[Federal Register Volume 77, Number 95 (Wednesday, May 16, 2012)]
[Proposed Rules]
[Pages 28846-28850]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11671]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2011-0064; 4500030114]
RIN 1018-AX40
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Astragalus lentiginosus var. coachellae (Coachella
Valley Milk-Vetch)
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, announce the reopening
of the public comment period on the August 25, 2011, proposed revised
designation of critical habitat for Astragalus lentiginosus var.
coachellae (Coachella Valley milk-vetch) under the Endangered Species
Act of 1973, as amended (Act). We also announce the availability of a
draft economic analysis (DEA) of the proposed revised designation of
critical habitat for A. l. var. coachellae 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 revised designation, the associated DEA,
and the amended required determinations section. We are also announcing
the location and time of a public hearing to receive public comments on
the proposal. 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 or postmarked on or before
June 15, 2012. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES section, below) must be received by
11:59 p.m. Eastern Time on the closing date.
Public Hearing: We will hold a public hearing on this proposed rule
on May 31, 2012, from 1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m.
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-2011-0064, 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-2011-0064; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
Public hearing: We will hold a public hearing in the Palm Springs
City Hall Council Chamber, 3200 E. Tahquitz Canyon Way, Palm Springs,
CA 92263.
We request that you send comments only by the methods described
above. 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 Rd., Ste. 101, Carlsbad, CA 92011; telephone 760-431-
9440; facsimile 760-431-5902. 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 Astragalus lentiginosus var. coachellae that was published
in the Federal Register on August 25, 2011 (76 FR 53224), our DEA of
the proposed revised designation, 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. 1531 et
seq.), including whether there are threats to the taxon (the term
taxon, as used herein, refers to any taxonomic rank that is not a
species (for example, a genus, a subspecies, or a variety); Astragalus
lentiginosus var. coachellae is a variety) 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 of critical habitat is not prudent.
(2) Specific information on:
(a) The distribution of Astragalus lentiginosus var. coachellae;
(b) The amount and distribution of Astragalus lentiginosus var.
coachellae habitat;
(c) What areas within the geographical area occupied by the taxon
at the time of listing that contain physical or biological features
essential to the conservation of the taxon we should include in the
designation and why; and
(d) What areas outside the geographical area occupied by the taxon
at the time of listing are essential for the conservation of the taxon
and why.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts
associated with climate change on Astragalus lentiginosus var.
coachellae and proposed critical habitat.
(5) What areas, extent, and quality of the unoccupied fluvial
(water) sand transport systems in the Coachella Valley and surrounding
hills and mountains are essential for the conservation of Astragalus
lentiginosus var. coachellae and should be included in the designation
and why.
(6) Any foreseeable economic, national security, or other relevant
impacts that may result from 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
from the proposed designation that are subject to these impacts.
(7) Which specific areas within tribal lands proposed for critical
habitat should be considered for exclusion under section 4(b)(2) of the
Act, and
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whether the benefits of potentially excluding any specific tribal lands
outweigh the benefits of including that area, in particular for tribal
lands owned or managed by the Morongo Band of Mission Indians (formerly
the Morongo Band of Cahuilla Mission Indians of the Morongo
Reservation) or the Agua Caliente Band of Cahuilla Indians of the Agua
Caliente Indian Reservation.
(8) Which specific lands covered by the Coachella Valley Multiple
Species Habitat Conservation Plan/Natural Community Conservation Plan
(Coachella Valley MSHCP/NCCP) proposed as critical habitat should be
considered for exclusion under section 4(b)(2) of the Act, and whether
the benefits of potentially excluding any specific area covered by the
Coachella Valley MSHCP/NCCP outweigh the benefits of including that
area. We are currently considering all lands covered by the Coachella
Valley MSHCP/NCCP and proposed as critical habitat for exclusion under
section 4(b)(2) of the Act (see the Habitat Conservation Plan Lands--
Exclusions under Section 4(b)(2) of the Act section below).
(9) What specific actions the Coachella Valley Association of
Governments (CVAG) has undertaken to meet the objectives and goals set
out in the Coachella Valley MSHCP/NCCP specific to Astragalus
lentiginosus var. coachellae since CVAG began implementing the MSHCP/
NCCP.
(10) Whether there are any other lands covered by habitat
conservation plans or other conservation actions that benefit
Astragalus lentiginosus var. coachellae and should be considered for
exclusion under section 4(b)(2) of the Act, where the benefits of
potentially excluding any specific area outweigh the benefits of
including that area.
(11) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
(12) The validity of our approach for determining the extent of the
fluvial sand transport system, and differentiating between fluvial sand
transport and fluvial sand source areas. We identified fluvial sand
source areas (areas where sediment is eroded from parent rock by moving
water) as portions of drainages where slope is 10 percent or greater
and fluvial sand transport areas (corridors along which water
transports sediment, but little erosion of parent rock takes place) as
portions of drainages where slope is less than 10 percent. This
approach was informed by Griffiths et al. (2002, p. 21), who found that
sediment production in the drainage areas supplying sand to Astragalus
lentiginosus var. coachellae habitat is much lower in areas where the
ground slope is less than 10 percent.
(13) Information on the extent to which the description of economic
impacts in the DEA is complete and accurate.
If you submitted comments or information on the proposed rule (76
FR 53224) during the initial comment period from August 25, 2011, to
October 24, 2011, please do not resubmit them. We have incorporated
them into the public record, 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 do not
meet the definition of critical habitat, 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 the proposed
rule or DEA by one of the methods listed in the ADDRESSES section. We
request that you send comments only by the methods described 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 hardcopy 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-2011-0064, 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 rule and the DEA on the Internet at http://www.regulations.gov at Docket Number FWS-R8-ES-2011-0064, or by mail
from the Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT section).
Public Hearings
The public hearings will take place on May 31, 2012, from 1 p.m. to
3 p.m. and from 6 p.m. to 8 p.m. in the Palm Springs City Hall Council
Chamber, 3200 E. Tahquitz Canyon Way, Palm Springs, CA 92263. The
public hearing location is wheelchair-accessible. If you plan to attend
the public hearing and need special assistance such as sign language
interpretation or other reasonable accommodation, please notify the
U.S. FWS (see FOR FURTHER INFORMATION CONTACT) at least 3 business days
in advance. Include your contact information as well as information
about your specific needs.
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for Astragalus lentiginosus var.
coachellae in this document. For more information on previous Federal
actions concerning A. l. var. coachellae, refer to the proposed revised
designation of critical habitat published in the Federal Register on
August 25, 2011 (76 FR 53224). For more information on A. l. var.
coachellae or its habitat, refer to the final listing rule published in
the Federal Register on October 6, 1998 (63 FR 53596), which is
available online at http://www.regulations.gov (at Docket Number FWS-
R8-ES-2011-0064) or from the Carlsbad Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT).
Previous Federal Actions
The following section summarizes the previous Federal actions since
Astragalus lentiginosus var. coachellae was listed as endangered on
October 6, 1998 (63 FR 53596); please refer to this final listing rule
for a discussion of Federal actions that occurred prior to the taxon's
listing.
At the time of listing, we determined that designation of critical
habitat was ``not prudent'' (63 FR 53596). On November 15, 2001, the
Center for Biological Diversity (CBD) and the California Native Plant
Society (CNPS) filed a lawsuit against the Secretary of the Interior
and the Service challenging our ``not prudent'' determinations for
eight plant taxa, including Astragalus lentiginosus var. coachellae
(Center for Biological Diversity, et al. v. Norton, case number 01-cv-
2101 (S.D. Cal.)). A second lawsuit asserting the same challenge was
filed on November 21, 2001, by the Building Industry Legal Defense
Foundation (Building Industry Legal Defense Foundation v. Norton, case
number 01-cv-2145 (S.D. Cal.)).
[[Page 28848]]
The parties in both cases agreed to remand the critical habitat
determinations for the eight plant taxa at issue to the Service for
reconsideration. On July 1, 2002, the Court directed us to reconsider
our not prudent determination and if we determined that designation was
prudent, submit to the Federal Register for publication a proposed
critical habitat designation for A. l. var. coachellae by November 30,
2004, and to submit to the Federal Register for publication a final
rule designating critical habitat by November 30, 2005. The proposed
rule to designate critical habitat for A. l. var. coachellae published
in the Federal Register on December 14, 2004 (69 FR 74468). The final
rule designating critical habitat for A. l. var. coachellae published
in the Federal Register on December 14, 2005 (70 FR 74112).
The Center for Biological Diversity filed a lawsuit on January 14,
2009, claiming the Service failed to designate adequate critical
habitat for Astragalus lentiginosus var. coachellae (CBD v. Kempthorne,
case number ED-cv-09-0091 VAP(AGRx) (C.D. Cal.)). In a settlement
agreement dated November 14, 2009, we agreed to reconsider the critical
habitat designation for A. l. var. coachellae. The settlement required
the Service to submit a proposed revised critical habitat designation
for A. l. var. coachellae to the Federal Register by August 18, 2011,
and submit a final revised critical habitat designation to the Federal
Register by February 14, 2013.
On August 25, 2011, we published a proposed rule to revise critical
habitat for Astragalus lentiginosus var. coachellae (76 FR 53224). We
proposed to designate approximately 25,704 acres (ac) (10,402 hectares
(ha)) in 4 unit(s) located in Riverside County, California, as critical
habitat. That proposal had a 60-day comment period, ending October 24,
2011. We will submit for publication in the Federal Register a final
critical habitat designation for A. l. var. coachellae on or before
February 14, 2013.
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 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 the designated critical habitat by any activity funded,
authorized, or carried out by any Federal agency. Federal agencies
proposing actions that may affect critical habitat must consult with us
on the effects of their proposed actions, under section 7(a)(2) of the
Act.
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. We may exclude an area from critical habitat
if we determine that the benefits of excluding the area outweigh the
benefits of including the area as critical habitat, provided such
exclusion will not result in the extinction of the species.
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
Astragalus lentiginosus var. coachellae, the benefits of critical
habitat include public awareness of the presence of A. l. var.
coachellae and the importance of habitat protection, and, where a
Federal nexus exists, increased habitat protection for A. l. var.
coachellae 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.
The final decision on whether 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 concerning the proposed
revised critical habitat designation (DEA), which is available for
review and comment (see ADDRESSES section).
Draft Economic Analysis
The purpose of the DEA is to identify and analyze the potential
economic impacts associated with the proposed revised critical habitat
designation for Astragalus lentiginosus var. coachellae. The DEA
separates conservation measures into two distinct categories according
to ``without critical habitat'' and ``with critical habitat''
scenarios. The ``without critical habitat'' scenario represents the
baseline for the analysis, considering protections otherwise afforded
to A. l. var. coachellae (e.g., under the Federal listing and other
Federal, State, and local regulations). The ``with critical habitat''
scenario describes the incremental impacts specifically due to
designation of critical habitat for the taxon. In other words, these
incremental conservation measures and associated economic impacts would
not occur but for the designation. 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 provides estimated costs of the foreseeable potential
economic impacts of the proposed revised critical habitat designation
for Astragalus lentiginosus var. coachellae over the next 20 years,
which was determined to be the appropriate period for analysis because
limited planning information is available for most activities to
forecast activity levels for projects beyond a 20-year timeframe. It
identifies potential incremental costs as a result of the proposed
revised 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 A. l. var. coachellae
conservation efforts associated with the following categories of
activity: (1) Residential, commercial, and industrial development; (2)
water management and use; (3) transportation activities; (4)
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energy development; (5) sand and gravel mining; and (6) tribal
activities.
Baseline economic impacts are those impacts that result from
listing and other conservation efforts for Astragalus lentiginosus var.
coachellae. The DEA does not quantify baseline economic impacts, but
does include a qualitative discussion of activities likely to be
undertaken to protect A. l. var. coachellae absent the designation of
critical habitat as a result of Federal, State, and local regulations
as well as the Coachella Valley MSHCP/NCCP, the California Desert
Conservation Area Plan (on BLM lands), wilderness designation (on BLM
and USFS lands) and the Coachella Valley National Wildlife Refuge (on
Service lands).
The DEA estimates total potential incremental economic impacts in
areas proposed as revised critical habitat over the 20 years following
the designation (2013 to 2032) to be $220,000 to $820,000 ($20,000 to
$73,000 annualized) in present value terms applying a 7 percent
discount rate (IEc 2012, p. ES-2). Conservation efforts related to
residential, commercial, and industrial development projects account
for the largest share of impacts under the high-end ($820,000)
estimate. These costs, $590,000 in project modification costs (assuming
a 7 percent discount rate) plus administrative costs resulting from the
consideration of adverse modification in section 7 consultations, are
projected to occur in the unoccupied portion of Unit 3, within the City
of Desert Hot Springs. The DEA estimates that proponents of
transportation activities, such as road and bridge construction and
maintenance, are likely to experience the next largest impacts after
residential, commercial, and industrial development, including
approximately $1,300 in project modification costs (7 percent discount
rate), plus administrative costs. Water management and use, energy
development, and sand and gravel mining projects are projected to incur
only administrative costs due to the critical habitat designation. The
DEA predicts only administrative costs to the Agua Caliente Band of
Cahuilla Indians as a result of the designation, and no incremental
impacts to the Morongo Band of Mission Indians, because no future
section 7 consultations are anticipated on the portion of their lands
proposed as critical habitat.
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
(such as 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 and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the revised critical habitat 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 all aspects of the proposed rule and our
amended required determinations. We may revise the proposed rule to
incorporate or address information we receive during the 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, provided the exclusion will not result
in the extinction of this taxon.
Changes to Proposed Revised Critical Habitat
In this document, we are making a correction to the proposed
revised critical habitat for Astragalus lentiginosus var. coachellae as
identified and described in the preamble to the proposed rule that we
published in the Federal Register on August 25, 2011 (76 FR 53224). The
correction is in regard to the description of Unit 1 (76 FR 53240).
Unit 1 contains 316 ac (128 ha) of tribal land (Morongo Band of Mission
Indians) and 1,791 ac (725 ha) of private land. Of this area, we
characterized 156 ac (63 ha) of tribal land and 1 ac (0.4 ha) of
private land as being covered under the Western Riverside County
Multiple Species Habitat Conservation Plan (Western Riverside County
MSHCP), due to an incorrect interpretation of GIS data. These lands are
within the boundaries of the Western Riverside County MSHCP, but they
are ``inholdings'' (that is, they are not covered by or subject to the
provisions of the Western Riverside County MSHCP or any other Habitat
Conservation Plan). All other acreages reported in the proposed rule
are correct to the best of our knowledge, and the boundaries of the
proposed revised critical habitat remain the same as described in the
proposed rule. No part of the proposed critical habitat for A. l. var.
coachellae is covered by the Western Riverside County MSHCP.
Required Determinations--Amended
In our August 25, 2011, proposed rule (76 FR 53224), 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 data 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). However, 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 (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that 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
[[Page 28850]]
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 our 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 Astragalus lentiginosus var. coachellae 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, commercial, and industrial 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 A. l. var. coachellae
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 taxon. If we finalize this proposed
revised critical habitat designation, consultations to avoid the
destruction or 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 revised designation of critical habitat for Astragalus
lentiginosus var. coachellae. The DEA is based on the estimated
incremental impacts associated with the proposed rulemaking as
described in Chapters 3 through 5 of the DEA. The SBREFA analysis
evaluates the potential for economic impacts related to several
categories, including: (1) Residential, commercial, and industrial
development; (2) water management and use; (3) transportation
activities; (4) energy development; (5) sand and gravel mining; and (6)
tribal activities (IEc 2012, p. A-4). On the basis of our draft
analysis, we have determined that no incremental impacts attributed to
water management and use, transportation activities, energy
development, sand and gravel mining, and tribal activities are expected
to be borne by entities that meet the definition of small entities (IEc
2010, pp. A-4-5). Potential impacts in these sectors are expected to be
borne by water management agencies, State agencies, Federal agencies,
other governmental agencies, and nongovernmental agencies that are not
considered to be small business entities.
However, the DEA concludes that the proposed rulemaking potentially
may affect small entities in the residential, commercial, and
industrial development sector (IEc 2010, p. A-6). There are 6,151
businesses involved in development activities within San Bernardino,
Riverside, Orange, and Los Angeles Counties and, of these, 6,076 are
considered small. Because information on the number of projects or
developers likely to be affected is not available, the DEA presents a
bounding analysis, assuming that a single developer bears all costs
associated with growth in proposed critical habitat. Under this
assumption, $52,260 in incremental costs would accrue to one developer
per year. Assuming the average small entity has annual revenues of
approximately $5.1 million, this annualized impact represents
approximately 1 percent of annual revenues. The assumption that all
costs accrue to one developer likely overstates the impact
significantly; thus, the DEA estimates incremental impacts to small
developers of less than 1 percent of annual revenues (IEc 2010, pp. A-
8-9). For development activities, potential impacts to small
development firms may also be overstated because much or all of the
costs of milk-vetch conservation efforts may ultimately be borne by
current landowners. Many of these landowners may be individuals or
families that are not legally considered to be businesses. No NAICS
code exists for landowners, and the SBA does not provide a definition
of a small landowner. Additionally, the development projected for
Desert Hot Springs may not occur, as those lands fall within the 100-
year floodplain (IEc 2010, p. A-9). Please refer to the DEA of the
proposed revised critical habitat designation for a more detailed
discussion of potential economic impacts.
In summary, we have considered whether the proposed revised
designation 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 our
files. For the above reasons and based on currently available
information, we certify that, if promulgated, the proposed revised
critical habitat designation would result in incremental impacts to
small developers of less than 1 percent of annual revenues; and, thus,
would not have a significant economic impact on a substantial number of
small business 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.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: May 7, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-11671 Filed 5-15-12; 8:45 am]
BILLING CODE 4310-55-P