[Federal Register Volume 77, Number 10 (Tuesday, January 17, 2012)]
[Proposed Rules]
[Pages 2243-2254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-521]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2010-0070; MO92210-0-0009]
RIN 1018-AX10


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat and Taxonomic Revision for the Pacific Coast 
Population of the Western Snowy Plover

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, announce the reopening 
of the public comment period on the March 22, 2011, proposed revised 
designation of critical habitat for the Pacific Coast population of the 
western snowy plover (Pacific Coast WSP) (Charadrius alexandrinus 
nivosus) under the Endangered Species Act of 1973, as amended (Act). We 
are also recognizing the recent change to the taxonomy of the currently 
threatened taxon in which the species was split into two distinct 
species. We also announce the availability of a draft economic analysis 
(DEA) of the proposed revised designation of critical habitat for 
Pacific Coast WSP and an amended required determinations section of the 
proposal and reopening of the comment period to allow all interested 
parties an opportunity to comment simultaneously on the revised 
proposed rule, the associated DEA, and the amended required 
determinations section. We are also seeking comment on additional 
proposed revisions to Unit CA 46 in Orange County, California. 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 February 16, 
2012. Comments submitted electronically using the Federal eRulemaking 
Portal (see ADDRESSES section, below) must be received by 11:59 p.m. 
Eastern Time on the closing date.

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-2010-0070, 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-2010-0070; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. 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: Nancy Finley, Field Supervisor or Jim 
Watkins, Fish and Wildlife Biologist, U.S. Fish and Wildlife Service, 
Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521; 
telephone (707) 822-7201; facsimile (707) 822-8411. 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 the Pacific Coast WSP that was published in the Federal 
Register on March 22, 2011 (76 FR 16046), our DEA of the proposed 
revised designation, and the amended required determinations provided 
in this document. We will consider information and recommendations from 
all interested parties. We are particularly interested in comments 
concerning:
    (1) The reasons why we should or should not revise the designation 
of ``critical habitat'' under section 4 of the 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 of critical habitat is not 
prudent.
    (2) Specific information on:
    (a) Areas that provide habitat for the Pacific Coast WSP that we 
did not discuss in the proposed revised critical habitat rule, and
    (b) Areas within the geographical area occupied by the species at 
the time of listing that contain elements of the physical or biological 
features essential to the conservation of the species which may require 
special management considerations or protection and that we should 
include in the designation, and reason(s) why.
    (3) Specific information on our proposed revised designation of 
back-dune systems and other habitats in an attempt to offset the 
anticipated effects of sea-level rise associated with climate change.
    (4) Specific information on the Pacific Coast WSP, habitat 
conditions, and the presence of physical or biological features 
essential to the conservation of the species at any of the critical 
habitat units proposed in this revised rule (see Critical Habitat Units 
section and previous rules (64 FR 68508, December 7, 1999; 70 FR 56970, 
September 29, 2005; 76 FR 16046, March 22, 2011)).
    (5) How the proposed revised critical habitat boundaries could be 
refined to more closely circumscribe the areas

[[Page 2244]]

identified as containing the features essential to the species' 
conservation or how we mapped the water's edge and whether any 
alternative methods could be used to better determine the critical 
habitat boundaries.
    (6) Any foreseeable economic, national security, or other relevant 
impacts that may result from 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 
from the proposed revised designation that are subject to these 
impacts.
    (7) Any information regarding the areas exempted from the proposed 
revised rule or whether any specific areas being proposed as revised 
critical habitat should be excluded under section 4(b)(2) of the Act, 
and whether the benefits of potentially excluding any particular area 
outweigh the benefits of including that area under section 4(b)(2) of 
the Act, including Tribal lands, within the proposed revised 
designation.
    (8) Information on any quantifiable economic costs or benefits of 
the proposed revised designation of critical habitat.
    (9) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed revised critical 
habitat.
    (10) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    (11) Information on the extent to which the description of economic 
impacts in the DEA is complete and accurate.
    (12) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the DEA, and how the consequences 
of such reactions, if likely to occur, would relate to the conservation 
and regulatory benefits of the proposed revised critical habitat 
designation.
    If you submitted comments or information on the proposed rule (76 
FR 16046) during the initial comment period from March 22, 2011, to May 
23, 2011, please do not resubmit them. We have incorporated them into 
the public record, and we will fully consider them in the preparation 
of our final determination. Our final determination concerning revised 
critical habitat 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 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 the proposed 
rule or DEA by one of the methods listed in the ADDRESSES section. We 
request that you send comments only by the methods described 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 hardcopy 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-2010-0070, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Arcata Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of 
the proposed rule and the DEA on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2010-0070, or by mail from 
the Arcata Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT section).

Background

    It is our intent to discuss only those topics directly relevant to 
the taxonomic name change and designation of critical habitat for 
Pacific Coast WSP in this document. For more background information 
concerning the Pacific Coast WSP, refer to the proposed revised 
designation of critical habitat published in the Federal Register on 
March 22, 2011 (76 FR 16046). For more information on the Pacific Coast 
WSP or its habitat, refer to the final listing rule published in the 
Federal Register on March 5, 1993 (58 FR 12864), which is available 
online at http://www.regulations.gov (at Docket Number FWS-R8-ES-2010-
0070) or the Recovery Plan for the Pacific Coast WSP (Service 2007), 
which is online at http://ecos.fws.gov or from the Arcata Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

    On March 22, 2011, we published a proposed rule to revise the 
designation of critical habitat for the Pacific Coast WSP (76 FR 
16046). We proposed to designate approximately 28,261 acres (ac) 
(11,436 hectares (ha)) in 68 units located in Washington, Oregon, and 
California as critical habitat. That proposal opened a 60-day comment 
period, ending May 23, 2011. In this document we are proposing to 
revise the boundaries to Unit CA 46 based on new information (see 
Changes to Proposed Revised Critical Habitat below). We will submit for 
publication in the Federal Register a final critical habitat 
designation for the Pacific Coast WSP on or before June 12, 2012.

Taxonomic and Nomenclatural Changes Affecting Charadrius alexandrinus 
nivosus

    We are making a technical correction to the List of Endangered and 
Threatened Wildlife at 50 CFR 17.11(h) to reflect our acceptance of a 
taxonomic and nomenclatural change of western snowy plover to 
Charadrius nivosus nivosus from C. alexandrinus nivosus. We listed the 
Pacific Coast WSP as threatened under the then-recognized name of 
Charadrius alexandrinus nivosus (58 FR 12864; March 5, 1993), which is 
a subspecies of the Eurasian Kentish plover (Charadrius alexandrinus 
(Linnaeus 1758)). We accepted this taxonomy and have used this name in 
all Service documents up to and including our proposed revision to the 
critical habitat for the Pacific Coast WSP (76 FR 16046; March 22, 
2011).
    In 2009, Clemens K[uuml]pper (Department of Biology and 
Biochemistry, University of Bath, Bath, UK); Tam[aacute]s 
Sz[eacute]kely (Department of Biology and Biochemistry, University of 
Bath, Bath, UK); and Terry Burke (Department of Animal and Plant 
Sciences, University of Sheffield, Sheffield, UK), submitted a proposal 
to the American Ornithologist's Union (AOU)--the recognized body on 
ornithological naming and scientific nomenclature (AOU 2010A, pp. 145-
146). The proposal presented information to split the Kentish plover 
from the snowy plover and adopt Kentish plover for Palaearctic 
populations (zoogeographical region consisting of Europe, Africa north 
of the Sahara, and most of Asia north of the Himalayas) and change the 
scientific name of the snowy plover in Central and North America to 
Charadrius nivosus (Cassin 1858) with three subspecies: C. nivosus 
nivosus (currently C. alexandrinus

[[Page 2245]]

nivosus) (range to include all of the continental United States and 
portions of Mexico), C. nivosus tenuirostris (currently C. alexandrinus 
nivosus) (range to include Cuba, Puerto Rico, the Caribbean and the 
Yucatan Peninsula) and C. nivosus occidentalis (currently C. 
alexandrinus occidentalis) (range to include South America). The 
proposal cited genetic, morphological, and behavioral differences 
between C. alexandrinus and C. nivosus (Funk et al. 2007; K[uuml]pper 
et al. 2009). The proposal was adopted by the AOU (AOU 2010B, pp. 1-5; 
Chesser et al. 2011, pp. 603-604). We are within this proposed rule 
accepting the taxonomic change for the Pacific Coast WSP and recognize 
the listed entity as C. nivosus nivosus and will make changes to the 
Code of Federal Regulations in the final designation (see Proposed 
Regulation Promulgation section). We also make the necessary changes to 
the historical range of C. nivosus nivosus at 50 CFR 17.11(h) to 
include the entire continental United States. These technical 
corrections do not affect the description, distribution, or listing 
status of the Pacific Coast WSP. However, the complete range of C. 
nivosus nivosus now includes the Florida occurrences of the subspecies.

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 a species at 
the time it is listed, upon a determination by the Secretary that such 
areas are essential for the conservation of the species. If the 
proposed revised rule is made final, section 7 of the Act will prohibit 
destruction or adverse modification of critical habitat by any activity 
funded, authorized, or carried out by any Federal agency. Federal 
agencies funding, authorizing, permitting, or proposing actions 
affecting critical habitat must consult with us on the effects of their 
actions, under section 7(a)(2) of the Act.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act requires that the Secretary shall 
designate and revise critical habitat based upon the best scientific 
data available, after taking into consideration the economic impact, 
the impact on national security, and any other relevant impact of 
specifying any particular area as critical habitat. The Secretary of 
the Interior may exclude an area from critical habitat if he determines 
that the benefits of excluding the area outweigh the benefits of 
including the area as critical habitat, provided such exclusion will 
not result in the extinction of the species.
    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 
the Pacific Coast WSP, the benefits of critical habitat include public 
awareness of the presence of the Pacific Coast WSP and the importance 
of habitat protection, and, where a Federal nexus exists, increased 
habitat protection for Pacific Coast WSP due to protection from adverse 
modification or destruction of critical habitat. In practice, 
situations with a Federal nexus exist primarily on Federal lands or for 
projects undertaken, authorized, or otherwise permitted by Federal 
agencies.
    The final decision on whether to exclude any areas will be based on 
the best scientific and commercial 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 DEA concerning the proposed revised 
critical habitat designation, which is available for review and comment 
(see ADDRESSES section).

Draft Economic Analysis

    The purpose of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed revised critical habitat 
designation for the Pacific Coast WSP. The DEA separates conservation 
measures into two distinct categories according to ``without critical 
habitat'' and ``with critical habitat'' scenarios. The ``without 
critical habitat'' scenario represents the baseline for the analysis, 
considering protections otherwise afforded to the Pacific Coast WSP 
(e.g., under the Federal listing and other Federal, State, and local 
regulations). The ``with critical habitat'' scenario describes the 
incremental impacts specifically due to designation of critical habitat 
for the species. In other words, these incremental conservation 
measures and associated economic impacts would not occur but for the 
designation. 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). 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 weighing 
the benefits of inclusion and exclusion of particular areas under 
section 4(b)(2) of the Act. For a further description of the 
methodology of the analysis, see Chapter 2, ``Framework for the 
Analysis,'' of the DEA (Industrial Economics Incorporated (IEc) 2011).
    The DEA evaluates the potential economic impacts associated with 
the proposed revised designation of critical habitat for the Pacific 
Coast WSP. The analysis focuses on reasonably foreseeable incremental 
impacts of the critical habitat designation, or those impacts not 
expected to occur absent critical habitat designation. Forecasted 
impacts are based on the planning periods for potentially affected 
projects and look out over a 20-year time horizon (through 2031). The 
DEA considers economic impacts of Pacific Coast WSP conservation 
efforts on the following activities: (1) Recreation; (2) development; 
(3) gravel mining; (4) military activities; and (5) habitat and species 
management.
    Due to strong existing protections (include symbolic fencing, nest 
exclosures, signage, driving restrictions, and mechanized beach 
cleaning restrictions) for the Pacific Coast WSP, the direct 
incremental impacts quantified in the DEA are limited to the 
administrative cost of considering adverse modification during section 
7 consultation with the Service as well as the additional effort 
necessary to include analysis of critical habitat in three future 
Habitat Conservation Plans

[[Page 2246]]

and one Integrated Natural Resources Management Plan (INRMP) for 
Vandenberg Air Force Base (VAFB). These incremental impacts of the 
proposed revised critical habitat designation over the 20-year 
timeframe (2012 through 2031) are estimated to be $261,000 ($24,700 on 
an annualized basis), assuming a seven percent discount rate. Impacts 
to military activities represent the greatest percentage of these 
overall cost estimates--approximately 72 percent. Impacts to 
development activities represent approximately 17 percent, habitat and 
species management 6 percent, and mining 4 percent of the overall 
impacts (percentages do not sum due to rounding). Incremental impacts 
to recreational activities are not expected due to lack of a Federal 
nexus compelling section 7 consultation with the Service and 
significant protection already provided by existing regulations and 
programs (IEc 2011, pp. 4-9-4-12).
    The analysis also identifies three activities that may experience 
indirect incremental impacts of the proposed revised critical habitat 
designation: Recreation at Oceano Dunes State Vehicular Recreation Area 
(SVRA) (Unit CA 31), development of the Sterling/McDonald site (Unit CA 
22), and development of the Security National Guaranty (SNG) site (Unit 
CA 22). Indirect impacts resulting from future litigation or increased 
scrutiny from State agencies may include prohibiting off-highway-
vehicle use at Oceano Dunes SVRA and denial of development permits for 
the Sterling/McDonald and SNG sites. Due to uncertainty surrounding the 
likelihood and extent of such indirect impacts, the data necessary to 
quantify these impacts are unavailable. Therefore, these indirect 
incremental impacts are discussed qualitatively in the DEA (IEc 2011, 
p. 4-2).
Vandenberg Air Force Base INRMP
    In the March 22, 2011, proposed revised designation of critical 
habitat (76 FR 16046), we did not consider Vandenberg Air Force Base 
for exemption under section 4(a)(3) of the Act because they had not yet 
completed a Service-approved INRMP. On April 14, 2011, VAFB completed 
and we approved the INRMP for VAFB as part of the requirements of the 
Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) (for a 
full discussion of the Sikes Act, see the Exemptions section of the 
March 22, 2011, proposed revision to critical habitat (76 FR 16046)). 
The VAFB INRMP provides for the conservation, management, and 
stewardship of the natural resources found on the base. The INRMP 
includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Because the INRMP was not finalized and approved prior to the March 
22, 2011, proposed revised critical habitat designation for the Pacific 
Coast WSP (76 FR 16046), we did not exempt these areas prior to their 
proposal. We will review the INRMP and will determine in our final 
designation of critical habitat if the plan provides a benefit to the 
Pacific Coast WSP in those areas covered by the INRMP that we had 
determined to be essential to and for the conservation of the Pacific 
Coast WSP. If it does, we will exempt those areas covered by the INRMP 
from the final designation under the requirements of the National 
Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) and 
section 4(a)(3)(B)(i) of the Act.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed revised 
designation, the changes contained in this NOA, and our amended 
required determinations. We may revise the proposed revised designation 
or supporting documents to incorporate or address information we 
receive during the public comment period. In particular, we may exclude 
an area from critical habitat if we determine that the benefits of 
excluding the area outweigh the benefits of including the area, 
provided the exclusion will not result in the extinction of this 
species.

Changes to Proposed Revised Critical Habitat

    In this document, we are making revisions to the proposed revised 
critical habitat as identified and described in the proposed rule that 
we published in the Federal Register on March 22, 2011 (76 FR 16046) 
and are seeking comment on the revisions. The changes occur in what was 
proposed as subunits CA 46A-D (Bolsa Chica Ecological Reserve) and 
subunit CA 46E (Bolsa Chica State Beach) of Unit CA 46. We are also 
adding one subunit (subunit CA 46F) to Unit CA 46. During the public 
comment period for the March 22, 2011, proposed revised critical 
habitat (76 FR 16046), we received comments from a species expert 
indicating that we should reevaluate the proposed boundaries at the 
Bolsa Chica Ecological Reserve because certain areas included in Unit 
CA 46 are not utilized for nesting or foraging by the Pacific Coast 
WSP, whereas other areas that were not included in proposed revised 
critical habitat within Bolsa Chica Ecological Reserve are used for 
nesting and foraging (P. Knapp, pers. comm. 2011).
    We also received comments and new information from California State 
Parks and a species expert indicating that we should reevaluate the 
proposed boundaries of subunit CA 46E at Bolsa Chica State Beach 
because the area no longer contains the physical or biological features 
essential to the conservation of the species, and is no longer being 
used for wintering by the Pacific Coast WSP and has not been used in 
the last 4 years (D. Prior, California State Parks, pers. comm. 2011; 
P. Knapp, pers. comm. 2011). The information provided indicated that 
areas north of the proposal in subunit CA 46E at Bolsa Chica State 
Beach are being used by the Pacific Coast WSP as a wintering habitat 
and that we should reevaluate the proposed boundaries of beach areas in 
Unit CA 46 (Prior, pers. comm. 2011; Knapp, pers. comm. 2011). We have 
reviewed the new information and have determined it appropriate to 
adjust our proposed revised designation of Unit CA 46.
    The purpose of the revisions described below is to better delineate 
the areas that meet the definition of critical habitat for the Pacific 
Coast WSP and to ensure that all areas proposed are consistent with the 
criteria outlined in the proposed revised rule (see ``Criteria Used To 
Identify Critical Habitat'' section in the proposed revised critical 
habitat designation (76 FR 16046; March 22, 2011)). The areas added to 
the proposed unit are within the geographical area that was occupied by 
the species at the time it was listed and contain the physical or 
biological features essential to the conservation of the species. A 
revised map is included in the Proposed Regulation Promulgation section 
of this document. Below, we briefly describe the changes made to Unit 
CA 46. As a result of these revisions, the naming convention for the 
subunits CA 46A-E will change and an additional subunit (CA 46F) will 
be added. Also as a result of these revisions, the total area proposed 
for designation as critical habitat in Unit CA 46 is 568 ac (230 ha), 
an increase of 50 ac (20 ha). The change increases the total amount of 
proposed revised critical habitat to 30,497 ac (12,342 ha) (see Table 3 
below).

[[Page 2247]]

Changes to Critical Habitat Unit Descriptions

Unit CA 46: Bolsa Chica State Beach and Bolsa Chica Ecological Reserve
    Through this notice, we propose to exchange the naming conventions 
between subunits CA 46A and 46E so that the Bolsa Chica State Beach 
will now be part of subunit CA 46A and the Bolsa Chica Ecological 
Reserve will include subunits CA 46B-F. As revised here, the subunits 
in Bolsa Chica State Beach and Bolsa Chica Ecological Reserve are 
located east of the Pacific Coast Highway, in Orange County, 
California. As a result of this revision, the total area proposed for 
designation as critical habitat at Bolsa Chica State Beach (now 
designated as subunit CA 46A) is 93 ac (38 ha); and the total area for 
the Bolsa Chica Ecological Reserve subunits (now designated as subunits 
CA 46B-46F) is 475 ac (192 ha). These subunits are entirely owned by 
the State of California.
    Bolsa Chica Ecological Reserve contains significant nesting and 
foraging areas. This location supported 47 breeding adult Pacific Coast 
WSP in 2009 (Knapp and Peterson 2009, p. 8). All subunits at Bolsa 
Chica Ecological Reserve were occupied at the time of listing and are 
currently occupied and annually support one of the largest breeding 
populations of Pacific Coast WSP in the region. The Recovery Plan for 
Pacific Coast WSP states that this location contributes to the 
conservation goal for the region by providing a management potential of 
70 breeding birds (Service 2007, Appendix B). This location also 
supported an average wintering flock of 14 Pacific Coast WSP from 2003 
through 2010 (Service unpublished data). In the proposed revised rule, 
we incorrectly stated that this reserve is an abandoned oil field. This 
reserve is in fact an active oil field that underwent significant 
reconstruction and restoration between 2004 and 2006, including the 
addition of three new nest sites and a new ocean inlet that allows the 
water level to rise and fall resembling the irregular semi-diurnal 
tidal range of southern California's ocean waters (Knapp and Peterson 
2009, p. 1). Including these occupied areas for breeding, foraging, and 
dispersal is consistent with our criteria used to identify critical 
habitat, as outlined in the proposed rule (76 FR 16046; March 22, 
2011). No changes were made to subunits CA 46B or CA 46D. Please see 
the proposed revised critical habitat for a description of these 
subunits (76 FR 16046; March 22, 2011).
Subunit CA 46A: Bolsa Chica State Beach
    Through this notice, the proposed revised designation's subunit CA 
46E is renamed as subunit CA 46A. After further analysis and review of 
comments received on the proposed revised designation, we have adjusted 
the boundary of the 8 ac (3 ha) of beach that was included in the 
proposed rule because the area no longer contains the physical or 
biological features essential to the conservation of the species, and 
has not supported Pacific Coast WSP for the past 4 years (Prior, pers. 
comm. 2011). The subunit as revised here consists of sandy beach 
habitat north of the critical habitat unit proposed in March 2011, and 
extends to just south of the Sunset Beach area near Warner Avenue 
adjacent to the Bolsa Chica Ecological Reserve. As a result of the 
revision reflected here, the area proposed for designation as critical 
habitat in subunit CA 46A is 93 ac (38 ha), an increase of 85 ac (35 
ha) from what was proposed for Bolsa Chica State Beach in the proposed 
revised designation. This subunit is owned entirely by the State of 
California. The revised subunit CA 46A was occupied at the time of 
listing and is currently occupied and contains the physical or 
biological features that are essential to the conservation of the 
species, including a wide sandy beach with occasional surf-cast wrack 
supporting small invertebrates for foraging, and because it supports an 
average wintering flock of 27 Pacific Coast WSP (Service unpublished 
data 2003-2010) in a location with high-quality breeding habitat. 
Subunit CA 46A may require special management considerations or 
protection to address threats from recreational disturbance and beach 
raking as discussed for this subunit in the March 2011 proposed revised 
rule. Additionally, adding occupied areas for wintering, foraging, and 
dispersal is consistent with our criteria used to identify critical 
habitat, as outlined in the proposed revised rule (76 FR 16046; March 
22, 2011).
Unit CA46: Bolsa Chica Ecological Reserve; Subunits CA 46C, 46E, 46F
Subunit CA 46C
    We revised subunit CA 46C to include additional areas containing 
the physical or biological features essential to the conservation of 
the species for breeding, foraging, and dispersal that were not 
captured in the proposed revised rule. This addition is based on 
information received during the public comment period that indicates 
that these areas include year-round foraging habitat in extensive 
mudflats and additional nesting areas for Pacific Coast WSP to expand 
into. This unit was occupied at the time of listing. This location 
contains the physical and biological features essential to the 
conservation of the species, including tidally influenced estuarine mud 
flats supporting small invertebrates, and seasonally dry ponds that 
provide nesting and foraging habitat for Pacific Coast WSP. As a result 
of this revision, the area proposed for designation as critical habitat 
in subunit CA 46C is 222 ac (90 ha), an increase of 201 ac (81 ha) from 
the proposed rule. This location contains tidally influenced estuarine 
mud flats supporting small invertebrates, and seasonally dry ponds and 
nesting islands that provide nesting and foraging habitat for Pacific 
Coast WSP. The physical or biological features essential to the 
conservation of the species in this subunit may require special 
management considerations or protection to address threats from 
vegetation encroachment in nesting and foraging areas and predation of 
chicks and eggs.
Subunit CA 46E
    Here, we rename the Bolsa Chica Ecological Reserve areas that were 
proposed as subunit CA 46A in the proposed revised rule to subunit CA 
46E and remove the areas that do not contain the physical or biological 
features essential to the conservation of the species. This area was 
occupied at the time of listing. This revised subunit CA 46E is reduced 
in size to more accurately represent the nesting and foraging areas 
used by Pacific Coast WSP. We removed almost all of the Muted Tidal 
Basin area from subunit 46E because this area does not contain the 
physical or biological features essential to the conservation of 
Pacific Coast WSP. We have adjusted the boundary in the Future Full 
Tidal Basin to represent areas used for nesting and foraging. As a 
result of this revision, the area proposed for designation as critical 
habitat in subunit CA 46E is 247 ac (100 ha), a decrease of 237 ac (96 
ha) from what was proposed as subunit CA 46A in the proposed rule. This 
revised location contains tidally influenced estuarine mud flats 
supporting small invertebrates, and seasonally dry ponds and nesting 
islands that provide nesting and foraging habitat for Pacific Coast 
WSP. The physical or biological features essential to the conservation 
of the species in this subunit may require special management 
considerations or protection to address threats from vegetation 
encroachment in nesting and

[[Page 2248]]

foraging areas and predation of chicks and eggs.
Subunit 46F
    We add one subunit (CA 46F) to represent the single nesting and 
foraging area utilized by Pacific Coast WSP in the Muted Tidal Basin 
(Nest Site 2). This area was occupied at the time of listing and 
contains the physical or biological features essential to the 
conservation of the species. This location contains tidally influenced 
estuarine mud flats supporting small invertebrates, and seasonally dry 
ponds and nesting islands that provide nesting and foraging habitat for 
Pacific Coast WSP. The physical or biological features essential to the 
conservation of the species in this subunit may require special 
management considerations or protection to address threats from 
vegetation encroachment in nesting and foraging areas and predation of 
chicks and eggs. As a result of this addition, the area proposed for 
designation as critical habitat in subunit CA 46F is 2 ac (1 ha).
    In addition to the unit changes outlined above, we are also 
correcting land ownership acreage numbers identified in Table 3 of the 
March 22, 2011, proposed revised rule (76 FR 16046). The corrected 
Table 3 with changes to Unit CA-46 is below. Also, in the proposed 
revised rule we incorrectly stated that no Department of Defense lands 
were within the proposed revised designation. Approximately 1,084 ac 
(439 ha) have been identified on VAFB in units CA-32 and CA-33. On 
April 14, 2011, we approved the INRMP for VAFB and have determined that 
the plan provides a benefit to the species for which critical habitat 
is proposed for designation. We have now reviewed and approved the VAFB 
INRMP and will recommend that the Secretary exempt the areas determined 
to be essential to and for the conservation of the Pacific Coast WSP 
from the final designation under the requirements of the National 
Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) and 
section 4(a)(3)(B)(i) of the Act.

   Table 3--Proposed Revised Critical Habitat for the Pacific Coast WSP Showing Federal, State, Tribal, and Other (Private and Local Government) Land
                                                                        Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Total            Federal           Tribal             State             Other
             Unit number                      Unit name        -----------------------------------------------------------------------------------------
                                                                   ac       ha       ac       ha       ac       ha       ac       ha       ac       ha
--------------------------------------------------------------------------------------------------------------------------------------------------------
Washington:
    WA 1.............................  Copalis Spit...........      407      165        0        0        0        0      407      165        0        0
    WA 2.............................  Damon Point............      673      272        0        0        0        0      648      262       25       10
    WA 3A............................  Midway Beach...........      697      282        0        0        0        0      697      282        0        0
    WA 3B *..........................  Shoalwater/Graveyard...    1,121      454        0        0      336      136      505      204      280      113
                                                               -----------------------------------------------------------------------------------------
        Unit WA-3 Totals.............  .......................    1,818      736        0        0      336      136    1,202      486      280      113
--------------------------------------------------------------------------------------------------------------------------------------------------------
    WA 4A............................  Leadbetter Spit........    2,463      997    2,026      820        0        0      437      177        0        0
    WA 4B............................  Gunpowder Sands Island.      904      366      904      366        0        0        0        0        0        0
                                                               -----------------------------------------------------------------------------------------
        Unit WA-4 Totals.............  .......................    3,367    1,363    2,930    1,186        0        0      437      177        0        0
                                                               -----------------------------------------------------------------------------------------
            WASHINGTON STATE TOTALS..  .......................    6,265    2,535    2,930    1,186      336      136    2,694    1,090      305      123
--------------------------------------------------------------------------------------------------------------------------------------------------------
Oregon:
    OR 1.............................  Columbia River Spit....      169       68      169       68        0        0        0        0        0        0
    OR 2.............................  Necanicum River Spit...      211       85        0        0        0        0      161       65       50       20
    OR 3.............................  Nehalem River Spit.....      299      121        0        0        0        0      299      121        0        0
    OR 4.............................  Bayocean Spit..........      367      149      279      113        0        0        0        0       88       36
    OR 5.............................  Netarts Spit...........      541      219        0        0        0        0      541      219        0        0
    OR 6.............................  Sand Lake South........      200       81        0        0        0        0        0        0      200       81
    OR 7.............................  Sutton/Baker Beaches...      372      151      372      151        0        0        0        0        0        0
    OR 8A............................  Siltcoos Breach........       15        6       15        6        0        0        0        0        0        0
    OR 8B............................  Siltcoos River Spit....      241       98      241       98        0        0        0        0        0        0
    OR 8C............................  Dunes Overlook               716      290      716      290        0        0        0        0        0        0
                                        Tahkenitch Creek Spit.
    OR 8D............................  North Umpqua River Spit      236       96      151       61        0        0       85       34        0        0
        Unit OR-8 Totals.............  .......................    1,208      489    1,123      454        0        0       85       34        0        0
--------------------------------------------------------------------------------------------------------------------------------------------------------
    OR 9.............................  Tenmile Creek Spit.....      244       99      244       99        0        0        0        0        0        0
    OR 10............................  Coos Bay North Spit....      308      125      308      125        0        0        0        0        0        0
    OR 11............................  Bandon to New River....    1,016      411      459      186        0        0      267      108      290      117
    OR 12 *..........................  Elk River Spit.........      167       68        0        0        0        0        0        0      167       68
    OR 13............................  Euchre Creek...........      116       47        0        0        0        0        0        0      116       47
                                                               -----------------------------------------------------------------------------------------
            OREGON STATE TOTALS......  .......................    5,218    2,112    2,954    1,195        0        0    1,353      548      911      369
--------------------------------------------------------------------------------------------------------------------------------------------------------
California:
    CA 1.............................  Lake Earl..............       74       30        0        0        0        0       22        9       52       21
    CA 2.............................  Gold Bluffs Beach......      235       95        0        0        0        0      235       95        0        0
    CA 3A............................  Humboldt Lagoons--Stone       55       22        0        0        0        0       55       22        0        0
                                        Lagoon.
    CA 3B............................  Humboldt Lagoons--Big        271      110        0        0        0        0      270      109       <1       <1
                                        Lagoon.
                                                               -----------------------------------------------------------------------------------------
        Unit CA-3 Totals.............  .......................      326      132        0        0        0        0      325      132        0        0
--------------------------------------------------------------------------------------------------------------------------------------------------------
    CA 4A............................  Clam Beach/Little River      340      138        0        0        0        0      226       91      114       46
    CA 4B............................  Mad River..............      456      185        0        0        0        0      149       60      307      124
                                                               -----------------------------------------------------------------------------------------
        Unit CA-4 Totals.............  .......................      796      322        0        0        0        0      375      152      421      170
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 2249]]

 
    CA 5A............................  Humboldt Bay South Spit      577      234       20        8        0        0      541      219       16        6
    CA 5B............................  Eel River North Spit/        467      189        0        0        0        0      460      186        7        3
                                        Beach.
    CA 5C............................  Eel River South Spit/        340      138        0        0        0        0      176       71      164       66
                                        Beach.
                                                               -----------------------------------------------------------------------------------------
        Unit CA-5 Totals.............  .......................    1,384      560       20        8        0        0    1,177      476      187       76
--------------------------------------------------------------------------------------------------------------------------------------------------------
    CA 6.............................  Eel River Gravel Bars..    2,699    1,092        0        0        0        0      591      239    2,108      853
    CA 7.............................  MacKerricher Beach.....    1,176      476        0        0        0        0    1,102      446       74       30
    CA 8.............................  Manchester Beach.......      482      195       68       28        0        0      402      163       12        5
    CA 9.............................  Dillon Beach...........       39       16        0        0        0        0        0        0       39       16
    CA 10A...........................  Pt Reyes...............      460      186      460      186        0        0        0        0        0        0
    CA 10B...........................  Limantour..............      156       63      156       63        0        0        0        0        0        0
                                                               -----------------------------------------------------------------------------------------
        Unit CA-10 Totals............  .......................      616      249      616      249        0        0        0        0        0        0
--------------------------------------------------------------------------------------------------------------------------------------------------------
    CA 11............................  Napa...................      618      250        0        0        0        0      618      250        0        0
    CA 12............................  Hayward................        1        0        0        0        0        0        0        0        1        0
    CA 13A...........................  Eden Landing...........      237       96        0        0        0        0      228       92        8        3
    CA 13B...........................  Eden Landing...........      171       69        0        0        0        0      171       69        0        0
    CA 13C...........................  Eden Landing...........      609      246        0        0        0        0      602      244        7        3
                                                               -----------------------------------------------------------------------------------------
        Unit CA-13 Totals............  .......................    1,017      412        0        0        0        0    1,001      405       15        6
--------------------------------------------------------------------------------------------------------------------------------------------------------
    CA 14............................  Ravenswood.............       89       36        0        0        0        0        0        0       89       36
    CA 15............................  Warm Springs...........      169       68      169       68        0        0        0        0        0        0
    CA 16............................  Half Moon Bay..........       36       15        0        0        0        0       36       15        0        0
    CA 17............................  Waddell Creek Beach....       25       10        0        0        0        0       19        8        7        3
    CA 18............................  Scott Creek Beach......       23        9        0        0        0        0       15        6        8        3
    CA 19............................  Wilder Creek Beach.....       15        6        0        0        0        0       15        6        0        0
    CA 20............................  Jetty Road to Aptos....      400      162        0        0        0        0      370      150       30       12
    CA 21............................  Elkhorn Slough Mudflats      281      114        0        0        0        0      281      114        0        0
    CA 22............................  Monterey to Moss             971      393      424      172        0        0      286      116      261      106
                                        Landing.
    CA 23............................  Point Sur Beach........       72       29        0        0        0        0       38       15       34       14
    CA 24............................  San Carpoforo Creek....       24       10        4        2        0        0       18        7        3        1
    CA 25............................  Arroyo Laguna Creek....       28       11        0        0        0        0       18        7       10        4
    CA 26............................  San Simeon State Beach.       24       10        0        0        0        0       24       10        0        0
    CA 27............................  Villa Creek Beach......       20        8        0        0        0        0       20        8        0        0
    CA 28............................  Toro Creek.............       34       14        0        0        0        0       11        4       23        9
    CA 29............................  Atascadero Beach/Morro       214       87        0        0        0        0       65       26      149       60
                                        Strand SB.
    CA 30............................  Morro Bay Beach........    1,078      436        0        0        0        0      949      384      129       52
    CA 31............................  Pismo Beach/Nipomo         1,655      670      242       98        0        0      553      224      860      348
                                        Dunes.
    CA 32............................  Vandenberg North.......      711      288      711      288        0        0        0        0        0        0
    CA 33............................  Vandenberg South.......      424      172      374      151        0        0        0        0       50       20
    CA 34............................  Devereaux Beach........       52       21        0        0        0        0       43       17        9        4
    CA 35............................  Santa Barbara Beaches..       65       26        0        0        0        0       30       12       35       14
    CA 36............................  Santa Rosa Island            586      237      586      237        0        0        0        0        0        0
                                        Beaches.
    CA 37............................  San Buenaventura Beach.       69       28        0        0        0        0       69       28        0        0
    CA 38............................  Mandalay to Santa Clara      671      272        0        0        0        0      458      185      213       86
                                        River.
    CA 39............................  Ormond Beach...........      319      129        0        0        0        0      159       64      160       65
    CA 43............................  Zuma Beach.............       73       30        0        0        0        0        1        0       72       29
    CA 44............................  Malibu Beach...........       13        5        0        0        0        0       13        5        0        0
    CA 45A...........................  Santa Monica Beach.....       48       19        0        0        0        0       29       12       19        8
    CA 45B...........................  Dockweiler North.......       34       14        0        0        0        0       34       14        0        0
    CA 45C...........................  Dockweiler South.......       65       26        0        0        0        0       54       22       11        4
    CA 45D...........................  Hermosa State Beach....       27       11        0        0        0        0        8        3       19        8
                                                               -----------------------------------------------------------------------------------------
        Unit CA-45 Totals............  .......................      174       70        0        0        0        0      125       51       49       20
--------------------------------------------------------------------------------------------------------------------------------------------------------
    CA 46A...........................  Bolsa Chica State Beach       93       38        0        0        0        0       93       38        0        0
    CA 46B...........................  Bolsa Chica Reserve....        2        1        0        0        0        0        2        1        0        0
    CA 46C...........................  Bolsa Chica Reserve....      222       90        0        0        0        0      222       90        0        0
    CA 46D...........................  Bolsa Chica Reserve....        2        1        0        0        0        0        2        1        0        0
    CA 46E...........................  Bolsa Chica Reserve....      247      100        0        0        0        0      247      100        0        0
    CA 46F...........................  Bolsa Chica Reserve....        2        1        0        0        0        0        2        1        0        0
                                                               -----------------------------------------------------------------------------------------
        Unit CA-46 Totals............  .......................      568      230        0        0        0        0      568      230        0        0
--------------------------------------------------------------------------------------------------------------------------------------------------------
    CA 47............................  Santa Ana River Mouth..       19        8        0        0        0        0       18        7        1        0
    CA 48............................  Balboa Beach...........       25       10        0        0        0        0        0        0       25       10
    CA 50A...........................  Batiquitos Lagoon......       24       10        0        0        0        0       18        7        6        2
    CA 50B...........................  Batiquitos Lagoon......       23        9        0        0        0        0       15        6        8        3
    CA 50C...........................  Batiquitos Lagoon......       19        8        0        0        0        0        0        0       19        8
                                                               -----------------------------------------------------------------------------------------
        Unit CA-50 Totals............  .......................       66       27        0        0        0        0       33       13       33       13
--------------------------------------------------------------------------------------------------------------------------------------------------------
    CA 51A...........................  San Elijo Lagoon               3        1        0        0        0        0        3        1        0        0
                                        Ecological Reserve.
    CA 51B...........................  San Elijo Lagoon               5        2        0        0        0        0        1        0        4        2
                                        Ecological Reserve.

[[Page 2250]]

 
    CA 51C...........................  San Elijo Lagoon               7        3        0        0        0        0        7        3        0        0
                                        Ecological Reserve.
                                                               -----------------------------------------------------------------------------------------
        Unit CA-51 Totals............  .......................       15        6        0        0        0        0       11        4        4        2
--------------------------------------------------------------------------------------------------------------------------------------------------------
    CA 52A...........................  San Dieguito Lagoon....        4        2        0        0        0        0        0        0        4        2
    CA 52B...........................  San Dieguito Lagoon....        3        1        0        0        0        0        0        0        3        1
    CA 52C...........................  San Dieguito Lagoon....        4        2        0        0        0        0        4        2        0        0
                                                               -----------------------------------------------------------------------------------------
        Unit CA-52 Totals............  .......................       11        4        0        0        0        0        4        2        7        3
--------------------------------------------------------------------------------------------------------------------------------------------------------
    CA 53............................  Los Penasquitos Lagoon.       32       13        0        0        0        0       32       13        1        0
    CA 54A...........................  Fiesta Island..........        2        1        0        0        0        0        1        0        1        0
    CA 54B...........................  Mariner's Point........        7        3        0        0        0        0        1        0        6        2
    CA 54C...........................  South Mission Beach....       38       15        0        0        0        0        8        3       30       12
    CA 54D...........................  San Diego River Channel       51       21        0        0        0        0       38       15       13        5
                                                               -----------------------------------------------------------------------------------------
        Unit CA-54 Totals............  .......................       98       40        0        0        0        0       48       19       50       20
--------------------------------------------------------------------------------------------------------------------------------------------------------
    CA 55B...........................  Coronado Beach.........       74       30        0        0        0        0       74       30        0        0
    CA 55E...........................  Sweetwater Marsh             132       53       77       31        0        0        1        0       54       22
                                        National Wildlife
                                        Refuge and D Street
                                        Fill.
    CA 55F...........................  Silver Strand State           82       33       74       30        0        0        8        3        0        0
                                        Beach.
    CA 55G...........................  Chula Vista Wildlife          10        4        0        0        0        0       10        4        0        0
                                        Reserve.
    CA 55I...........................  San Diego National             5        2        0        0        0        0        0        0        5        2
                                        Wildlife Refuge, South
                                        Bay Unit.
    CA 55J...........................  Tijuana Estuary and          150       61       71       29        0        0       58       23       21        8
                                        Beach.
                                                               -----------------------------------------------------------------------------------------
        Unit CA-55 Totals (does not    .......................      453      183      222       90        0        0      151       61       80       32
         include exempt sub-units).
                                                               -----------------------------------------------------------------------------------------
            CALIFORNIA TOTALS........  .......................   19,014    7,695    3,436    1,390        0        0   10,279    4,160    5,301    2,145
                                                               -----------------------------------------------------------------------------------------
            WASHINGTON, OREGON,        .......................   30,497   12,342    9,320    3,772      336      136   14,326    5,798    6,517    2,637
             CALIFORNIA GRAND TOTALS.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

Required Determinations--Amended

    In our March 22, 2011, proposed rule (76 FR 16046), 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 data to make these determinations. In this 
document, we affirm the information in our proposed revised 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). However, 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 (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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. The SBREFA 
amended the RFA to require Federal agencies to provide a certification 
statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities. Based on our DEA of the proposed revised designation, we 
provide our analysis for determining whether the proposed revised 
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 our 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

[[Page 2251]]

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 revised designation of critical 
habitat for the Pacific Coast WSP would affect a substantial number of 
small entities, we considered the number of small entities affected 
within particular types of economic activities, such as development, 
recreation, habitat management or restoration activities (IEc 2011, p. 
A-5). 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 
the Pacific Coast WSP 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 revised critical habitat designation, consultations to avoid 
the destruction or 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 revised designation of critical habitat for the Pacific 
Coast WSP. The Service and the action agency are the only entities with 
direct compliance costs associated with this proposed revised critical 
habitat designation, although small entities may participate in section 
7 consultation as a third party. It is, therefore, possible that the 
small entities may spend additional time considering critical habitat 
during section 7 consultation for the Pacific Coast WSP. The DEA 
indicates that the incremental impacts potentially incurred by small 
entities are limited to two private developers working through the Sand 
City Redevelopment Agency at the Sterling-McDonald site (Unit CA 22) 
and Security National Guaranty (SNG) (Unit CA 22). The indirect 
incremental impacts resulting from development of the Sterling-McDonald 
and the Security National Guaranty (SNG) site (Unit CA 22) result from 
potential denial of development permits for the Sterling-McDonald and 
SNG sites by the California Coastal Commission (CCC). Both projects 
have been in planning for numerous years, and previous applications for 
development permits from the CCC have been denied due to being in 
noncompliance with the California Coastal Act of 1976. The projects 
have been subsequently modified to decrease impacts to coastal 
resources, and proponents are again seeking CCC approval. Because the 
project modifications have not yet been reviewed by the CCC, there is 
still some uncertainty as to whether the projects will be allowed to 
move forward at this time and thus result in the potential incremental 
impacts identified in the DEA.
    The Sterling-McDonald site plan calls for a 342 unit coastal 
resort. The project has been in planning since the 1990s and an 
Environmental Impact Report (EIR) under the California Environmental 
Quality Act (CEQA) is currently under development on the project's 
current design. Project proponents expect the EIR to be completed in 
2012.
    The 39-ac (16-ha) SNG site is also planned for a mixed-use resort 
and will include up to 341 units. The proposed project has completed an 
EIR under CEQA and as part of local and State permitting processes, SNG 
has prepared a detailed habitat protection plan (HPP) for the site. The 
HPP evaluates and proposes mitigation for potential impacts to 
biological resources, including the Pacific Coast WSP and its habitat. 
Two other federally listed species occur at the project site including 
the endangered Smith's blue butterfly (Euphilotes enoptes smithi) (with 
proposed critical habitat: 42 FR 7972; February 8, 1977) and threatened 
Monterey spineflower (Chorizanthe pungens var. pungens) with final 
critical habitat (73 FR 1525; January 9, 2008). The HPP also includes 
proposed mitigation for these two species. The HPP has been reviewed by 
the local jurisdictions and has been subject to public review as part 
of the CCC hearing process in December 2009. Project proponents 
anticipate that the CCC will conditionally approve the final resort 
design on adoption and implementation of the HPP. Final approval of the 
HPP by CCC is anticipated prior to the issuance of the final revised 
critical habitat designation for the Pacific Coast WSP.
    The process for the CCC to issue permits for coastal development 
projects involves the development of Local Coastal Programs (LCPs) by 
cities and counties. LCPs are basic planning tools used by local 
governments to guide development in the coastal zone, in partnership 
with the CCC. After an LCP has been certified by the CCC to be in 
compliance with the Coastal Act requirements, the coastal permitting 
authority over most new development is transferred to the local 
government. As of 2008, approximately 72 percent of the LCPs have been 
certified by the CCC, representing close to 90 percent of the 
geographic area of the coastal zone. Unit CA-22 for the Pacific Coast 
WSP falls within the City of Sand City LCP which includes the coastal 
areas near the City of Sand City south to Bay Avenue in Monterey 
County, California. Since 2004, when the City of Sand City LCP was 
approved by the CCC, the City of Sand City issued a total of 107 
permits for development projects or other construction activity 
affecting coastal resources within the LCP (CCC 2010, pp. Part 3 16-
17). The two small businesses represent less than 2 percent of the 
total number of actions permitted regionally by the City of Sand City 
and certified by the CCC.
    Due to the uncertainty of the status of the two projects, the 
extent of their indirect impacts, and the unavailability of data 
necessary to quantify impacts, the DEA does not quantify, but 
qualitatively discusses, these potential indirect impacts (IEc 2011, p. 
A-5). Please refer to the DEA of the proposed revised critical habitat 
designation for a more detailed discussion of potential economic 
impacts.
    Our analysis constitutes an evaluation of not only potentially 
directly affected parties, but those also potentially indirectly 
affected. Under the RFA and following recent case law, we are only 
required to evaluate the direct effects of a regulation to determine 
compliance. Because the regulatory effect of critical habitat is 
through section 7 of the Act which applies only to Federal agencies, we 
have determined that only Federal agencies are directly affected by 
this rulemaking. Other entities, such as small businesses, are only 
indirectly affected. However, to better understand the potential 
effects of a designation of

[[Page 2252]]

critical habitat, we frequently evaluate the potential impact to those 
entities that may be indirectly affected, as was the case for this 
rulemaking. In doing so, we focus on the specific areas being 
designated as critical habitat and compare the number of small business 
entities potentially affected in that area with other small business 
entities in the regional area, versus comparing the entities in the 
area of designation with entities nationally--which is more commonly 
done. This results in an estimation of a higher proportion of small 
businesses potentially affected. In this rulemaking, we calculate that 
the proportion of small businesses potentially affected is less than 2 
percent of those regionally. If we were to calculate that value based 
on the proportion nationally, then our estimate would be significantly 
lower than 1 percent.
    Following our evaluation of potential effects to small business 
entities from this rulemaking, we do not believe that the two small 
businesses or less than 2 percent of the small businesses in the 
affected sector represents a substantial number. However, we recognize 
that the potential effects to these small businesses may be significant 
due to not quantifying the potential economic impacts. We will further 
evaluate the potential effects to these small businesses as we develop 
our final rulemaking.
    In summary, we have considered whether the proposed revised 
designation 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 two small entities that may be impacted by 
the proposed revised critical habitat designation. For the above 
reasons and based on currently available information, we certify that, 
if promulgated, the proposed revised critical habitat designation would 
not have a significant economic impact on a substantial number of small 
business entities. Therefore, an initial regulatory flexibility 
analysis is not required.

Authors

    The primary authors of this notice are the staff members of the 
Arcata Fish and Wildlife Office, Region 8, U.S. Fish and Wildlife 
Service.

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 further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as proposed to 
be amended at 76 FR 16046, March 22, 2011, as follows:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

    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. In Sec.  17.11(h), revise the entry for ``Plover, western 
snowy'' under ``BIRDS'' in the List of Endangered and Threatened 
Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                   Vertebrate
------------------------------------------------------                        population where                                  Critical       Special
                                                          Historic range       endangered or         Status      When listed     habitat        rules
           Common name              Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Birds
 
                                                                      * * * * * * *
Plover, western snowy...........  Charadrius nivosus   U.S.A. (AZ, CA, CO,  U.S.A. (CA, OR,      T                      493      17.95(b)            NA
                                   nivosus.             KS, NM, NV, OK,      WA), Mexico
                                                        OR, TX, UT, WA),     (within 50 miles
                                                        Mexico.              of Pacific coast).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec.  17.95(b), in the entry for ``Western Snowy Plover 
(Charadrius nivosus nivosus)--Pacific Coast Population'' by 
redesignating paragraphs (87) through (108) as paragraphs (88) through 
(109) and revising paragraphs (82) through (86) and adding a new 
paragraph (87) to read as set forth below:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) Birds.
* * * * *
    Western Snowy Plover (Charadrius nivosus nivosus)--Pacific Coast 
Population.
* * * * *
    (82) Subunit CA 46A: Bolsa Chica State Beach, Orange County, 
California.
    (i) [Reserved for textual description of Subunit CA 46A: Bolsa 
Chica State Beach, Orange County, California]
    (ii) Note: Subunit CA 46A: Bolsa Chica Beach, Orange County, 
California, is depicted on the map in paragraph (87)(ii) of this entry.
    (83) Subunit CA 46B: Bolsa Chica Reserve, Orange County, 
California.
    (i) [Reserved for textual description of Subunit CA 46B: Bolsa 
Chica Reserve, Orange County, California]
    (ii) Note: Subunit CA 46B: Bolsa Chica Reserve, Orange County, 
California, is depicted on the map in paragraph (87)(ii) of this entry.
    (84) Subunit CA 46C: Bolsa Chica Reserve, Orange County, 
California.
    (i) [Reserved for textual description of Subunit CA 46C: Bolsa 
Chica Reserve, Orange County, California]
    (ii) Note: Subunit CA 46C: Bolsa Chica Reserve, Orange County, 
California, is depicted on the map in paragraph (87)(ii) of this entry.
    (85) Subunit CA 46D: Bolsa Chica Reserve, Orange County, 
California.
    (i) [Reserved for textual description of Subunit CA 46D: Bolsa 
Chica Reserve, Orange County, California]
    (ii) Note: Subunit CA 46D: Bolsa Chica Reserve, Orange County, 
California, is depicted on the map in paragraph (87)(ii) of this entry.
    (86) Subunit CA 46E: Bolsa Chica Reserve, Orange County, 
California.

[[Page 2253]]

    (i) [Reserved for textual description of Subunit CA 46D: Bolsa 
Chica Reserve, Orange County, California]
    (ii) Note: Subunit CA 46E: Bolsa Chica Reserve, Orange County, 
California, is depicted on the map in paragraph (87)(ii) of this entry.
    (87) Subunit CA 46F: Bolsa Chica Reserve, Orange County, 
California.
    (i) [Reserved for textual description of Subunit CA 46F: Bolsa 
Chica Reserve, Orange County, California]
    (ii) Note: Map of Subunits CA 46A-46F: Bolsa Chica State Beach and 
Bolsa Chica Reserve, Orange County, California, follows:
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[[Page 2254]]


* * * * *

    Dated: January 4, 2012.
Eileen Sobek,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-521 Filed 1-13-12; 8:45 am]
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