[Federal Register Volume 70, Number 168 (Wednesday, August 31, 2005)]
[Proposed Rules]
[Pages 51739-51742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17451]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AJ11


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for Atriplex coronata var. notatior 
(San Jacinto Valley crownscale)

AGENCY: Fish and Wildlife Service, Interior.

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

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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 designation of 
critical habitat for Atriplex coronata var. notatior under the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) 
(Act), and the availability of a draft economic analysis of 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 and the associated draft economic 
analysis. Comments previously submitted on this proposed rule need not 
be resubmitted as they have already been incorporated into the public 
record and will be fully considered in our final determination of 
critical habitat for this taxon.

DATES: We will accept public comments and information until September 
14, 2005.

ADDRESSES: Written comments and materials may be submitted to us by any 
one of the following methods:
    1. You may submit written comments and information to Jim Bartel, 
Field Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley 
Road, Carlsbad, CA 92011;
    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 760/431-9624; or
    3. You may send your comments by electronic mail (e-mail) to 
[email protected]. For directions on how to submit electronic 
comments, see the ``Public Comments Solicited'' section. In the event 
that our internet connection is not functional, please submit your 
comments by the alternate methods mentioned above.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, at the above address (telephone 760/431-9440; 
facsimile 760/431-9624).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We will accept written comments and information during this 
reopened comment period. We solicit comments on the original proposed 
critical habitat designation, published in the Federal Register on 
October 6, 2004 (69 FR 59844), and on our draft economic analysis of 
the proposed designation. We will consider information and 
recommendations from all interested parties. We are particularly 
interested in 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 Atriplex 
coronata var. notatior and its habitat, and habitat features and 
geographic areas essential to the conservation of this 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) 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 Atriplex coronata var. 
notatior, and how many were either already in place or enacted for 
other reasons;
    (5) Any foreseeable economic, environmental, or other impacts 
resulting from the proposed designation or coextensively from the 
proposed listing;
    (6) Whether the draft economic analysis identifies all State and 
local costs attributable to the proposed critical habitat designation, 
and information on any costs that have been inadvertently overlooked;
    (7) Whether the draft economic analysis makes appropriate 
assumptions regarding current practices and likely regulatory changes 
imposed as a result of the designation of critical habitat;
    (8) Whether the draft economic analysis correctly assesses the 
effect on regional costs associated with land use controls that derive 
from the designation of critical habitat;
    (9) Whether the economic analysis appropriately identifies all 
costs that could result from the designation, in particular, any 
impacts on small entities or families;
    (10) Whether the designation would result in disproportionate 
economic impacts to specific areas that should be evaluated for 
possible exclusion under 4(b)(2) of the Act from the final designation;
    (11) Whether it is appropriate that the analysis does not include 
the cost of project modifications that are the result of informal 
consultation only;
    (12) Whether there is information about areas that could be used as 
substitutes for the economic activities planned in critical habitat 
areas that would offset the costs and allow for the conservation of 
critical habitat areas; and
    (13) How our approach to critical habitat designation could be 
improved or modified to provide for greater public participation and 
understanding, or to assist us in accommodating public concern and 
comments.
    All previous 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). Our final determination regarding 
designation of critical habitat for Atriplex coronata var. notatior 
will take into consideration all comments and any additional 
information received during both comment periods. On the basis of 
public comment on this analysis and on the critical habitat proposal, 
and on the final economic analysis, we may during the development of 
our final determination find that areas proposed are not essential, are 
appropriate for exclusion under section 4(b)(2) of the Act, or are not 
appropriate for exclusion.
    Please submit electronic comments in an ASCII file and avoid the 
use of any special characters or any form of encryption. Also, please 
include ``Attn: Atriplex coronata var. notatior'' and your name and 
return address in your e-mail message regarding the Atriplex coronata 
var. notatior proposed rule or the draft economic analysis. If you do 
not receive a confirmation from the system that we have received your 
e-mail message, please submit your comments in writing using one of the 
alternate methods described in the ADDRESSES 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 address, which we will honor to the extent allowable by

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law. There also may be circumstances in which we would withhold 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 comments. 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 public inspection, by appointment, 
during normal business hours at the Carlsbad Fish and Wildlife Office 
at the address listed under ADDRESSES. Copies of the proposed critical 
habitat rule for Atriplex coronata var. notatior and the draft economic 
analysis are also available on the Internet at http://www.fws.gov/pacific/carlsbad/SJVC.htm. In the event that our internet connection is 
not functional, please obtain copies of documents directly from the 
Carlsbad Fish and Wildlife Office.

Background

    On October 6, 2004, we published a proposed rule in the Federal 
Register (69 FR 59844) to designate critical habitat for Atriplex 
coronata var. notatior pursuant to the Act. We proposed to designate no 
lands as critical habitat. The entire range for this species is in 
Western Riverside County, CA, and as such will be conserved by the 
approved Western Riverside Multiple Species Habitat Conservation Plan. 
Therefore, we proposed to exclude all 15,232 acres (ac) (6,164.4 
hectares (ha)) of habitat with features essential to the conservation 
of this species under section 4(b)(2) of the Act. The initial public 
comment period for the Atriplex coronata var. notatior proposed 
critical habitat rule closed on December 6, 2004. For more information 
on this species, refer to the final rule listing this species as 
endangered, published in the Federal Register on October 13, 1998 (63 
FR 54975).
    Critical habitat is defined in section 3 of the Act as the specific 
areas within the geographic 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 geographic 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 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.
    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 October 6, 2004 (69 FR 59844), proposed 
designation of critical habitat for Atriplex coronata var. notatior.
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of Atriplex coronata 
var. notatior, including costs associated with sections 4, 7, and 10 of 
the Act, and including those 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 Atriplex coronata var. notatior in habitat 
areas with features essential to the conservation of this taxon. 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 since the date the species was listed as an endangered species 
and considers those costs that may occur in the 20 years following the 
designation of critical habitat.
    Pre-designation costs include those Atriplex coronata var. 
notatior-related conservation activities associated with sections 4, 7, 
and 10 of the Act that have accrued since the time that Atriplex 
coronata var. notatior was listed as endangered (63 FR 54975; October 
13, 1998), but prior to the final designation of critical habitat. 
These pre-designation costs are estimated at $3.9 million.
    Post-designation effects would include likely future costs 
associated with Atriplex coronata var. notatior conservation efforts in 
the 20-year period following the final designation of critical habitat 
in October 2005 (effectively 2006 through 2025). In the event that no 
land is designated as critical habitat, there will be no additional 
costs associated with the designation. However, if all habitat with 
features essential to the conservation of the taxon were designated 
critical habitat in a final rule, total costs would be expected to 
range between $16.8 and $58.8 million over the next 20 years (an 
annualized cost of $1.6 to $5.5 million).

Required Determinations--Amended

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues. 
However, because the draft economic analysis indicates that the 
potential economic impact associated with designation as critical 
habitat of all habitat with features essential to the conservation of 
this species would total no more than $5.5 million per year, we do not 
anticipate that this designation would have an annual effect on the 
economy of $100 million or more or affect the economy in a material 
way. Due to the time line for publication in the Federal Register, the 
Office of Management and Budget (OMB) did not formally review the 
proposed 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. In our proposed rule, 
we withheld our determination of whether

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this designation would result in a significant effect as defined under 
SBREFA until we completed our draft economic analysis of the proposed 
designation so that we would have the factual basis for our 
determination.
    According to the Small Business Administration (SBA), 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 
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 this proposed designation of critical habitat for 
Atriplex coronata var. notatior would affect a substantial number of 
small entities, we considered the number of small entities affected 
within particular types of economic activities (e.g., residential and 
commercial development). We considered each industry or category 
individually to determine if certification is appropriate. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement; some 
kinds of activities are unlikely to have any Federal involvement and so 
will not be affected by the designation of critical habitat. 
Designation of critical habitat only affects activities conducted, 
funded, permitted, or authorized by Federal agencies; non-Federal 
activities are not affected by the designation. Typically, when 
proposed critical habitat designations are made final, Federal agencies 
must consult with us if their activities may affect that designated 
critical habitat. Consultations to avoid the destruction or adverse 
modification of critical habitat would be incorporated into the 
existing consultation process. However, since no critical habitat is 
being proposed for designation, no consultations would be necessary.
    In our economic analysis of this proposed designation, we evaluated 
the potential economic effects on small business entities resulting 
from conservation actions related to the listing of this species and 
proposed designation of its critical habitat. Designation of critical 
habitat on all lands with features essential to the conservation of the 
taxon would be expected to result in some additional costs to real 
estate development projects due to conservation that may be required. 
The affected land is located within Riverside County, CA, and under 
private ownership by individuals who will either undertake a 
development project on their own or sell the land to developers for 
development. However, the potential number of small businesses impacted 
by development-related Atriplex coronata var. notatior conservation 
efforts is considered to be minimal, since only 342 ac (138.4 ha) of 
privately-owned developable land within the essential habitat 
(approximately 8,100 ac (3,278 ha)) are forecast to be developed 
between 2006 and 2025. This comprises less than one-hundredth of one 
percent of the land area in Riverside County (1,780,220 ac (720,455 
ha)). We have determined from our analysis that this rule would not 
result in a ``significant effect'' for the small business entities in 
Riverside County. As such, we are certifying that this proposed 
designation of critical habitat would not result in a significant 
economic impact on a substantial number of small entities. Please refer 
to Appendix A of our draft economic analysis of this proposed 
designation for a more detailed discussion of potential economic 
impacts to small business entities.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211 
on regulations that significantly affect energy supply, distribution, 
and use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This proposed rule is 
considered a significant regulatory action under E.O. 12866 because it 
raises novel legal and policy issues, but it is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant action, and no Statement of Energy 
Effects is required. Please refer to Appendix A of our draft economic 
analysis of this proposed designation for a more detailed discussion of 
potential effects on energy supply.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. Non-Federal entities that receive Federal 
funding, assistance, permits, or otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat. However, the legally 
binding

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duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments. As discussed in the draft economic analysis, 
five small local governments, the City of Perris (population 36,189), 
Lake Elsinore (population 28,928), Lakeview (population 1,619), Nuevo 
(population 4,135), and Winchester (population 2,155), are located 
adjacent to habitat that has features essential to the conservation of 
this taxon. There is no record of consultations between the Service and 
these cities since Atriplex coronata var. notatior was listed in 1998. 
It is unlikely that these cities would be involved in a land 
development project involving a section 7 consultation, although a city 
may be involved in land use planning or permitting, and may play a role 
as an interested party in infrastructure projects (such as the City of 
Perris with the San Jacinto River Flood Control Project). Any cost 
associated with this activity/involvement is anticipated to be a very 
small portion of the city's budget. Consequently, we do not believe 
that critical habitat designation would significantly or uniquely 
affect small government entities. As such, Small Government Agency Plan 
is not required.

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 
proposing critical habitat for Atriplex coronata var. notatior. 
Critical habitat designation does not affect landowner actions that do 
not require Federal funding or permits, nor does it preclude 
development of habitat conservation programs or issuance of incidental 
take permits to permit actions that do require Federal funding or 
permits to go forward. In conclusion, the designation of critical 
habitat for Atriplex coronata var. notatior does not pose significant 
takings implications.

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: August 23, 2005.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-17451 Filed 8-29-05; 3:05 pm]
BILLING CODE 4310-55-P