[PCA] Critical Habitat for Atriplex coronata var. notatior

[Patricia_DeAngelis at fws.gov]

http://epa.gov/EPA-SPECIES/2005/August/Day-31/
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[Federal Register: August 31, 2005 (Volume 70, Number 168)]
[Proposed Rules]
[Page 51739-51742]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31au05-39]

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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AJ11

Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for Atriplex coronata var. notatior
(San Jacinto Valley crownscale)

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of public comment period and notice of
availability of draft economic analysis.

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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 designation of
critical habitat for Atriplex coronata var. notatior under the
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.)
(Act), and the availability of a draft economic analysis of 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 and the associated draft economic
analysis. Comments previously submitted on this proposed rule need not
be resubmitted as they have already been incorporated into the public
record and will be fully considered in our final determination of
critical habitat for this taxon.

DATES: We will accept public comments and information until September
14, 2005.

ADDRESSES: Written comments and materials may be submitted to us by any
one of the following methods:
    1. You may submit written comments and information to Jim Bartel,
Field Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley
Road, Carlsbad, CA 92011;
    2. You may hand-deliver written comments and information to our
Carlsbad Fish and Wildlife Office at the above address, or fax your
comments to 760/431-9624; or
    3. You may send your comments by electronic mail (e-mail) to <A HREF="
mailto:FW1CFWO_SJVC at fws.gov">
FW1CFWO_SJVC at fws.gov</A>. For directions on how to submit electronic
comments, see the ``Public Comments Solicited'' section. In the event
that our internet connection is not functional, please submit your
comments by the alternate methods mentioned above.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad
Fish and Wildlife Office, at the above address (telephone 760/431-9440;
facsimile 760/431-9624).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We will accept written comments and information during this
reopened comment period. We solicit comments on the original proposed
critical habitat designation, published in the Federal Register on
October 6, 2004 (69 FR 59844), and on our draft economic analysis of
the proposed designation. We will consider information and
recommendations from all interested parties. We are particularly
interested in comments concerning:
    (1) The reasons why any habitat should or should not be determined
to be critical habitat as provided by section 4 of the Act, including
whether the benefits of exclusion outweigh the benefits of specifying
such area as part of the critical habitat;
    (2) Specific information on the amount and distribution of Atriplex
coronata var. notatior and its habitat, and habitat features and
geographic areas essential to the conservation of this species and why;
    (3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
    (4) Information on how many of the State and local environmental
protection measures referenced in the draft economic analysis were
adopted largely as a result of the listing of Atriplex coronata var.
notatior, and how many were either already in place or enacted for
other reasons;
    (5) Any foreseeable economic, environmental, or other impacts
resulting from the proposed designation or coextensively from the
proposed listing;
    (6) Whether the draft economic analysis identifies all State and
local costs attributable to the proposed critical habitat designation,
and information on any costs that have been inadvertently overlooked;
    (7) Whether the draft economic analysis makes appropriate
assumptions regarding current practices and likely regulatory changes
imposed as a result of the designation of critical habitat;
    (8) Whether the draft economic analysis correctly assesses the
effect on regional costs associated with land use controls that derive
from the designation of critical habitat;
    (9) Whether the economic analysis appropriately identifies all
costs that could result from the designation, in particular, any
impacts on small entities or families;
    (10) Whether the designation would result in disproportionate
economic impacts to specific areas that should be evaluated for
possible exclusion under 4(b)(2) of the Act from the final designation;
    (11) Whether it is appropriate that the analysis does not include
the cost of project modifications that are the result of informal
consultation only;
    (12) Whether there is information about areas that could be used as
substitutes for the economic activities planned in critical habitat
areas that would offset the costs and allow for the conservation of
critical habitat areas; and
    (13) How our approach to critical habitat designation could be
improved or modified to provide for greater public participation and
understanding, or to assist us in accommodating public concern and
comments.
    All previous comments and information submitted during the initial
comment period on the proposed rule need not be resubmitted. If you
wish to comment, you may submit your comments and materials concerning
the draft economic analysis and the proposed rule by any one of several
methods (see ADDRESSES section). Our final determination regarding
designation of critical habitat for Atriplex coronata var. notatior
will take into consideration all comments and any additional
information received during both comment periods. On the basis of
public comment on this analysis and on the critical habitat proposal,
and on the final economic analysis, we may during the development of
our final determination find that areas proposed are not essential, are
appropriate for exclusion under section 4(b)(2) of the Act, or are not
appropriate for exclusion.
    Please submit electronic comments in an ASCII file and avoid the
use of any special characters or any form of encryption. Also, please
include ``Attn: Atriplex coronata var. notatior'' and your name and
return address in your e-mail message regarding the Atriplex coronata
var. notatior proposed rule or the draft economic analysis. If you do
not receive a confirmation from the system that we have received your
e-mail message, please submit your comments in writing using one of the
alternate methods described in the ADDRESSES section.
    Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address, which we will honor to the extent allowable by

[[Page 51740]]

law. There also may be circumstances in which we would withhold a
respondent's identity, as allowable by law. If you wish us to withhold
your name and/or address, you must state this prominently at the
beginning of your comments. However, we will not consider anonymous
comments. We will make all submissions from organizations or
businesses, and from individuals identifying themselves as
representatives or officials of organizations or businesses, available
for public inspection in their entirety.
    Comments and materials received, as well as supporting
documentation used in preparation of the proposal to designate critical
habitat, will be available for public inspection, by appointment,
during normal business hours at the Carlsbad Fish and Wildlife Office
at the address listed under ADDRESSES. Copies of the proposed critical
habitat rule for Atriplex coronata var. notatior and the draft economic
analysis are also available on the Internet at <A HREF="
http://www.fws.gov/pacific/carlsbad/SJVC.htm
">http://www.fws.gov/
pacific/carlsbad/SJVC.htm</A>. In the event that our internet
connection is not functional, please obtain copies of documents directly
from the Carlsbad Fish and Wildlife Office.

Background

    On October 6, 2004, we published a proposed rule in the Federal
Register (69 FR 59844) to designate critical habitat for Atriplex
coronata var. notatior pursuant to the Act. We proposed to designate no
lands as critical habitat. The entire range for this species is in
Western Riverside County, CA, and as such will be conserved by the
approved Western Riverside Multiple Species Habitat Conservation Plan.
Therefore, we proposed to exclude all 15,232 acres (ac) (6,164.4
hectares (ha)) of habitat with features essential to the conservation
of this species under section 4(b)(2) of the Act. The initial public
comment period for the Atriplex coronata var. notatior proposed
critical habitat rule closed on December 6, 2004. For more information
on this species, refer to the final rule listing this species as
endangered, published in the Federal Register on October 13, 1998 (63
FR 54975).
    Critical habitat is defined in section 3 of the Act as the specific
areas within the geographic 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 geographic area occupied by a species at the
time it is listed, upon a determination that such areas are essential
for the conservation of the species. If the proposed rule is made
final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting areas designated as critical habitat must consult with us on
the effects of their proposed actions, pursuant to section 7(a)(2) of
the Act.
    Section 4(b)(2) of the Act requires that we designate or revise
critical habitat on the basis of the best scientific and commercial
data available, after taking into consideration the economic impact,
impact to national security, and any other relevant impacts of
specifying any particular area as critical habitat. We have prepared a
draft economic analysis of the October 6, 2004 (69 FR 59844), proposed
designation of critical habitat for Atriplex coronata var. notatior.
    The draft economic analysis considers the potential economic
effects of actions relating to the conservation of Atriplex coronata
var. notatior, including costs associated with sections 4, 7, and 10 of
the Act, and including those attributable to designating critical
habitat. It further considers the economic effects of protective
measures taken as a result of other Federal, State, and local laws that
aid habitat conservation for Atriplex coronata var. notatior in habitat
areas with features essential to the conservation of this taxon. The
analysis considers both economic efficiency and distributional effects.
In the case of habitat conservation, efficiency effects generally
reflect the ``opportunity costs'' associated with the commitment of
resources to comply with habitat protection measures (e.g., lost
economic opportunities associated with restrictions on land use). This
analysis also addresses how potential economic impacts are likely to be
distributed, including an assessment of any local or regional impacts
of habitat conservation and the potential effects of conservation
activities on small entities and the energy industry. This information
can be used by decision-makers to assess whether the effects of the
designation might unduly burden a particular group or economic sector.
Finally, this analysis looks retrospectively at costs that have been
incurred since the date the species was listed as an endangered species
and considers those costs that may occur in the 20 years following the
designation of critical habitat.
    Pre-designation costs include those Atriplex coronata var.
notatior-related conservation activities associated with sections 4, 7,
and 10 of the Act that have accrued since the time that Atriplex
coronata var. notatior was listed as endangered (63 FR 54975; October
13, 1998), but prior to the final designation of critical habitat.
These pre-designation costs are estimated at $3.9 million.
    Post-designation effects would include likely future costs
associated with Atriplex coronata var. notatior conservation efforts in
the 20-year period following the final designation of critical habitat
in October 2005 (effectively 2006 through 2025). In the event that no
land is designated as critical habitat, there will be no additional
costs associated with the designation. However, if all habitat with
features essential to the conservation of the taxon were designated
critical habitat in a final rule, total costs would be expected to
range between $16.8 and $58.8 million over the next 20 years (an
annualized cost of $1.6 to $5.5 million).

Required Determinations--Amended

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues.
However, because the draft economic analysis indicates that the
potential economic impact associated with designation as critical
habitat of all habitat with features essential to the conservation of
this species would total no more than $5.5 million per year, we do not
anticipate that this designation would have an annual effect on the
economy of $100 million or more or affect the economy in a material
way. Due to the time line for publication in the Federal Register, the
Office of Management and Budget (OMB) did not formally review the
proposed rule.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the 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. In our proposed rule,
we withheld our determination of whether

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this designation would result in a significant effect as defined under
SBREFA until we completed our draft economic analysis of the proposed
designation so that we would have the factual basis for our determination.
    According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
    To determine if this proposed designation of critical habitat for
Atriplex coronata var. notatior would affect a substantial number of
small entities, we considered the number of small entities affected
within particular types of economic activities (e.g., residential and
commercial development). We considered each industry or category
individually to determine if certification is appropriate. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement; some
kinds of activities are unlikely to have any Federal involvement and so
will not be affected by the designation of critical habitat.
Designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies; non-Federal
activities are not affected by the designation. Typically, when
proposed critical habitat designations are made final, Federal agencies
must consult with us if their activities may affect that designated
critical habitat. Consultations to avoid the destruction or adverse
modification of critical habitat would be incorporated into the
existing consultation process. However, since no critical habitat is
being proposed for designation, no consultations would be necessary.
    In our economic analysis of this proposed designation, we evaluated
the potential economic effects on small business entities resulting
from conservation actions related to the listing of this species and
proposed designation of its critical habitat. Designation of critical
habitat on all lands with features essential to the conservation of the
taxon would be expected to result in some additional costs to real
estate development projects due to conservation that may be required.
The affected land is located within Riverside County, CA, and under
private ownership by individuals who will either undertake a
development project on their own or sell the land to developers for
development. However, the potential number of small businesses impacted
by development-related Atriplex coronata var. notatior conservation
efforts is considered to be minimal, since only 342 ac (138.4 ha) of
privately-owned developable land within the essential habitat
(approximately 8,100 ac (3,278 ha)) are forecast to be developed
between 2006 and 2025. This comprises less than one-hundredth of one
percent of the land area in Riverside County (1,780,220 ac (720,455
ha)). We have determined from our analysis that this rule would not
result in a ``significant effect'' for the small business entities in
Riverside County. As such, we are certifying that this proposed
designation of critical habitat would not result in a significant
economic impact on a substantial number of small entities. Please refer
to Appendix A of our draft economic analysis of this proposed
designation for a more detailed discussion of potential economic
impacts to small business entities.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211
on regulations that significantly affect energy supply, distribution,
and use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This proposed rule is
considered a significant regulatory action under E.O. 12866 because it
raises novel legal and policy issues, but it is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant action, and no Statement of Energy
Effects is required. Please refer to Appendix A of our draft economic
analysis of this proposed designation for a more detailed discussion of
potential effects on energy supply.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. Non-Federal entities that receive Federal
funding, assistance, permits, or otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat. However, the legally
binding

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duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply; nor would critical
habitat shift the costs of the large entitlement programs listed above
on to State governments.
    (b) We do not believe that this rule will significantly or uniquely
affect small governments. As discussed in the draft economic analysis,
five small local governments, the City of Perris (population 36,189),
Lake Elsinore (population 28,928), Lakeview (population 1,619), Nuevo
(population 4,135), and Winchester (population 2,155), are located
adjacent to habitat that has features essential to the conservation of
this taxon. There is no record of consultations between the Service and
these cities since Atriplex coronata var. notatior was listed in 1998.
It is unlikely that these cities would be involved in a land
development project involving a section 7 consultation, although a city
may be involved in land use planning or permitting, and may play a role
as an interested party in infrastructure projects (such as the City of
Perris with the San Jacinto River Flood Control Project). Any cost
associated with this activity/involvement is anticipated to be a very
small portion of the city's budget. Consequently, we do not believe
that critical habitat designation would significantly or uniquely
affect small government entities. As such, Small Government Agency Plan
is not required.

Takings

    In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing critical habitat for Atriplex coronata var. notatior.
Critical habitat designation does not affect landowner actions that do
not require Federal funding or permits, nor does it preclude
development of habitat conservation programs or issuance of incidental
take permits to permit actions that do require Federal funding or
permits to go forward. In conclusion, the designation of critical
habitat for Atriplex coronata var. notatior does not pose significant
takings implications.

Author

    The primary authors of this notice are the staff of the Carlsbad
Fish and Wildlife Office (see ADDRESSES section).

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

    Dated: August 23, 2005.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-17451 Filed 8-29-05; 3:05 pm]
BILLING CODE 4310-55-P

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