[Federal Register Volume 79, Number 87 (Tuesday, May 6, 2014)]
[Proposed Rules]
[Pages 25797-25806]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10053]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2013-0049; 4500030113]
RIN 1018-AZ33
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Diplacus vandenbergensis (Vandenberg Monkeyflower)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; revision and reopening of the comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on the proposed rule to
designate critical habitat for Diplacus vandenbergensis (Vandenberg
monkeyflower). We also announce the availability of a draft economic
analysis (DEA) of the proposed designation of critical habitat for D.
vandenbergensis and an amended required determinations section of the
proposal. In addition, in this document, we are proposing revised unit
names for the four previously described subunits, and a revised acreage
for one subunit based on information we received on the proposal. These
revisions result in an increase of approximately 24 acres (10 hectares)
in the proposed designation of critical habitat. We are reopening the
comment period to allow all interested parties an opportunity to
comment simultaneously on the proposed rule, the associated DEA, the
amended required determinations section, and the unit revisions
described in this document. Comments previously submitted need not be
resubmitted, as they will be fully considered in preparation of the
final rule.
DATES: The comment period for the proposed rule published October 29,
2013 (at 78 FR 64446), is reopened. We will consider comments on that
proposed rule or the changes to it proposed in this document that we
receive or that are postmarked on or before June 5, 2014. 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.
ADDRESSES:
Document availability: You may obtain copies of the proposed rule
and the associated DEA (Industrial Economics, Incorporated (IEc) 2014;
Service 2014) on the internet at http://www.regulations.gov at Docket
No. FWS-R8-ES-2013-0049 or by mail from the Ventura Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT).
Written comments: 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-2013-0049 (the
docket number for the proposed critical habitat rule).
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R8-ES-2013-0049; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
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: Stephen P. Henry, Acting Field
Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife
Service, 2493 Portola Road, Suite B, Ventura, CA 93003; telephone 805-
644-1766; facsimile 805-644-3958. 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 designation of critical habitat
for Diplacus vandenbergensis (hereafter referred to as Vandenberg
monkeyflower) that was published in the Federal Register on October 29,
2013 (78 FR 64446), our DEA (which comprises an economics screening
memorandum (IEc 2014) and the Service's Incremental Effects Memorandum
(Service 2014)) of the proposed designation, the amended required
determinations provided in this document, and the revisions to the
names and one unit as described 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 Endangered Species Act (16
U.S.C. 1531 et seq.) (Act), including whether there are threats to the
species from human activity, the degree those threats 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 amount and distribution of Vandenberg monkeyflower and its
habitat;
(b) What may constitute ``physical or biological features essential
to the conservation of the species,'' within the geographical range
currently occupied by the species;
(c) Where these features are currently found;
(d) Whether any of these features may require special management
considerations or protection;
(e) What areas currently occupied by the species and that contain
features essential to the conservation of the species should be
included in the designation and why; and
(f) What areas not occupied at the time of listing are essential
for the conservation of the species and why.
(3) Land use designations and current or planned activities in the
areas occupied by the species or proposed to be designated as critical
habitat, and possible impacts of these activities on this species and
proposed critical habitat.
(4) Comments or information that may assist us in identifying or
clarifying the primary constituent elements (PCEs).
(5) Information on the projected and reasonably likely impacts of
climate change on Vandenberg monkeyflower and proposed critical
habitat.
(6) Any probable economic, national security, or other relevant
impacts of designating any area that may be
[[Page 25798]]
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) Information on the extent to which the description of economic
impacts in the DEA is a reasonable estimate of the probable economic
impacts.
(8) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the DEA, and how the consequences
of such reactions, if likely to occur, would relate to the conservation
and regulatory benefits of the proposed critical habitat designation.
(9) Whether any specific areas we are proposing for critical
habitat designation 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. We specifically seek comments on the
following:
(a) Whether the existing management plans for Burton Mesa
Ecological Reserve and La Purisima Mission State Historic Park (SHP)
provide a conservation benefit to Vandenberg monkeyflower and its
habitat. We also seek comments on whether there is a reasonable
expectation that the conservation management strategies and actions in
these management plans will be implemented into the future.
(b) Whether or not to exclude the Burton Ranch area from the final
critical habitat designation. Burton Ranch is a residential development
project on private land that borders the Burton Mesa Ecological
Reserve. We included Burton Ranch in our proposed critical habitat
because the area met our criteria for designating critical habitat for
Vandenberg monkeyflower. In comments on the proposed designation, the
developers of Burton Ranch requested that this land be excluded from
critical habitat.
(c) Whether or not to exclude a portion of the Burton Mesa
Ecological Reserve, at a site where the Vandenberg Village Community
Services District (VVCSD) is considering installation of new water
wells. In comments on the proposed designation, the VVCSD requested
exclusion of 106 acres (ac) (43 hectares (ha)) for the purpose of
installing new water wells to replace their existing wells. The land
VVCSD requested to exclude is within the Burton Mesa Ecological Reserve
and owned and managed by the State of California. Vandenberg
monkeyflower is known to occur within the 106-ac (43-ha) area.
(10) 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.
If you submitted comments or information on the proposed rule (78
FR 64446) during the initial comment period from October 29, 2013, to
December 30, 2013, please do not resubmit them. Any such comments are
incorporated as part of the public record of this rulemaking
proceeding, and we will fully consider them in the preparation of our
final determination. Our final determination concerning critical
habitat will take into consideration all written comments and any
additional information we receive during both comment periods. This
document contains revisions to the proposed rule; in addition, the
final decision may differ from this revised proposed rule, based on our
review of all information received during this rulemaking proceeding.
You may submit your comments and materials concerning the proposed
rule or DEA (IEc 2014; Service 2014) by one of the methods listed in
ADDRESSES. We request that you send comments only by the methods
described in ADDRESSES.
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 listing, proposed
critical habitat, and DEA, will be available for public inspection on
http://www.regulations.gov at Docket Number FWS-R8-ES-2013-0049, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT). You may obtain copies of the proposed rule to
designate critical habitat and the DEA (IEc 2014; Service 2014) on the
Internet at http://www.regulations.gov at Docket Number FWS-R8-ES-2013-
0049, or by mail from the Ventura Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT section).
Background
It is our intent to discuss only those topics directly relevant to
the proposed designation of critical habitat for Vandenberg
monkeyflower (78 FR 64446) in this document. For more information on
previous Federal actions concerning Vandenberg monkeyflower, refer to
the proposed listing rule (78 FR 64840) that published in the Federal
Register on October 29, 2013. Both proposed rules are available online
at http://www.regulations.gov (at Docket No. FWS-R8-ES-2013-0078 for
the proposed listing and Docket No. FWS-R8-ES-2013-0049 for the
proposed critical habitat designation) or from the Ventura Fish and
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
On October 29, 2013, we published a proposed rule to designate
critical habitat for Vandenberg monkeyflower (78 FR 64446). We proposed
to designate approximately 5,785 ac (2,341 ha) in four subunits as
critical habitat for Vandenberg monkeyflower in Santa Barbara County,
California. That proposal had an initial 60-day comment period ending
December 30, 2013. This document announces proposed revisions of the
subunit names (now called units) and acreage of one unit (Encina, Unit
3) described in the October 29, 2013, proposed rule to designate
critical habitat. In a separate rulemaking, we proposed to list
Vandenberg monkeyflower as an endangered species on October 29, 2013
(78 FR 64840). If the listing and critical habitat rules are finalized,
we anticipate submitting for publication in the Federal Register a
final critical habitat designation for Vandenberg monkeyflower by
October 2014.
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
designating critical habitat is made final, section 7 of the Act will
prohibit destruction or adverse modification of critical habitat by any
activity funded, authorized, or carried out by any Federal agency.
Federal
[[Page 25799]]
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.
Revisions to Proposed Critical Habitat Designation
On October 29, 2013, we proposed critical habitat for Vandenberg
monkeyflower in four subunits, consisting of approximately 5,785 ac
(2,341 ha) in Santa Barbara County, California (78 FR 64446). We are
now revising the `subunit' designation used in the October 29, 2013,
proposed rule to `unit' for added clarity for the public and to be
consistent with critical habitat naming across the nation. The revised
unit names are: Unit 1 (Vandenberg), Unit 2 (Santa Lucia), Unit 3
(Encina), and Unit 4 (La Purisima). Additionally, we are revising the
proposed designation to include an additional 24 ac (10 ha) for a total
of approximately 5,809 ac (2,351 ha) (see Table 1). The added acreage
occurs north of Davis Creek in the parcel designated as open space at
Clubhouse Estates, consisting of maritime chaparral mixed with oak
woodland and scrub vegetation that is contiguous with the Burton Mesa
Ecological Reserve. This area was added to the proposed critical
habitat designation because it contains the physical and biological
features essential to the conservation of Vandenberg monkeyflower, and
also supports a portion of a population of Vandenberg monkeyflower. We
propose this increase based on new information received from several
commenters who pointed out that we had omitted a portion of a parcel
along the boundaries of Unit 3 (Encina). Apart from the acreages and
ownership percentages provided in the Unit 3 description in the October
29, 2013, proposed rule, the general information in the Unit 3
description in that proposal remains unchanged.
Table 1--Revisions to Proposed Critical Habitat Units for Vandenberg Monkeyflower
[Area estimates reflect all land within critical habitat unit boundaries]
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October 29,
2013, proposed Current Change from 10/
critical proposed 29/2013
Proposed critical habitat unit Land ownership by type habitat in revised acres proposal
acres (hectares) (acres
(hectares) (hectares))
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1. Vandenberg Unit................. Federal.................... 277 (75) 277 (112) 0 (0)
2. Santa Lucia Unit................ State...................... 1,422 (576) 1,422 (576) 0 (0)
Local Agency............... 10 (4) 10 (4) 0 (0)
Private.................... 52 (21) 52 (21) 0 (0)
3. Encina Unit..................... State...................... 1,460 (591) 1,460 (591) 0 (0)
Local Agency............... 24 (10) 24 (10) 0 (0)
Private.................... 516 (209) 540 (218) +24 (+10)
4. La Purisima Unit................ State...................... 1,792 (725) 1,792 (725) 0 (0)
Local Agency............... 4 (2) 4 (2) 0 (0)
Private.................... 228 (92) 228 (92) 0 (0)
Revised Totals for All 4 Units Federal.................... 277 (112) 277 (112) 0 (0)
\1\.
State...................... 4,674 (1,892) 4,674 (1,892) 0 (0)
Local Agency............... 38 (16) 38 (16) 0 (0)
Private.................... 796 (322) 820 (332) +24 (+10)
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Total................. 5,785 (2,341) 5,809 (2,351) 0 (0)
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Note: Area sizes may not sum due to rounding.
\1\ This total does not include 4,159 ac (1,683 ha) of lands within Vandenberg AFB that were identified as areas
that meet the definition of critical habitat but are exempt from critical habitat designation under section
4(a)(3)(B) of the Act (see Exemptions section of proposed critical habitat rule that published on October 29,
2013 (78 FR 64446)).
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, among other factors, the additional regulatory benefits that
an area would receive through the analysis under section 7 of the Act
addressing the destruction or adverse modification of critical habitat
as a result of actions with a Federal nexus (activities conducted,
funded, permitted, or authorized by Federal agencies), the educational
benefits of identifying areas containing essential features that aid in
the recovery of the listed species, and any ancillary benefits
triggered by existing local, State, or Federal laws as a result of the
critical habitat designation.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to
incentivize or result in conservation; the continuation, strengthening,
or encouragement of partnerships; and the implementation of a
management plan. In the case of Vandenberg monkeyflower, the benefits
of critical habitat include public awareness of the presence of the
species, the importance of habitat protection, and, where a Federal
nexus exists, increased habitat protection for Vandenberg monkeyflower.
In practice, situations with a Federal nexus exist primarily on Federal
lands or for projects undertaken, authorized, funded, or otherwise
permitted by Federal agencies. We have not proposed to exclude any
areas from critical habitat.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable
[[Page 25800]]
economic impacts of a designation, we must first evaluate specific land
uses or activities and projects that may occur in the area of the
critical habitat. We then must evaluate the impacts that a specific
critical habitat designation may have on restricting or modifying
specific land uses or activities for the benefit of the species and its
habitat within the areas proposed. We then identify which conservation
efforts may be the result of the species being listed under the Act
versus those attributed solely to the designation of critical habitat
for this particular species. The probable economic impact of a proposed
critical habitat designation is analyzed by comparing scenarios ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). The baseline, therefore, represents the costs of
all efforts attributable to the listing of the species under the Act
(i.e., conservation of the species and its habitat 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 would not
be expected without the designation of critical habitat for the
species. In other words, the incremental costs are those attributable
solely to the designation of critical habitat, above and beyond the
baseline costs. These are the costs we use when evaluating the benefits
of inclusion and exclusion of particular areas from the final
designation of critical habitat should we choose to conduct an optional
4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from the proposed designation of critical
habitat (Service 2014). The information contained in our IEM was then
used to develop a screening analysis (IEc 2014) of the probable effects
of the designation of critical habitat for Vandenberg monkeyflower. In
the screening analysis of the proposed designation of critical habitat,
we focused our analysis on the key factors that are likely to result in
incremental economic impacts. The purpose of the screening analysis is
to filter out the geographic areas in which the critical habitat
designation is unlikely to result in probable incremental economic
impacts. In particular, the screening analysis considers baseline costs
(i.e., absent critical habitat designation) and includes probable
economic impacts where land and water use may be subject to
conservation plans, land management plans, best management practices,
or regulations that protect the habitat area as a result of the Federal
listing status of the species. The screening analysis filters out
particular areas of critical habitat that are already subject to such
protections and are, therefore, unlikely to incur incremental economic
impacts. Ultimately, the screening analysis allows us to focus on
evaluating the specific areas or sectors that may incur probable
incremental economic impacts as a result of the designation. This
screening analysis (IEc 2014) combined with the information contained
in our IEM (Service 2014) are what we consider our DEA of the proposed
critical habitat designation for Vandenberg monkeyflower, which is
summarized in the narrative below.
Executive Orders 12866 and 13563 direct Federal agencies to assess
the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the Executive Orders' regulatory analysis requirements, our
effects analysis under the Act may take into consideration impacts to
both directly and indirectly impacted entities, where practicable and
reasonable. We assess, to the extent practicable, the probable impacts,
if sufficient data are available, to both directly and indirectly
impacted entities. Potential incremental economic impacts associated
with the following categories of activities could occur in Vandenberg
monkeyflower proposed critical habitat: (1) Conservation or restoration
activities; (2) utilities management (e.g., maintenance of an existing
pipeline); (3) fire management; (4) transportation (e.g., maintenance
of existing roads); (5) recreation; or (6) development (Service 2014,
pp. 4-6, 10). We considered each industry or category individually.
Additionally, we 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 Vandenberg monkeyflower is present,
Federal agencies will be required to consult with the Service under
section 7 of the Act on activities they fund, permit, or implement that
may affect the species, if the Vandenberg monkeyflower is listed under
the Act. If we finalize the proposed critical habitat designation and
listing rule, consultations to avoid the destruction or adverse
modification of critical habitat would be included in the consultation
process that will also consider jeopardy to the listed species.
Therefore, disproportionate impacts to any geographic area or sector
are not likely as a result of this critical habitat designation.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for Vandenberg
monkeyflower (Service 2014, pp. 7-19). Because the designation of
critical habitat for Vandenberg monkeyflower was proposed concurrently
with the listing, it is more difficult at this time to discern which
conservation efforts are attributable to the species being listed and
those that will result solely from the designation of critical habitat.
However, the following specific circumstances in this case help to
inform our evaluation: (1) The essential physical and biological
features identified for critical habitat are the same features
essential for the life requisites of the species, and (2) any actions
that would constitute jeopardy to Vandenberg monkeyflower would also
likely adversely affect the essential physical and biological features
of critical habitat. The IEM outlines our rationale concerning this
limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species (Service 2014, pp. 7-19). This evaluation of the incremental
effects has been used as the basis to evaluate the probable incremental
economic impacts of this proposed designation of critical habitat.
Summary Findings of the Draft Economic Analysis (DEA)
Critical habitat designation for Vandenberg monkeyflower is
unlikely to generate costs exceeding $100 million in a single year.
Data limitations prevent the quantification of critical habitat
benefits (IEc 2014, pp. 3, 22, 24).
All proposed units are considered occupied. However, Vandenberg
monkeyflower is an annual plant that may only be expressed above ground
once a year or even less frequently (Service 2014, p. 15). Even though
all proposed units contain Vandenberg
[[Page 25801]]
monkeyflower seed banks below ground, some project proponents may not
be aware of the presence of the species absent a critical habitat
designation. The characteristics of the plant make it difficult to
determine whether future consultations will result from the presence of
the listed species or designated critical habitat.
Throughout our analysis (IEc, 2014, entire), we have considered two
scenarios:
(1) Low-end scenario. Project proponents identify the monkeyflower
at their site, and most costs and benefits are attributable to listing
the species.
(2) High-end scenario. Costs and benefits are attributed to the
designation of critical habitat.
Projects with a Federal nexus within Vandenberg monkeyflower
proposed critical habitat are likely to be rare. We project fewer than
three projects annually, associated with the Lompoc Penitentiary, the
existing oil pipeline and utilities running through the Burton Mesa
Ecological Reserve, and road projects using Federal funding (Iec 2014,
pp. 3, 12). In the high-end scenario, costs in a single year are likely
to be on the order of magnitude of tens to hundreds of thousands of
dollars (IEc 2014, pp. 3, 12). In the low-end scenario, assuming above-
ground expression of the monkeyflower, total costs in a single year
will likely be less than $100,000.
The potential exists for critical habitat to trigger additional
requirements under the California Environmental Quality Act (CEQA). In
the low-end scenario, impacts at all sites except the Burton Ranch
Specific Plan area would be attributed to listing Vandenberg
monkeyflower. In the high-end scenario, properties that could
experience relatively larger impacts include the Burton Ranch Specific
Plan area (Unit 3), potentially developable parcels along the northern
border of Vandenberg Village (Units 2 and 3), the Freeport-McMoRan
parcels overlapping the state-designated Lompoc Oil Field (Units 2 and
3), and preferred sites for new drinking water wells in the Burton Mesa
Ecological Reserve (Unit 3). Given the value of possible impacts in
these areas, we conclude that designating critical habitat for
Vandenberg monkeyflower will not generate costs that exceed $100
million in a single year (i.e., the threshold according to Executive
Order 12866 for determining if the costs and benefits of regulatory
actions may have a significant economic impact in any one year).
Additional information and discussion regarding our economic
analysis is available in our DEA (IEc 2014, entire; Service 2014,
entire) available on the Internet at http://www.regulations.gov at
Docket No. FWS-R8-ES-2013-0049.
As 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 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 October 29, 2013, proposed rule (78 FR 64446), we indicated
that we would defer our determination of compliance with several
statutes and executive orders until we had evaluated the probable
effects on landowners and stakeholders and the resulting probable
economic impacts of the designation. Following our evaluation of the
probable incremental economic impacts resulting from the designation of
critical habitat for Vandenbeg monkeyflower, we have amended or
affirmed our determinations below. Specifically, we affirm the
information in our proposed rule concerning Executive Orders (E.O.s)
12866 and 13563 (Regulatory Planning and Review), 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 our evaluation of the probable incremental
economic impacts of the proposed designation of critical habitat for
Vandenberg monkeyflower, we are amending our required determinations
concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and
E.O. 12630 (Takings).
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 publishes 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.
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.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are required to evaluate the potential incremental impacts of
rulemaking only on those entities directly regulated by the rulemaking
itself, and therefore, are not required to evaluate the potential
impacts to indirectly regulated entities. The regulatory mechanism
through which critical habitat protections are realized is section 7 of
the Act, which requires Federal agencies, in consultation with the
Service, to ensure that any action authorized, funded, or carried out
by the agency is not likely to destroy or adversely modify critical
habitat. Therefore, under section 7, only Federal action agencies are
directly subject to the specific regulatory
[[Page 25802]]
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. Consequently, it is our position that
only Federal action agencies will be directly regulated by this
designation. There is no requirement under RFA to evaluate the
potential impacts to entities not directly regulated. Moreover, Federal
agencies are not small entities. Therefore, because no small entities
are directly regulated by this rulemaking, the Service certifies that,
if promulgated, the proposed critical habitat designation will not have
a significant economic impact on a substantial number of small
entities.
In summary, we have 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 designation for Vandenberg monkeyflower would not have
a significant economic impact on a substantial number of small business
entities. Therefore, an initial regulatory flexibility analysis is not
required.
E.O. 12630 (Takings)
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for Vandenberg monkeyflower in a takings implications
assessment. As discussed above, the designation of critical habitat
directly affects only Federal actions. Although private parties that
receive Federal funding, assistance, or require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. The DEA found that no significant
economic impacts are likely to result from the designation of critical
habitat for Vandenberg monkeyflower. Because the Act's critical habitat
protection requirements apply only to Federal agency actions, few
conflicts between critical habitat and private property rights should
result from this designation. Based on information contained in the DEA
and described within this document, it is not likely that economic
impacts to a property owner would be of a sufficient magnitude to
support a takings action. Therefore, the takings implications
assessment concludes that this designation of critical habitat for
Vandenberg monkeyflower does not pose significant takings implications
for lands within or affected by the designation.
Authors
The primary authors of this notice are the staff members of the
Pacific Southwest Regional Office (Region 8), with assistance from
staff of the Ventura Fish and Wildlife Office, U.S. Fish and Wildlife
Service.
Proposed Regulation Promulgation
Accordingly, we propose to further amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as proposed to
be amended on October 29, 2013, at 78 FR 64446, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.96(a) by revising paragraphs (5), (6), and (7) in the
entry proposed for ``Family Phrymaceae: Diplacus vandenbergensis
(Vandenberg monkeyflower)'' at 78 FR 64446, to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Phrymaceae: Diplacus vandenbergensis (Vandenberg
monkeyflower)
* * * * *
(5) Index map follows:
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[[Page 25803]]
[GRAPHIC] [TIFF OMITTED] TP06MY14.016
(6) Unit 1 (Vandenberg) and Unit 2 (Santa Lucia): Santa Barbara
County, California. Map of Units 1 and 2, follows:
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[[Page 25804]]
[GRAPHIC] [TIFF OMITTED] TP06MY14.017
(7) Unit 3 (Encina) and Unit 4 (La Purisima): Santa Barbara County,
California. Map of Units 3 and 4, follows:
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[[Page 25805]]
[GRAPHIC] [TIFF OMITTED] TP06MY14.018
[[Page 25806]]
* * * * *
Dated: April 24, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-10053 Filed 5-5-14; 8:45 am]
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