[Federal Register Volume 72, Number 65 (Thursday, April 5, 2007)]
[Proposed Rules]
[Pages 16756-16761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-6186]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU77


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Ceanothus ophiochilus (Vail Lake ceanothus) and 
Fremontodendron mexicanum (Mexican flannelbush)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, notice of 
availability of draft economic analysis, and amended Required 
Determinations.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on the proposed designation of critical 
habitat for two southern California plants: Ceanothus ophiochilus (Vail 
Lake ceanothus) and Fremontodendron mexicanum (Mexican flannelbush). We 
also announce the availability of the draft economic analysis for the 
proposed critical habitat designations and an amended Required 
Determinations section of the proposal. The draft economic analysis 
identifies potential costs will be $385,000 to $659,000 in undiscounted 
dollars over a 20-year period as a result of the proposed designation 
of critical habitat, including those costs coextensive with listing and 
recovery. Discounted future costs are estimated to be $325,000 to 
$559,000 ($22,000 to $38,000 annualized) at a 3 percent discount rate, 
or $272,000 to $471,000 ($26,000 to $44,000 annualized) at a 7 percent 
discount rate. The amended Required Determinations section provides our 
determination concerning compliance with applicable statutes and 
Executive Orders that we have deferred until the information from the 
draft economic analysis of this proposal was available. We are 
reopening the comment period to allow all interested parties to comment 
simultaneously on the proposed rule, the associated draft economic 
analysis, and the amended Required Determinations section.

DATES: We will accept public comments until May 7, 2007.

ADDRESSES: Written comments and materials may be submitted to us by any 
one of the following methods:
    (1) E-mail: Please submit electronic comments to 
<a href="/cdn-cgi/l/email-protection#2741501f4441504844484a4a424953546741505409404851"><span class="__cf_email__" data-cfemail="7e1809461d1809111d1113131b100a0d3e18090d50191108">[email protected]</span></a>. Include ``RIN 1018-AU77'' in the subject line.

[[Page 16757]]

Please see the Public Comments Solicited section under SUPPLEMENTARY 
INFORMATION.
    (2) Facsimile: You may fax your comments to 760/431-5901.
    (3) U.S. mail or hand-delivery: You may submit written comments and 
information to Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife 
Office, 6010 Hidden Valley Road, Carlsbad, CA 92011.
    (4) Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, at the address listed in the ADDRESSES 
section (telephone: 760/431-9440). 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 Solicited

    We will accept written comments and information during this 
reopened comment period. We solicit comments on the original proposed 
critical habitat designation for Ceanothus ophiochilus and 
Fremontodendron mexicanum published in the Federal Register on October 
3, 2006 (71 FR 58340), 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 any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 
et seq.), including whether it is prudent to designate critical 
habitat;
    (2) Specific information on the amount and distribution of 
Ceanothus ophiochilus or Fremontodendron mexicanum habitat, what areas 
should be included in the designations that were occupied at the time 
of listing that contain the features that are essential for the 
conservation of the species, and what areas that were not occupied at 
the time of listing that are essential to the conservation of the 
species and why;
    (3) Information concerning pollinator species for Ceanothus 
ophiochilus or Fremontodendron mexicanum and whether sufficient 
information exists to determine if such a biological feature should be 
considered a primary constituent element for either of these species 
(please see ``Primary Constituent Elements'' section of this proposed 
rule for a detailed discussion);
    (4) Whether any areas not currently known to be occupied by either 
species, but essential to the conservation of either species, should be 
included in the proposed designation;
    (5) Land use designations and current or planned activities in the 
mapped critical habitat subunits and their possible effects on proposed 
critical habitat;
    (6) The appropriateness of excluding non-Federal lands that contain 
Ceanothus ophiochilus occurrences within areas targeted for 
conservation within the Western Riverside County Multiple Species 
Habitat Conservation Plan (MSHCP) from the final designation of 
critical habitat under section 4(b)(2) of the Act (see Exclusions Under 
Section 4(b)(2) of the Act for details on the Western Riverside County 
MSHCP). Please provide information concerning whether the benefits of 
exclusion of any of these specific areas outweigh the benefits of their 
inclusion under section 4(b)(2) of the Act. If the Secretary determines 
the benefits of including these lands outweigh the benefits of 
excluding them, they will not be excluded from critical habitat;
    (7) The appropriateness of excluding lands that contain 
Fremontodendron mexicanum occurrences within areas of the San Diego 
Multiple Species Conservation Program (MSCP) and areas of the Otay 
Mountain Wilderness managed by the Bureau of Land Management (BLM) 
covered by the 1994 multiple agency Memorandum of Understanding (MOU 
1994) from the final designation of critical habitat. F. mexicanum is 
not covered by the MSCP; however, other species that co-occur with F. 
mexicanum are covered by the MSCP. Please provide comments on whether 
the protection and management of the habitat for these co-occurring 
species are adequate to justify the exclusion of these lands under 
section 4(b)(2) of the Act. Also, we are seeking any information on the 
benefits of including or excluding these lands from the critical 
habitat designation;
    (8) The appropriateness of including lands in the Agua Tibia 
Mountains owned by the USFS and managed under its Land Management Plans 
for the Four Southern California National Forests from the final 
designation of critical habitat for Ceanothus ophiochilus. Please 
provide comments on how implementation of the management plan(s) in the 
Agua Tibia Mountains will or will not provide for conservation for C. 
ophiochilus. Also provide information on any minimization measures or 
monitoring plans for C. ophiochilus that will help insure that the 
occurrences of C. ophiochilus remain healthy and viable in the 
Cleveland National Forest. Finally, provide comments on the benefits of 
including or excluding these lands from the critical habitat 
designation;
    (9) Whether the benefits of exclusion of any particular area 
outweigh the benefits of inclusion under section 4(b)(2) of the Act;
    (10) Information on the extent to which any State and local 
environmental protection measures referred to in the draft economic 
analysis may have been adopted largely as a result of the listing of 
Ceanothus ophiochilus or Fremontodendron mexicanum;
    (11) Information on 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;
    (12) Information on 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;
    (13) Information on whether the draft economic analysis correctly 
assesses the effect on regional costs associated with any land use 
controls that may derive from the designation of critical habitat;
    (14) Information on areas that could potentially be 
disproportionately impacted by designation of critical habitat for 
Ceanothus ophiochilus or Fremontodendron mexicanum;
    (15) Any foreseeable economic, national security, or other 
potential impacts resulting from the proposed designation of critical 
habitat, and in particular, any impacts on small entities or families; 
the reasons why our conclusion that the proposed designation of 
critical habitat will not result in a disproportionate effect to small 
businesses should or should not warrant further consideration; and 
other information that would indicate that the designation of critical 
habitat would or would not have any impacts on small entities or 
families;
    (16) Information on whether the draft economic analysis 
appropriately identifies all costs that could result from the 
designation; and
    (17) Information on 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.
    Pursuant to section 4(b)(2) of the Act, an area may be excluded 
from critical habitat if it is determined that the benefits of such 
exclusion outweigh the benefits of including a particular area as 
critical habitat, unless the failure to

[[Page 16758]]

designate such area as critical habitat will result in the extinction 
of the species. We may exclude an area from designated critical habitat 
based on economic impacts, national security, or any other relevant 
impact.
    All previous comments and information submitted during the initial 
comment period from October 3, 2006, to December 4, 2006, for the 
proposed rule (71 FR 58340) need not be resubmitted, as they are 
currently part of our record and will be considered in the development 
of the final rule. 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 
designation of critical habitat will take into consideration all 
comments and any additional information we have received during both 
comment periods. On the basis of public comment on this analysis, the 
critical habitat proposal, and 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.
    If submitting comments electronically, please also include ``Attn: 
RIN 1018-AU77'' and your name and return address in your e-mail 
message. If you do not receive a confirmation from the system that we 
have received your e-mail message, please contact the person listed 
under FOR FURTHER INFORMATION CONTACT.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.
    You may obtain copies of the proposed rule and draft economic 
analysis by mail from the Carlsbad Fish and Wildlife Office (see 
ADDRESSES section) or by visiting our Web site at http://www.fws.gov/carlsbad/.

Background

    On August 10, 2004, the Center for Biological Diversity and 
California Native Plant Society challenged our failure to designate 
critical habitat for these two species as well as three other plant 
species ( Center for Biological Diversity et al. v. Gale Norton, 
Secretary of the Department of the Interior et al., C-04-3240 JL, N. D. 
Cal.). The Service agreed to withdraw our previous not prudent findings 
and submit for publication in the Federal Register a proposed 
designation of critical habitat, if prudent, on or before September 20, 
2006, and a final critical habitat designation for these plants on or 
before September 20, 2007. In compliance with the court-approved 
settlement agreement, we published a proposed rule to designate 
critical habitat for Ceanothus ophiochilus and Fremontodendron 
mexicanum on October 3, 2006 (71 FR 58340). This rule identified a 
total of 644 acres (ac) (262 hectares (ha)) as critical habitat for 
these two species. Approximately 283 ac (115 ha) of land in Riverside 
County, California, were proposed as critical habitat for C. 
ophiochilus, and approximately 361 ac (147 ha) of land in San Diego 
County, California, were proposed as critical habitat for F. mexicanum.
    Critical habitat is defined in section 3 of the Act 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 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.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial 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. Based on the October 3, 2006, 
proposed rule to designate critical habitat for Ceanothus ophiochilus 
and Fremontodendron mexicanum (71 FR 58340), we have prepared a draft 
economic analysis of the proposed critical habitat designation.
    The current draft economic analysis estimates the foreseeable 
potential economic impacts of the proposed critical habitat designation 
and other conservation-related actions for these species on government 
agencies and private businesses and individuals. The draft economic 
analysis identifies potential costs will be $385,000 to $659,000 in 
undiscounted dollars over a 20-year period as a result of the proposed 
designation of critical habitat, including those costs coextensive with 
listing and recovery. Discounted future costs are estimated to be 
$325,000 to $559,000 ($22,000 to $38,000 annualized) at a 3 percent 
discount rate, or $272,000 to $471,000 ($26,000 to $44,000 annualized) 
at a 7 percent discount rate.
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of Ceanothus 
ophiochilus and Fremontodendron mexicanum, including costs associated 
with sections 4, 7, and 10 of the Act, and including those attributable 
to the designation of 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 C. 
ophiochilus and F. mexicanum in areas containing features essential to 
the conservation of the species. The draft 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 (such as 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 draft analysis looks retrospectively at 
costs that have been incurred since the date Ceanothus ophiochilus and 
Fremontodendron mexicanum were listed as endangered and threatened, 
respectively (October 13, 1998; 63 FR 54956), and considers those costs 
that may occur in the 20 years following a designation of critical 
habitat.
    As stated earlier, we solicit data and comments from the public on 
this draft economic analysis, as well as on all aspects of the 
proposal. We may revise the proposal or its supporting

[[Page 16759]]

documents to incorporate or address new information received during the 
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 as critical habitat, 
provided such exclusion will not result in the extinction of the 
species.

Required Determinations--Amended

    In our October 3, 2006, proposed rule (71 FR 58340), we indicated 
that we would be deferring our determination of compliance with several 
statutes and Executive Orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders was available in the draft economic 
analysis. Those data are now available for our use in making these 
determinations. In this notice we are affirming the information 
contained in the proposed rule concerning Executive Order (E.O.) 13132; 
E.O. 12988, the Paperwork Reduction Act; and the President's memorandum 
of April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951). Based on the information 
made available to us in the draft economic analysis, we are amending 
our Required Determinations, as provided below, concerning E.O. 12866 
and the Regulatory Flexibility Act, E.O. 13211, E.O. 12630, and the 
Unfunded Mandates Reform Act.

Regulatory Planning and Review

    In accordance with E.O. 12866, this document is a significant rule 
because it may raise novel legal and policy issues. Based on our draft 
economic analysis of the proposed designation of critical habitat for 
Ceanothus ophiochilus and Fremontodendron mexicanum, costs related to 
conservation activities for C. ophiochilus and F. mexicanum pursuant to 
sections 4, 7, and 10 of the Act are estimated to be approximately 
$385,000 to $659,000 in undiscounted dollars over a 20-year period as a 
result of the proposed designation of critical habitat, including those 
costs coextensive with listing and recovery. Discounted future costs 
are estimated to be $325,000 to $559,000 ($22,000 to $38,000 
annualized) at a 3 percent discount rate, or $272,000 to $471,000, 
($26,000 to $44,000 annualized) at a 7 percent discount rate. 
Therefore, based on our draft economic analysis, we have determined 
that the proposed designation of critical habitat for C. ophiochilus 
and F. mexicanum will not result in 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) has not formally reviewed the proposed rule 
or accompanying economic analysis.
    Further, E.O. 12866 directs Federal agencies promulgating 
regulations to evaluate regulatory alternatives (Office of Management 
and Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-
4, once it has determined that the Federal regulatory action is 
appropriate, the agency will then need to consider alternative 
regulatory approaches. Since the determination of critical habitat is a 
statutory requirement pursuant to the Act, we must then evaluate 
alternative regulatory approaches, where feasible, when promulgating a 
designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.

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 (5 
U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. Based upon our draft 
economic analysis of the proposed designation, we provide our analysis 
for determining whether the proposed rule would result in a significant 
economic impact on a substantial number of small entities. Based on 
comments received, this determination is subject to revision as part of 
the final rulemaking.
    According to the Small Business Administration (SBA), 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.
    To determine if the proposed designation of critical habitat for 
Ceanothus ophiochilus or Fremontodendron mexicanum would affect a 
substantial number of small entities, we considered the number of small 
entities affected within particular types of economic activities (such 
as 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 thus 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 under section 7 of the Act 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.
    In our draft economic analysis of the proposed critical habitat 
designation, we evaluated the potential economic effects on small 
business entities resulting from conservation actions

[[Page 16760]]

related to the listing of Ceanothus ophiochilus and Fremontodendron 
mexicanum and proposed designation of its critical habitat.
    Impacts of conservation activities are not anticipated to affect 
small entities in the following categories: Development, fire 
management on Federal lands, alien plant species management on Federal 
lands, and other activities on Federal lands. Chapter 2 of the economic 
analysis concludes that no development is likely in proposed critical 
habitat. Rural, large lot development may occur in areas adjacent to 
proposed critical habitat; however, the likelihood of this type of 
development and whether it will pose a threat to the habitat is 
unknown. As described in Chapters 3 through 5 of the economic analysis, 
the modifications to activities on Federal lands, including fire 
management activities, alien plant species management, and surveying 
and monitoring activities, will be borne by the USFS and BLM. The 
Federal government is not considered to be a small entity by the SBA. 
Accordingly, the small business analysis contained in Appendix A of the 
economic analysis focuses on the economic impacts of fire management 
and alien plant species management activities on private lands.
    Two private landowners in Riverside County are included in areas 
proposed as critical habitat. The total economic impact for these two 
landowners over the next 20 years is estimated to be $3,000 to $4,000 
per year for fire management activities, and $1,000 to $2,000 per year 
for alien plant species management. Whether these two landowners 
qualify as a small business is unknown. However, since no more than two 
potential small businesses are estimated to occur within the area 
proposed as critical habitat, we certify that this proposed regulation 
will not result in a significant economic impact on a substantial 
number of small business entities. Please refer to our draft economic 
analysis of the proposed critical habitat designation for a more 
detailed discussion of potential economic impacts.

Executive Order 13211--Energy Supply, Distribution, and Use

    On May 18, 2001, the President issued 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 designation of critical 
habitat for Ceanothus ophiochilus and Fremontodendron mexicanum is 
considered a significant regulatory action under E.O. 12866 due to its 
potentially raising novel legal and policy issues. OMB has provided 
guidance for implementing this Executive Order that outlines nine 
outcomes that may constitute ``a significant adverse effect'' when 
compared without the regulatory action under consideration. The draft 
economic analysis finds that none of these criteria are relevant to 
this analysis. Thus, based on the information in the draft economic 
analysis, energy-related impacts associated with C. ophiochilus and F. 
mexicanum conservation activities within proposed critical habitat are 
not expected. As such, the proposed designation of critical habitat is 
not expected to significantly affect energy supplies, distribution, or 
use and a Statement of Energy Effects is not required.

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, or 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; Aid to 
Families with Dependent Children 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 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, 
the majority (75 percent) of the lands proposed as critical habitat are 
either on Federal lands or on private lands covered by the Western 
Riverside County MSHCP. The remaining 25 percent is privately-owned 
land. Consequently, since small governments do not appear to be 
effected by the proposed critical habitat designation, we do not 
believe that critical habitat designation would significantly or 
uniquely affect small government entities. As such, a Small Government 
Agency Plan is not required.

Executive Order 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 
proposing critical habitat for Ceanothus ophiochilus and 
Fremontodendron mexicanum in a takings implications assessment. The 
takings implications assessment concludes that this proposed 
designation of critical habitat for C. ophiochilus and F. mexicanum 
does not pose significant takings implications.

[[Page 16761]]

Author

    The primary authors of this notice are the staff of the Carlsbad 
Fish and Wildlife Office.

Authority

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

    Dated: March 26, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E7-6186 Filed 4-4-07; 8:45 am]
BILLING CODE 4310-55-P


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