[Federal Register Volume 76, Number 188 (Wednesday, September 28, 2011)]
[Proposed Rules]
[Pages 59990-59996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24608]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2010-0076; MO 92210-0-0009]
RIN 1018-AX18


Endangered and Threatened Wildlife and Plants; Revised Endangered 
Status, Revised Critical Habitat Designation, and Taxonomic Revision 
for Monardella linoides ssp. viminea

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 the June 9, 2011, proposed rule to 
revise the listing and critical habitat designation for Monardella 
viminea (willowy monardella) under the Endangered Species Act of 1973, 
as amended (Act) (76 FR 33880). We also announce the availability of a 
draft economic analysis (DEA) of the proposed revised designation of 
critical habitat for Monardella viminea and an amended required 
determinations section of the proposal. In the proposed rule that 
published June 9, 2011 (76 FR 33880), we recognized the taxonomic split 
of the listed entity, Monardella linoides ssp. viminea, into two 
distinct full species: Monardella viminea (willowy monardella) and 
Monardella stoneana (Jennifer's monardella). We proposed to retain the 
listing status of Monardella viminea as endangered; we proposed to 
remove protections afforded by the Act from those individuals now 
recognized as a separate species, Monardella stoneana, because the new 
species does not meet the definition of endangered or threatened under 
the Act; and we proposed revised critical habitat for Monardella 
viminea. We are reopening the comment period to allow all interested 
parties an opportunity to comment simultaneously on the proposed 
listing determinations and critical habitat designation, the associated 
DEA, and the amended required determinations section. Comments 
previously submitted need not be resubmitted, as they will be fully 
considered in preparation of the final rule.

DATES: We will consider comments received on or before October 28, 
2011. Comments must be received by 11:59 p.m. Eastern Time on the 
closing 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 written comments by one of the following 
methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R8-ES-2010-0076, which 
is the docket number for this rulemaking.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2010-0076; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; 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 will accept written comments and information during this 
reopened comment period on our proposed revised designation of critical 
habitat for Monardella viminea published in the Federal Register on 
June 9, 2011 (76 FR 33880), our DEA of the proposed designation, and 
the amended required determinations provided in this document. We will 
consider comments and information from all interested parties. We are 
particularly interested in comments and information concerning:
    (1) Specific information regarding our recognition of Monardella 
viminea and M. stoneana at the species rank, on the segregation of 
ranges of M. stoneana and M. viminea, and on our proposals that M. 
viminea should remain listed as endangered and that M. stoneana does 
not warrant listing under the Act (16 U.S.C. 1531 et seq.).
    (2) Any available information on known or suspected threats and 
proposed or ongoing development projects with the potential to threaten 
either Monardella viminea or M. stoneana.
    (3) The effects of potential threat factors to both Monardella 
viminea and M. stoneana that are the basis for a listing determination 
under section 4(a) of the Act, which are:
    (a) The present or threatened destruction, modification, or 
curtailment of the species' habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    (4) Specific information regarding impacts of fire on Monardella 
viminea or M. stoneana individuals or their habitat.
    (5) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act for Monardella viminea 
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 threats outweighs the benefit of 
designation such that the designation of critical habitat may not be 
prudent.
    (6) Specific information on:

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    (a) The amount and distribution of Monardella viminea or M. 
stoneana habitat,
    (b) What areas that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of these species, should be included in the designation 
and why;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change, and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (7) Information that may assist us in identifying or clarifying the 
physical and biological features essential to the conservation of 
Monardella viminea.
    (8) How the proposed critical habitat boundaries could be refined 
to more closely or accurately circumscribe the areas identified as 
containing the physical and biological features essential to the 
conservation of Monardella viminea.
    (9) How we could improve or modify our design of critical habitat 
units, particularly our criteria for width of essential habitat for 
Monardella viminea. We especially request information on West Sycamore 
Canyon and Unit 2 (where two groups of M. viminea were not included 
under the criteria used to draw proposed critical habitat boundaries) 
and areas such as Elanus, Lopez, and Rose Canyons that we have 
identified as not meeting the definition of critical habitat.
    (10) Information on pollinators of Monardella viminea or M. 
stoneana that may be essential for the conservation of these species, 
including information on areas that provide habitat for these 
pollinators.
    (11) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (12) Information on the projected and reasonably likely impacts of 
climate change on the two species and the proposed critical habitat.
    (13) Information on any quantifiable economic costs or benefits of 
the proposed designation of critical habitat.
    (14) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, any impacts on small entities or families, 
and the benefits of including or excluding areas that exhibit these 
impacts.
    (15) Whether any specific areas we are proposing for critical 
habitat designation for Monardella viminea should be considered for 
exclusion under section 4(b)(2) of the Act, and whether the benefits of 
potentially excluding any specific area outweigh the benefits of 
including that area under section 4(b)(2) of the Act, in particular for 
those lands covered by the County of San Diego Subarea Plan or the City 
of San Diego Subarea Plan under the Multiple Species Conservation 
Program (MSCP). Information on obtaining copies of these plans will be 
provided by the U.S. Fish and Wildlife Service, Carlsbad Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
    (16) 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.
    (17) Information on the extent to which the description of 
potential economic impacts in the DEA is complete and accurate.
    (18) Whether the DEA appropriately identifies all costs and 
benefits that could result from the designation.
    If you submitted comments or information on the proposed rule (76 
FR 33880) during the initial comment period from June 9, 2011, to 
August 8, 2011, please do not resubmit them. We will incorporate them 
into the public record as part of this comment period, and we will 
fully consider them in the preparation of our final determination. Our 
final determination concerning listing Monardella viminea as an 
endangered species, delisting the portion of the previously listed 
entity (Monardella linoides ssp. viminea) now considered to be M. 
stoneana, and designating critical habitat for M. viminea will take 
into consideration all written comments and any additional information 
we receive during the comment period. On the basis of public comments, 
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.
    You may submit your comments and materials concerning this proposed 
rule or DEA by one of the methods listed in the ADDRESSES section. We 
request that you submit information ONLY by one of the methods listed 
in the ADDRESSES section. If you submit a comment via http://www.regulations.gov, your entire comment--including any personal 
identifying information--will be posted on the Web site. We will post 
all hardcopy comments on http://www.regulations.gov as well. If you 
submit a hard copy comment 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.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the proposed rule and DEA, will be 
available for public inspection on http://www.regulations.gov at Docket 
No. FWS-R8-ES-2010-0076, 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 proposed listing and proposed critical habitat (76 FR 
33880) and the DEA on the Internet at http://www.regulations.gov at 
Docket No. FWS-R8-ES-2010-0076, or by mail from the Carlsbad Fish and 
Wildlife Office (see the FOR FURTHER INFORMATION CONTACT).

Background

    In the proposed rule (76 FR 33880; June 9, 2011), we recognized the 
taxonomic split of Monardella linoides ssp. viminea into two distinct 
taxa: Monardella viminea (willowy monardella) and Monardella stoneana 
(Jennifer's monardella); we proposed the retention of M. viminea as 
endangered; proposed critical habitat for M. viminea; and concluded 
that M. stoneana does not meet the definition of endangered or 
threatened. We did not include an analysis of whether M. stoneana 
warrants listing based on it being threatened or endangered in a 
significant portion of its range (SPR) in the June 9, 2011 Federal 
Register notice. We have included that analysis here. Apart from the 
SPR analysis, we discuss only those topics directly relevant to the 
designation of critical habitat for M. viminea in this document. For 
more information on the taxonomy, nomenclature, biology, and ecology of 
M. viminea, please refer to the listing rule for M. linoides ssp. 
viminea published in the Federal Register on October 13, 1998 (63 FR 
54938), our critical habitat designation published in the Federal 
Register on November 8, 2006 (71 FR 65662), or our proposed critical 
habitat designation published in the Federal Register on June 9, 2011 
(76 FR 33880), or contact the Carlsbad Fish and Wildlife Office (see 
FOR FURTHER INFORMATION CONTACT).

Analysis of Significant Portion of the Range of Monardella stoneana

    The Act defines ``endangered species'' as any species which is ``in 
danger of

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extinction throughout all or a significant portion of its range,'' and 
``threatened species'' as any species which is ``likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range.'' The definition of ``species'' is 
also relevant to this discussion. The Act defines the term ``species'' 
as follows: ``The term `species' includes any subspecies of fish or 
wildlife or plants, and any distinct population segment [DPS] of any 
species of vertebrate fish or wildlife which interbreeds when mature.'' 
The phrase ``significant portion of its range'' (SPR) is not defined by 
the statute, and we have never addressed in our regulations: (1) The 
consequences of a determination that a species is either endangered or 
likely to become so throughout a significant portion of its range, but 
not throughout all of its range; or (2) what qualifies a portion of a 
range as ``significant.'' In our proposed rule (76 FR 33880; June 9, 
2011), we proposed to list Monardella viminea throughout its entire 
range; therefore, a discussion of significant portion of its range was 
unnecessary.
    Two recent district court decisions have addressed whether the SPR 
language allows the Service to list or protect less than all members of 
a defined ``species'': Defenders of Wildlife v. Salazar, 729 F. Supp. 
2d 1207 (D. Mont. 2010), concerning the Service's delisting of the 
Northern Rocky Mountain gray wolf (74 FR 15123, Apr. 12, 2009); and 
WildEarth Guardians v. Salazar, 2010 U.S. Dist. LEXIS 105253 (D. Ariz. 
Sept. 30, 2010), concerning the Service's 2008 finding on a petition to 
list the Gunnison's prairie dog (73 FR 6660, Feb. 5, 2008). The Service 
had asserted in both of these determinations that it had authority, in 
effect, to protect only some members of a ``species,'' as defined by 
the Act (i.e., species, subspecies, or DPS), under the Act. Both courts 
ruled that the determinations were arbitrary and capricious on the 
grounds that this approach violated the plain and unambiguous language 
of the Act. The courts concluded that reading the SPR language to allow 
protecting only a portion of a species' range is inconsistent with the 
Act's definition of ``species.'' The courts concluded that once a 
determination is made that a species (i.e., species, subspecies, or 
DPS) meets the definition of ``endangered species'' or ``threatened 
species,'' it must be placed on the list in its entirety and the Act's 
protections applied consistently to all members of that species 
(subject to modification of protections through special rules under 
sections 4(d) and 10(j) of the Act).
    Consistent with that interpretation, and for the purposes of this 
proposed rule, we interpret the phrase ``significant portion of its 
range'' in the Act's definitions of ``endangered species'' and 
``threatened species'' to provide an independent basis for listing; 
thus there are two situations (or factual bases) under which a species 
would qualify for listing: a species may be endangered or threatened 
throughout all of its range; or a species may be endangered or 
threatened in only a significant portion of its range. If a species is 
in danger of extinction throughout an SPR, it, the species, is an 
``endangered species.'' The same analysis applies to ``threatened 
species.'' Therefore, the consequence of finding that a species is 
endangered or threatened in only a significant portion of its range is 
that the entire species shall be listed as endangered or threatened, 
respectively, and the Act's protections shall be applied across the 
species' entire range.
    We conclude, for the purposes of this proposed rule, that 
interpreting the SPR phrase as providing an independent basis for 
listing is the best interpretation of the Act because it is consistent 
with the purposes and the plain meaning of the key definitions of the 
Act; it does not conflict with established past agency practice (i.e., 
prior to the 2007 Solicitor's Opinion), as no consistent, long-term 
agency practice has been established; and it is consistent with the 
judicial opinions that have most closely examined this issue. Having 
concluded that the phrase ``significant portion of its range'' provides 
an independent basis for listing and protecting the entire species, we 
next turn to the meaning of ``significant'' to determine the threshold 
for when such an independent basis for listing exists.
    Although there are potentially many ways to determine whether a 
portion of a species' range is ``significant,'' we conclude, for the 
purposes of this proposed rule, that the significance of the portion of 
the range should be determined based on its biological contribution to 
the conservation of the species. For this reason, we describe the 
threshold for ``significant'' in terms of an increase in the risk of 
extinction for the species. We conclude that a biologically based 
definition of ``significant'' best conforms to the purposes of the Act, 
is consistent with judicial interpretations, and best ensures species' 
conservation. Thus, for the purposes of this proposed rule, a portion 
of the range of a species is ``significant'' if its contribution to the 
viability of the species is so important that, without that portion, 
the species would be in danger of extinction.
    We evaluate biological significance based on the principles of 
conservation biology using the concepts of redundancy, resiliency, and 
representation. Resiliency describes the characteristics of a species 
that allow it to recover from periodic disturbance. Redundancy (having 
multiple populations distributed across the landscape) may be needed to 
provide a margin of safety for the species to withstand catastrophic 
events. Representation (the range of variation found in a species) 
ensures that the species' adaptive capabilities are conserved. 
Redundancy, resiliency, and representation are not independent of each 
other, and some characteristic of a species or area may contribute to 
all three. For example, distribution across a wide variety of habitats 
is an indicator of representation, but it may also indicate a broad 
geographic distribution contributing to redundancy (decreasing the 
chance that any one event affects the entire species), and the 
likelihood that some habitat types are less susceptible to certain 
threats, contributing to resiliency (the ability of the species to 
recover from disturbance). None of these concepts is intended to be 
mutually exclusive, and a portion of a species' range may be determined 
to be ``significant'' due to its contributions under any one of these 
concepts.
    For the purposes of this proposed rule, we determine if a portion's 
biological contribution is so important that the portion qualifies as 
``significant'' by asking whether, without that portion, the 
representation, redundancy, or resiliency of the species would be so 
impaired that the species would have an increased vulnerability to 
threats to the point that the overall species would be in danger of 
extinction (i.e., would be ``endangered''). Conversely, we would not 
consider the portion of the range at issue to be ``significant'' if 
there is sufficient resiliency, redundancy, and representation 
elsewhere in the species' range that the species would not be in danger 
of extinction throughout its range if the population in that portion of 
the range in question became extirpated (extinct locally).
    We recognize that this definition of ``significant'' establishes a 
threshold that is relatively high. On the one hand, given that the 
consequences of finding a species to be endangered or threatened in an 
SPR would be listing the species throughout its entire range, it is 
important to use a threshold for ``significant'' that is robust. It 
would not be meaningful or appropriate to

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establish a very low threshold whereby a portion of the range can be 
considered ``significant'' even if only a negligible increase in 
extinction risk would result from its loss. Because nearly any portion 
of a species' range can be said to contribute some increment to a 
species' viability, use of such a low threshold would require us to 
impose restrictions and expend conservation resources 
disproportionately to conservation benefit: listing would be rangewide, 
even if only a portion of the range of minor conservation importance to 
the species is imperiled. On the other hand, it would be inappropriate 
to establish a threshold for ``significant'' that is too high. This 
would be the case if the standard were, for example, that a portion of 
the range can be considered ``significant'' only if threats in that 
portion result in the entire species' being currently endangered or 
threatened. Such a high bar would not give the SPR phrase independent 
meaning, as the Ninth Circuit held in Defenders of Wildlife v. Norton, 
258 F.3d 1136 (9th Cir. 2001).
    The definition of ``significant'' used in this proposed rule 
carefully balances these concerns. By setting a relatively high 
threshold, we minimize the degree to which restrictions will be imposed 
or resources expended that do not contribute substantially to species 
conservation. But we have not set the threshold so high that the phrase 
``in a significant portion of its range'' loses independent meaning. 
Specifically, we have not set the threshold as high as it was under the 
interpretation presented by the Service in the Defenders litigation. 
Under that interpretation, the portion of the range would have to be so 
important that current imperilment there would mean that the species 
would be currently imperiled everywhere. Under the definition of 
``significant'' used in this proposed rule, the portion of the range 
need not rise to such an exceptionally high level of biological 
significance. (We recognize that if the species is imperiled in a 
portion that rises to that level of biological significance, then we 
should conclude that the species is in fact imperiled throughout all of 
its range, and that we would not need to rely on the SPR language for 
such a listing.) Rather, under this interpretation we ask whether the 
species would be endangered everywhere without that portion, i.e., if 
that portion were completely extirpated. In other words, the portion of 
the range need not be so important that even being in danger of 
extinction in that portion would be sufficient to cause the species in 
the remainder of the range to be endangered; rather, the complete 
extirpation (in a hypothetical future) of the species in that portion 
would be required to cause the species in the remainder of the range to 
be endangered.
    The range of a species can theoretically be divided into portions 
in an infinite number of ways. However, there is no purpose to 
analyzing portions of the range that have no reasonable potential to be 
significant and threatened or endangered. To identify only those 
portions that warrant further consideration, we determine whether there 
is substantial information indicating that: (1) The portions may be 
``significant,'' and (2) the species may be in danger of extinction 
there or likely to become so within the foreseeable future. Depending 
on the biology of the species, its range, and the threats it faces, it 
might be more efficient for us to address the significance question 
first or the status question first. Thus, if we determine that a 
portion of the range is not ``significant,'' we do not need to 
determine whether the species is endangered or threatened there; if we 
determine that the species is not endangered or threatened in a portion 
of its range, we do not need to determine if that portion is 
``significant.'' In practice, a key part of the portion status analysis 
is whether the threats are geographically concentrated in some way. If 
the threats to the species are essentially uniform throughout its 
range, no portion is likely to warrant further consideration. Moreover, 
if any concentration of threats applies only to portions of the 
species' range that clearly would not meet the biologically based 
definition of ``significant'', such portions will not warrant further 
consideration.
    As described in the proposed rule (76 FR 88330), we found the 
stressors affecting Monardella stoneana not of sufficient imminence, 
intensity, magnitude, or geographic concentration such that it warrants 
listing under the Act. The stressors affecting M. stoneana, including 
megafire, occur across the species' entire range. Additionally, factors 
that might be limited to individual drainages, such as altered 
hydrology or urban development, do not threaten M. stoneana. Therefore, 
because Monardella stoneana has no geographical concentration of 
threats, it does not qualify for listing based on threats to the 
species in a significant portion of its range.
    Decisions by Ninth Circuit Court of Appeals in Defenders of 
Wildlife v. Norton, 258 F.3d 1136 (2001) and Tucson Herpetological 
Society v. Salazar, 566 F.3d 870 (2009) found that the Act requires the 
Service, in determining whether a species is endangered or threatened 
throughout a significant portion of its range, to consider whether lost 
historical range of a species (as opposed to its current range) 
constitutes a significant portion of the range of that species. While 
this is not our interpretation of the statute, we will consider whether 
the lost historical range might qualify as an SPR for Monardella 
stoneana.
    We evaluated whether the best available information indicates that 
the range of Monardella stoneana has contracted over time. We have 
little information on the historical range of M. stoneana. However, 
unlike M. viminea, M. stoneana has not undergone a dramatic decline in 
population size. Monardella stoneana appears to have persisted for over 
two decades in the two occurrences known in the United States since the 
1970s and 1980s, respectively (see proposed rule at 76 FR 33880; June 
9, 2011). The other seven occurrences of M. stoneana in the United 
States were discovered in 2003 or later, so long-term data are not 
available; only one of those seven occurrences has since been 
extirpated. We have almost no information about the range of M. 
stoneana in Mexico other than observations of plants directly across 
the Mexican border from occurrences in the United States. Because the 
best available information indicates that M. stoneana has not 
experienced a significant population decline, nor have multiple 
occurrences been extirpated within its known range, we are unable to 
find that a significant amount of historical range has been lost. In 
sum, we conclude that there has not been a loss of historical habitat 
that represents a significant portion of the range of M. stoneana.

Critical Habitat

    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 the 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.

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Federal agencies proposing actions affecting critical habitat must 
consult with us on the effects of their proposed actions, under section 
7(a)(2) of the Act.
    All critical habitat units for Monardella viminea were occupied at 
the time of listing. Occupancy was determined at the unit level, and 
unit lines were drawn to capture essential habitat supporting the 
documented occurrences within each unit. For more information on how 
critical habitat units were outlined, see the Methods section of the 
proposed critical habitat rule published on June 9, 2011 (76 FR 88330).
Consideration of Impacts Under Section 4(b)(2) of the Act
    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific 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. If we determine that the benefits of 
excluding the area outweigh the benefits of including the area as 
critical habitat, we may then exercise our discretion to exclude an 
area from critical habitat, provided such exclusion will not result in 
the extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from designation due 
to State or Federal laws that may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan. In the case of 
Monardella viminea, the benefits of critical habitat include public 
awareness of the presence of M. viminea and the importance of habitat 
protection, and, where a Federal nexus exists, potentially increased 
habitat protection for M. viminea due to protection from adverse 
modification or destruction of critical habitat. A Federal nexus exists 
where a proposed action will occur on Federal lands or where a proposed 
action will be conducted, funded, permitted, or authorized by a Federal 
agency.
    The final decision about whether to exercise our discretion to 
exclude any areas will be based on the best scientific data available 
at the time of the final designation, including information obtained 
during the comment period and information about the economic impact of 
designation. Accordingly, we have prepared a draft economic analysis 
(DEA) concerning the proposed critical habitat designation, which is 
available for review and comment (see ADDRESSES section).

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate 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.
    The purpose of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed critical habitat 
designation for Monardella viminea. We prepared a DEA that identifies 
and analyzes the potential impacts associated with the proposed 
designation of critical habitat for M. viminea that we published in the 
Federal Register on June 9, 2011 (76 FR 33880). The DEA describes the 
economic impacts of all known potential conservation efforts for M. 
viminea; some of these costs will likely be incurred regardless of 
whether we designate critical habitat.
    The economic impact of the proposed critical habitat designation is 
analyzed by comparing scenarios both ``with critical habitat'' and 
``without critical habitat.'' The ``without critical habitat'' scenario 
represents the baseline for the analysis, considering protections 
otherwise afforded to the species (e.g., under the Federal listing and 
other Federal, State, and local regulations). The baseline, therefore, 
represents the costs incurred regardless of whether critical habitat is 
designated. The ``with critical habitat'' scenario describes the 
incremental impacts specifically due to designation of critical habitat 
for the species. The incremental conservation efforts and associated 
impacts are those not expected to occur absent the critical habitat 
designation for M. viminea. 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 when evaluating the benefits 
of excluding particular areas under section 4(b)(2) of the Act. 
Conservation measures implemented under the baseline (without critical 
habitat) scenario are described qualitatively within the DEA, but 
economic impacts associated with these measures are not quantified. 
Economic impacts are only quantified for conservation measures 
implemented specifically due to the designation of critical habitat 
(i.e., incremental impacts). For a further description of the 
methodology of the analysis, see Chapter 2, ``Framework for the 
Analysis'' of the DEA.
    The DEA also discusses the potential benefits associated with the 
designation of critical habitat, but does not monetize these benefits. 
The incremental impacts are the impacts 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 DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for 
Monardella viminea over the next 19 years, which was determined to be 
the appropriate period for analysis because limited planning 
information is available to forecast activity levels for projects 
beyond a 19-year timeframe. Additionally, the timeframe evaluates the 
impacts of the critical habitat rule from its finalization in 2012 to 
2030, which is the length of transportation planning efforts by the 
California Department of Transportation (CalTrans). The DEA identifies 
potential incremental costs as a result of the proposed critical 
habitat designation; these are those costs attributed to critical 
habitat over and above those baseline costs attributed to listing. The 
DEA quantifies economic impacts of M. viminea conservation efforts 
associated with the following categories of activity: (1) Residential 
development and (2) transportation projects.
    The DEA concludes that critical habitat designation is not likely 
to affect levels of economic activity or conservation measures being 
implemented within the proposed critical habitat area. Unless changes 
occur to existing conservation measures or the management of land use 
activities, the incremental impacts of critical habitat designation 
would be limited to additional administrative costs of section 7 
consultations for Federal agencies associated with considering the 
potential for adverse modification of critical habitat. The DEA 
estimates that 50 percent of incremental impacts will be related to 
urban development, and 50 percent will be related to transportation 
projects.
    The DEA estimates total potential incremental economic impacts in 
areas

[[Page 59995]]

proposed as critical habitat over the next 19 years (2012 to 2030) to 
be $9,700 ($700 annualized) in present value terms using a 3-percent 
discount rate, and $9,300 ($800 annualized) in present value terms 
applying a 7-percent discount rate.
    The proposed critical habitat area is unlikely to generate economic 
impacts beyond administrative costs of section 7 consultation for 
several reasons. Sixty percent of the proposed designation already 
receives protection through the MSCP subarea plans, and all units are 
occupied by the plant and thus will require consultation regardless of 
the designation. Additionally, project modifications necessary to avoid 
adverse modification of critical habitat are indistinguishable from 
those necessary to avoid jeopardizing the species.
    In conclusion, the Service does not foresee a circumstance in which 
critical habitat designation will change the outcome of future section 
7 consultations. Any conservation measures implemented to minimize 
impacts to the species would coincidentally be sufficient to minimize 
impacts to critical habitat. Therefore, we do not believe any 
additional conservation measures would be needed solely to minimize 
impacts to critical habitat. Based on this reasoning, we also do not 
anticipate critical habitat designation to result in any appreciable 
incremental economic impacts. Any economic impacts related to 
conservation activities would result from the listing of the species, 
rather than the designation of critical habitat, and would fall within 
the economic baseline.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed rule and our 
amended required determinations. We may revise the proposed rule or 
supporting documents to incorporate or address information we receive 
during the public comment period. In particular, we may exercise our 
discretion to exclude an area from critical habitat if we determine 
that the benefits of excluding the area outweigh the benefits of 
including the area, provided the exclusion will not result in the 
extinction of this species.

Required Determinations--Amended

    In our proposed rule that published in the Federal Register on June 
9, 2011 (76 FR 33880), 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. 12630 (Takings), E.O. 13132 (Federalism), 
E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, 
Distribution, and Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), the Paperwork Reduction Act of 1995 (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 DEA data, we are amending our required determination 
concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, as amended by the Small 
Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), 
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 on our DEA of the proposed 
critical habitat designation, we provide our analysis for determining 
whether the proposed designation 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 
Monardella viminea 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. In order to determine whether it is appropriate for our 
agency to certify that this proposed 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 only affects activities 
conducted, funded, permitted, or authorized by Federal agencies. In 
areas where M. viminea is present, Federal agencies already are 
required to consult with us under section 7 of the Act on activities 
they fund, permit, or implement that may affect the species. If we 
finalize this proposed listing and proposed critical habitat 
designation, reasonable and prudent measures to avoid adverse 
modification of critical habitat would be incorporated into the 
existing consultation process.
    In the DEA, we evaluated the potential economic effects on small 
entities resulting from implementation of conservation actions related 
to the proposed critical habitat for Monardella viminea. The DEA 
identifies the estimated incremental impacts associated with the 
proposed rulemaking as described in Appendix A of the DEA, and 
evaluates the potential for economic impacts associated with activity 
categories including residential development and road construction. The 
DEA concludes that none of the entities with which the Service might 
consult on M. viminea meet the definition of a small business.
    In summary, we have considered whether the proposed designation

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would result in a significant economic impact on a substantial number 
of small entities. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and the Service. We have 
identified no small entities that may be impacted by the proposed 
critical habitat designation. For the above reason and based on 
currently available information, we certify that, if promulgated, the 
proposed critical habitat would not have a significant economic impact 
on small entities. Therefore, an initial regulatory flexibility 
analysis is not required.

Authors

    The primary authors of this notice are the staff members of the 
Carlsbad Fish and Wildlife Office, Pacific Southwest Region, U.S. Fish 
and Wildlife Service (see FOR FURTHER INFORMATION CONTACT).

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

    Dated: September 15, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-24608 Filed 9-27-11; 8:45 am]
BILLING CODE 4310-55-P