[Federal Register Volume 69, Number 248 (Tuesday, December 28, 2004)]
[Proposed Rules]
[Pages 77703-77706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28163]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AJ09


Endangered and Threatened Wildlife and Plants; Notice of 
Availability of Draft Economic Analysis and Reopening of the Public 
Comment Period for the Proposed Designation of Critical Habitat for 
Astragalus lentiginosus var. piscinensis (Fish Slough Milk-vetch)

AGENCY: Fish and Wildlife Service, Interior.

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

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
availability of a draft economic analysis for the proposed designation 
of critical habitat for the federally threatened Astragalus 
lentiginosus var. piscinensis (Fish Slough milk-vetch), and the 
reopening of the public comment period on the proposed rule to 
designate critical habitat for this taxon. 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 on 
the proposed rule need not be resubmitted as they have been 
incorporated into the public record as a part of this reopening of the 
comment period, and will be fully considered in preparation of the 
final rule.

DATES: We will accept all comments and information until 5 p.m. on or 
before January 27, 2005. Any comments that we receive after the closing 
date may not be considered in the final decision on this proposal.

ADDRESSES: Written comments and materials may be submitted to us by one 
of the following methods:
    (1) You may submit written comments and information to the Field 
Supervisor, U.S. Fish and Wildlife Service, Ventura Fish and Wildlife 
Office, 2493 Portola Road, Suite B, Ventura, CA 93003.
    (2) You may hand-deliver written comments and information to our 
Ventura Fish and Wildlife Office, at the above address, or fax your 
comments to 805/644-3958.
    (3) You may send comments by electronic mail (e-mail) to: [email protected]. Please see the Public Comments Solicited section below 
for file format and other information about electronic filing.
    Comments and materials received, as well as supporting 
documentation used in preparation of the proposed critical habitat rule 
for Astragalus lentiginosus var. piscinensis (69 FR 31552), 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 this taxon by contacting the Ventura 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://

[[Page 77704]]

ventura.fws.gov/. In the event that our Internet connection is not 
functional, please obtain copies for documents directly from the 
Ventura Fish and Wildlife Office.

FOR FURTHER INFORMATION CONTACT: Mr. Douglas Threloff, Ventura Fish and 
Wildlife Office, at the address listed above (telephone 805/644-1766; 
facsimile 805/644-3958).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend any final action resulting from this proposal to be as 
accurate and as effective as possible. Therefore, we solicit comments 
and information from the public, other concerned governmental agencies, 
the scientific community, industry, or any other interested party 
concerning the draft economic analysis or the proposed rule to 
designate critical habitat for Astragalus lentiginosus var. piscinensis 
(69 FR 31552). 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 benefits of exclusion outweigh the benefits of specifying 
such area as part of the critical habitat;
    (2) Specific information on the amount and distribution of 
Astragalus lentiginosus var. piscinensis habitat, and what habitat is 
essential to the conservation of this species and why;
    (3) Land use designations and current or planned activities in the 
subject area and their possible impacts on proposed habitat, and 
whether the proposed area may need special management or protection;
    (4) Current or planned water withdrawals or diversions in or 
adjacent to the area proposed, or in more distant areas, that could 
impact the hydrology of Fish Slough, the nature of any impacts from 
these withdrawals, and whether there is a Federal nexus to such 
withdrawals that could result in consultations under section 7 of the 
Act, or a similar requirement under State law;
    (5) Any foreseeable economic, national security or other potential 
impacts resulting from the proposed designation of critical habitat, in 
particular, any impacts on small entities or families;
    (6) Additional information that can be used to characterize or more 
completely understand the regional aquifer that supports aquatic or 
riparian habitat in Fish Slough, or how local ground water pumping 
activities affect the hydrology of Fish Slough;
    (7) Information on how many of the State and local environmental 
protection measures referenced in the draft economic analysis were 
adopted largely as a result of the listing of Astragalus lentiginosus 
var. piscinensis, and how many were either already in place or enacted 
for other reasons;
    (8) Whether the economic analysis identifies all State and local 
costs attributable to the proposed critical habitat designation. If 
not, what costs are overlooked;
    (9) Whether the economic analysis makes appropriate assumptions 
regarding current practices and likely regulatory changes imposed as a 
result of the designation of critical habitat;
    (10) Whether the economic analysis correctly assesses the effect on 
regional costs associated with water and land use controls that derive 
from the designation;
    (11) Whether the designation will result in disproportionate 
economic impacts to specific areas that should be evaluated for 
possible exclusion from the final designation;
    (12) Whether the economic analysis appropriately identifies all 
costs that could result from the designation; 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.
    All comments and information submitted during the initial comment 
period on the proposed rule need not be resubmitted. If you wish to 
comment, you may submit your comments and materials concerning the 
draft economic analysis and the proposed rule by any one of several 
methods (see ADDRESSES section).
    Please submit Internet comments to [email protected] in an 
ASCII file format and avoid the use of special characters and 
encryption. Please also include ``Attn: Fish Slough Milk-vetch Critical 
Habitat'' 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 Ventura Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT section).
    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 for 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, as well as supporting 
documentation used in preparation of the proposal to designate critical 
habitat, will be available for inspection, by appointment, during 
normal business hours, in our Ventura Fish and Wildlife Office at the 
above address.

Background

    Astragalus lentiginosus var. piscinensis is a prostrate perennial, 
with few-branching stems that are up to 39 inches (1 meter) in length 
and covered with stiff, appressed hairs. We listed A. l. var. 
piscinensis as threatened under the Endangered Species Act of 1973, as 
amended (16 U.S.C. 1531 et seq.) on October 6, 1998 (63 FR 53596). 
Please refer to the final listing rule for a more detailed discussion 
of the species' taxonomic history and description.
    On June 4, 2004, we published a proposed rule in the Federal 
Register (69 FR 31552) to designate critical habitat for Astragalus 
lentiginosus var. piscinensis. We proposed to designate a total of 
approximately 8,490 acres (3,435 hectares) of critical habitat in Inyo 
and Mono Counties, CA. The first comment period on the proposed 
critical habitat rule for A. l. var. piscinensis 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 will prohibit 
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 
States Fish and Wildlife Service, has invalidated the Service's 
regulation defining destruction or adverse

[[Page 77705]]

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 for the proposal to designate certain areas as 
critical habitat for Astragalus lentiginosus var. piscinensis. This 
analysis considers the potential economic effects of our proposed 
designation, and the economic effects of protective measures taken as a 
result of other Federal, State, and local laws that aid habitat 
conservation in areas proposed for designation.
    Approximately 64 percent of the proposed critical habitat 
designation is under Federal ownership, 34 percent is owned by the city 
of Los Angeles, and 2 percent is State owned. The economic analysis 
addresses the effects of conservation efforts for Astragalus 
lentiginosus var. piscinensis on activities occurring on lands proposed 
for designation. This economic analysis focuses on the following 
activities as being potentially affected by conservation considerations 
for A. l. var. piscinensis: agricultural production, livestock grazing, 
recreation, commercial mining, groundwater exportation, and resource 
management activities in the Bureau of Land Management-designated Area 
of Critical Environmental Concern where A. l. var. piscinensis occurs.
    Because of some uncertainty in estimating the effects of 
conservation activities related to Astragalus lentiginosus var. 
piscinensis, the economic analysis includes an upper and lower-bound 
cost estimate. The analysis includes both ``pre-designation'' 
(occurring from the time of the listing of A. l. var. piscinensis to 
final designation of critical habitat) and ``post-designation'' 
(forecast to occur from 2005 to 2025) economic impacts. Estimated pre-
designation costs range from $749,000 to $808,000. Total post-
designation costs are approximately $946,000 to $978,000 (or $501,000 
to $518,000 in present value terms and $47,300 to $48,900 on an 
annualized basis over the 20-year post-designation analysis period).

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 the Office of 
Management and Budget (OMB) has determined 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. Due to 
the tight timeline for publication in the Federal Register, 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 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 economic impact on a substantial number of small entities, 
as explained below.
    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 Astragalus lentiginosus var. piscinensis 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.
    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

[[Page 77706]]

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 Astragalus lentiginosus var. piscinensis, we 
anticipate that the proposed designation of critical habitat is not 
likely to have a significant economic impact on any small entities or 
classes of small entities. The only section 7 consultations since the 
taxon was listed have been associated with U.S. Army Corps of Engineers 
Section 404 permitting of the removal and re-construction of fish 
barriers at three springs. No post-designation section 7 consultations 
are currently anticipated for this taxon. The costs presented in the 
economic analysis reflect, where data permit, ranges representing the 
reasonably foreseeable future. All post-designation costs are 
anticipated to be direct costs of projects intended to benefit A. l. 
var. piscinensis.
    We considered the potential relative cost of compliance to small 
entities and evaluated only small entities that are expected to be 
directly affected by the proposed designation of critical habitat. 
Based on the economic analysis for A. l. var. piscinensis, 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 Astragalus 
lentiginosus var. piscinensis 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 A. l. var. piscinensis.
    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. No future 
consultations are currently anticipated, and we have no indication that 
the types of activities that 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 Astragalus lentiginosus var. 
piscinensis 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 A. l. var. piscinensis will not 
have a significant economic impact on a substantial number of small 
entities, and an initial regulatory flexibility analysis is not 
required.

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. The economic 
analysis indicates that the proposed designation will not have an 
annual effect on the economy of $100 million or more. In addition, 
lands proposed for designation include only Federal, State, and City-
owned lands; the majority of forecast economic impacts are anticipated 
to be associated with direct costs to Federal, State, and municipal 
agencies. 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.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for Astragalus lentiginosus var. 
piscinensis. Our assessment concludes that this proposed rule does not 
pose significant takings implications.

Author

    The primary author of this notice is the Ventura 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: December 17, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-28163 Filed 12-27-04; 8:45 am]
BILLING CODE 4310-55-P