[Federal Register Volume 74, Number 45 (Tuesday, March 10, 2009)]
[Proposed Rules]
[Pages 10211-10217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4788]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2008-0078; 92210-1117-0000-B4]
RIN 1018-AV03


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Cirsium loncholepis (La Graciosa thistle)

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 revised designation of 
critical habitat for Cirsium loncholepis (common name La Graciosa 
thistle) under the Endangered Species Act of 1973, as amended (Act). We 
also announce the availability of the January 16, 2009, draft economic 
analysis (DEA) of the proposed revised designation of critical habitat 
for C. loncholepis and announce an amended required determinations 
section of the proposal. We are reopening the comment period to allow 
all interested parties an opportunity to comment simultaneously on the 
proposed revised designation of critical habitat for C. loncholepis, 
the associated DEA, and the amended required determinations section. 
Comments previously submitted on this rulemaking do not need to be 
resubmitted. These comments have already been incorporated into the 
public record and will be fully considered in preparation of the final 
rule.

DATES: We will accept public comments received or postmarked on or 
before April 9, 2009.

ADDRESSES: You may submit comments by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: RIN 1018-AV03; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Diane K. Noda, Field Supervisor, 
Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, 
CA 93003, (telephone 805-644-1766; facsimile 805-644-3958). If you use 
a telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on the proposed revised designation of critical 
habitat for Cirsium loncholepis published in the Federal Register on 
August 6, 2008 (73 FR 45805), the DEA of the proposed revised 
designation of critical habitat for Cirsium loncholepis, and the 
amended required determinations provided in this document. We will 
consider information and recommendations from all interested parties. 
We are particularly interested in comments concerning:
    1. The reasons why we should or should not designate habitat as 
critical habitat under section 4 of the Act (16 U.S.C. 1533), including 
whether the benefit of designation would outweigh threats to the 
species caused by the designation, such that the designation of 
critical habitat is prudent.
    2. Specific information on:
    <bullet> The amount and distribution of Cirsium loncholepis 
habitat,
    <bullet> The importance of including habitat that provides 
connectivity between extant populations of Cirsium loncholepis to the 
species' conservation and recovery, and the amount and distribution of 
such habitat,
    <bullet> What areas occupied at the time of listing and that 
contain features essential for the conservation of the species should 
be included in the designation and why, and
    <bullet> What areas not occupied at the time of listing are 
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 revised 
designation of critical habitat for Cirsium loncholepis.
    4. Probable economic, national security, or other impacts from 
designating particular areas as critical habitat. We are particularly 
interested in any impacts on small entities and specific impacts on 
national security, and the benefits of including or excluding areas 
that exhibit these impacts.
    5. Any proposed critical habitat areas covered by existing or 
proposed conservation or management plans that we should consider for 
exclusion from the designation under section 4(b)(2) of the Act. We 
specifically request information on any final or draft habitat 
conservation plans that include Cirsium loncholepis as a covered 
species that have been prepared under section 10(a)(1)(B) of the Act, 
or any other management plan, conservation plan, or agreement that 
benefits this plant or its primary constituent elements.
    6. Land use designations and current or planned activities in the 
subject areas and their possible impacts on the proposed revised 
designation of critical habitat for Cirsium loncholepis.
    7. Additional scientific information that will help us to better 
delineate areas that contain the primary constituent elements.
    8. Any foreseeable environmental impacts directly or indirectly 
resulting from the proposed revised designation of critical habitat for 
Cirsium loncholepis.

[[Page 10212]]

    9. Information on whether the DEA makes appropriate assumptions 
regarding current practices and any regulatory changes that likely may 
occur if we designate proposed revised critical habitat for Cirsium 
loncholepis.
    10. Information on whether the DEA correctly assesses the effect on 
regional costs associated with any land use controls that may result 
from the proposed revised designation of critical habitat for Cirsium 
loncholepis.
    11. Information on whether the proposed revised designation of 
critical habitat will result in disproportionate economic impacts to 
specific areas or small businesses that should be evaluated under 
4(b)(2) of the Act for possible exclusion from the proposed revised 
designation of critical habitat for Cirsium loncholepis and whether the 
failure to designate such areas as critical habitat will result in the 
extinction of C. loncholepis.
    12. Information on the accuracy of our methodology in the DEA for 
distinguishing baseline and incremental costs, and the assumptions 
underlying the methodology.
    13. Information on whether the DEA identifies all costs that could 
result from the proposed revised designation of critical habitat for 
Cirsium loncholepis.
    14. Information on any quantifiable economic benefits of the 
proposed revised designation of critical habitat for Cirsium 
loncholepis.
    15. Whether the benefits of excluding any particular area outweigh 
the benefits of including that area under section 4(b)(2) of the Act, 
in particular lands in Units 4, 5, and 6 covered by a draft endangered 
species conservation agreement for Cirsium loncholepis that was 
submitted to the Service by Vandenberg Air Force Base (VAFB) for 
further evaluation and consideration during the public comment period.
    16. Information on any economic impacts associated with 
implementing the draft conservation agreement covering specified lands 
in Units 4, 5, and 6 submitted to the Service for further evaluation 
and consideration.
    17. Economic data on the incremental costs of designating a 
particular area as revised critical habitat.
    18. Any foreseeable impacts on energy supplies, distribution, and 
use resulting from the proposed revised designation of critical habitat 
for Cirsium loncholepis and, in particular, any impacts on electricity 
production, and the benefits of including or excluding areas that 
exhibit these impacts.
    19. Whether we could improve or modify our approach to designating 
critical habitat to provide for greater public participation and 
understanding, or to assist us in accommodating public concerns and 
comments.
    20. Information on potential critical habitat exclusions from the 
proposed revised designation of critical habitat for Cirsium 
loncholepis.
    If you submitted comments or information on the proposed revised 
rule (73 FR 45805) during the initial comment period from August 6, 
2008, to October 6, 2008, please do not resubmit them. We will 
incorporate them into the public record as part of this comment period, 
and we will fully consider them in the preparation of our final 
determination. Our final determination concerning revised critical 
habitat will take into consideration all written comments and any 
additional information we receive during both comment periods. On the 
basis of public comments, 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.
    You may submit your comments and materials concerning our proposed 
rule, the associated DEA, and our amended required determinations by 
one of the methods listed in the ADDRESSES section. We will not 
consider comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment, including any personal identifying information, will be posted 
on the Web site. If you submit a hard copy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hard copy comments on http://www.regulations.gov.
    Comments and materials we receive (and have received), as well as 
supporting documentation we used in preparing this notice, will be 
available for public inspection on http://www.regulations.gov [Docket 
Number FWS-R8-ES-2008-0078], or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT).
    You may obtain copies of the proposed rule and DEA by mail from the 
Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT), 
by visiting the Federal eRulemaking Portal at http://www.regulations.gov, or on our Web site at http://www.fws.gov/ventura.

Background

    It is our intent to discuss only those topics directly relevant to 
the proposed revised designation of critical habitat for Cirsium 
loncholepis in this notice. For more information on previous Federal 
actions concerning C. loncholepis, refer to the proposed revised 
designation of critical habitat published in the Federal Register on 
August 6, 2008 (73 FR 45805). For more information on the endangered C. 
loncholepis or its habitat, refer to the proposed and final listing 
rules published in the Federal Register on March 30, 1998 (63 FR 
15164), and on March 20, 2000 (65 FR 14888), the proposed rule to 
designate critical habitat (66 FR 57559; November 15, 2001), and the 
final designation of critical habitat for C. loncholepis (69 FR 12553; 
March 17, 2004), or from the Ventura Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT).
    In March 2005, the Homebuilders Association of Northern California, 
et al., filed suit against the Service challenging the merits of the 
final critical habitat designations for several species, including C. 
loncholepis. In March 2006, a settlement was reached that required us 
to re-evaluate five final critical habitat designations, including 
critical habitat designated for C. loncholepis. The settlement (as 
modified by a court-approved amendment) stipulated that any proposed 
revisions to C. loncholepis critical habitat designation would be 
submitted for publication to the Federal Register on or before July 27, 
2008, and final revisions would be submitted on or before July 27, 
2009.
    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If the proposed rule 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, under section 7(a)(2) of the 
Act.
    Under section 4(b)(2) of the Act, we may exclude an area from 
critical

[[Page 10213]]

habitat if we determine that the benefits of such exclusion outweigh 
the benefits of including that particular area as critical habitat, 
unless failure to designate that specific 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, including but not limited to 
the value and contribution of continued, expanded, or newly forged 
conservation partnerships.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus; the educational benefits of mapping 
essential habitat for recovery of the listed species; and any benefits 
that may result from designation due to State or Federal laws that may 
apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan that provides 
equal to or more conservation than a critical habitat designation would 
provide. In the case of Cirsium loncholepis, the benefits of critical 
habitat include public awareness of C. loncholepis presence and the 
importance of habitat protection, and where a Federal nexus exists, 
increased habitat protection for C. loncholepis due to protection from 
adverse modification or destruction of critical habitat. In practice, 
situations with a Federal nexus exist primarily on Federal lands or for 
projects undertaken by Federal agencies. Since C. loncholepis was 
listed in 2000, we have had few projects on privately owned lands that 
had a Federal nexus to trigger consultation under section 7 of the Act, 
and have consulted only once with a Federal agency regarding its 
effects to C. loncholepis on Federal lands.
    When we evaluate the benefits of excluding an area being managed 
under an existing conservation plan, we consider a variety of factors, 
including but not limited to, whether the plan is finalized; how it 
provides for the conservation of the essential physical and biological 
features; whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan will be implemented into the future; whether the 
conservation strategies in the plan are likely to be effective; and 
whether the plan contains a monitoring program or adaptive management 
to ensure that the conservation measures are effective and can be 
adapted in the future in response to new information.
    After evaluating the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to determine whether the 
benefits of exclusion outweigh those of inclusion. If we determine that 
they do, we then determine whether exclusion would result in 
extinction. If exclusion of an area from critical habitat will result 
in extinction, we will not exclude it from the designation.

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. We have prepared a draft economic 
analysis of our August 6, 2008 (73 FR 45805), proposed revised 
designation of critical habitat for Cirsium loncholepis.
    The intent of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed revised designation of 
critical habitat for Cirsium loncholepis. Additionally, the economic 
analysis looks retrospectively at costs incurred since the March 20, 
2000 (65 FR 14888), listing of C. loncholepis as endangered. The DEA 
quantifies the economic impacts of all potential conservation efforts 
for C. loncholepis; some of these costs will likely be incurred 
regardless of whether we designate revised critical habitat. The 
economic impact of the proposed revised designation of critical habitat 
for C. loncholepis is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.'' The ``without 
critical habitat'' scenario represents the baseline for the analysis, 
considering protections already in place for the species (for example, 
under the Federal listing and other Federal, State, and local 
regulations). The baseline, therefore, represents the costs incurred 
regardless of whether critical habitat is designated and may include 
costs incurred in the future. The ``with critical habitat'' scenario 
describes the incremental impacts associated specifically with the 
designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts are those not expected to 
occur absent the designation of critical habitat for the species. In 
other words, the incremental costs are those attributable solely to the 
designation of critical habitat above and beyond the baseline costs; 
these are the costs we may consider in the final designation of 
critical habitat. The analysis looks retrospectively at baseline 
impacts incurred since the species was listed, and forecasts both 
baseline and incremental impacts likely to occur if we finalize the 
proposed revised designation of critical habitat for C. loncholepis. 
For a further description of the methodology of the analysis, see 
Chapter 2, ``Framework for the Analysis'', of the DEA.
    The current DEA estimates the foreseeable economic impacts of the 
proposed revised designation of critical habitat for Cirsium 
loncholepis by identifying the potential resulting incremental costs. 
The DEA describes economic impacts of C. loncholepis conservation 
efforts associated with the following categories of activity: (1) 
Military activities on Vandenberg Air Force Base; (2) recreation 
(primarily off-highway vehicle use); (3) residential and commercial 
development; (4) agriculture and ranching; (5) oil and gas operations; 
and (6) other public lands management.
    Baseline economic impacts are those impacts that result from 
listing and other conservation efforts for Cirsium loncholepis not 
attributable to designation of critical habitat and thus are expected 
to occur regardless of whether we designate critical habitat. Total 
future baseline impacts are estimated to be $11.0 million ($720,000 
annualized) to $320 million (approximately $20.9 million annualized) in 
present value terms using a 3 percent discount rate, and $10.4 million 
($915,000 annualized) to $230 million (approximately $20.3 million 
annualized) in present value terms, using a 7 percent discount rate, 
over the next 20 years (2009 to 2028) in areas proposed as revised 
critical habitat. Impacts to recreation in Unit 1 (Callender-Guadalupe 
Dunes) represent the majority of the total post-designation baseline 
impacts (between 96 and 97 percent), depending on the discount rate.
    Future baseline impacts for areas currently considered for 
exclusion were calculated separately from other areas proposed as 
revised critical habitat. The baseline impacts for VAFB were estimated 
to be between $0.21 million using a 3 percent discount rate, and $0.15 
million using a 7 percent discount rate over the next 20 years (2009 to 
2028).
    The DEA estimates total potential incremental economic impacts in 
areas proposed as revised critical habitat over the next 20 years (2009 
to 2028) to range from $405,000 ($26,500 annualized) to

[[Page 10214]]

$55.6 million ($3.6 million annualized) in present value terms using a 
3 percent discount rate, and from $355,000 ($31,300 annualized) to 
$39.6 million ($3.5 million annualized) in present value terms using a 
7 percent discount rate. Almost all incremental impacts attributed to 
the proposed revised designation of critical habitat are expected to be 
related to recreation (approximately 99.89 percent); the remaining 
incremental impacts are related to development and public lands 
management (approximately 0.11 percent).
    The DEA 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). The DEA 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 government agencies, private businesses, and 
individuals. The DEA measures lost economic efficiency associated with 
residential and commercial development, ranching and agriculture, and 
off-highway vehicle recreation, and its effects on Federal lands, small 
entities, and the energy industry. Decision-makers can use this 
information to assess whether the effects of the revised designation 
might unduly burden a particular group or economic sector.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as on all aspects of the proposed revised 
designation of critical habitat and our amended required 
determinations. We may revise the proposed rule or its supporting 
documents to incorporate or address information we receive during this 
public comment period. In particular, we may exclude an area from 
critical habitat if we determine that the benefits of excluding the 
area outweigh the benefits of including the area as critical habitat, 
provided the exclusion will not result in the extinction of the 
species.

Areas Considered for Exclusion

Department of Defense Lands
    Based on comments submitted during the initial public comment 
period from August 6, 2008, to October 6, 2008, we are considering 
exclusion of lands on VAFB (13,832 ac (5,598 ha) total) in Units 4, 5, 
and 6 from critical habitat. In their comment letter, dated September 
29, 2008, VAFB requested to be excluded from the revised designation of 
critical habitat based on: (1) Their draft Integrated Natural Resources 
Management Plan (INRMP), (2) a draft conservation agreement for Cirsium 
loncholepis (included as an appendix), and (3) reasons of national 
security.
    Under section 4(a)(3)(B)(i) of the Act, the Secretary of the 
Interior (Secretary) is prohibited from designating as critical habitat 
any lands or other geographical areas owned or controlled by the 
Department of Defense, or designated for its use, that are subject to 
an INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 670a), 
if the Secretary determines in writing that such plan provides a 
benefit to the species for which critical habitat is proposed for 
designation. An INRMP is currently being prepared in coordination with 
the Service that will ensure conservation of the species. However, 
because the INRMP is not yet final and approved by the Secretary, the 
statutory prohibition on designation of these lands as critical habitat 
is inapplicable.
    We are also considering excluding these areas under section 4(b)(2) 
of the Act based on a draft endangered species conservation agreement 
for Cirsium loncholepis that proposes a C. loncholepis conservation 
partnership and agreement between VAFB and the Service. This draft 
conservation agreement focuses on the continuation of compliance with 
Federal and State laws, conducting surveys for federally listed 
species, and protecting and enhancing existing populations and habitats 
of threatened and endangered species. We are currently working with 
VAFB to complete this draft conservation agreement. We will assess the 
benefits of excluding VAFB lands included in this conservation 
agreement and consider these lands for exclusion from the revised 
critical habitat final rule under section 4(b)(2) of the Act. If this 
conservation agreement is finalized before the designation and our 
analysis results in a determination that the benefits of excluding 
lands from the final designation outweigh the benefits of designating 
those lands as critical habitat, then we will exclude the lands from 
the revised final designation, provided the exclusion will not result 
in the extinction of the species.
    You may obtain a copy of the draft conservation agreement for lands 
on VAFB by visiting the Federal eRulemaking Portal at http://www.regulations.gov, at http://www.fws.gov/ventura, or by requesting 
copies of these documents by mail from the Ventura Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT).
    We are also considering excluding these areas under section 4(b)(2) 
of the Act for reasons of national security. Lands may be excluded from 
designation as critical habitat if the Secretary determines that the 
benefits of exclusion, including the benefits with respect to national 
security, outweigh the benefits of inclusion, unless failure to 
designate that specific area as critical habitat will result in the 
extinction of the species, as explained below.
    Vandenberg Air Force Base is a U.S. Air Force installation. It 
operates as a missile test and aerospace center, supporting west coast 
launch activities for the U.S. Air Force, Department of Defense, 
National Aeronautics and Space Administration, and commercial 
contractors. Vandenberg Air Force Base is headquarters for the 30th 
Space Wing, the Air Force's Space Command unit that operates VAFB and 
the western test range. Activities on the grounds of VAFB consist of 
the following:
    <bullet> Mission operations such as:
     [cir] Space and missile launch programs,
     [cir] Security and antiterrorism operations,
     [cir] Explosive ordnance management,
     [cir] Air operations, and
     [cir] Miscellaneous mission operations;
    <bullet> Infrastructure support such as:
     [cir] Paved and unpaved road maintenance,
     [cir] Utility installation, maintenance and removal,
     [cir] Landscaping, and
     [cir] Fencing installation, maintenance, and replacement;
    <bullet> Infrastructure development;
    <bullet> Environmental management programs such as:
     [cir] Installation restoration,
     [cir] Military munitions response,
     [cir] Environmental compliance,
     [cir] Archeological support,
     [cir] Invasive and pest species removal,
     [cir] Cropland management,
     [cir] Grazing and livestock, and
     [cir] Sensitive species management; and
    <bullet> Fire management.
    Vandenberg Air Force Base stated in their comment letter submitted 
September 29, 2008, regarding the proposed revised designation of 
critical habitat that the need for additional consultations and 
possible conservation restrictions would limit the amount of natural 
infrastructure available for ongoing and future mission execution and 
training needed for national security; not designating these areas on

[[Page 10215]]

VAFB as critical habitat for Cirsium loncholepis would not result in 
the extinction of the species; and operations at VAFB do not constitute 
either a long-term threat or adverse modification of suitable C. 
loncholepis habitat. Short-notice, mission-critical activities not 
previously analyzed may be delayed in order to conduct section 7 
consultations under the Act.
    Aside from these areas now being considered for exclusion from the 
final revised designation of critical habitat, no other areas are being 
considered for exclusion and the proposed revised designation of 
critical habitat remains unchanged as presented.

Required Determinations--Amended

    In our proposed rule dated August 6, 2008 (73 FR 45805), we 
indicated that we would defer 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 became available in the DEA. We have now 
made use of the DEA to make these determinations. In this document, we 
affirm the information in our proposed rule concerning Executive Order 
(E.O.) 13132 (Federalism), E.O. 12988 (Civil Justice Reform), the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.), the President's 
memorandum of April 29, 1994, and ``Government-to-Government Relations 
with Native American Tribal Governments'' (59 FR 22951). However, based 
on the DEA data, we are amending our required determinations concerning 
E.O. 12866 (Regulatory Planning and Review) and the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211 (Energy, Supply, 
Distribution, and Use), E.O. 12630 (Takings), and the Unfunded Mandates 
Reform Act (2 U.S.C. 1501 et seq.).

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
proposed rule is not significant and has not reviewed this proposed 
rule under E.O. 12866. The OMB bases its determination upon the 
following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

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

    Under the Regulatory Flexibility Act, as amended by the Small 
Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), 
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 on our DEA of the proposed 
revised 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 we receive, we 
may revise this determination as part of a final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if the proposed revised designation of critical 
habitat for Cirsium loncholepis 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. In order to determine whether it is appropriate 
for our agency to certify that this rule would not have a significant 
economic impact on a substantial number of small entities, we 
considered each industry or category individually. In estimating the 
numbers of small entities potentially affected, we also considered 
whether their activities have any Federal involvement. Critical habitat 
designation will not affect activities that do not have any Federal 
involvement; designation of critical habitat only affects activities 
conducted, funded, permitted, or authorized by Federal agencies. Some 
kinds of activities are unlikely to have any Federal involvement and so 
will not be affected by critical habitat designation. In areas where 
the species is present, Federal agencies already are required to 
consult with us under section 7 of the Act on activities they fund, 
permit, or implement that may affect Cirsium loncholepis. Federal 
agencies also must consult with us if their activities may affect 
critical habitat.
    In the DEA of the proposed revised designation of critical habitat, 
we evaluated the potential economic effects on small business entities 
resulting from implementation of conservation actions related to the 
proposed revised designation of critical habitat. The DEA identified 
the estimated incremental impacts associated with the proposed revised 
designation of critical habitat as described in sections 2 through 9, 
and evaluated the potential for economic impacts related to activity 
categories including military-related activities on VAFB, residential 
and commercial development, agriculture and ranching, recreation, oil 
and gas operations, and public lands management. The DEA concluded that 
the incremental impacts resulting from this rulemaking that may be 
borne by small businesses will be associated with agriculture and 
ranching, and recreation. Incremental impacts are either not expected 
for the other types of activities considered or, if expected, will not 
be borne by small entities.
    As discussed in Appendix A of the DEA, the potential impacts of the 
proposed revised designation of critical habitat on agriculture and 
ranching over the next 20 years would result from unquantified delay 
costs associated with future construction of up to four cooling 
facilities or processing plants in Unit 2; and future vineyard 
conversion projects in Unit 3. The delay costs associated

[[Page 10216]]

with future construction of cooling facilities or processing plants 
will potentially affect fewer than one small agricultural entity per 
year. The delay costs associated with future vineyard conversion 
projects will affect one small entity (one landowner).
    As discussed in Appendix A of the DEA, impacts on small businesses 
associated with recreation are provided through two scenarios; the 
lower bound assumes that no restrictions are placed on off-highway 
vehicle (OHV) recreation at Oceano Dunes State Vehicle Recreation Area 
(ODSVRA), and the upper bound assumes that five percent of critical 
habitat within ODSVRA is closed to OHV recreation, and that some people 
who would have made a trip to ODSVRA for OHV recreation will forego 
future trips due to the closure of five percent of the riding area. 
Since there are no impacts to small businesses with the lower bound 
scenario, only costs for the upper bound scenario are given. In this 
case, the DEA identifies estimated lost opportunity costs associated 
with OHV recreation at ODSVRA over the next 20 years (2009 to 2028) at 
$55.2 million in present value terms using a 3 percent discount rate, 
and $39.3 million in present value terms using a 7 percent discount 
rate. The costs would be borne by businesses in the region surrounding 
the ODSVRA that provide lodging, food and beverage, retail shopping, 
and vehicle-related services to OHV users, and is based on the 
assumption in the DEA that OHV use would decline if portions of the 
ODSVRA are closed to OHV use due to critical habitat. The DEA assumes 
that an average of 85 percent of the businesses that supply goods and 
services to OHV users are small businesses.
    In summary, we have considered whether the proposed revised 
designation of critical habitat would result in a significant economic 
impact on a substantial number of small entities. We have identified 
small businesses that may be affected within the ranching and 
agriculture and recreation sectors. However, for the construction of 
cooling facilities/processing plants, less than one small entity per 
year may be affected; and for vineyard conversion, only one small 
entity may be affected by the proposed revised designation of critical 
habitat. Within the recreation sector, the DEA identifies a large 
percentage of small businesses that may be impacted by the proposed 
revised designation of critical habitat. Although this action has a 
potential to impact small businesses that provide goods and services to 
OHV users, we believe that the ODSVRA can incorporate measures to 
ensure the long-term conservation of Cirsium loncholepis in proposed 
critical habitat Unit 1 without closing large areas that are currently 
open to OHV users. Therefore, it is likely that these small businesses 
will not bear the majority of the estimated impacts, which are 
associated with lost opportunity costs stemming from reduced OHV use of 
ODSVRA. For the above reasons and based on currently available 
information, we certify that, if promulgated, the proposed revised 
designation of critical habitat for C. loncholepis would not have a 
significant economic impact on a substantial number of small business 
entities. Therefore, a regulatory flexibility analysis is not required.

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. 
Executive Order 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. The OMB's guidance for 
implementing this Executive Order outlines nine outcomes that may 
constitute ``a significant adverse effect'' when compared to no 
regulatory action. As discussed in Appendix A, the DEA finds that none 
of these criteria are relevant to this analysis. The DEA identifies 
that the most likely energy-related activity to occur is the re-
activation of an existing well, which generally will not result in 
incremental impacts; therefore, designation of critical habitat is not 
expected to lead to any adverse outcomes (such as a reduction in 
electricity production or an increase in the cost of energy production 
or distribution), 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, 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. 
``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.''
    Critical habitat designation 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. Designation of critical habitat may indirectly impact non-
Federal entities that receive Federal funding, assistance, or permits, 
or that 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. As discussed in the DEA of the proposed designation of critical 
habitat for Cirsium loncholepis, we do not believe that this rule would 
significantly or uniquely affect small governments because it would not 
produce a Federal mandate of $100 million or greater in any year; that 
is, it is not a ``significant regulatory action'' under the Unfunded 
Mandates Reform Act. The DEA concludes incremental impacts may occur 
due to project modifications that may need to be made for agriculture 
and development activities; however, these are not expected to affect 
small governments. Consequently, we do not believe that the revised 
critical habitat designation would significantly or

[[Page 10217]]

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 revised critical habitat for Cirsium loncholepis in a takings 
implications assessment. 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 proposed 
revision to critical habitat for C. loncholepis does not pose 
significant takings implications.

References Cited

    A complete list of all references we cited in the proposed rule and 
in this document is available on the Internet at http://www.regulations.gov or by contacting the Ventura Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT section).

Authors

    The primary authors of this rulemaking are the staff members of the 
Ventura Fish and Wildlife Office.

Authority

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

    Dated: February 20, 2009.
 Jane Lyder,
Assistant Deputy Secretary, Department of the Interior.
 [FR Doc. E9-4788 Filed 3-9-09; 8:45 am]
BILLING CODE 4310-55-P