[Federal Register Volume 71, Number 223 (Monday, November 20, 2006)]
[Proposed Rules]
[Pages 67089-67092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-19572]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU44


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Cirsium hydrophilum var. hydrophilum (Suisun 
thistle) and Cordylanthus mollis ssp. mollis (soft bird's-beak)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, notice of 
availability of draft economic analysis, and amended Required 
Determinations.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on the proposed designation of critical 
habitat for two tidal marsh plants: Cirsium hydrophilum var. 
hydrophilum (Suisun thistle) and Cordylanthus mollis ssp. mollis (soft 
bird's-beak). We also announce the availability of the draft economic 
analysis for the proposed critical habitat designation and an amended 
Required Determinations section of the proposal. The draft economic 
analysis identifies potential costs will be $1.6 million in 
undiscounted dollars over a 20-year period as a result of the proposed 
designation of critical habitat, including those costs coextensive with 
listing and recovery. Discounted future costs are estimated to be $1.4 
million over 20 years ($95,002 annually) at a 3 percent discount rate, 
or $1.2 million over 20 years ($116,722 annually) at a 7 percent 
discount rate. The amended Required Determinations section provides our 
determination concerning compliance with applicable statutes and 
Executive Orders that we have deferred until the information from the 
draft economic analysis of this proposal was available. We are 
reopening the comment period to allow all interested parties to comment 
simultaneously on the proposed rule, the associated draft economic 
analysis, and the amended Required Determinations section.

DATES: We will accept public comments until December 20, 2006.

ADDRESSES: Written comments and materials may be submitted to us by any 
one of the following methods:
    (1) E-mail: You may send comments by electronic mail (e-mail) to: 
[email protected]. For directions on how to file comments 
electronically, see the ``Public Comments Solicited'' section.
    (2) Mail or hand delivery: You may submit written comments and 
information to the Field Supervisor, U.S. Fish and Wildlife Service, 
2800 Cottage Way, Suite W-2605, Sacramento, CA 95825.
    (3) Facsimile: You may fax your comments to 916-414-6712.
    (4) Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT: Arnold Roessler, Sacramento Fish and 
Wildlife Office, at the address listed in ADDRESSES (telephone 916-414-
6600; facsimile 916-414-6712). 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 Solicited

    We will accept written comments and information during this 
reopened comment period. We solicit comments on the original proposed 
critical habitat designation for Cirsium hydrophilum var. hydrophilum 
and Cordylanthus mollis ssp. mollis published in the Federal Register 
on April 11, 2006 (71 FR 18456) 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 Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), 
including whether the benefits of exclusion outweigh the benefits of 
including such area as part of critical habitat;
    (2) Specific information on the amount and distribution of C. 
hydrophilum var. hydrophilum or C. mollis ssp. mollis, and what habitat 
is essential to the conservation of these plants and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed habitat;
    (4) Information on the extent to which any State and local 
environmental protection measures referred to in the draft economic 
analysis may have been adopted largely as a result of the listing of C. 
hydrophilum var. hydrophilum or C. mollis ssp. mollis;
    (5) Information on 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;
    (6) Information on 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;
    (7) Information on whether the draft economic analysis correctly 
assesses the effect on regional costs associated with any land use 
controls that may derive from the designation of critical habitat;
    (8) Information on areas that could potentially be 
disproportionately impacted by designation of critical habitat for C. 
hydrophilum var. hydrophilum or C. mollis ssp. mollis;
    (9) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, and in particular, any 
impacts on small entities or families; the reasons why our conclusion 
that the proposed designation of critical habitat will not result in a 
disproportionate effect to small businesses should or should not 
warrant further consideration; and other information that would 
indicate that the designation of critical habitat would or would not 
have any impacts on small entities or families;
    (10) Information on whether the draft economic analysis 
appropriately identifies all costs that could result from the 
designation; and
    (11) Information on 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.
    Pursuant to section 4(b)(2) of the Act, an area may be excluded 
from critical habitat if it is determined that the benefits of such 
exclusion outweigh the benefits of including a particular area as 
critical habitat, unless the failure to designate such area as critical 
habitat will result in the extinction of the species. We may exclude an 
area from designated critical habitat based on economic impacts, 
national security, or any other relevant impact.
    All previous comments and information submitted during the initial 
comment period on the April 11, 2006, proposed rule (71 FR 18456) 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). Our final 
designation of critical habitat will take into consideration all 
comments and any additional information we received during both comment 
periods. On the basis of public comment on this analysis, the critical 
habitat proposal, and the final economic

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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.
    If submitting comments electronically, please also include ``Attn: 
RIN 1018-AU44'' and your name and return address in your e-mail 
message. If you do not receive a confirmation from the system that we 
have received your e-mail message, please contact the person listed 
under FOR FURTHER INFORMATION CONTACT.
    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 names and home addresses, etc., but if you wish us to consider 
withholding this information, you must state this prominently at the 
beginning of your comments. In addition, you must present rationale for 
withholding this information. This rationale must demonstrate that 
disclosure would constitute a clearly unwarranted invasion of privacy. 
Unsupported assertions will not meet this burden. In the absence of 
exceptional, documentable circumstances, this information will be 
released. We will always make submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives of or officials of organizations or businesses, 
available for public inspection in their entirety.
    You may obtain copies of the proposed rule and draft economic 
analysis by mail from the Sacramento Fish and Wildlife Office at the 
address listed under ADDRESSES or by visiting our Web site at http://www.fws.gov/sacramento/.

Background

    We published a proposed rule to designate critical habitat for 
Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. 
mollis on April 11, 2006 (71 FR 18456). Because the proposed critical 
habitat partially overlaps between the two species, the proposed 
critical habitat totaled approximately 2,726 acres (ac) (1,103 hectares 
(ha)) in Solano, Contra Costa, and Napa counties, California. In a June 
14, 2004, settlement agreement, we agreed to submit for publication in 
the Federal Register a final critical habitat designation for these 
plants on or before April 1, 2007.
    Critical habitat is defined in section 3 of the Act as the specific 
areas within the geographical area occupied by a species, at the time 
it is listed in accordance with the Act, on which are found those 
physical or biological features essential to the conservation of the 
species and that may require special management considerations or 
protection, and specific areas outside the geographical area occupied 
by a species at the time it is listed, upon a determination that such 
areas are essential for the conservation of the species. If the 
proposed rule is made final, section 7 of the Act will prohibit 
destruction or adverse modification of 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.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial 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. Based on the April 11, 2006, 
proposed rule to designate critical habitat for Cirsium hydrophilum 
var. hydrophilum and Cordylanthus mollis ssp. mollis (71 FR 18456), we 
have prepared a draft economic analysis of the proposed critical 
habitat designation.
    The current draft economic analysis estimates the foreseeable 
potential economic impacts of the proposed critical habitat designation 
and other conservation-related actions for these species on government 
agencies and private businesses and individuals. The economic analysis 
identifies potential costs will be $1.6 million in undiscounted dollars 
over a 20-year period as a result of the proposed designation of 
critical habitat, including those costs coextensive with listing and 
recovery. Discounted future costs are estimated to be $1.4 million over 
20 years ($95,002 annually) at a 3 percent discount rate, or $1.2 
million over 20 years ($116,722 annually) at a 7 percent discount rate.
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of Cirsium hydrophilum 
var. hydrophilum and Cordylanthus mollis ssp. mollis, 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 C. 
hydrophilum var. hydrophilum and C. mollis ssp. mollis in essential 
habitat areas. The draft 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 (such as 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 draft analysis looks retrospectively at 
costs that have been incurred since the date these species were listed 
as endangered (November 20, 1997; 62 FR 61916) and considers those 
costs that may occur in the 20 years following a designation of 
critical habitat.
    As stated earlier, we solicit data and comments from the public on 
this draft economic analysis, as well as on all aspects of the 
proposal. We may revise the proposal or its supporting documents to 
incorporate or address new information received during the 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 as critical habitat, provided such 
exclusion will not result in the extinction of the species.

Required Determinations--Amended

    In our April 11, 2006 proposed rule (71 FR 18456), we indicated 
that we would be deferring our determination of compliance with several 
statutes and Executive Orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders was available in the draft economic 
analysis. Those data are now available for our use in making these 
determinations. In this notice we are affirming the information 
contained in the proposed rule concerning Executive Order 13132 and 
Executive Order 12988; the Paperwork Reduction Act; and the President's 
memorandum of April 29, 1994, ``Government-to-Government Relations with 
Native American Tribal Governments (59 FR 22951). Based on

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the information made available to us in the draft economic analysis, we 
are amending our Required Determinations, as provided below, concerning 
Executive Order 12866 and the Regulatory Flexibility Act, Executive 
Order 13211, Executive Order 12630, and the Unfunded Mandates Reform 
Act.

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise novel legal and policy issues. 
Based on our draft economic analysis of the proposed designation of 
critical habitat for Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis, costs related to conservation 
activities for C. hydrophilum var. hydrophilum and C. mollis ssp. 
mollis pursuant to sections 4, 7, and 10 of the Act are estimated to be 
approximately $1.6 million (undiscounted) over 20 years. Discounted 
future costs are estimated to be $1.4 million over 20 years ($95,002 
annually) at a 3 percent discount rate, or $1.2 million over 20 years 
($116,722 annually) at a 7 percent discount rate. Therefore, based on 
our draft economic analysis, it is not anticipated that the proposed 
designation of critical habitat for C. hydrophilum var. hydrophilum and 
C. mollis ssp. mollis would result in an annual effect on the economy 
of $100 million or more or affect the economy in a material way. Due to 
the timeline for publication in the Federal Register, the Office of 
Management and Budget (OMB) has not formally reviewed the proposed rule 
or accompanying economic analysis.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, Circular A-4, September 17, 2003). Pursuant to 
Circular A-4, once it has been determined that the Federal regulatory 
action is appropriate, the agency will then need to consider 
alternative regulatory approaches. Since the determination of critical 
habitat is a statutory requirement pursuant to the Act, we must then 
evaluate alternative regulatory approaches, where feasible, when 
promulgating a designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.

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 (5 
U.S.C. 802(2)) (SBREFA), 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 effect 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 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. Based upon our draft 
economic analysis of the proposed designation, we provide our analysis 
for determining whether the proposed rule would result in a significant 
economic impact on a substantial number of small entities. Based on 
comments received, this determination is subject to revision as part of 
the final rulemaking.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. 
mollis would affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities (such as residential 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.
    If this proposed critical habitat designation is made final, 
Federal agencies must consult with us under section 7 of the Act if 
their activities may affect designated critical habitat. Consultations 
to avoid the destruction or adverse modification of critical habitat 
would be incorporated into the existing consultation process.
    In our draft economic analysis of the proposed critical habitat 
designation, we evaluated the potential economic effects on small 
business entities resulting from conservation actions related to the 
listing of Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis 
ssp. mollis and proposed designation of its critical habitat. The small 
business entities that may be affected include a private non-profit 
land conservation organization and a private ranch. The draft economic 
assessment does not project significant impacts to either entity 
because one business has unknown revenue with effects of the proposed 
habitat designation likely being negligible. The other business would 
potentially face annualized costs worth only 0.32 percent of annual 
revenues. As such, we do not anticipate that this proposed regulation 
will result in a significant impact to a substantial number of small 
business entities.
    Please refer to our draft economic analysis of the proposed 
critical habitat designation for a more detailed discussion of 
potential economic impacts.

Executive Order 13211--Energy Supply, Distribution, and Use

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply,

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distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This proposed designation of critical habitat for Cirsium hydrophilum 
var. hydrophilum and Cordylanthus mollis ssp. mollis is considered a 
significant regulatory action under Executive Order 12866 due to it 
potentially raising novel legal and policy issues. OMB has provided 
guidance for implementing this Executive Order that outlines nine 
outcomes that may constitute ``a significant adverse effect'' when 
compared without the regulatory action under consideration. The draft 
economic analysis finds that none of these criteria are relevant to 
this analysis. Thus, based on the information in the draft economic 
analysis, energy-related impacts associated with C. hydrophilum var. 
hydrophilum and C. mollis ssp. mollis conservation activities within 
proposed critical habitat are not expected. As such, the proposed 
designation of critical habitat is not expected to significantly affect 
energy supplies, distribution, or use and a Statement of Energy Effects 
is not required.

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, or 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; Aid to 
Families with Dependent Children 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 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) As discussed in the draft economic analysis of the proposed 
designation of critical habitat for Cirsium hydrophilum var. 
hydrophilum and Cordylanthus mollis ssp. mollis, the impacts on 
nonprofits and small governments are expected to be small. There is no 
record of consultations between the Service and any of these 
governments since C. hydrophilum var. hydrophilum and C. mollis ssp. 
mollis were listed as endangered on November 20, 1997 (62 FR 61916). It 
is likely that small governments involved with developments and 
infrastructure projects will be interested parties or involved with 
projects involving section 7 consultations for C. hydrophilum var. 
hydrophilum and C. mollis ssp. mollis within their jurisdictional 
areas. Any costs associated with this activity are likely to represent 
a small portion of a local government's budget. Consequently, we do not 
believe that the designation of critical habitat for C. hydrophilum 
var. hydrophilum and C. mollis ssp. mollis will significantly or 
uniquely affect these small governmental entities. As such, a Small 
Government Agency Plan is not required.

Executive Order 12630--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 Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis in a takings implications assessment. 
The takings implications assessment concludes that this proposed 
designation of critical habitat for C. hydrophilum var. hydrophilum and 
C. mollis ssp. mollis does not pose significant takings implications.

Author

    The primary authors of this notice are the staff of the Sacramento 
Fish and Wildlife Office.

Authority

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

     Dated: November 13, 2006.
Todd Willens,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E6-19572 Filed 11-17-06; 8:45 am]
BILLING CODE 4310-55-P