPR analysis, we discuss only those topics directly relevant to the
designation of critical habitat for M. viminea in this document. For
more information on the taxonomy, nomenclature, biology, and ecology of
M. viminea, please refer to the listing rule for M. linoides ssp.
viminea published in the Federal Register on October 13, 1998 (63 FR
54938), our critical habitat designation published in the Federal
Register on November 8, 2006 (71 FR 65662), or our proposed critical
habitat designation published in the Federal Register on June 9, 2011
(76 FR 33880), or contact the Carlsbad Fish and Wildlife Office (see
FOR FURTHER INFORMATION CONTACT).

Analysis of Significant Portion of the Range of Monardella stoneana

The Act defines ``endangered species'' as any species which is ``in
danger of

[[Page 59992]]

extinction throughout all or a significant portion of its range,'' and
``threatened species'' as any species which is ``likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range.'' The definition of ``species'' is
also relevant to this discussion. The Act defines the term ``species''
as follows: ``The term `species' includes any subspecies of fish or
wildlife or plants, and any distinct population segment [DPS] of any
species of vertebrate fish or wildlife which interbreeds when mature.''
The phrase ``significant portion of its range'' (SPR) is not defined by
the statute, and we have never addressed in our regulations: (1) The
consequences of a determination that a species is either endangered or
likely to become so throughout a significant portion of its range, but
not throughout all of its range; or (2) what qualifies a portion of a
range as ``significant.'' In our proposed rule (76 FR 33880; June 9,
2011), we proposed to list Monardella viminea throughout its entire
range; therefore, a discussion of significant portion of its range was
unnecessary.
Two recent district court decisions have addressed whether the SPR
language allows the Service to list or protect less than all members of
a defined ``species'': Defenders of Wildlife v. Salazar, 729 F. Supp.
2d 1207 (D. Mont. 2010), concerning the Service's delisting of the
Northern Rocky Mountain gray wolf (74 FR 15123, Apr. 12, 2009); and
WildEarth Guardians v. Salazar, 2010 U.S. Dist. LEXIS 105253 (D. Ariz.
Sept. 30, 2010), concerning the Service's 2008 finding on a petition to
list the Gunnison's prairie dog (73 FR 6660, Feb. 5, 2008). The Service
had asserted in both of these determinations that it had authority, in
effect, to protect only some members of a ``species,'' as defined by
the Act (i.e., species, subspecies, or DPS), under the Act. Both courts
ruled that the determinations were arbitrary and capricious on the
grounds that this approach violated the plain and unambiguous language
of the Act. The courts concluded that reading the SPR language to allow
protecting only a portion of a species' range is inconsistent with the
Act's definition of ``species.'' The courts concluded that once a
determination is made that a species (i.e., species, subspecies, or
DPS) meets the definition of ``endangered species'' or ``threatened
species,'' it must be placed on the list in its entirety and the Act's
protections applied consistently to all members of that species
(subject to modification of protections through special rules under
sections 4(d) and 10(j) of the Act).
Consistent with that interpretation, and for the purposes of this
proposed rule, we interpret the phrase ``significant portion of its
range'' in the Act's definitions of ``endangered species'' and
``threatened species'' to provide an independent basis for listing;
thus there are two situations (or factual bases) under which a species
would qualify for listing: a species may be endangered or threatened
throughout all of its range; or a species may be endangered or
threatened in only a significant portion of its range. If a species is
in danger of extinction throughout an SPR, it, the species, is an
``endangered species.'' The same analysis applies to ``threatened
species.'' Therefore, the consequence of finding that a species is
endangered or threatened in only a significant portion of its range is
that the entire species shall be listed as endangered or threatened,
respectively, and the Act's protections shall be applied across the
species' entire range.
We conclude, for the purposes of this proposed rule, that
interpreting the SPR phrase as providing an independent basis for
listing is the best interpretation of the Act because it is consistent
with the purposes and the plain meaning of the key definitions of the
Act; it does not conflict with established past agency practice (i.e.,
prior to the 2007 Solicitor's Opinion), as no consistent, long-term
agency practice has been established; and it is consistent with the
judicial opinions that have most closely examined this issue. Having
concluded that the phrase ``significant portion of its range'' provides
an independent basis for listing and protecting the entire species, we
next turn to the meaning of ``significant'' to determine the threshold
for when such an independent basis for listing exists.
Although there are potentially many ways to determine whether a
portion of a species' range is ``significant,'' we conclude, for the
purposes of this proposed rule, that the significance of the portion of
the range should be determined based on its biological contribution to
the conservation of the species. For this reason, we describe the
threshold for ``significant'' in terms of an increase in the risk of
extinction for the species. We conclude that a biologically based
definition of ``significant'' best conforms to the purposes of the Act,
is consistent with judicial interpretations, and best ensures species'
conservation. Thus, for the purposes of this proposed rule, a portion
of the range of a species is ``significant'' if its contribution to the
viability of the species is so important that, without that portion,
the species would be in danger of extinction.
We evaluate biological significance based on the principles of
conservation biology using the concepts of redundancy, resiliency, and
representation. Resiliency describes the characteristics of a species
that allow it to recover from periodic disturbance. Redundancy (having
multiple populations distributed across the landscape) may be needed to
provide a margin of safety for the species to withstand catastrophic
events. Representation (the range of variation found in a species)
ensures that the species' adaptive capabilities are conserved.
Redundancy, resiliency, and representation are not independent of each
other, and some characteristic of a species or area may contribute to
all three. For example, distribution across a wide variety of habitats
is an indicator of representation, but it may also indicate a broad
geographic distribution contributing to redundancy (decreasing the
chance that any one event affects the entire species), and the
likelihood that some habitat types are less susceptible to certain
threats, contributing to resiliency (the ability of the species to
recover from disturbance). None of these concepts is intended to be
mutually exclusive, and a portion of a species' range may be determined
to be ``significant'' due to its contributions under any one of these
concepts.
For the purposes of this proposed rule, we determine if a portion's
biological contribution is so important that the portion qualifies as
``significant'' by asking whether, without that portion, the
representation, redundancy, or resiliency of the species would be so
impaired that the species would have an increased vulnerability to
threats to the point that the overall species would be in danger of
extinction (i.e., would be ``endangered''). Conversely, we would not
consider the portion of the range at issue to be ``significant'' if
there is sufficient resiliency, redundancy, and representation
elsewhere in the species' range that the species would not be in danger
of extinction throughout its range if the population in that portion of
the range in question became extirpated (extinct locally).
We recognize that this definition of ``significant'' establishes a
threshold that is relatively high. On the one hand, given that the
consequences of finding a species to be endangered or threatened in an
SPR would be listing the species throughout its entire range, it is
important to use a threshold for ``significant'' that is robust. It
would not be meaningful or appropriate to

[[Page 59993]]

establish a very low threshold whereby a portion of the range can be
considered ``significant'' even if only a negligible increase in
extinction risk would result from its loss. Because nearly any portion
of a species' range can be said to contribute some increment to a
species' viability, use of such a low threshold would require us to
impose restrictions and expend conservation resources
disproportionately to conservation benefit: listing would be rangewide,
even if only a portion of the range of minor conservation importance to
the species is imperiled. On the other hand, it would be inappropriate
to establish a threshold for ``significant'' that is too high. This
would be the case if the standard were, for example, that a portion of
the range can be considered ``significant'' only if threats in that
portion result in the entire species' being currently endangered or
threatened. Such a high bar would not give the SPR phrase independent
meaning, as the Ninth Circuit held in Defenders of Wildlife v. Norton,
258 F.3d 1136 (9th Cir. 2001).
The definition of ``significant'' used in this proposed rule
carefully balances these concerns. By setting a relatively high
threshold, we minimize the degree to which restrictions will be imposed
or resources expended that do not contribute substantially to species
conservation. But we have not set the threshold so high that the phrase
``in a significant portion of its range'' loses independent meaning.
Specifically, we have not set the threshold as high as it was under the
interpretation presented by the Service in the Defenders litigation.
Under that interpretation, the portion of the range would have to be so
important that current imperilment there would mean that the species
would be currently imperiled everywhere. Under the definition of
``significant'' used in this proposed rule, the portion of the range
need not rise to such an exceptionally high level of biological
significance. (We recognize that if the species is imperiled in a
portion that rises to that level of biological significance, then we
should conclude that the species is in fact imperiled throughout all of
its range, and that we would not need to rely on the SPR language for
such a listing.) Rather, under this interpretation we ask whether the
species would be endangered everywhere without that portion, i.e., if
that portion were completely extirpated. In other words, the portion of
the range need not be so important that even being in danger of
extinction in that portion would be sufficient to cause the species in
the remainder of the range to be endangered; rather, the complete
extirpation (in a hypothetical future) of the species in that portion
would be required to cause the species in the remainder of the range to
be endangered.
The range of a species can theoretically be divided into portions
in an infinite number of ways. However, there is no purpose to
analyzing portions of the range that have no reasonable potential to be
significant and threatened or endangered. To identify only those
portions that warrant further consideration, we determine whether there
is substantial information indicating that: (1) The portions may be
``significant,'' and (2) the species may be in danger of extinction
there or likely to become so within the foreseeable future. Depending
on the biology of the species, its range, and the threats it faces, it
might be more efficient for us to address the significance question
first or the status question first. Thus, if we determine that a
portion of the range is not ``significant,'' we do not need to
determine whether the species is endangered or threatened there; if we
determine that the species is not endangered or threatened in a portion
of its range, we do not need to determine if that portion is
``significant.'' In practice, a key part of the portion status analysis
is whether the threats are geographically concentrated in some way. If
the threats to the species are essentially uniform throughout its
range, no portion is likely to warrant further consideration. Moreover,
if any concentration of threats applies only to portions of the
species' range that clearly would not meet the biologically based
definition of ``significant'', such portions will not warrant further
consideration.
As described in the proposed rule (76 FR 88330), we found the
stressors affecting Monardella stoneana not of sufficient imminence,
intensity, magnitude, or geographic concentration such that it warrants
listing under the Act. The stressors affecting M. stoneana, including
megafire, occur across the species' entire range. Additionally, factors
that might be limited to individual drainages, such as altered
hydrology or urban development, do not threaten M. stoneana. Therefore,
because Monardella stoneana has no geographical concentration of
threats, it does not qualify for listing based on threats to the
species in a significant portion of its range.
Decisions by Ninth Circuit Court of Appeals in Defenders of
Wildlife v. Norton, 258 F.3d 1136 (2001) and Tucson Herpetological
Society v. Salazar, 566 F.3d 870 (2009) found that the Act requires the
Service, in determining whether a species is endangered or threatened
throughout a significant portion of its range, to consider whether lost
historical range of a species (as opposed to its current range)
constitutes a significant portion of the range of that species. While
this is not our interpretation of the statute, we will consider whether
the lost historical range might qualify as an SPR for Monardella
stoneana.
We evaluated whether the best available information indicates that
the range of Monardella stoneana has contracted over time. We have
little information on the historical range of M. stoneana. However,
unlike M. viminea, M. stoneana has not undergone a dramatic decline in
population size. Monardella stoneana appears to have persisted for over
two decades in the two occurrences known in the United States since the
1970s and 1980s, respectively (see proposed rule at 76 FR 33880; June
9, 2011). The other seven occurrences of M. stoneana in the United
States were discovered in 2003 or later, so long-term data are not
available; only one of those seven occurrences has since been
extirpated. We have almost no information about the range of M.
stoneana in Mexico other than observations of plants directly across
the Mexican border from occurrences in the United States. Because the
best available information indicates that M. stoneana has not
experienced a significant population decline, nor have multiple
occurrences been extirpated within its known range, we are unable to
find that a significant amount of historical range has been lost. In
sum, we conclude that there has not been a loss of historical habitat
that represents a significant portion of the range of M. stoneana.

Critical Habitat

Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by the 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.

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Federal agencies proposing actions affecting critical habitat must
consult with us on the effects of their proposed actions, under section
7(a)(2) of the Act.
All critical habitat units for Monardella viminea were occupied at
the time of listing. Occupancy was determined at the unit level, and
unit lines were drawn to capture essential habitat supporting the
documented occurrences within each unit. For more information on how
critical habitat units were outlined, see the Methods section of the
proposed critical habitat rule published on June 9, 2011 (76 FR 88330).
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific data available, after
taking into consideration the economic impact, impact on national
security, or any other relevant impact of specifying any particular
area as critical habitat. If we determine that the benefits of
excluding the area outweigh the benefits of including the area as
critical habitat, we may then exercise our discretion to exclude an
area from critical habitat, provided such exclusion will not result in
the extinction of the species.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus (activities conducted, funded, permitted,
or authorized by Federal agencies), the educational benefits of mapping
areas containing essential features that aid in the recovery of the
listed species, and any benefits that may result from designation due
to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan. In the case of
Monardella viminea, the benefits of critical habitat include public
awareness of the presence of M. viminea and the importance of habitat
protection, and, where a Federal nexus exists, potentially increased
habitat protection for M. viminea due to protection from adverse
modification or destruction of critical habitat. A Federal nexus exists
where a proposed action will occur on Federal lands or where a proposed
action will be conducted, funded, permitted, or authorized by a Federal
agency.
The final decision about whether to exercise our discretion to
exclude any areas will be based on the best scientific data available
at the time of the final designation, including information obtained
during the comment period and information about the economic impact of
designation. Accordingly, we have prepared a draft economic analysis
(DEA) concerning the proposed critical habitat designation, which is
available for review and comment (see ADDRESSES section).

Draft Economic Analysis

Section 4(b)(2) of the Act requires that we designate 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.
The purpose of the DEA is to identify and analyze the potential
economic impacts associated with the proposed critical habitat
designation for Monardella viminea. We prepared a DEA that identifies
and analyzes the potential impacts associated with the proposed
designation of critical habitat for M. viminea that we published in the
Federal Register on June 9, 2011 (76 FR 33880). The DEA describes the
economic impacts of all known potential conservation efforts for M.
viminea; some of these costs will likely be incurred regardless of
whether we designate critical habitat.
The economic impact of the proposed critical habitat designation is
analyzed by comparing scenarios both ``with critical habitat'' and
``without critical habitat.'' The ``without critical habitat'' scenario
represents the baseline for the analysis, considering protections
otherwise afforded to the species (e.g., under the Federal listing and
other Federal, State, and local regulations). The baseline, therefore,
represents the costs incurred regardless of whether critical habitat is
designated. The ``with critical habitat'' scenario describes the
incremental impacts specifically due to designation of critical habitat
for the species. The incremental conservation efforts and associated
impacts are those not expected to occur absent the critical habitat
designation for M. viminea. In other words, the incremental costs are
those attributable solely to the designation of critical habitat, above
and beyond the baseline costs; these are the costs we may consider in
the final designation of critical habitat when evaluating the benefits
of excluding particular areas under section 4(b)(2) of the Act.
Conservation measures implemented under the baseline (without critical
habitat) scenario are described qualitatively within the DEA, but
economic impacts associated with these measures are not quantified.
Economic impacts are only quantified for conservation measures
implemented specifically due to the designation of critical habitat
(i.e., incremental impacts). For a further description of the
methodology of the analysis, see Chapter 2, ``Framework for the
Analysis'' of the DEA.
The DEA also discusses the potential benefits associated with the
designation of critical habitat, but does not monetize these benefits.
The incremental impacts are the impacts 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 DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed critical habitat designation for
Monardella viminea over the next 19 years, which was determined to be
the appropriate period for analysis because limited planning
information is available to forecast activity levels for projects
beyond a 19-year timeframe. Additionally, the timeframe evaluates the
impacts of the critical habitat rule from its finalization in 2012 to
2030, which is the length of transportation planning efforts by the
California Department of Transportation (CalTrans). The DEA identifies
potential incremental costs as a result of the proposed critical
habitat designation; these are those costs attributed to critical
habitat over and above those baseline costs attributed to listing. The
DEA quantifies economic impacts of M. viminea conservation efforts
associated with the following categories of activity: (1) Residential
development and (2) transportation projects.
The DEA concludes that critical habitat designation is not likely
to affect levels of economic activity or conservation measures being
implemented within the proposed critical habitat area. Unless changes
occur to existing conservation measures or the management of land use
activities, the incremental impacts of critical habitat designation
would be limited to additional administrative costs of section 7
consultations for Federal agencies associated with considering the
potential for adverse modification of critical habitat. The DEA
estimates that 50 percent of incremental impacts will be related to
urban development, and 50 percent will be related to transportation
projects.
The DEA estimates total potential incremental economic impacts in
areas

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proposed as critical habitat over the next 19 years (2012 to 2030) to
be $9,700 ($700 annualized) in present value terms using a 3-percent
discount rate, and $9,300 ($800 annualized) in present value terms
applying a 7-percent discount rate.
The proposed critical habitat area is unlikely to generate economic
impacts beyond administrative costs of section 7 consultation for
several reasons. Sixty percent of the proposed designation already
receives protection through the MSCP subarea plans, and all units are
occupied by the plant and thus will require consultation regardless of
the designation. Additionally, project modifications necessary to avoid
adverse modification of critical habitat are indistinguishable from
those necessary to avoid jeopardizing the species.
In conclusion, the Service does not foresee a circumstance in which
critical habitat designation will change the outcome of future section
7 consultations. Any conservation measures implemented to minimize
impacts to the species would coincidentally be sufficient to minimize
impacts to critical habitat. Therefore, we do not believe any
additional conservation measures would be needed solely to minimize
impacts to critical habitat. Based on this reasoning, we also do not
anticipate critical habitat designation to result in any appreciable
incremental economic impacts. Any economic impacts related to
conservation activities would result from the listing of the species,
rather than the designation of critical habitat, and would fall within
the economic baseline.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of the proposed rule and our
amended required determinations. We may revise the proposed rule or
supporting documents to incorporate or address information we receive
during the public comment period. In particular, we may exercise our
discretion to exclude an area from critical habitat if we determine
that the benefits of excluding the area outweigh the benefits of
including the area, provided the exclusion will not result in the
extinction of this species.

Required Determinations--Amended

In our proposed rule that published in the Federal Register on June
9, 2011 (76 FR 33880), 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. 12630 (Takings), E.O. 13132 (Federalism),
E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply,
Distribution, and Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.),
the National Environmental Policy Act (42 U.S.C. 4321 et seq.), and the
President's memorandum of April 29, 1994, ``Government-to-Government
Relations with Native American Tribal Governments'' (59 FR 22951).
Based on the DEA data, we are amending our required determination
concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Regulatory Flexibility Act

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
critical habitat designation, we provide our analysis for determining
whether the proposed designation 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
Monardella viminea 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 proposed rule would not have a significant
economic impact on a substantial number of small entities, we
considered each industry or category individually. In estimating the
numbers of small entities potentially affected, we also considered
whether their activities have any Federal involvement. Critical habitat
designation will not affect activities that do not have any Federal
involvement; designation of critical habitat only affects activities
conducted, funded, permitted, or authorized by Federal agencies. In
areas where M. viminea is present, Federal agencies already are
required to consult with us under section 7 of the Act on activities
they fund, permit, or implement that may affect the species. If we
finalize this proposed listing and proposed critical habitat
designation, reasonable and prudent measures to avoid adverse
modification of critical habitat would be incorporated into the
existing consultation process.
In the DEA, we evaluated the potential economic effects on small
entities resulting from implementation of conservation actions related
to the proposed critical habitat for Monardella viminea. The DEA
identifies the estimated incremental impacts associated with the
proposed rulemaking as described in Appendix A of the DEA, and
evaluates the potential for economic impacts associated with activity
categories including residential development and road construction. The
DEA concludes that none of the entities with which the Service might
consult on M. viminea meet the definition of a small business.
In summary, we have considered whether the proposed designation

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would result in a significant economic impact on a substantial number
of small entities. Information for this analysis was gathered from the
Small Business Administration, stakeholders, and the Service. We have
identified no small entities that may be impacted by the proposed
critical habitat designation. For the above reason and based on
currently available information, we certify that, if promulgated, the
proposed critical habitat would not have a significant economic impact
on small entities. Therefore, an initial regulatory flexibility
analysis is not required.

Authors

The primary authors of this notice are the staff members of the
Carlsbad Fish and Wildlife Office, Pacific Southwest Region, U.S. Fish
and Wildlife Service (see FOR FURTHER INFORMATION CONTACT).

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

Dated: September 15, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-24608 Filed 9-27-11; 8:45 am]
BILLING CODE 4310-55-P