[Federal Register Volume 69, Number 230 (Wednesday, December 1, 2004)]
[Proposed Rules]
[Pages 69878-69882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26473]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AJ10


Endangered and Threatened Wildlife and Plants; Notice of 
Availability of the Draft Economic Analysis on the Proposed Designation 
of Critical Habitat for Allium munzii (Munz's onion)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of availability of draft economic 
analysis and reopening of public comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
availability of a draft economic analysis on the proposed designation 
of critical habitat for the federally endangered Allium munzii (Munz's 
onion), and the reopening of the public comment period on the proposed 
rule to designate critical habitat for Munz's onion. The comment period 
will provide the public, Federal, State, and local agencies, and Tribes 
with an opportunity to submit written comments on this proposal and its 
respective draft economic analysis. Comments previously submitted for 
this proposed rule need not be resubmitted as they have already been 
incorporated into the public record and will be fully considered in any 
final decision.

DATES: We will accept all comments and information until 5 p.m. on or 
before January 3, 2005. Any comments received after the closing date 
may not be considered in the final decisions on this action.

ADDRESSES: Written comments and materials may be submitted to us by one 
of the following methods:

[[Page 69879]]

    1. You may submit written comments and information to the Field 
Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 6010 Hidden Valley Road, Carlsbad, CA 92009.
    2. You may hand-deliver written comments and information to our 
Carlsbad Fish and Wildlife Office, at the above address, or fax your 
comments to (760) 731-9618.
    3. You may send your comments by electronic mail (e-mail) to 
[email protected]. For directions on how to submit electronic 
filing of comments, see the ``Public Comments Solicited'' section.
    Comments and materials received, as well as supporting 
documentation used in preparation of the proposed critical habitat rule 
for Allium munzii (69 FR 31569) will be available for public 
inspection, by appointment, during normal business hours at the above 
address. You may obtain copies of the draft economic analysis for 
Allium munzii by contacting the Carlsbad Fish and Wildlife Office at 
the above address. The draft economic analysis and the proposed rule 
for critical habitat designation also are available on the Internet at 
http://carlsbad.fws.gov/. In the event that our Internet connection is 
not functional, please obtain copies of documents directly from the 
Carlsbad Fish and Wildlife Office at the above address.

FOR FURTHER INFORMATION CONTACT: Mr. Jim Bartel, Field Supervisor, 
Carlsbad Fish and Wildlife Office, at the above address (telephone 
(760) 431-9440; facsimile (760) 431-9618).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We solicit comments or suggestions from the public, other concerned 
governmental agencies, Tribes, the scientific community, industry, or 
any other interested parties concerning our proposed designation of 
critical habitat for Allium munzii (69 FR 31569) and our draft economic 
analysis for the proposed critical habitat designation. We particularly 
seek comments concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act, including 
whether the benefit of exclusion outweigh the benefits of specifying 
such area as part of the critical habitat;
    (2) Specific information on the amount and distribution of Allium 
munzii and its habitat, and which habitat is essential to the 
conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic, national security or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities or families;
    (5) Whether the economic analysis identifies and adequately 
addresses the likely effects and resulting costs arising from the 
California Environmental Quality Act and other State and local laws 
attributable to the proposed critical habitat designation. If not, what 
other cost are overlooked?;
    (6) Whether the economic analysis makes appropriate assumptions 
regarding current practices and likely regulatory changes imposed as a 
result of the designation of critical habitat for Allium munzii;
    (8) Whether the economic analysis adequately addresses the indirect 
effects (e.g., property tax losses due to reduced home construction, 
losses to local business due to reduced construction activity), and 
accurately defines and captures opportunity costs associated with the 
critical habitat designation;
    (9) Whether the economic analysis correctly assesses the effect on 
regional costs associated with land and water use regulatory controls 
that could arise from the designation of critical habitat for this 
species;
    (10) Whether the designation of critical habitat will result in 
disproportionate economic or other impacts to specific areas that 
should be evaluated for possible exclusion from the final designation;
    (11) Whether the economic analysis is consistent with the Service's 
listing regulations because this analysis should identify all costs 
related to the designation of critical habitat for Allium munzii and 
this designation was intended to take place at the time this species 
was listed; and
    (12) All but one known occurrence of Allium munzii have been 
proposed for exclusion from this proposed designation of critical 
habitat for because they are within approved HCPs or the Western 
Riverside MSHCP. These areas are proposed for exclusion from critical 
habitat because we believe the value of excluding these areas outweighs 
the value of including them. We specifically solicit comment on the 
inclusion or exclusion of such areas and: (a) Whether these areas are 
essential; (b) whether these areas warrant exclusion; and (c) the basis 
for excluding these areas as critical habitat (section 4(b)(2) of the 
Act); and
    (13) Whether our approach to critical habitat designation could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concern and comments.
    Comments previously submitted for this proposed rule need not be 
resubmitted as they have already been incorporated into the public 
record and will be fully considered in any final decision. If you wish 
to comment, you may submit your comments and materials concerning this 
proposal by any one of several methods (see ADDRESSES section).
    If you submit comments via e-mail, please submit them as an ASCII 
file and avoid the use of special characters or any form of encryption. 
Please also include ``Attn: RIN 1018-AJ10'' in your e-mail subject 
header and your name and return address in the body of your message. If 
you do not receive a confirmation from the system that we have received 
your internet message, contact us directly by calling our Carlsbad Fish 
and Wildlife Office at phone number (760) 431-9440. Please note that 
the e-mail address, [email protected], will be closed out at the 
termination of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

Background

    Allium munzii is a bulb-forming perennial herb in the Liliaceae 
(lily family). The plants are dormant except in the spring and early 
summer months, and 3 to 5 years are required after seeds germinate for 
the plant to reach maturity and produce flowers (Schmidt 1980). Allium 
munzii is endemic to mesic clay soils in western Riverside County,

[[Page 69880]]

California, throughout the foothills east of the Santa Ana Mountains 
extending south and east to the low hills south of Hemet (69 FR 31569; 
June 4, 2004). At present, there are 19 occurrences of Allium munzii 
according to the California Natural Diversity Database (CNDDB 2004). 
One historical population in the CNDDB was lost to development; 
however, the extent of the historical distribution of this plant is 
unknown. At the time of listing, the Service estimated the total 
population to be approximately 20,000 to 70,000 individuals. Please 
refer to the final listing rule for a more detailed discussion of the 
species' taxonomic history and description.
    We published the final rule listing Allium munzii as endangered 
under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 
1531 et seq.), in the Federal Register on October 13, 1998 (63 FR 
54975). The listing was based on a variety of factors including habitat 
destruction and fragmentation from agricultural and urban development, 
clay mining, off-road vehicle activity, cattle and sheep grazing, weed 
abatement, fire suppression practices, and competition from alien plant 
species. A recovery plan for this species has not yet been completed.
    At the time of listing, we concluded that designation of critical 
habitat for Allium munzii was not prudent because such designation 
would not benefit the species. On November 15, 2001, a lawsuit was 
filed against the Department of the Interior (DOI) and the Service by 
the Center for Biological Diversity and California Native Plant 
Society, challenging our ``not prudent'' determinations for eight 
plants including A. munzii (No. CV-01-2101) (CBD et al. v. USDOI). A 
second lawsuit asserting the same challenge was filed against DOI and 
the Service by the Building Industry Legal Defense Foundation (BILD) on 
November 21, 2001 (No. CV-01-2145) (BILD v. USDOI). Both cases were 
consolidated on March 19, 2002, and all parties agreed to remand the 
critical habitat determinations to the Service for additional 
consideration. In an order dated July 1, 2002, the U.S. District Court 
for the Southern District of California directed us to reconsider our 
not prudent finding and publish a proposed critical habitat rule for 
Allium munzii, if prudent, on or before May 30, 2004.
    On June 4, 2004, we published a proposed rule to designate critical 
habitat for Allium munzii (69 FR 31569). We proposed to designate 227 
acres (ac) (92 hectares (ha)) of critical habitat on Federal (U.S. 
Forest Service) lands in western Riverside County, California. We 
excluded 1,068 ac (433 ha) of State, local, and private lands from 
proposed critical habitat within approved Habitat Conservation Plans 
(HCPs) and the Western Riverside Multiple Species HCP (MSHCP), 
Riverside County, California. The first public comment period on the 
proposed designation closed on August 3, 2004.
    Critical habitat identifies specific areas, both occupied and 
unoccupied, that are essential to the conservation of a listed species 
and that may require special management considerations or protection. 
If the proposed rule is made final, section 7 of the Act prohibits the 
destruction or adverse modification of critical habitat by any activity 
funded, authorized, or carried out by any Federal agency. Federal 
agencies proposing actions affecting areas designated as critical 
habitat must consult with us on the effects of their proposed actions, 
pursuant to section 7(a)(2) of the Act. We note, however, that a recent 
9th Circuit judicial opinion, Gifford Pinchot Task Force v. United 
State Fish and Wildlife Service, has invalidated the Service's 
regulation defining destruction or adverse modification of critical 
habitat. We are currently reviewing the decision to determine what 
effect it may have on the outcome of consultations pursuant to section 
7 of the Act.
    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat on the basis of the best scientific and commercial 
data available, after taking into consideration the economic impact, 
impact to national security, and any other relevant impacts of 
specifying any particular area as critical habitat. We have prepared a 
draft Economic Analysis of the April 27, 2004 (69 FR 31569), proposed 
designation of critical habitat for Allium munzii.
    The draft Economic Analysis considers the potential economic 
effects of actions relating to the conservation of Allium munzii, 
including costs associated with sections 4, 7, and 10 of the Act, and 
those cost attributable to designating critical habitat. It further 
considers the economic effects of protective measures taken as a result 
of other Federal, State, and local laws that aid habitat conservation 
for Allium munzii in essential habitat areas. The analysis considers 
both economic efficiency and distributional effects. In the case of 
habitat conservation, efficiency effects generally reflect the 
``opportunity costs'' associated with the commitment of resources to 
comply with habitat protection measures (e.g., lost economic 
opportunities associated with restrictions on land use). This analysis 
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 small entities and the energy industry. This information 
can be used by decision-makers to assess whether the effects of the 
designation might unduly burden a particular group or economic sector. 
Finally, this analysis looks retrospectively at costs that have been 
incurred to date since the date the species was listed as endangered 
species, and projects those costs that may occur in the 20 years 
following the designation of critical habitat.
    Total economic impacts resulting from past Allium munzii-related 
conservation activities (i.e., activities since the species was listed 
in 1998) on all essential habitat are estimated to be $4.2 million. For 
the actual component of essential habitat being designated as critical 
habitat, the total estimated economic impact would be $9,866. In terms 
of future economic impacts, total economic efficiency costs resulting 
from Allium munzii-related conservation activities are estimated at 
$6.4 million from 2005 through 2025 for all essential habitat. For the 
actual component of essential habitat being designated as critical 
habitat, the total estimated economic efficiency costs would be $23,964 
from 2005 through 2025. All of those costs are attributable to project 
modification and administrative costs that would be borne by the U.S. 
Forest Service.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this proposed designation 
of critical habitat is a significant rule only in that it may raise 
novel legal and policy issues. However, the Economic Analysis indicates 
that the proposed designation will not have an annual effect on the 
economy of $100 million or more or affect the economy in a material 
way. The Office of Management and Budget (OMB) has not formally 
reviewed this rule.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment

[[Page 69881]]

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 Regulatory Flexibility Act (RFA) to 
require Federal agencies to provide a statement of the factual basis 
for certifying that the rule will not have a significant economic 
impact on a substantial number of small entities. However, the SBREFA 
does not explicitly define ``substantial number'' or ``significant 
economic impact.'' Consequently, to assess whether a ``substantial 
number'' of small entities is affected by this designation, this 
analysis considers the relative number of small entities likely to be 
impacted in an area. The SBREFA also amended the RFA to require a 
certification statement. We are hereby certifying that this proposed 
rule will not have a significant effect on a substantial number of 
small entities.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as 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 
rule as well as the 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.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies; non-Federal activities are 
not affected by the designation if they lack a Federal nexus. In areas 
where the species is present, Federal agencies funding, permitting, or 
implementing activities are already required to avoid jeopardizing the 
continued existence of Allium munzii through consultation with us under 
section 7 of the Act. If this critical habitat designation is 
finalized, Federal agencies must also consult with us to ensure that 
their activities do not destroy or adversely modify designated critical 
habitat through consultation with us.
    Should a federally funded, permitted, or implemented project be 
proposed that may affect designated critical habitat, we will work with 
the Federal action agency and any applicant, through section 7 
consultation, to identify ways to implement the proposed project while 
minimizing or avoiding any adverse effect to the species or critical 
habitat. In our experience, the vast majority of such projects can be 
successfully implemented with at most minor changes that avoid 
significant economic impacts to project proponents.
    Based on our experience with section 7 consultations for all listed 
species, virtually all projects--including those that, in their initial 
proposed form, would result in jeopardy or adverse modification 
determinations in section 7 consultations--can be implemented 
successfully with, at most, the adoption of reasonable and prudent 
alternatives. These measures, by definition, must be economically 
feasible and within the scope of authority of the Federal agency 
involved in the consultation. The kinds of actions that may be included 
in future reasonable and prudent alternatives include avoidance, 
conservation set-asides, management of competing non-native species, 
restoration of degraded habitat, construction of protective fencing, 
and regular monitoring. These measures are not likely to result in a 
significant economic impact to project proponents.
    In the case of Allium munzii, our review of the consultation 
history for this plant suggests that the proposed designation of 
critical habitat is not likely to have a significant impact on any 
small entities or classes of small entities. We considered the 
potential relative cost of compliance to these small entities and 
evaluated only small entities that are expected to be directly affected 
by the proposed designation of critical habitat. Based on the 
consultation history for Allium munzii, we do not anticipate that the 
proposed designation of critical habitat will result in increased 
compliance costs for small entities. The business activities of these 
small entities and their effects on Allium munzii or its proposed 
critical habitat have not directly triggered a section 7 consultation 
with the Service under the jeopardy standard and likely would not 
trigger a section 7 consultation under the adverse modification 
standard after designation of critical habitat. The proposed 
designation of critical habitat does not, therefore, create a new cost 
for the small entities to comply with the proposed designation. 
Instead, proposed designation only impacts Federal agencies that 
conduct, fund, or permit activities that may affect critical habitat 
for Allium munzii. Moreover, none of the small entities have been 
applicants with a Federal agency for a section 7 consultation with the 
Service.
    As discussed in the Economic Analysis, activities in the proposed 
critical habitat unit are expected to result in small additional costs 
borne by the U.S. Forest Service and, possibly, the current special 
permit holders at the electric tower site. The U.S. Forest Service is a 
Federal agency and therefore not considered a small entity under 
SBREFA. In addition, only one of the four special permit holders is a 
small entity, and the projected impact to that small business is $250 
to $1,000 in one year (representing 0.2 to 0.4 of the company's 
revenue). Utility companies are not expected to incur additional 
project-related costs in the critical habitat unit, but may incur 
additional costs in essential habitat areas. However, the utility 
companies involved do not qualify as small entities. Of the local 
government jurisdictions in close proximity to the critical habitat 
unit or essential habitat, only one qualifies as a small government. 
This government is not expected to be impacted by future conservation 
efforts for Allium munzii, according to the Economic Analysis.
    In summary, we have considered whether this proposed designation 
would result in a significant economic impact on a substantial number 
of small entities, and we have concluded that it would not. Future 
consultations are not likely to affect a substantial number of small 
entities. We have no indication that the types of activities we review 
under section 7 of the Act will change significantly in the future. 
Thus, we conclude that the proposed designation of critical habitat for 
Allium munzii is not likely to result in a significant impact to this 
group of small entities. Therefore, we are certifying that the proposed 
designation of critical habitat for Allium munzii will not have a 
significant economic impact on a substantial number of small entities, 
and an initial regulatory flexibility analysis is not required.

[[Page 69882]]

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et 
seq.)

    Under the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 801 et seq.), this rule is not a major rule. As previously 
discussed, we have excluded critical habitat from lands within the 
Western Riverside MSHCP and other HCPs under section 4(b)(2) of the 
Act. The exclusion of these lands and the activities associated with 
the Western Riverside MSHCP and HCPs eliminates the potential for 
critical habitat in these excluded areas to have any effect on the 
increase in costs or prices for consumers or any significant adverse 
effects on competition, employment, investment, productivity, 
innovation or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. Moreover, 100 percent of the designated 
critical habitat is on Forest Service lands that are not intensively 
used for commercial or business purposes, and we anticipate that the 
designation will have little to no effect on costs or prices for 
consumers or any other significant commercial or business related 
activities. In addition, the Economic Analysis indicates that the 
proposed designation will not have an annual effect on the economy of 
$100 million or more. Therefore, we believe that this critical habitat 
designation will not have an effect on the economy of $100 million or 
more, will not cause a major increase in costs or prices for consumers, 
and will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Author

    The primary authors of this notice are the staff of the Carlsbad 
Fish and Wildlife Office (see ADDRESSES section).

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

    Dated: November 23, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-26473 Filed 11-30-04; 8:45 am]
BILLING CODE 4310-55-P