[PCA] Public Comment: Proposed Designation of Critical Habitat for Monardella linoides ssp. viminea (willowy monardella)
Patricia_DeAngelis at fws.gov
Patricia_DeAngelis at fws.gov
Thu Jun 1 13:59:02 CDT 2006
For full notice, see: http://epa.gov/EPA-SPECIES/2006/June/Day-01/
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[Federal Register: June 1, 2006 (Volume 71, Number 105)]
[Proposed Rules]
[Page 31137-31141]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jn06-28]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT92
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for Monardella linoides ssp. viminea
(willowy monardella)
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 Monardella linoides ssp. viminea (willowy
monardella) 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 the November 9, 2005,
proposed critical habitat rule need not be resubmitted as they have
already been incorporated into the public record and will be fully
considered in our final determination.
DATES: Comments must be submitted directly to the Service (see
ADDRESSES section) on or before July 3, 2006.
ADDRESSES: If you wish to comment on the proposed rule or draft
economic analysis, you may submit your comments and materials
identified by RIN 1018-AT92, by any of the following methods:
(1) E-mail: <A HREF="mailto:fw8cfwomolivi at fws.gov
">fw8cfwomolivi at fws.gov</A>. Include ``RIN 1018-AT92'' in the
subject line.
(2) Fax: 760/431-9624.
(3) Mail: Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife
Office, 6010 Hidden Valley Road, Carlsbad, CA 92011.
(4) Hand Delivery/Courier: You may hand-deliver written documents
to our office (see ADDRESSES).
(5) Federal eRulemaking Portal: <A HREF="http://www.regulations.gov
">http://www.regulations.gov</A>.
Follow the instructions for submitting comments.
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad
Fish and Wildlife Office, telephone, 760/431-9440; facsimile, 760/431-
9624.
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We will accept written comments and information during this reopened
[[Page 31138]]
comment period. We intend that any final action resulting from our
critical habitat proposal be as accurate and effective as possible.
Therefore, we solicit comments or suggestions from the public, other
concerned governmental agencies, Tribes, the scientific community,
industry, or any other interested party concerning the proposed rule
and/or the associated draft economic analysis. On the basis of public
comment on the proposed rule and the draft economic analysis, and the
conclusions of the final economic analysis, we may find during the
development of our final determination that some areas do not contain
the necessary features essential to the conservation of the species,
are appropriate for exclusion under section 4(b)(2) of the Act, or are
not appropriate for exclusion. We particularly seek comments concerning:
(1) The reasons any habitat should or should not be determined to
be critical habitat as provided by section 4 of the Endangered Species
Act of 1973, as amended (Act) (16 U.S.C. 1531 et al.), including
whether it is prudent to designate critical habitat;
(2) Specific information on the amount and distribution of willowy
monardella habitat, and what habitat contains the necessary features
essential to the conservation of the 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) The proposed exclusion of habitat on Federal and non-Federal
lands within the San Diego Multiple Species Habitat Conservation
Program (MSCP) and the Memorandum of Understanding (MOU) established
between the Bureau of Land Management, the Service, the County of San
Diego, the City of San Diego, and California Department of Fish and
Game, in cooperation with the San Diego Association of Governments
under section 4(b)(2) of the Act (please see Application of Sections
3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act for
details on the MSCP and MOU section of the proposed rule (70 FR 67956;
November 9, 2005)). Please provide information demonstrating the
benefits of including or excluding these lands from the critical
habitat designation. If the Secretary determines the benefits of
including the lands outweigh the benefits of excluding them, they will
not be excluded from critical habitat;
(5) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation and, in particular, any
impacts on small entities;
(6) 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.
(7) Whether the economic analysis identifies all State and local
costs. If not, what other costs should be included;
(8) Whether the economic analysis makes appropriate assumptions
regarding current practices and likely regulatory changes imposed as a
result of the listing of the species or the designation of critical
habitat;
(9) Whether the economic analysis correctly assesses the effect on
regional costs associated with land and water use controls that derive
from the designation;
(10) Whether the designation will result in disproportionate
economic impacts to specific areas that should be evaluated for
possible exclusion from any final designation;
(11) Whether the economic analysis appropriately identifies all costs
that could result from the designation or coextensively from the listing;
(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) Whether the benefit of exclusion in any particular area
outweigh the benefits of inclusion under Section 4(b)(2) of the Act.
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). Our final determination concerning designation
of critical habitat for willowy monardella will take into consideration
all comments and any additional information received during the
previous comment period and this reopened comment period (70 FR 67956).
On the basis of public comment on the critical habitat proposal, the
draft economic analysis, and the final economic analysis, we may during
the development of our final determination find that areas proposed do
not contain the necessary features essential to the conservation of the
species, are appropriate for exclusion under section 4(b)(2) of the
Act, or are not appropriate for exclusion.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. We will not consider anonymous comments and we will
make all comments 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 (see
ADDRESSES). Copies of the proposed critical habitat rule for willowy
monardella and the draft economic analysis are also available on the
Internet at <A HREF="http://www.fws.gov/carlsbad
">http://www.fws.gov/carlsbad</A>. In the event that our
Internet connection is not functional, please obtain copies of documents
directly from the Carlsbad Fish and Wildlife Office (see ADDRESSES).
Background
On November 9, 2005, we published a proposed rule in the Federal
Register (70 FR 67956) to designate critical habitat for willowy
monardella under the Act. We identified approximately 2,539 acres (ac)
(1,028 hectares (ha)) of habitat occupied at the time of listing and
containing the necessary features essential to the conservation of the
species. We proposed to designate approximately 115 ac (47 ha) of
critical habitat in one unit in San Diego County, California.
Approximately 1,863 ac (754 ha) of the 2,539 ac (1,028 ha) of habitat
are covered under an Integrated Natural Resource Management Plan
(INRMP) for Marine Corps Air Station Miramar; therefore, this area is
exempted from critical habitat under section 4(a)(3) of the Act.
Approximately 560 ac (227 ha) is proposed for exclusion from critical
habitat under section 4(b)(2) of the Act because this area is covered
under the Multiple Species Conservation Program for southwestern San
Diego County or conserved as open space (Otay Mountain Wilderness). The
first public comment period for the willowy monardella proposed
critical habitat rule closed on January 9, 2006. 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 54938).
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
[[Page 31139]]
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 November 9, 2005 (70 FR 67956), proposed
designation of critical habitat for willowy monardella.
The draft economic analysis considers the potential economic
effects of actions relating to the conservation of willowy monardella,
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 willowy monardella in proposed critical habitat areas
and areas proposed for exclusion. 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
considered those costs that may occur in the 20 years following the
final designation of critical habitat.
The draft economic analysis estimates that, because all of the
proposed critical habitat is conserved or will be conserved under the
Multi Species Conservation Program and there are no effects to future
development, and there are no potential economic impacts anticipated
from the critical designation as proposed. There are some costs
associated with plant monitoring and management on preserve lands;
however, these costs are minimal. Additionally, the Otay Mountain
wilderness area, if designated as critical habitat, would also
presumably result in small administrative costs resulting from the
inclusion of critical habitat analyses in future Section 7
consultations involving the plant. Give the wilderness status of the
lands, the number of future consultations would likely be very low and
likely conservation measures minimal. But there would likely be some
small cost. We will evaluate any potential costs associated with the
Otay Mountain wilderness area in the final rulemaking.
Of the approximately 2,539 acres (ac) (1,028 hectares (ha))
identified as proposed critical habitat for this species, approximately
560 ac (227 ha) are covered under the MSCP or conserved as open space
(Otay Mountain Wilderness) and are proposed for exclusion from critical
habitat under section 4(b)(2) of the Act. Furthermore, since the MSCP
was approved in 1997 before the 1998 listing of willowy monardella
there are no coextensive costs associated with the listing of the
species as endangered since conservation measures benefiting the
species were incorporated into the Multi Species Conservation Program
prior to its listing. Also, the analysis estimates that there will be
no future development costs for the 115 ac (47 ha) of proposed critical
habitat not proposed for exclusion under 4(b)(2) of the Act. Please
refer to Section III.3.2 of the draft economic analysis and the
``Application of Section 4(a)(3) and Possible Exclusions Under Section
4(b)(2) of the Act'' section of the proposed rule (70 FR 67956) for a
more detailed discussion of the Multi Species Conservation Program.
Required Determinations
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 impacts associated with the proposed designation of
critical habitat are negligent, we do not anticipate that this final
rule will have an annual effect on the economy of $100 million or more
or affect the economy in a material way. Due to the timeline 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 (e.g., 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 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
[[Page 31140]]
willowy monardella 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, industrial, 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.
If this proposed critical habitat designation is made final,
Federal agencies must consult with us if their activities may affect
designated critical habitat. Consultations to avoid the destruction or
adverse modification of critical habitat would be incorporated into the
existing consultation process. Our analysis determined that potential
costs involving conservation measures for willowy monardella incurred
for activities involving non-Federal agencies (residential, commercial,
and industrial development) would be negligible due to the fact that
there are minimal economic effects of the proposed critical habitat.
These minimal costs are associated with plant monitoring and management
on preserve lands.
Based on this data, we have determined that this proposed
designation would not result in a significant economic impact on a
substantial number of small entities, in particular to land developers
or farmers in San Diego County since private lands proposed for
critical habitat are part of a designated open space preserve with no
plans for farming or development as stated earlier in the Background
section. 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 Section V.2 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. On the basis of our draft
economic analysis, the proposed critical habitat designation 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 Section V.1 of our draft
economic analysis of the 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 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 onto State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments. As discussed in the draft economic analysis,
all proposed critical habitat areas are already identified and/or
conserved as open space or covered by a habitat conservation plan.
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 willowy monardella. 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 willowy monardella
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).
[[Page 31141]]
Authority
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: May 19, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-8459 Filed 5-31-06; 8:45 am]
BILLING CODE 4310-55-P
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