[Federal Register Volume 79, Number 87 (Tuesday, May 6, 2014)]
[Proposed Rules]
[Pages 25797-25806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-10053]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2013-0049; 4500030113]
RIN 1018-AZ33


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Diplacus vandenbergensis (Vandenberg Monkeyflower)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; revision and reopening of the comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the proposed rule to 
designate critical habitat for Diplacus vandenbergensis (Vandenberg 
monkeyflower). We also announce the availability of a draft economic 
analysis (DEA) of the proposed designation of critical habitat for D. 
vandenbergensis and an amended required determinations section of the 
proposal. In addition, in this document, we are proposing revised unit 
names for the four previously described subunits, and a revised acreage 
for one subunit based on information we received on the proposal. These 
revisions result in an increase of approximately 24 acres (10 hectares) 
in the proposed designation of critical habitat. We are reopening the 
comment period to allow all interested parties an opportunity to 
comment simultaneously on the proposed rule, the associated DEA, the 
amended required determinations section, and the unit revisions 
described in this document. Comments previously submitted need not be 
resubmitted, as they will be fully considered in preparation of the 
final rule.

DATES: The comment period for the proposed rule published October 29, 
2013 (at 78 FR 64446), is reopened. We will consider comments on that 
proposed rule or the changes to it proposed in this document that we 
receive or that are postmarked on or before June 5, 2014. 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: 
    Document availability: You may obtain copies of the proposed rule 
and the associated DEA (Industrial Economics, Incorporated (IEc) 2014; 
Service 2014) on the internet at http://www.regulations.gov at Docket 
No. FWS-R8-ES-2013-0049 or by mail from the Ventura Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT).
    Written comments: 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-2013-0049 (the 
docket number for the proposed critical habitat rule).
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2013-0049; 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: Stephen P. Henry, Acting Field 
Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 2493 Portola Road, Suite B, Ventura, CA 93003; telephone 805-
644-1766; facsimile 805-644-3958. 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 designation of critical habitat 
for Diplacus vandenbergensis (hereafter referred to as Vandenberg 
monkeyflower) that was published in the Federal Register on October 29, 
2013 (78 FR 64446), our DEA (which comprises an economics screening 
memorandum (IEc 2014) and the Service's Incremental Effects Memorandum 
(Service 2014)) of the proposed designation, the amended required 
determinations provided in this document, and the revisions to the 
names and one unit as described 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 designate habitat as 
``critical habitat'' under section 4 of the Endangered Species Act (16 
U.S.C. 1531 et seq.) (Act), including whether there are threats to the 
species from human activity, the degree those threats 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) The amount and distribution of Vandenberg monkeyflower and its 
habitat;
    (b) What may constitute ``physical or biological features essential 
to the conservation of the species,'' within the geographical range 
currently occupied by the species;
    (c) Where these features are currently found;
    (d) Whether any of these features may require special management 
considerations or protection;
    (e) What areas currently occupied by the species and that contain 
features essential to the conservation of the species should be 
included in the designation and why; and
    (f) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
areas occupied by the species or proposed to be designated as critical 
habitat, and possible impacts of these activities on this species and 
proposed critical habitat.
    (4) Comments or information that may assist us in identifying or 
clarifying the primary constituent elements (PCEs).
    (5) Information on the projected and reasonably likely impacts of 
climate change on Vandenberg monkeyflower and proposed critical 
habitat.
    (6) Any probable economic, national security, or other relevant 
impacts of designating any area that may be

[[Page 25798]]

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 designation that are subject to these 
impacts.
    (7) Information on the extent to which the description of economic 
impacts in the DEA is a reasonable estimate of the probable economic 
impacts.
    (8) 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 critical habitat designation.
    (9) Whether any specific areas we are proposing for critical 
habitat designation 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. We specifically seek comments on the 
following:
    (a) Whether the existing management plans for Burton Mesa 
Ecological Reserve and La Purisima Mission State Historic Park (SHP) 
provide a conservation benefit to Vandenberg monkeyflower and its 
habitat. We also seek comments on whether there is a reasonable 
expectation that the conservation management strategies and actions in 
these management plans will be implemented into the future.
    (b) Whether or not to exclude the Burton Ranch area from the final 
critical habitat designation. Burton Ranch is a residential development 
project on private land that borders the Burton Mesa Ecological 
Reserve. We included Burton Ranch in our proposed critical habitat 
because the area met our criteria for designating critical habitat for 
Vandenberg monkeyflower. In comments on the proposed designation, the 
developers of Burton Ranch requested that this land be excluded from 
critical habitat.
    (c) Whether or not to exclude a portion of the Burton Mesa 
Ecological Reserve, at a site where the Vandenberg Village Community 
Services District (VVCSD) is considering installation of new water 
wells. In comments on the proposed designation, the VVCSD requested 
exclusion of 106 acres (ac) (43 hectares (ha)) for the purpose of 
installing new water wells to replace their existing wells. The land 
VVCSD requested to exclude is within the Burton Mesa Ecological Reserve 
and owned and managed by the State of California. Vandenberg 
monkeyflower is known to occur within the 106-ac (43-ha) area.
    (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.
    If you submitted comments or information on the proposed rule (78 
FR 64446) during the initial comment period from October 29, 2013, to 
December 30, 2013, please do not resubmit them. Any such comments are 
incorporated as part of the public record of this rulemaking 
proceeding, and we will fully consider them in the preparation of our 
final determination. Our final determination concerning critical 
habitat will take into consideration all written comments and any 
additional information we receive during both comment periods. This 
document contains revisions to the proposed rule; in addition, the 
final decision may differ from this revised proposed rule, based on our 
review of all information received during this rulemaking proceeding.
    You may submit your comments and materials concerning the proposed 
rule or DEA (IEc 2014; Service 2014) by one of the methods listed in 
ADDRESSES. We request that you send comments only by the methods 
described in ADDRESSES.
    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 listing, proposed 
critical habitat, and DEA, will be available for public inspection on 
http://www.regulations.gov at Docket Number FWS-R8-ES-2013-0049, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT). You may obtain copies of the proposed rule to 
designate critical habitat and the DEA (IEc 2014; Service 2014) on the 
Internet at http://www.regulations.gov at Docket Number FWS-R8-ES-2013-
0049, or by mail from the Ventura Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT section).

Background

    It is our intent to discuss only those topics directly relevant to 
the proposed designation of critical habitat for Vandenberg 
monkeyflower (78 FR 64446) in this document. For more information on 
previous Federal actions concerning Vandenberg monkeyflower, refer to 
the proposed listing rule (78 FR 64840) that published in the Federal 
Register on October 29, 2013. Both proposed rules are available online 
at http://www.regulations.gov (at Docket No. FWS-R8-ES-2013-0078 for 
the proposed listing and Docket No. FWS-R8-ES-2013-0049 for the 
proposed critical habitat designation) or from the Ventura Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
    On October 29, 2013, we published a proposed rule to designate 
critical habitat for Vandenberg monkeyflower (78 FR 64446). We proposed 
to designate approximately 5,785 ac (2,341 ha) in four subunits as 
critical habitat for Vandenberg monkeyflower in Santa Barbara County, 
California. That proposal had an initial 60-day comment period ending 
December 30, 2013. This document announces proposed revisions of the 
subunit names (now called units) and acreage of one unit (Encina, Unit 
3) described in the October 29, 2013, proposed rule to designate 
critical habitat. In a separate rulemaking, we proposed to list 
Vandenberg monkeyflower as an endangered species on October 29, 2013 
(78 FR 64840). If the listing and critical habitat rules are finalized, 
we anticipate submitting for publication in the Federal Register a 
final critical habitat designation for Vandenberg monkeyflower by 
October 2014.

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 that such areas are 
essential for the conservation of the species. If the proposed rule 
designating critical habitat 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

[[Page 25799]]

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.

Revisions to Proposed Critical Habitat Designation

    On October 29, 2013, we proposed critical habitat for Vandenberg 
monkeyflower in four subunits, consisting of approximately 5,785 ac 
(2,341 ha) in Santa Barbara County, California (78 FR 64446). We are 
now revising the `subunit' designation used in the October 29, 2013, 
proposed rule to `unit' for added clarity for the public and to be 
consistent with critical habitat naming across the nation. The revised 
unit names are: Unit 1 (Vandenberg), Unit 2 (Santa Lucia), Unit 3 
(Encina), and Unit 4 (La Purisima). Additionally, we are revising the 
proposed designation to include an additional 24 ac (10 ha) for a total 
of approximately 5,809 ac (2,351 ha) (see Table 1). The added acreage 
occurs north of Davis Creek in the parcel designated as open space at 
Clubhouse Estates, consisting of maritime chaparral mixed with oak 
woodland and scrub vegetation that is contiguous with the Burton Mesa 
Ecological Reserve. This area was added to the proposed critical 
habitat designation because it contains the physical and biological 
features essential to the conservation of Vandenberg monkeyflower, and 
also supports a portion of a population of Vandenberg monkeyflower. We 
propose this increase based on new information received from several 
commenters who pointed out that we had omitted a portion of a parcel 
along the boundaries of Unit 3 (Encina). Apart from the acreages and 
ownership percentages provided in the Unit 3 description in the October 
29, 2013, proposed rule, the general information in the Unit 3 
description in that proposal remains unchanged.

                Table 1--Revisions to Proposed Critical Habitat Units for Vandenberg Monkeyflower
                    [Area estimates reflect all land within critical habitat unit boundaries]
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                                                                    October 29,
                                                                  2013, proposed      Current     Change from 10/
                                                                     critical        proposed         29/2013
   Proposed critical habitat unit       Land ownership by type      habitat in     revised acres     proposal
                                                                       acres        (hectares)        (acres
                                                                    (hectares)                      (hectares))
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1. Vandenberg Unit.................  Federal....................        277 (75)       277 (112)           0 (0)
2. Santa Lucia Unit................  State......................     1,422 (576)     1,422 (576)           0 (0)
                                     Local Agency...............          10 (4)          10 (4)           0 (0)
                                     Private....................         52 (21)         52 (21)           0 (0)
3. Encina Unit.....................  State......................     1,460 (591)     1,460 (591)           0 (0)
                                     Local Agency...............         24 (10)         24 (10)           0 (0)
                                     Private....................       516 (209)       540 (218)       +24 (+10)
4. La Purisima Unit................  State......................     1,792 (725)     1,792 (725)           0 (0)
                                     Local Agency...............           4 (2)           4 (2)           0 (0)
                                     Private....................        228 (92)        228 (92)           0 (0)
    Revised Totals for All 4 Units   Federal....................       277 (112)       277 (112)           0 (0)
     \1\.
                                     State......................   4,674 (1,892)   4,674 (1,892)           0 (0)
                                     Local Agency...............         38 (16)         38 (16)           0 (0)
                                     Private....................       796 (322)       820 (332)       +24 (+10)
                                                                 -----------------------------------------------
                                          Total.................   5,785 (2,341)   5,809 (2,351)           0 (0)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
\1\ This total does not include 4,159 ac (1,683 ha) of lands within Vandenberg AFB that were identified as areas
  that meet the definition of critical habitat but are exempt from critical habitat designation under section
  4(a)(3)(B) of the Act (see Exemptions section of proposed critical habitat rule that published on October 29,
  2013 (78 FR 64446)).

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. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion for an area, we 
consider, among other factors, the additional regulatory benefits that 
an area would receive through the analysis under section 7 of the Act 
addressing the destruction or adverse modification of critical habitat 
as a result of actions with a Federal nexus (activities conducted, 
funded, permitted, or authorized by Federal agencies), the educational 
benefits of identifying areas containing essential features that aid in 
the recovery of the listed species, and any ancillary benefits 
triggered by existing local, State, or Federal laws as a result of the 
critical habitat designation.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to 
incentivize or result in conservation; the continuation, strengthening, 
or encouragement of partnerships; and the implementation of a 
management plan. In the case of Vandenberg monkeyflower, the benefits 
of critical habitat include public awareness of the presence of the 
species, the importance of habitat protection, and, where a Federal 
nexus exists, increased habitat protection for Vandenberg monkeyflower. 
In practice, situations with a Federal nexus exist primarily on Federal 
lands or for projects undertaken, authorized, funded, or otherwise 
permitted by Federal agencies. We have not proposed to exclude any 
areas from critical habitat.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable

[[Page 25800]]

economic impacts of a designation, we must first evaluate specific land 
uses or activities and projects that may occur in the area of the 
critical habitat. We then must evaluate the impacts that a specific 
critical habitat designation may have on restricting or modifying 
specific land uses or activities for the benefit of the species and its 
habitat within the areas proposed. We then identify which conservation 
efforts may be the result of the species being listed under the Act 
versus those attributed solely to the designation of critical habitat 
for this particular species. The probable economic impact of a proposed 
critical habitat designation is analyzed by comparing scenarios ``with 
critical habitat'' and ``without critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource 
users potentially affected by the designation of critical habitat 
(e.g., under the Federal listing as well as other Federal, State, and 
local regulations). The baseline, therefore, represents the costs of 
all efforts attributable to the listing of the species under the Act 
(i.e., conservation of the species and its habitat incurred regardless 
of whether critical habitat is designated). The ``with critical 
habitat'' scenario describes the incremental impacts associated 
specifically with the designation of critical habitat for the species. 
The incremental conservation efforts and associated impacts would not 
be expected without the designation of critical habitat for the 
species. 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 use when evaluating the benefits 
of inclusion and exclusion of particular areas from the final 
designation of critical habitat should we choose to conduct an optional 
4(b)(2) exclusion analysis.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from the proposed designation of critical 
habitat (Service 2014). The information contained in our IEM was then 
used to develop a screening analysis (IEc 2014) of the probable effects 
of the designation of critical habitat for Vandenberg monkeyflower. In 
the screening analysis of the proposed designation of critical habitat, 
we focused our analysis on the key factors that are likely to result in 
incremental economic impacts. The purpose of the screening analysis is 
to filter out the geographic areas in which the critical habitat 
designation is unlikely to result in probable incremental economic 
impacts. In particular, the screening analysis considers baseline costs 
(i.e., absent critical habitat designation) and includes probable 
economic impacts where land and water use may be subject to 
conservation plans, land management plans, best management practices, 
or regulations that protect the habitat area as a result of the Federal 
listing status of the species. The screening analysis filters out 
particular areas of critical habitat that are already subject to such 
protections and are, therefore, unlikely to incur incremental economic 
impacts. Ultimately, the screening analysis allows us to focus on 
evaluating the specific areas or sectors that may incur probable 
incremental economic impacts as a result of the designation. This 
screening analysis (IEc 2014) combined with the information contained 
in our IEM (Service 2014) are what we consider our DEA of the proposed 
critical habitat designation for Vandenberg monkeyflower, which is 
summarized in the narrative below.
    Executive Orders 12866 and 13563 direct Federal agencies to assess 
the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the Executive Orders' regulatory analysis requirements, our 
effects analysis under the Act may take into consideration impacts to 
both directly and indirectly impacted entities, where practicable and 
reasonable. We assess, to the extent practicable, the probable impacts, 
if sufficient data are available, to both directly and indirectly 
impacted entities. Potential incremental economic impacts associated 
with the following categories of activities could occur in Vandenberg 
monkeyflower proposed critical habitat: (1) Conservation or restoration 
activities; (2) utilities management (e.g., maintenance of an existing 
pipeline); (3) fire management; (4) transportation (e.g., maintenance 
of existing roads); (5) recreation; or (6) development (Service 2014, 
pp. 4-6, 10). We considered each industry or category individually. 
Additionally, we 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 Vandenberg monkeyflower is present, 
Federal agencies will be required to consult with the Service under 
section 7 of the Act on activities they fund, permit, or implement that 
may affect the species, if the Vandenberg monkeyflower is listed under 
the Act. If we finalize the proposed critical habitat designation and 
listing rule, consultations to avoid the destruction or adverse 
modification of critical habitat would be included in the consultation 
process that will also consider jeopardy to the listed species. 
Therefore, disproportionate impacts to any geographic area or sector 
are not likely as a result of this critical habitat designation.
    In our IEM, we attempted to clarify the distinction between the 
effects that will result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for Vandenberg 
monkeyflower (Service 2014, pp. 7-19). Because the designation of 
critical habitat for Vandenberg monkeyflower was proposed concurrently 
with the listing, it is more difficult at this time to discern which 
conservation efforts are attributable to the species being listed and 
those that will result solely from the designation of critical habitat. 
However, the following specific circumstances in this case help to 
inform our evaluation: (1) The essential physical and biological 
features identified for critical habitat are the same features 
essential for the life requisites of the species, and (2) any actions 
that would constitute jeopardy to Vandenberg monkeyflower would also 
likely adversely affect the essential physical and biological features 
of critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
species (Service 2014, pp. 7-19). This evaluation of the incremental 
effects has been used as the basis to evaluate the probable incremental 
economic impacts of this proposed designation of critical habitat.

Summary Findings of the Draft Economic Analysis (DEA)

    Critical habitat designation for Vandenberg monkeyflower is 
unlikely to generate costs exceeding $100 million in a single year. 
Data limitations prevent the quantification of critical habitat 
benefits (IEc 2014, pp. 3, 22, 24).
    All proposed units are considered occupied. However, Vandenberg 
monkeyflower is an annual plant that may only be expressed above ground 
once a year or even less frequently (Service 2014, p. 15). Even though 
all proposed units contain Vandenberg

[[Page 25801]]

monkeyflower seed banks below ground, some project proponents may not 
be aware of the presence of the species absent a critical habitat 
designation. The characteristics of the plant make it difficult to 
determine whether future consultations will result from the presence of 
the listed species or designated critical habitat.
    Throughout our analysis (IEc, 2014, entire), we have considered two 
scenarios:
    (1) Low-end scenario. Project proponents identify the monkeyflower 
at their site, and most costs and benefits are attributable to listing 
the species.
    (2) High-end scenario. Costs and benefits are attributed to the 
designation of critical habitat.
    Projects with a Federal nexus within Vandenberg monkeyflower 
proposed critical habitat are likely to be rare. We project fewer than 
three projects annually, associated with the Lompoc Penitentiary, the 
existing oil pipeline and utilities running through the Burton Mesa 
Ecological Reserve, and road projects using Federal funding (Iec 2014, 
pp. 3, 12). In the high-end scenario, costs in a single year are likely 
to be on the order of magnitude of tens to hundreds of thousands of 
dollars (IEc 2014, pp. 3, 12). In the low-end scenario, assuming above-
ground expression of the monkeyflower, total costs in a single year 
will likely be less than $100,000.
    The potential exists for critical habitat to trigger additional 
requirements under the California Environmental Quality Act (CEQA). In 
the low-end scenario, impacts at all sites except the Burton Ranch 
Specific Plan area would be attributed to listing Vandenberg 
monkeyflower. In the high-end scenario, properties that could 
experience relatively larger impacts include the Burton Ranch Specific 
Plan area (Unit 3), potentially developable parcels along the northern 
border of Vandenberg Village (Units 2 and 3), the Freeport-McMoRan 
parcels overlapping the state-designated Lompoc Oil Field (Units 2 and 
3), and preferred sites for new drinking water wells in the Burton Mesa 
Ecological Reserve (Unit 3). Given the value of possible impacts in 
these areas, we conclude that designating critical habitat for 
Vandenberg monkeyflower will not generate costs that exceed $100 
million in a single year (i.e., the threshold according to Executive 
Order 12866 for determining if the costs and benefits of regulatory 
actions may have a significant economic impact in any one year).
    Additional information and discussion regarding our economic 
analysis is available in our DEA (IEc 2014, entire; Service 2014, 
entire) available on the Internet at http://www.regulations.gov at 
Docket No. FWS-R8-ES-2013-0049.
    As 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 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 October 29, 2013, proposed rule (78 FR 64446), we indicated 
that we would defer our determination of compliance with several 
statutes and executive orders until we had evaluated the probable 
effects on landowners and stakeholders and the resulting probable 
economic impacts of the designation. Following our evaluation of the 
probable incremental economic impacts resulting from the designation of 
critical habitat for Vandenbeg monkeyflower, we have amended or 
affirmed our determinations below. Specifically, we affirm the 
information in our proposed rule concerning Executive Orders (E.O.s) 
12866 and 13563 (Regulatory Planning and Review), 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 our evaluation of the probable incremental 
economic impacts of the proposed designation of critical habitat for 
Vandenberg monkeyflower, we are amending our required determinations 
concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and 
E.O. 12630 (Takings).

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 publishes a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. 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.
    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.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are required to evaluate the potential incremental impacts of 
rulemaking only on those entities directly regulated by the rulemaking 
itself, and therefore, are not required to evaluate the potential 
impacts to indirectly regulated entities. The regulatory mechanism 
through which critical habitat protections are realized is section 7 of 
the Act, which requires Federal agencies, in consultation with the 
Service, to ensure that any action authorized, funded, or carried out 
by the agency is not likely to destroy or adversely modify critical 
habitat. Therefore, under section 7, only Federal action agencies are 
directly subject to the specific regulatory

[[Page 25802]]

requirement (avoiding destruction and adverse modification) imposed by 
critical habitat designation. Consequently, it is our position that 
only Federal action agencies will be directly regulated by this 
designation. There is no requirement under RFA to evaluate the 
potential impacts to entities not directly regulated. Moreover, Federal 
agencies are not small entities. Therefore, because no small entities 
are directly regulated by this rulemaking, the Service certifies that, 
if promulgated, the proposed critical habitat designation will not have 
a significant economic impact on a substantial number of small 
entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if promulgated, the proposed 
critical habitat designation for Vandenberg monkeyflower would not have 
a significant economic impact on a substantial number of small business 
entities. Therefore, an initial regulatory flexibility analysis is not 
required.

E.O. 12630 (Takings)

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for Vandenberg monkeyflower in a takings implications 
assessment. As discussed above, the designation of critical habitat 
directly affects only Federal actions. Although private parties that 
receive Federal funding, assistance, or require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. The DEA found that no significant 
economic impacts are likely to result from the designation of critical 
habitat for Vandenberg monkeyflower. Because the Act's critical habitat 
protection requirements apply only to Federal agency actions, few 
conflicts between critical habitat and private property rights should 
result from this designation. Based on information contained in the DEA 
and described within this document, it is not likely that economic 
impacts to a property owner would be of a sufficient magnitude to 
support a takings action. Therefore, the takings implications 
assessment concludes that this designation of critical habitat for 
Vandenberg monkeyflower does not pose significant takings implications 
for lands within or affected by the designation.

Authors

    The primary authors of this notice are the staff members of the 
Pacific Southwest Regional Office (Region 8), with assistance from 
staff of the Ventura Fish and Wildlife Office, U.S. Fish and Wildlife 
Service.

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 on October 29, 2013, at 78 FR 64446, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless 
otherwise noted.

0
2. Amend Sec.  17.96(a) by revising paragraphs (5), (6), and (7) in the 
entry proposed for ``Family Phrymaceae: Diplacus vandenbergensis 
(Vandenberg monkeyflower)'' at 78 FR 64446, to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    Family Phrymaceae: Diplacus vandenbergensis (Vandenberg 
monkeyflower)
* * * * *
    (5) Index map follows:

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[[Page 25803]]

[GRAPHIC] [TIFF OMITTED] TP06MY14.016

    (6) Unit 1 (Vandenberg) and Unit 2 (Santa Lucia): Santa Barbara 
County, California. Map of Units 1 and 2, follows:
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[[Page 25804]]

[GRAPHIC] [TIFF OMITTED] TP06MY14.017

    (7) Unit 3 (Encina) and Unit 4 (La Purisima): Santa Barbara County, 
California. Map of Units 3 and 4, follows:
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[[Page 25805]]

[GRAPHIC] [TIFF OMITTED] TP06MY14.018


[[Page 25806]]


* * * * *

    Dated: April 24, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-10053 Filed 5-5-14; 8:45 am]
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