Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10211 

requirements that would be imposed by 

the final rule issued on December 19, 

2008. The 60-day comment period on 

the information collection requirements 

of the December 19, 2008 final rule 

expired on February 27, 2009, and OMB 

approval for the information collection 

requirements has not yet been sought. 

List of Subjects in 45 CFR Part 88 

Abortion, Civil rights, Colleges and 

universities, Employment, Government 

contracts, Government employees, Grant 

programs, Grants administration, Health 

care, Health insurance, Health 

professions, Hospitals, Insurance 

companies, Laboratories, Medicaid, 

Medical and dental schools, Medical 

research, Medicare, Mental health 

programs, Nursing homes, Public 

health, Religious discrimination, 

Religious liberties, Reporting and 

recordkeeping requirements, Rights of 

conscience, Scientists, State and local 

governments, Sterilization, Students. 

Dated: March 5, 2009. 

Charles E. Johnson, 

Acting Secretary. 

PART 88—[REMOVED AND 

RESERVED] 

Therefore, under 5 U.S.C. 301, the 

Department of Health and Human 

Services proposes to remove and reserve 

45 CFR part 88. 

[FR Doc. E9–5067 Filed 3–6–09; 11:15 am] 

BILLING CODE 4150–28–P 

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. 

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: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• 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: 

• The amount and distribution of 

Cirsium loncholepis habitat, 

• 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, 

• 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 

• 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. 

10212 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

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 

Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 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 offhighway 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 

10214 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

$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: 

• Mission operations such as: 

Æ Space and missile launch 

programs, 

Æ Security and antiterrorism 

operations, 

Æ Explosive ordnance management, 

Æ Air operations, and 

Æ Miscellaneous mission 

operations; 

• Infrastructure support such as: 

Æ Paved and unpaved road 

maintenance, 

Æ Utility installation, maintenance 

and removal, 

Æ Landscaping, and 

Æ Fencing installation, 

maintenance, and replacement; 

• Infrastructure development; 

• Environmental management 

programs such as: 

Æ Installation restoration, 

Æ Military munitions response, 

Æ Environmental compliance, 

Æ Archeological support, 

Æ Invasive and pest species 

removal, 

Æ Cropland management, 

Æ Grazing and livestock, and 

Æ Sensitive species management; 

and 

• 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 

Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 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 longterm threat or adverse modification of 

suitable C. loncholepis habitat. Shortnotice, 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 

10216 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

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 longterm 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 nonFederal 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 nonFederal 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 

Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 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