Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 77703

Public Comment Solicited 

We intend that any final action 

resulting from our September 2002 

proposal will be as accurate and as 

effective as possible. Therefore, we 

solicit comments or suggestions from 

the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning the portion 

of the proposed rule subject to the 

court’s remand order. On the basis of 

public comment, during the 

development of our new, partial final 

determination we may find that areas 

proposed are not essential, are 

appropriate for exclusion under section 

4(b)(2), or not appropriate for exclusion; 

in all of these cases, this information 

would be incorporated into our new 

final determination with respect to 

those areas. We particularly seek 

comments concerning: 

(1) Specific information on the 

amount and distribution of habitat for 

the 15 vernal pool species, and what 

habitat is essential to the conservation 

of the species and why; 

(2) The reasons why any areas should 

or should not be determined to be 

critical habitat as provided by section 4 

of the Act; 

(3) Information related to the benefits 

of designating any of these areas as 

critical habitat for the 15 vernal pool 

species; 

(4) Information related to the benefits 

of excluding any of these areas as 

critical habitat for the 15 vernal pool 

species; 

(5) Land use designations and current 

or planned activities in or adjacent to 

the areas proposed, and their possible 

impacts on proposed critical habitat; 

(6) Land use designations and current 

or planned activities in or adjacent to 

the areas proposed, and the possible 

impacts on those uses and activities 

from a critical habitat designation; 

(7) Any foreseeable economic or other 

potential impacts resulting from the 

proposed designation, including any 

impacts on small entities; and 

(8) 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 wish to comment, you may 

submit your comments and materials 

concerning this proposal by any one of 

several methods (see ADDRESSES

section). Please submit electronic 

comments in ASCII file format and 

avoid the use of special characters or 

any form of encryption. Please also 

include ‘‘Attn: RIN 1018–AUO6’’ in 

your e-mail subject header and your 

name and return address in the body of 

your message. If you do not receive a 

confirmation from the system that we 

have received your Internet message, 

contact us directly by calling our 

Sacramento Fish and Wildlife Office at 

telephone number 916/414–6600, 

during normal business hours. 

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 addresses from 

the rulemaking record, which we will 

honor to the extent allowable by law. 

There also may be circumstances in 

which we would withhold from the 

rulemaking record 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 

comment. 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 will 

be available for public inspection, by 

appointment, during normal business 

hours at the above address. 

Authority 

The authority for this action is the 

Endangered Species Act of 1973 (16 

U.S.C. 1531 et seq.).

Dated: December 17, 2004. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks.

[FR Doc. 04–28164 Filed 12–27–04; 8:45 am] 

BILLING CODE 4310–55–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17

RIN 1018–AJ09

Endangered and Threatened Wildlife 

and Plants; Notice of Availability of 

Draft Economic Analysis and 

Reopening of the Public Comment 

Period for the Proposed Designation of 

Critical Habitat for Astragalus 

lentiginosus var. piscinensis (Fish 

Slough Milk-vetch)

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Proposed rule; notice of 

availability of draft economic analysis 

and reopening of public comment 

period. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

availability of a draft economic analysis 

for the proposed designation of critical 

habitat for the federally threatened 

Astragalus lentiginosus var. piscinensis

(Fish Slough milk-vetch), and the 

reopening of the public comment period 

on the proposed rule to designate 

critical habitat for this taxon. The 

comment period will provide the 

public, Federal, State, and local 

agencies, and Tribes with an 

opportunity to submit written 

comments on this proposal and its 

respective draft economic analysis. 

Comments previously submitted on the 

proposed rule need not be resubmitted 

as they have been incorporated into the 

public record as a part of this reopening 

of the comment period, and will be fully 

considered in preparation of the final 

rule.

DATES: We will accept all comments and 

information until 5 p.m. on or before 

January 27, 2005. Any comments that 

we receive after the closing date may 

not be considered in the final decision 

on this proposal.

ADDRESSES: Written comments and 

materials may be submitted to us by one 

of the following methods: 

(1) You may submit written comments 

and information to the Field Supervisor, 

U.S. Fish and Wildlife Service, Ventura 

Fish and Wildlife Office, 2493 Portola 

Road, Suite B, Ventura, CA 93003. 

(2) You may hand-deliver written 

comments and information to our 

Ventura Fish and Wildlife Office, at the 

above address, or fax your comments to 

805/644–3958. 

(3) You may send comments by 

electronic mail (e-mail) to: 

fw1fsmv_pch@r1.fws.gov. Please see the 

Public Comments Solicited section 

below for file format and other 

information about electronic filing. 

Comments and materials received, as 

well as supporting documentation used 

in preparation of the proposed critical 

habitat rule for Astragalus lentiginosus

var. piscinensis (69 FR 31552), will be 

available for public inspection, by 

appointment, during normal business 

hours at the above address. You may 

obtain copies of the draft economic 

analysis for this taxon by contacting the 

Ventura Fish and Wildlife Office at the 

above address. The draft economic 

analysis and the proposed rule for 

critical habitat designation also are 

available on the Internet at http://

77704 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

ventura.fws.gov/. In the event that our 

Internet connection is not functional, 

please obtain copies for documents 

directly from the Ventura Fish and 

Wildlife Office.

FOR FURTHER INFORMATION CONTACT: Mr. 

Douglas Threloff, Ventura Fish and 

Wildlife Office, at the address listed 

above (telephone 805/644–1766; 

facsimile 805/644–3958).

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We intend any final action resulting 

from this proposal to be as accurate and 

as effective as possible. Therefore, we 

solicit comments and information from 

the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning the draft 

economic analysis or the proposed rule 

to designate critical habitat for 

Astragalus lentiginosus var. piscinensis

(69 FR 31552). We particularly seek 

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 Astragalus 

lentiginosus var. piscinensis habitat, and 

what habitat is essential to the 

conservation of this species and why; 

(3) Land use designations and current 

or planned activities in the subject area 

and their possible impacts on proposed 

habitat, and whether the proposed area 

may need special management or 

protection; 

(4) Current or planned water 

withdrawals or diversions in or adjacent 

to the area proposed, or in more distant 

areas, that could impact the hydrology 

of Fish Slough, the nature of any 

impacts from these withdrawals, and 

whether there is a Federal nexus to such 

withdrawals that could result in 

consultations under section 7 of the Act, 

or a similar requirement under State 

law; 

(5) Any foreseeable economic, 

national security or other potential 

impacts resulting from the proposed 

designation of critical habitat, in 

particular, any impacts on small entities 

or families; 

(6) Additional information that can be 

used to characterize or more completely 

understand the regional aquifer that 

supports aquatic or riparian habitat in 

Fish Slough, or how local ground water 

pumping activities affect the hydrology 

of Fish Slough; 

(7) 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 

Astragalus lentiginosus var. piscinensis, 

and how many were either already in 

place or enacted for other reasons; 

(8) Whether the economic analysis 

identifies all State and local costs 

attributable to the proposed critical 

habitat designation. If not, what costs 

are overlooked; 

(9) Whether the economic analysis 

makes appropriate assumptions 

regarding current practices and likely 

regulatory changes imposed as a result 

of the designation of critical habitat;

(10) Whether the economic analysis 

correctly assesses the effect on regional 

costs associated with water and land use 

controls that derive from the 

designation; 

(11) Whether the designation will 

result in disproportionate economic 

impacts to specific areas that should be 

evaluated for possible exclusion from 

the final designation; 

(12) Whether the economic analysis 

appropriately identifies all costs that 

could result from the designation; and 

(13) Whether our approach to critical 

habitat designation could be improved 

or modified in any way to provide for 

greater public participation and 

understanding, or to assist us in 

accommodating public concern and 

comments. 

All 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). 

Please submit Internet comments to 

fw1fsmv_pch@r1.fws.gov in an ASCII 

file format and avoid the use of special 

characters and encryption. Please also 

include ‘‘Attn: Fish Slough Milk-vetch 

Critical Habitat’’ in your e-mail subject 

header, and your name and return 

address in the body of your message. If 

you do not receive a confirmation from 

the system that we have received your 

Internet message, contact us directly by 

calling our Ventura Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT 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 addresses from 

the rulemaking record, which we will 

honor to the extent allowable by law. 

There also may be circumstances in 

which we would withhold from the 

rulemaking record a respondent’s 

identity, as allowable by law. If you 

wish for us to withhold your name and/

or address, you must state this 

prominently at the beginning of your 

comment. 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 inspection, by 

appointment, during normal business 

hours, in our Ventura Fish and Wildlife 

Office at the above address. 

Background 

Astragalus lentiginosus var. 

piscinensis is a prostrate perennial, with 

few-branching stems that are up to 39 

inches (1 meter) in length and covered 

with stiff, appressed hairs. We listed A. 

l. var. piscinensis as threatened under 

the Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.) on 

October 6, 1998 (63 FR 53596). Please 

refer to the final listing rule for a more 

detailed discussion of the species’

taxonomic history and description. 

On June 4, 2004, we published a 

proposed rule in the Federal Register

(69 FR 31552) to designate critical 

habitat for Astragalus lentiginosus var. 

piscinensis. We proposed to designate a 

total of approximately 8,490 acres (3,435 

hectares) of critical habitat in Inyo and 

Mono Counties, CA. The first comment 

period on the proposed critical habitat 

rule for A. l. var. piscinensis closed on 

August 3, 2004. 

Critical habitat identifies specific 

areas, both occupied and unoccupied, 

that are essential to the conservation of 

a listed species and that may require 

special management considerations or 

protection. 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. We note, however, 

that a recent 9th Circuit judicial 

opinion, Gifford Pinchot Task Force v. 

United States Fish and Wildlife Service,

has invalidated the Service’s regulation 

defining destruction or adverse 

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 77705

modification of critical habitat. We are 

currently reviewing the decision to 

determine what effect it may have on 

the outcome of consultations pursuant 

to Section 7 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 

for the proposal to designate certain 

areas as critical habitat for Astragalus 

lentiginosus var. piscinensis. This 

analysis considers the potential 

economic effects of our proposed 

designation, and the economic effects of 

protective measures taken as a result of 

other Federal, State, and local laws that 

aid habitat conservation in areas 

proposed for designation. 

Approximately 64 percent of the 

proposed critical habitat designation is 

under Federal ownership, 34 percent is 

owned by the city of Los Angeles, and 

2 percent is State owned. The economic 

analysis addresses the effects of 

conservation efforts for Astragalus 

lentiginosus var. piscinensis on 

activities occurring on lands proposed 

for designation. This economic analysis 

focuses on the following activities as 

being potentially affected by 

conservation considerations for A. l. var. 

piscinensis: agricultural production, 

livestock grazing, recreation, 

commercial mining, groundwater 

exportation, and resource management 

activities in the Bureau of Land 

Management-designated Area of Critical 

Environmental Concern where A. l. var. 

piscinensis occurs. 

Because of some uncertainty in 

estimating the effects of conservation 

activities related to Astragalus 

lentiginosus var. piscinensis, the 

economic analysis includes an upper 

and lower-bound cost estimate. The 

analysis includes both ‘‘predesignation’’ (occurring from the time of 

the listing of A. l. var. piscinensis to 

final designation of critical habitat) and 

‘‘post-designation’’ (forecast to occur 

from 2005 to 2025) economic impacts. 

Estimated pre-designation costs range 

from $749,000 to $808,000. Total postdesignation costs are approximately 

$946,000 to $978,000 (or $501,000 to 

$518,000 in present value terms and 

$47,300 to $48,900 on an annualized 

basis over the 20-year post-designation 

analysis period). 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this proposed designation of 

critical habitat is a significant rule only 

in that the Office of Management and 

Budget (OMB) has determined that it 

may raise novel legal and policy issues. 

However, the economic analysis 

indicates that the proposed designation 

will not have an annual effect on the 

economy of $100 million or more or 

affect the economy in a material way. 

Due to the tight timeline for publication 

in the Federal Register, OMB has not 

formally reviewed this 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. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

However, the SBREFA does not 

explicitly define ‘‘substantial number’’

or ‘‘significant economic impact.’’

Consequently, to assess whether a 

‘‘substantial number’’ of small entities is 

affected by this designation, this 

analysis considers the relative number 

of small entities likely to be impacted in 

an area. The SBREFA also amended the 

RFA to require a certification statement. 

We are hereby certifying that this 

proposed rule will not have a significant 

economic impact on a substantial 

number of small entities, as explained 

below. 

According to the Small Business 

Administration, 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 rule as well as the 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. 

Designation of critical habitat only 

affects activities conducted, funded, or 

permitted by Federal agencies; nonFederal activities are not affected by the 

designation if they lack a Federal nexus. 

In areas where the species is present, 

Federal agencies funding, permitting, or 

implementing activities are already 

required to avoid jeopardizing the 

continued existence of Astragalus 

lentiginosus var. piscinensis through 

consultation with us under section 7 of 

the Act. If this critical habitat 

designation is finalized, Federal 

agencies must also consult with us to 

ensure that their activities do not 

destroy or adversely modify designated 

critical habitat. 

Should a federally funded, permitted, 

or implemented project be proposed 

that may affect designated critical 

habitat, we will work with the Federal 

action agency and any applicant, 

through section 7 consultation, to 

identify ways to implement the 

proposed project while minimizing or 

avoiding any adverse effect to the 

species or critical habitat. In our 

experience, the vast majority of such 

projects can be successfully 

implemented with at most minor 

changes that avoid significant economic 

impacts to project proponents.

Based on our experience with section 

7 consultations for all listed species, 

virtually all projects—including those 

that, in their initial proposed form, 

would result in jeopardy or adverse 

modification determinations in section 

7 consultations—can be implemented 

successfully with, at most, the adoption 

of reasonable and prudent alternatives. 

These measures, by definition, must be 

economically feasible and within the 

scope of authority of the Federal agency 

involved in the consultation. The kinds 

of actions that may be included in 

future reasonable and prudent 

77706 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

alternatives include avoidance, 

conservation set-asides, management of 

competing non-native species, 

restoration of degraded habitat, 

construction of protective fencing, and 

regular monitoring. These measures are 

not likely to result in a significant 

economic impact to project proponents. 

In the case of Astragalus lentiginosus

var. piscinensis, we anticipate that the 

proposed designation of critical habitat 

is not likely to have a significant 

economic impact on any small entities 

or classes of small entities. The only 

section 7 consultations since the taxon 

was listed have been associated with 

U.S. Army Corps of Engineers Section 

404 permitting of the removal and reconstruction of fish barriers at three 

springs. No post-designation section 7 

consultations are currently anticipated 

for this taxon. The costs presented in 

the economic analysis reflect, where 

data permit, ranges representing the 

reasonably foreseeable future. All postdesignation costs are anticipated to be 

direct costs of projects intended to 

benefit A. l. var. piscinensis. 

We considered the potential relative 

cost of compliance to small entities and 

evaluated only small entities that are 

expected to be directly affected by the 

proposed designation of critical habitat. 

Based on the economic analysis for A. 

l. var. piscinensis, we do not anticipate 

that the proposed designation of critical 

habitat will result in increased 

compliance costs for small entities. The 

business activities of these small entities 

and their effects on Astragalus 

lentiginosus var. piscinensis or its 

proposed critical habitat have not 

directly triggered a section 7 

consultation with the Service under the 

jeopardy standard and likely would not 

trigger a section 7 consultation under 

the adverse modification standard after 

designation of critical habitat. The 

proposed designation of critical habitat 

does not, therefore, create a new cost for 

the small entities to comply with the 

proposed designation. Instead, proposed 

designation only impacts Federal 

agencies that conduct, fund, or permit 

activities that may affect critical habitat 

for A. l. var. piscinensis. 

In summary, we have considered 

whether this proposed designation 

would result in a significant economic 

impact on a substantial number of small 

entities, and we have concluded that it 

would not. No future consultations are 

currently anticipated, and we have no 

indication that the types of activities 

that we review under section 7 of the 

Act will change significantly in the 

future. Thus, we conclude that the 

proposed designation of critical habitat 

for Astragalus lentiginosus var. 

piscinensis is not likely to result in a 

significant impact to this group of small 

entities. Therefore, we are certifying that 

the proposed designation of critical 

habitat for A. l. var. piscinensis will not 

have a significant economic impact on 

a substantial number of small entities, 

and an initial regulatory flexibility 

analysis is not required. 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C. 801 et seq.) 

Under the Small Business Regulatory 

Enforcement Fairness Act (5 U.S.C. 801 

et seq.), this rule is not a major rule. The 

economic analysis indicates that the 

proposed designation will not have an 

annual effect on the economy of $100 

million or more. In addition, lands 

proposed for designation include only 

Federal, State, and City-owned lands; 

the majority of forecast economic 

impacts are anticipated to be associated 

with direct costs to Federal, State, and 

municipal agencies. Therefore, we 

believe that this critical habitat 

designation will not have an effect on 

the economy of $100 million or more, 

will not cause a major increase in costs 

or prices for consumers, and will not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. 

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 designating critical 

habitat for Astragalus lentiginosus var. 

piscinensis. Our assessment concludes 

that this proposed rule does not pose 

significant takings implications. 

Author 

The primary author of this notice is 

the Ventura 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: December 17, 2004. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks.

[FR Doc. 04–28163 Filed 12–27–04; 8:45 am] 

BILLING CODE 4310–55–P