[Federal Register Volume 75, Number 95 (Tuesday, May 18, 2010)]
[Proposed Rules]
[Pages 27690-27700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11674]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2009-0054]
[MO 92210-0-0009-B4]
RIN 1018-AW20


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Ambrosia pumila (San Diego ambrosia)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on our August 27, 2009, proposed rule 
to designate critical habitat for Ambrosia pumila (San Diego ambrosia). 
We also announce the availability of the draft economic analysis (DEA), 
revisions to proposed critical habitat, and an amended required 
determinations section of the proposal. We are reopening the comment 
period to allow all interested parties an opportunity to comment 
simultaneously on the proposed critical habitat, the associated DEA, 
the proposed addition of three subunits based on new information, and 
the amended required determinations section. If you submitted comments 
previously, you do not need to resubmit them because we have already 
incorporated them into the public record and will fully consider them 
in preparation of the final rule.

DATES: The comment period for the proposed rule published August 27, 
2009, at 74 FR 44238, is reopened. We will consider comments from all 
interested parties received or postmarked on or before June 17, 2010. 
Please note that if you use the Federal eRulemaking Portal (see 
ADDRESSES section, below), the deadline for submitting an electronic 
comment is 11:59 p.m. Eastern Time on this date. Any comments that we 
receive after the closing date may not be considered in the final 
decision on this action.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on docket number FWS-
R8-ES-2009-0054.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R8-ES-2009-0054; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S. 
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 
Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone (760) 431-
9440; facsimile (760) 431-5901. Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from the proposed rule is 
based on the best scientific data available and will be accurate and as 
effective as possible. Therefore, we request comments or information 
from other concerned government agencies, the scientific community, 
industry, and any other interested party during this reopened comment 
period on the proposed rule to designate critical habitat for Ambrosia 
pumila (San Diego ambrosia) that was published in the Federal Register 
on August 27, 2009 (74 FR 44238), including comments on the addition of 
subunits 3B, 4D, and 5B to the proposed critical habitat; the DEA of 
the revised proposed designation; and the amended required 
determinations provided in this document. We are particularly 
interested in comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Endangered Species Act of 
1973, as amended (Act; 16 U.S.C. 1531 et seq.), including whether there 
are threats to the species from human activity, the degree of which can 
be expected to increase due to the designation, and whether that 
increase in threat outweighs the benefit of designation such that the 
designation is not prudent.
    (2) Specific information that may assist us in clarifying or 
identifying more specific primary constituent elements (PCEs). 
Available information does not identify a consistent pattern in 
specific life-history requirements and habitat types where this species 
is found. For these reasons, the PCEs in the proposed rule are broad 
and based on our assessment of the ecosystem settings in which the 
species has most frequently been detected and our best assessment 
regarding its life-history requisites. We specifically seek information 
that may assist us in defining those physical and biological features 
essential to the conservation of the species which may require special 
management considerations or protection, or in identifying specific 
areas outside the geographical area occupied by the species at the time 
it was listed that may be essential for the conservation of the 
species. In particular, answers to the following questions may be 
helpful to clarify or identify more specific PCEs of A. pumila habitat:
     Does the species reproduce via seed? If so, does the 
species rely on some aspect of its environment to trigger seed 
germination?
     What are the key factors determining why the species 
occupies the particular areas it occupies (but not other areas with the 
same habitat type)? For example, what role does proximity to waterways 
or vernal pools play?
    (3) Specific information on:
     The amount and distribution of areas proposed as critical 
habitat for Ambrosia pumila;
     Areas occupied at the time of listing that contain 
features essential to the conservation of the species and why we should 
include or exclude these areas in the designation; and
     Areas not occupied at the time of listing that are 
essential for the conservation of the species and why.
    (4) How the proposed critical habitat boundaries could be refined 
to more closely circumscribe the areas identified as essential. We also 
seek recommendations to improve the methodology used to delineate the 
areas proposed as critical habitat; we especially seek comments 
regarding how we might more accurately determine how much area beyond 
the surface covered by above-ground stems that we need to include for 
each occurrence of Ambrosia pumila in the critical habitat designation 
to ensure that habitat areas include unseen underground portions 
(rhizomes) of A. pumila plants (see step number 4 in the Methods 
section of the proposed critical habitat rule (74 FR 44246, August 27, 
2009)).

[[Page 27691]]

    (5) Land use designations and current or planned activities in the 
areas proposed as critical habitat and their possible impacts on the 
species and the proposed critical habitat.
    (6) Any special management considerations or protections that the 
physical and biological features essential to the conservation of 
Ambrosia pumila may require.
    (7) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    (8) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation. We are particularly interested in any impacts on small 
entities, and the benefits of including or excluding areas that exhibit 
these impacts.
    (9) Whether the benefit of an exclusion of any particular area 
outweighs the benefit of inclusion under section 4(b)(2) of the Act, in 
particular for those areas covered by the Western Riverside County 
Multiple Species Habitat Conservation Plan (Western Riverside County 
MSHCP), and Subarea Plans (City of San Diego and County of San Diego) 
under the San Diego Multiple Species Conservation Program (MSCP), and 
specific reasons why.
    (10) Information on the extent to which the description of 
potential economic impacts in the DEA is complete and accurate.
    If you submitted comments or information on the proposed rule (74 
FR 44238) during the initial comment period from August 27, 2009, to 
October 26, 2009, please do not resubmit them. These comments are 
included in the public record for this rulemaking and we will fully 
consider them in the preparation of our final determination. Our final 
determination concerning the critical habitat for Ambrosia pumila will 
take into consideration all written comments and any additional 
information we receive during both comment periods. On the basis of 
public comments, we may, during the development of our final 
determination, find that areas within the proposed critical habitat 
designation do not meet the definition of critical habitat, that some 
modifications to the described boundaries are appropriate, or that 
areas may or may not be appropriate for exclusion under section 4(b)(2) 
of the Act.
    You may submit your comments and materials concerning our proposed 
rule, the associated DEA, the additional subunits we are proposing in 
this document, and our amended required determinations by one of the 
methods listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
submission--including any personal identifying information--will be 
posted on the website. If your submission is made via a hard copy that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so. We will 
post all hard copy submissions on http://www.regulations.gov. Please 
include sufficient information with your comments to allow us to verify 
any scientific or commercial information you include.
    Comments and materials we receive, as well as supporting 
documentation used to prepare this notice, will be available for public 
inspection at http://www.regulations.gov, or by appointment, during 
normal business hours, at the U.S. Fish and Wildlife Service, Carlsbad 
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). You may 
obtain copies of the original proposed designation of critical habitat 
(74 FR 44238) and the DEA on the Internet at http://www.regulations.gov 
at Docket No. FWS-R8-ES-2009-0054, or by mail from the Carlsbad Fish 
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the proposed designation of critical habitat for Ambrosia pumila in 
this notice. For more information on previous Federal actions 
concerning A. pumila, refer to the 2009 proposed designation of 
critical habitat published in the Federal Register on August 27, 2009 
(74 FR 44238), or contact the Carlsbad Fish and Wildlife Office (see 
FOR FURTHER INFORMATION CONTACT).
    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If we finalize the 
proposed critical habitat designation, Federal agencies must consult 
with us under section 7 of the Act if any activity they fund, 
authorize, or carry out may affect designated critical habitat.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate critical 
habitat based on the best scientific and commercial data available, 
after taking into consideration the economic impact, impact on national 
security, and any other relevant impact of specifying any particular 
area as critical habitat.
    We prepared a DEA (Industrial Economics, Inc. 2010) that identifies 
and analyzes the potential, probable economic impacts associated with 
the proposed designation of critical habitat. Additionally, the DEA 
looks retrospectively at costs incurred since the July 2, 2002 (67 FR 
44372), listing of A. pumila as an endangered species. The DEA 
quantifies the probable economic impacts of all potential conservation 
efforts for A. pumila; some of these costs will likely be incurred 
regardless of whether we finalize the critical habitat rule, as they 
are attributable to the listing of the species under the Act. The 
economic impact of the proposed critical habitat designation is 
analyzed by comparing a ``with critical habitat'' scenario with a 
``without critical habitat'' scenario. The ``without critical habitat'' 
scenario represents the baseline for the economic analysis and 
considers protections already in place for the species (for example, 
protections resulting from the Federal listing, and protections 
provided by other Federal, State, and local regulations). The baseline 
costs, therefore, represent the costs incurred regardless of whether 
critical habitat is designated. The ``with critical habitat'' scenario 
describes the incremental impacts associated specifically with the 
designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts are those not expected to 
occur absent the designation of critical habitat for A. pumila. In 
other words, the incremental costs are those attributable solely to the 
designation of critical habitat above and beyond the baseline costs; 
these are the costs we may consider in the final designation of 
critical habitat relative to areas that may be excluded under section 
4(b)(2) of the Act. The analysis looks retrospectively at baseline 
impacts incurred since the species was listed, and forecasts both 
baseline and incremental impacts likely to occur if we finalize the 
proposed critical habitat.
    The DEA (made available with the publication of this document and 
referred to throughout this document

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unless otherwise noted) estimates the foreseeable economic impacts of 
the proposed critical habitat designation for Ambrosia pumila. The 
economic analysis identifies potential incremental costs as a result of 
the proposed critical habitat designation, which are those costs 
attributed to critical habitat over and above those baseline costs 
coextensive with listing. It also discusses potential benefits that may 
be derived from the designation in a qualitative manner.
    Baseline economic impacts are those that result from listing and 
other conservation efforts for Ambrosia pumila. Future baseline impacts 
in the areas proposed as critical habitat are entirely attributed to 
development activities; no future baseline impacts were attributed to 
transportation construction and maintenance. Total future baseline 
impacts are estimated to be $20.6 million ($1.9 million annualized 
using a 7 percent discount rate over the next 20 years (2010-2029)) in 
areas proposed as critical habitat (Industrial Economics, Inc. 2010, p. 
ES-6).
    All incremental impacts attributed to the proposed critical habitat 
designation are expected to be related to development; no future 
incremental impacts were attributed to transportation construction and 
maintenance. The DEA estimates total potential incremental economic 
impacts in areas proposed as critical habitat over the next 20 years 
(2010-2029) to be $118,750 ($11,203 annualized using a 7 percent 
discount rate) (Industrial Economics, Inc. 2010, p. ES-7).
    In this notice, we propose to add 338 acres (ac) (137 hectares 
(ha)) (Subunits 3B, 4D, and 5B) to the 802 ac (324 ha) that we proposed 
as critical habitat on August 27, 2009 (74 FR 44238), bringing the 
total to 1,140 ac (461 ha) of proposed critical habitat for Ambrosia 
pumila (see Changes to Proposed Critical Habitat below). The additional 
acreage in Subunits 3B, 4D, and 5B have not been assessed in the DEA 
announced in this notice. However, all incremental costs estimated in 
the DEA for all properties within the originally proposed critical 
habitat are attributed to the minor administrative costs of conducting 
adverse modification analyses during jeopardy analyses ($448 annualized 
using a 7 percent discount rate per property). Because the three newly 
proposed subunits are all occupied by the species, we only anticipate 
minor incremental costs associated with adverse modification analyses 
conducted during jeopardy analyses. For this reason, we do not expect 
the incremental costs for the newly proposed areas to exceed those 
estimated for properties included in the DEA. The final economic 
analysis will reflect the baseline and incremental economic impacts of 
critical habitat designation for the entire 1,140 ac (461 ha).
    The DEA 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 (for 
example, lost economic opportunities associated with restrictions on 
land use). The DEA 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 government agencies, private businesses, and 
individuals. The DEA describes economic impacts of Ambrosia pumila 
conservation efforts associated with residential and commercial 
development, and transportation-related construction and maintenance. 
The DEA also analyzes the economic impact on small entities and the 
energy industry. Decision-makers can use this information to assess 
whether the effects of the designation might unduly burden a particular 
group or economic sector (see Regulatory Flexibility Act (5 U.S.C. 601 
et seq.).

Changes to Proposed Critical Habitat

    In this document, we are proposing additional subunits to Ambrosia 
pumila critical habitat in Units 3, 4, and 5, which were initially 
identified and described in the proposed rule that was published in the 
Federal Register on August 27, 2009 (74 FR 44238). We obtained data 
after the publication of the proposed rule informing us of the 
existence of one occurrence not previously known to us (Subunit 3B), 
and confirming the continued existence of an occurrence thought to be 
extirpated (Subunit 5B). Based on a public comment received during the 
public comment period, we re-evaluated all available data for A. pumila 
occurrences throughout the range of the species. As a result of our re-
evaluation, we determined an additional area in San Diego County 
(Subunit 4D) meets the definition of critical habitat for A. pumila 
because, although it is small in size (approximately 20 ac (8 ha)), it 
is occupied, and otherwise meets the definition of critical habitat and 
the criteria for inclusion in critical habitat as set forth in our 
proposal (see Subunit 4D: Gird Road/Monserate Hill below). The purpose 
of the revisions described below is to better delineate the areas that 
meet the definition of critical habitat for A. pumila. These three 
additional subunits were within the geographic range occupied by the 
species at the time it was listed and contain the physical and 
biological features essential to the conservation of the species. 
Subunits 3B, 4D, and 5B were not included in the proposed rule (74 FR 
44238, August 27, 2009); therefore, this document includes the full 
descriptions and maps for these subunits. As a result of these proposed 
additions, the overall area proposed as critical habitat for A. pumila 
is 1,140 ac (461 ha), an increase of 338 ac (137 ha) from the 802 ac 
(324 ha) that we proposed as critical habitat on August 27, 2009 (74 FR 
44238).

Subunit 3B: Murrieta Creek

    We were not aware of the Murrieta Creek occurrence (Subunit 3B) of 
Ambrosia pumila when we developed the proposed rule to designate 
critical habitat for the species (74 FR 44238; August 27, 2009); 
therefore, this occurrence was not included in the proposed rule. Based 
on new information obtained from the California Natural Diversity 
Database (CNDDB 2010), we are proposing Subunit 3B as critical habitat 
because this area is within the geographical area occupied by the 
species at the time of listing, contains the physical and biological 
features that are essential to the conservation of the species, and 
meets our criteria for inclusion in critical habitat. We have concluded 
that this area was occupied at the time the species was listed because 
individuals of species with a clonal growth habit like A. pumila are 
usually long-lived (Watkinson and White 1985, pp. 44-45; Tanner 2001, 
p. 1980). To our knowledge, the area had not been surveyed for A. 
pumila previously, and we have no reason to believe the plant was 
imported or had dispersed into these areas from other areas after A. 
pumila was listed. Occurrences identified since listing were likely in 
existence for many years and were only recently detected due to 
increased awareness of this species. We mapped the boundary of this 
subunit using our current mapping methodology as described in the 
Methods section of the proposed rule (74 FR 44245-44247, August 27, 
2009). Unit 3 as described in the proposed rule (74 FR 44248-44249) is 
now Subunit 3A.
    Subunit 3B is located in the City of Temecula in southwestern 
Riverside County, California. This subunit is near the western end of 
1\st\ Street, just west of Murrieta Creek. Subunit 3B consists

[[Page 27693]]

of approximately 44 ac (18 ha) of privately owned land. This subunit 
meets the definition of critical habitat for this species because of 
its contribution to the genetic diversity of the species (McGlaughlin 
and Friar 2007, p. 329; see ``Genetics'' section of the proposed rule 
(74 FR 44241)). Subunit 3B contains physical and biological features 
that are essential to the conservation of Ambrosia pumila, including 
sandy loam or clay soils located on an upper terrace of a water source, 
which provide nutrients, moisture, and periodic flooding presumed 
necessary for the plant's persistence (PCE 1), and nonnative grassland 
habitat type, which allows adequate sunlight and airflow for A. pumila 
(PCE 2). The physical and biological features essential to the 
conservation of the species in this subunit may require special 
management considerations or protection to address threats from 
nonnative plant species in situations where nonnative species are out-
competing A. pumila for resources, from human foot and vehicle traffic 
that may occur in the area, and from development. Please see the 
``Special Management Considerations or Protection'' section of the 
proposed rule (74 FR 44244-44245, August 27, 2009) for a discussion of 
the threats to A. pumila habitat and potential management 
considerations.

Subunit 4D: Gird Road/Monserate Hill

    We re-evaluated all information available for Ambrosia pumila 
occurrences and determined that the Gird Road/Monserate Hill area 
(Subunit 4D) meets the definition of critical habitat, despite its 
small size relative to other proposed units. We are proposing Subunit 
4D as critical habitat because this area is within the geographical 
area occupied by the species at the time of listing, contains the 
physical and biological features essential to the conservation of the 
species, and meets the criteria for inclusion in critical habitat. We 
mapped the boundary of this subunit using our current mapping 
methodology as described in the Methods section of the proposed rule 
(74 FR 44245-44247, August 27, 2009).
    Subunit 4D is located in the Fallbrook area of northern San Diego 
County, California. This subunit is adjacent to the north side of State 
Route 76, almost the same distance from both Gird Road (to the west) 
and Monserate Hill Road (to the east). Subunit 4D consists of 
approximately 20 ac (8 ha) of privately owned land and 1 ac (0.5 ha) of 
State-owned land for a total of approximately 21 ac (9 ha). This 
subunit meets the definition of critical habitat for the species 
because of its contribution to the genetic diversity of the species 
(McGlaughlin and Friar 2007, p. 329; see ``Genetics'' section of the 
proposed rule (74 FR 44241)). Subunit 4D contains physical and 
biological features that are essential to the conservation of Ambrosia 
pumila, including sandy loam or clay soils located on an upper terrace 
of a water source, which provide nutrients, moisture, and periodic 
flooding presumed necessary for the plant's persistence (PCE 1), and 
nonnative grassland habitat type, which allows adequate sunlight and 
airflow for A. pumila (PCE 2). The physical and biological features 
essential to the conservation of the species in this subunit may 
require special management considerations or protection to address 
threats from nonnative plant species in situations where nonnative 
species are out-competing A. pumila for resources, from foot and 
vehicle traffic in the area, and from development and road maintenance. 
Please see the ``Special Management Considerations or Protection'' 
section of the proposed rule (74 FR 44244-44245, August 27, 2009) for a 
discussion of the threats to A. pumila habitat and potential management 
considerations.

Subunit 5B: Lake Hodges West - Crosby Estates

    We were unaware that the Crosby Estates occurrence (Subunit 5B) of 
Ambrosia pumila is extant when we developed the proposed rule to 
designate critical habitat for the species (74 FR 44238, August 27, 
2009); therefore, this area was not included in the proposed rule. This 
occurrence was extant at the time of listing, but was thought to have 
been extirpated. We have since obtained information (The Crosby at 
Rancho Santa Fe Habitat Management Plan Annual Report 2008 (Rincon 
Consultants, Inc. 2008)) confirming this occurrence is extant and 
viable. Based on this information, we are proposing Subunit 5B as 
critical habitat because it is currently occupied, is within the 
geographical area occupied by the species at the time of listing, 
contains the physical and biological features that are essential to the 
conservation of the species, and meets the criteria for inclusion in 
critical habitat. We mapped the boundary of this subunit using our 
current mapping methodology as described in the Methods section of the 
proposed rule (74 FR 44245-44247, August 27, 2009). Unit 5 as described 
in the proposed rule (74 FR 44249-44250) is now Subunit 5A.
    Subunit 5B is located just west of Lake Hodges in the western 
portion of central San Diego County, California. This subunit is on and 
adjacent to the west side of the Crosby National Golf Club. Subunit 5B 
consists of approximately 116 ac (47 ha) of privately owned land, 2 ac 
(1 ha) of local government owned land, and 155 ac (63 ha) of County-
owned land for a total of approximately 273 ac (111 ha). This subunit 
is meets the definition of critical habitat for this species because of 
its contribution to the genetic diversity of the species (McGlaughlin 
and Friar 2007, p. 329; see ``Genetics'' section of the proposed rule 
(74 FR 44241)). Subunit 5B contains physical and biological features 
that are essential to the conservation of Ambrosia pumila, including 
sandy loam or clay soils located on an upper terrace of a water source, 
which provide nutrients, moisture, and periodic flooding presumed 
necessary for the plant's persistence (PCE 1), and nonnative grassland 
habitat type, which allows adequate sunlight and airflow for A. pumila 
(PCE 2). The physical and biological features essential to the 
conservation of the species in this subunit, including features within 
the approximately 155 ac (63 ha) portion of Subunit 5B that is 
conserved (57 percent), may require special management considerations 
or protection to address threats from nonnative plant species in 
situations where nonnative species are out-competing A. pumila for 
resources, from human encroachment that may occur in the area, and from 
golf course maintenance. Please see the ``Special Management 
Considerations or Protection'' section of the proposed rule (74 FR 
44244-44245, August 27, 2009) for a discussion of the threats to A. 
pumila habitat and potential management considerations.

Additional Areas Currently Considered For Exclusion Under Section 
4(b)(2) of the Act -Western Riverside County Multiple Species Habitat 
Conservation Plan (Western Riverside County MSHCP)

    Under section 4(b)(2) of the Act, the proposed rule discusses 
approximately 263 ac (106 ha) proposed as critical habitat in Unit 1 
(Subunits 1A and 1B), Unit 2, and Subunit 3A (formerly Unit 3 in the 
proposed rule) that we are considering whether or not to exercise our 
discretion to exclude from critical habitat designation. We are also 
considering exclusion of approximately 44 ac (18 ha) of Ambrosia pumila

[[Page 27694]]

habitat on permittee-owned or controlled lands in Subunit 3B that meet 
the definition of critical habitat for A. pumila within the Western 
Riverside County MSHCP plan area. We are considering exercising our 
discretion to exclude this subunit because the implementation of the 
Western Riverside County MSHCP addresses threats to A. pumila and 
features essential to its conservation through a regional planning 
effort and outlines species-specific objectives and criteria for the 
conservation of A. pumila and its habitat. No land in Subunit 3B is 
currently conserved by the MSHCP; however, all of the subunit falls 
within the Criteria Area where conservation under the habitat 
conservation plan (HCP) may occur (any projects in this area should be 
implemented through the Joint Project Review Process to ensure that the 
requirements of the MSHCP permit and the Implementing Agreement are 
properly met (Western Riverside County MSHCP, Volume 1, section 6.6.2 
in Dudek 2003, p. 6-82)). Additionally, all 44 ac (18 ha) fall within 
our Conceptual Reserve Design where conservation is likely to occur. 
Please see ``Exclusions Based on Habitat Conservation Plans (HCPs)'' in 
the proposed rule (74 FR 44253-44257, August 27, 2009) for a more 
detailed discussion of the protections afforded to A. pumila by the 
Western Riverside County MSHCP. We will analyze the benefits of 
inclusion in and exclusion from critical habitat of this area under 
section 4(b)(2) of the Act in the final rule.

Additional Areas Currently Considered For Exclusion Under Section 
4(b)(2) of the Act -San Diego Multiple Species Conservation Program 
(MSCP)--City and County of San Diego Subarea Plans

    Under section 4(b)(2) of the Act, the proposed rule discusses 278 
ac (113 ha) proposed as critical habitat in Subunit 5A (formerly Unit 5 
in the proposed rule), Unit 6, and Subunits 7A, 7B, and 7C that we are 
considering exercising our discretion to exclude from critical habitat 
designation. We are also considering excluding approximately 273 ac 
(111 ha) of non-Federal lands in Subunit 5B that meet the definition of 
critical habitat for Ambrosia pumila within the County of San Diego 
MSCP Subarea Plan under section 4(b)(2) of the Act. Implementation of 
the County of San Diego MSCP Subarea Plan helps to address threats to 
the species and the features essential to its conservation through a 
regional planning effort rather than through a project-by-project 
approach, and outlines species-specific objectives and criteria for the 
conservation of A. pumila and its habitat. Approximately 184 ac (74 ha) 
of Subunit 5B is within the MSCP Multi-Habitat Planning Area. Please 
see ``Exclusions Based on Habitat Conservation Plans (HCPs)'' in the 
proposed rule (74 FR 44253-44257, August 27, 2009) for a more detailed 
discussion of the protections afforded to A. pumila by the County of 
San Diego MSCP Subarea Plan. We will analyze the benefits of inclusion 
in and exclusion from critical habitat of this area under section 
4(b)(2) of the Act.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, all aspects of the proposed critical habitat rule 
(including the additions of Subunits 3B, 4D, and 5B to proposed 
critical habitat, and the additional areas considered for exclusion 
from critical habitat designation), and our amended required 
determinations. The final rule may differ from the proposed rule based 
on information we receive during the public comment periods. 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 the exclusion will 
not result in the extinction of the species.

Required Determinations---Amended

    In our proposed rule published in the Federal Register on August 
27, 2009 (74 FR 44238), we indicated that we would defer 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 became 
available in the DEA. We have now made use of the DEA to make these 
determinations. In this document, we affirm the information in our 
proposed rule concerning Executive Order (E.O.) 12866 (Regulatory 
Planning and Review), E.O. 13132 (Federalism), E.O. 12988 (Civil 
Justice Reform), E.O. 12630 (Takings), the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.), the National Environmental Policy Act (42 U.S.C. 
4321 et seq.), and the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951). Based on the information in the DEA, we 
are amending our required determinations concerning the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211 (Energy Supply, 
Distribution, or Use), and the Unfunded Mandates Reform Act (2 U.S.C. 
1501 et seq.).

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 effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions), 
as described below. 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 on our DEA 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 we receive, we may revise this determination as part of a 
final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
Ambrosia pumila would affect a substantial number of small entities, we 
consider the number of small entities affected within particular types 
of economic activities, such as residential and commercial development. 
In order to determine whether it is appropriate

[[Page 27695]]

for our agency to certify that this rule would not have a significant 
economic impact on a substantial number of small entities, we 
considered each industry or category individually. In estimating the 
numbers of small entities potentially affected, we also considered 
whether their activities have any Federal involvement. Critical habitat 
designation will not affect activities that do not have any Federal 
involvement; designation of critical habitat affects activities 
conducted, funded, permitted, or authorized by Federal agencies.
    If we finalize the proposed critical habitat designation, Federal 
agencies must consult with us under section 7 of the Act if their 
activities may affect designated critical habitat. In areas where 
Ambrosia pumila is present, consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
existing consultation process because A. pumila is listed as an 
endangered species under the Act.
    Appendix A.1 of the DEA evaluates the potential economic effects on 
small business entities resulting from implementation of conservation 
actions related to the proposed critical habitat for Ambrosia pumila. 
The analysis is based on the estimated incremental impacts associated 
with the proposed rule as described in sections 1 through 3 of the DEA. 
The SBREFA analysis evaluates the potential for economic impacts 
related to project modifications on privately held developable land 
(Industrial Economics, Inc. p. A-3). The incremental impacts considered 
for the SBREFA analysis are the impacts that will affect development 
companies considered to be small businesses. The DEA indicates that 3 
out of a total of a possible 9,222 land development companies in the 
counties where critical habitat is proposed would be affected by the 
designation of critical habitat (Industrial Economics, Inc. 2010, 
Appendix A, ES-8). Due to the designation of critical habitat the 
annual incremental impacts to these 3 small businesses will be 
approximately $448 each at a 7 percent discount rate (Industrial 
Economics, Inc. 2010, Appendix A, 3-14). We do not believe these 3 
small businesses represent a substantial number of the total number of 
development companies or that an annual impact of $448 per company is a 
significant economic impact. Therefore, we do not find that the 
designation of critical habitat for A. pumila will have a significant 
economic impact on a substantial number of small entities.
    In summary, we considered whether the proposed designation would 
result in a significant economic impact on a substantial number of 
small entities. For the above reasons and based on currently available 
information, we certify that, if promulgated, the proposed critical 
habitat for Ambrosia pumila would not have a significant economic 
impact on a substantial number of small entities. Therefore, an initial 
regulatory flexibility analysis is not required

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

    On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply, distribution, and use. 
Executive Order 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. The OMB's guidance for 
implementing this Executive Order outlines nine outcomes that may 
constitute ``a significant adverse effect'' when compared to no 
regulatory action. As discussed in Appendix A, the DEA finds that none 
of these criteria are relevant to this analysis. The DEA concludes that 
no incremental impacts are forecast associated specifically with this 
rulemaking on the production, distribution, or use of energy. 
Therefore, designation of critical habitat for A. pumila is not 
expected to lead to any adverse outcomes (such as a reduction in 
electricity production or an increase in the cost of energy production 
or distribution). 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, 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. First, it excludes ``a condition of federal 
assistance.'' Second, 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. ``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.''
    Critical habitat designation 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. Designation of critical habitat may indirectly impact non-
Federal entities that receive Federal funding, assistance, or permits, 
or that otherwise require approval or authorization from a Federal 
agency. 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 DEA of the proposed designation of critical 
habitat for Ambrosia pumila, we do not believe that this rule would 
significantly or uniquely affect small governments because it would not 
produce a Federal mandate of $100 million or greater in any year; that 
is, it is not a ``significant regulatory action'' under the Unfunded 
Mandates Reform Act. The DEA concludes incremental impacts may occur 
due to administrative costs of section 7 consultations for development 
activities; however, these are not expected to affect small 
governments. Incremental impacts stemming from species conservation and 
development-control activities associated with this critical habitat 
designation are not expected to significantly or uniquely affect small 
government entities. As such, a Small Government Agency Plan is not 
required.

References Cited

    A complete list of all references we cited in the proposed rule and 
in this document is available on the Internet at

[[Page 27696]]

http://www.regulations.gov or by contacting the Carlsbad Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Author(s)

    The primary authors of this notice are the staff members of the 
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Critical habitat for Ambrosia pumila (San Diego ambrosia), which 
was proposed for addition to Sec.  17.96(a) on August 27, 2009, at 74 
FR 44237, is proposed to be amended by:
    a. Removing the index map at paragraph (5) and adding in its place 
a new index map as set forth below;
    b. Revising paragraph (7)(ii);
    c. Revising paragraph (8); and
    d. Revising paragraph (9), to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
Family Asteraceae: Ambrosia pumila (San Diego ambrosia)
* * * * *
    (5) * * *
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[GRAPHIC] [TIFF OMITTED] TP18MY10.051


[[Page 27698]]


    (7) * * *
    (ii) Note: Map of Units 2 and 3, with Subunits 3A and 3B, of 
critical habitat for Ambrosia pumila (San Diego ambrosia), Riverside 
County, California, follows:
[GRAPHIC] [TIFF OMITTED] TP18MY10.052


[[Page 27699]]


    (8) Unit 4, Subunits 4A, 4B, 4C, and 4D, San Diego County, 
California.
    (i) [Reserved for textual description of unit.]
    (ii) Note: Map of Unit 4, with Subunits 4A, 4B, 4C, and 4D, of 
critical habitat for Ambrosia pumila (San Diego ambrosia), San Diego 
County, California, follows:
[GRAPHIC] [TIFF OMITTED] TP18MY10.053


[[Page 27700]]


    (9) Unit 5, Subunits 5A and 5B, San Diego County, California.
    (i) [Reserved for textual description of unit.]
    (ii) Note: Map of Unit 5, with Subunits 5A and 5B, of critical 
habitat for Ambrosia pumila (San Diego ambrosia), San Diego County, 
California, follows:
[GRAPHIC] [TIFF OMITTED] TP18MY10.054

* * * * *

    Dated: May 7, 2010
Will Shafroth,
Acting Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-11674 Filed 5-17-10; 8:45 am]
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