51742 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Proposed Rules 

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) We do not believe that this rule 

will significantly or uniquely affect 

small governments. As discussed in the 

draft economic analysis, five small local 

governments, the City of Perris 

(population 36,189), Lake Elsinore 

(population 28,928), Lakeview 

(population 1,619), Nuevo (population 

4,135), and Winchester (population 

2,155), are located adjacent to habitat 

that has features essential to the 

conservation of this taxon. There is no 

record of consultations between the 

Service and these cities since Atriplex 

coronata var. notatior was listed in 

1998. It is unlikely that these cities 

would be involved in a land 

development project involving a section 

7 consultation, although a city may be 

involved in land use planning or 

permitting, and may play a role as an 

interested party in infrastructure 

projects (such as the City of Perris with 

the San Jacinto River Flood Control 

Project). Any cost associated with this 

activity/involvement is anticipated to be 

a very small portion of the city’s budget. 

Consequently, we do not believe that 

critical habitat designation would 

significantly or uniquely affect small 

government entities. As such, Small 

Government Agency Plan is not 

required. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of proposing critical 

habitat for Atriplex coronata var. 

notatior. Critical habitat designation 

does not affect landowner actions that 

do not require Federal funding or 

permits, nor does it preclude 

development of habitat conservation 

programs or issuance of incidental take 

permits to permit actions that do require 

Federal funding or permits to go 

forward. In conclusion, the designation 

of critical habitat for Atriplex coronata 

var. notatior does not pose significant 

takings implications. 

Author 

The primary authors of this notice are 

the staff of the Carlsbad Fish and 

Wildlife Office (see ADDRESSES section). 

Authority: The authority for this action is 

the Endangered Species Act of 1973 (16 

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

Dated: August 23, 2005. 

Paul Hoffman, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 05–17451 Filed 8–29–05; 3:05 pm] 

BILLING CODE 4310–55–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AT86 

Endangered and Threatened Wildlife 

and Plants; Proposed Designation of 

Critical Habitat for Navarretia fossalis 

(spreading navarretia) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

public comment period and notice of 

availability of draft economic analysis. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

reopening of the public comment period 

on the proposed designation of critical 

habitat for Navarretia fossalis, and the 

availability of a draft economic analysis 

of the proposed designation of critical 

habitat. We are reopening the comment 

period to allow all interested parties an 

opportunity to comment simultaneously 

on the proposed rule and the associated 

draft economic analysis. Comments 

previously submitted on this proposed 

rule need not be resubmitted as they 

have already been incorporated into the 

public record and will be fully 

considered in our final determination. 

DATES: We will accept public comments 

and information until September 14, 

2005. 

ADDRESSES: Written comments and 

materials may be submitted to us by any 

one of the following methods: 

1. You may submit written comments 

and information to Jim Bartel, Field 

Supervisor, Carlsbad Fish and Wildlife 

Office, 6010 Hidden Valley Road, 

Carlsbad, CA 92011; 

2. You may hand-deliver written 

comments and information to our 

Carlsbad Fish and Wildlife Office at the 

above address, or fax your comments to 

760/431–9624; or 

3. You may send your comments by 

electronic mail (e-mail) to 

fw1cfwo_nafo@fws.gov. For directions 

on how to submit electronic comments, 

see the ‘‘Public Comments Solicited’’

section. In the event that our internet 

connection is not functional, please 

submit your comments by the alternate 

methods mentioned above. 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, Carlsbad Fish 

and Wildlife Office, at the above address 

(telephone 760/431–9440; facsimile 

760/431–9624). 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We will accept written comments and 

information during this reopened 

comment period. We solicit comments 

on the original proposed critical habitat 

designation, published in the Federal 

Register on October 7, 2004 (69 FR 

60110), and on our draft economic 

analysis of the proposed designation. 

We will consider information and 

recommendations from all interested 

parties. We are particularly interested in 

comments concerning: 

(1) The reasons why any habitat 

should or should not be determined to 

be critical habitat as provided by section 

4 of the Endangered Species Act of 

1973, as amended (16 U.S.C. 1531 et 

seq.) (Act), including whether the 

benefits of exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat; 

(2) Specific information on the 

amount and distribution of Navarretia 

fossalis and its habitat, and which 

habitat features and geographic areas 

essential to the conservation of this 

species and why; 

(3) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat; 

(4) Information on how many of the 

State and local environmental 

protection measures referenced in the 

draft economic analysis were adopted 

largely as a result of the listing of 

Navarretia fossalis, and how many were 

either already in place or enacted for 

other reasons; 

(5) Any foreseeable economic, 

environmental, or other impacts 

resulting from the proposed designation 

or coextensively from the proposed 

listing; 

(6) Whether the draft economic 

analysis identifies all State and local 

costs attributable to the proposed 

critical habitat designation, and 

information on any costs that have been 

inadvertently overlooked; 

(7) Whether the draft economic 

analysis makes appropriate assumptions 

regarding current practices and likely 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Proposed Rules 51743 

regulatory changes imposed as a result 

of the designation of critical habitat; 

(8) Whether the draft economic 

analysis correctly assesses the effect on 

regional costs associated with land use 

controls that derive from the 

designation of critical habitat; 

(9) Whether the economic analysis 

appropriately identifies all costs that 

could result from the designation, in 

particular, any impacts on small entities 

or families; 

(10) Whether the designation would 

result in disproportionate economic 

impacts to specific areas that should be 

evaluated for possible exclusion under 

4(b)(2) of the Act from the final 

designation; 

(11) Whether it is appropriate that the 

analysis does not include the costs of 

project modification that are the result 

of informal consultation only; 

(12) Whether there is information 

about areas that could be used as 

substitutes for the economic activities 

planned in critical habitat areas that 

would offset the costs and allow for the 

conservation of critical habitat areas; 

and 

(13) How our approach to critical 

habitat designation could be improved 

or modified to provide for greater public 

participation and understanding, or to 

assist us in accommodating public 

concern and comments. 

All previous comments and 

information submitted during the initial 

comment period on the proposed rule 

need not be resubmitted. If you wish to 

comment, you may submit your 

comments and materials concerning the 

draft economic analysis and the 

proposed rule by any one of several 

methods (see ADDRESSES section). Our 

final determination regarding 

designation of critical habitat for 

Navarretia fossalis will take into 

consideration all comments and any 

additional information received during 

both comment periods. On the basis of 

public comment on this analysis and on 

the critical habitat proposal, and on the 

final economic analysis, we may, during 

the development of our final 

determination, find that areas proposed 

are not essential, are appropriate for 

exclusion under section 4(b)(2) of the 

Act, or are not appropriate for 

exclusion. 

Please submit electronic comments in 

an ASCII file and avoid the use of any 

special characters or any form of 

encryption. Also, please include ‘‘Attn: 

Navarretia fossalis’’ and your name and 

return address in your e-mail message 

regarding the Navarretia fossalis 

proposed rule or the draft economic 

analysis. If you do not receive a 

confirmation from the system that we 

have received your e-mail message, 

please submit your comments in writing 

using one of the alternate methods 

described in the ADDRESSES section. 

Our practice is to make comments, 

including names and home addresses of 

respondents, available for public review 

during regular business hours. 

Individual respondents may request that 

we withhold their home address, which 

we will honor to the extent allowable by 

law. There also may be circumstances in 

which we would withhold a 

respondent’s identity, as allowable by 

law. If you wish us to withhold your 

name and/or address, you must state 

this prominently at the beginning of 

your comments. However, we will not 

consider anonymous comments. We 

will make all submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

Comments and materials received, as 

well as supporting documentation used 

in preparation of the proposal to 

designate critical habitat, will be 

available for public inspection, by 

appointment, during normal business 

hours at the Carlsbad Fish and Wildlife 

Office at the address listed under 

ADDRESSES. Copies of the proposed 

critical habitat rule for Navarretia 

fossalis and the draft economic analysis 

are also available on the Internet at 

http://www.fws.gov/pacific/carlsbad/ 

NAFO.htm. In the event that our 

internet connection is not functional, 

please obtain copies of documents 

directly from the Carlsbad Fish and 

Wildlife Office. 

Background 

On October 7, 2004, we published a 

proposed rule in the Federal Register 

(69 FR 60110) to designate critical 

habitat for Navarretia fossalis pursuant 

to the Act. We proposed to designate a 

total of approximately 4,301 acres (ac) 

(1,741 hectares (ha)) of critical habitat in 

San Diego and Los Angeles Counties, 

California. The first comment period for 

the Navarretia fossalis proposed critical 

habitat rule closed on December 6, 2004. 

For more information on this species, 

refer to the final rule listing this species 

as threatened, published in the Federal 

Register on October 13, 1998 (63 FR 

54975), and the Recovery Plan for the 

Vernal Pools of Southern California 

(Recovery Plan) finalized on September 

3, 1998 (Service 1998). 

Critical habitat is defined in section 3 

of the Act as the specific areas within 

the geographic area occupied by a 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features essential to the conservation of 

the species and that may require special 

management considerations or 

protection, and specific areas outside 

the geographic area occupied by a 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. If the proposed rule is made 

final, section 7 of the Act will prohibit 

destruction or adverse modification of 

critical habitat by any activity funded, 

authorized, or carried out by any 

Federal agency. Federal agencies 

proposing actions affecting areas 

designated as critical habitat must 

consult with us on the effects of their 

proposed actions, pursuant to section 

7(a)(2) of the Act. 

Section 4(b)(2) of the Act requires that 

we designate or revise critical habitat on 

the basis of the best scientific and 

commercial data available, after taking 

into consideration the economic impact, 

impact to national security, and any 

other relevant impacts of specifying any 

particular area as critical habitat. We 

have prepared a draft economic analysis 

of the October 7, 2004 (69 FR 60110), 

proposed designation of critical habitat 

for Navarretia fossalis. 

The draft economic analysis considers 

the potential economic effects of actions 

relating to the conservation of 

Navarretia fossalis, including costs 

associated with sections 4, 7, and 10 of 

the Act, and including those attributable 

to designating critical habitat. It further 

considers the economic effects of 

protective measures taken as a result of 

other Federal, State, and local laws that 

aid habitat conservation for Navarretia 

fossalis in habitat areas with features 

essential to the conservation of this 

taxon. The analysis considers both 

economic efficiency and distributional 

effects. In the case of habitat 

conservation, efficiency effects generally 

reflect the ‘‘opportunity costs’’

associated with the commitment of 

resources to comply with habitat 

protection measures (e.g., lost economic 

opportunities associated with 

restrictions on land use). This analysis 

also addresses how potential economic 

impacts are likely to be distributed, 

including an assessment of any local or 

regional impacts of habitat conservation 

and the potential effects of conservation 

activities on small entities and the 

energy industry. This information can 

be used by decision-makers to assess 

whether the effects of the designation 

might unduly burden a particular group 

or economic sector. Finally, this 

analysis looks retrospectively at costs 

that have been incurred since the date 

the species was listed as an endangered 

51744 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Proposed Rules 

species and considers those costs that 

may occur in the 20 years following the 

designation of critical habitat. 

This analysis determined that costs 

involving conservation measures for 

Navarretia fossalis would be incurred 

for activities involving residential, 

industrial, and commercial 

development; water supply; flood 

control; transportation; agriculture; the 

development of HCPs; and the 

management of military bases, other 

Federal lands, and other public or 

conservation lands. 

Pre-designation costs include those 

Navarretia fossalis-related conservation 

activities associated with sections 4, 7, 

and 10 of the Act that have accrued 

since the time that Navarretia fossalis 

was listed as threatened (63 FR 54975; 

October 13, 1998), but prior to the final 

designation of critical habitat. The total 

pre-designation costs are estimated at 

$7.9 million. 

Post-designation effects would 

include likely future costs associated 

with Navarretia fossalis conservation 

efforts in the 20-year period following 

the final designation of critical habitat 

in October 2005 (effectively 2006 

through 2025). If critical habitat is 

designated as proposed, total costs 

would be expected to range between 

$13.9 and $32.1 million over the next 20 

years (an annualized cost of $1.3 to $3.0 

million). However, if all habitat with 

features essential to the conservation of 

the taxon were designated critical 

habitat in a final rule, total costs would 

be expected to range between $48.6 and 

$129.0 million over the next 20 years 

(an annualized cost of $4.6 to $12.2 

million). 

Required Determinations—Amended 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues. However, because the 

draft economic analysis indicates the 

potential economic impact associated 

with a designation of all habitat with 

features essential to the conservation of 

this species would total no more than 

$12.2 million per year, we do not 

anticipate that this rule would have an 

annual effect on the economy of $100 

million or more or affect the economy 

in a material way. Due to the time line 

for publication in the Federal Register, 

the Office of Management and Budget 

(OMB) did not formally review the 

proposed rule. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. In our proposed rule, we 

withheld our determination of whether 

this designation would result in a 

significant effect as defined under 

SBREFA until we completed our draft 

economic analysis of the proposed 

designation so that we would have the 

factual basis for our determination. 

According to the Small Business 

Administration (SBA), small entities 

include small organizations, such as 

independent nonprofit organizations, 

and small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents, as well as small 

businesses (13 CFR 121.201). Small 

businesses include manufacturing and 

mining concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term significant economic 

impact is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if this proposed 

designation of critical habitat for 

Navarretia fossalis would affect a 

substantial number of small entities, we 

considered the number of small entities 

affected within particular types of 

economic activities (e.g., residential, 

industrial, and commercial 

development). We considered each 

industry or category individually to 

determine if certification is appropriate. 

In estimating the numbers of small 

entities potentially affected, we also 

considered whether their activities have 

any Federal involvement; some kinds of 

activities are unlikely to have any 

Federal involvement and so will not be 

affected by the designation of critical 

habitat. Designation of critical habitat 

only affects activities conducted, 

funded, permitted, or authorized by 

Federal agencies; non-Federal activities 

are not affected by the designation. 

If this proposed critical habitat 

designation is made final, Federal 

agencies must consult with us if their 

activities may affect designated critical 

habitat. Consultations to avoid the 

destruction or adverse modification of 

critical habitat would be incorporated 

into the existing consultation process. 

Our analysis determined that costs 

involving conservation measures for 

Navarretia fossalis would be incurred 

for activities involving residential, 

industrial, and commercial 

development; water supply; flood 

control; transportation; agriculture; the 

development of HCPs; and the 

management of military bases, other 

Federal lands, and other public or 

conservation lands. 

In our economic analysis of this 

proposed designation, we evaluated the 

potential economic effects on small 

business entities resulting from 

conservation actions related to the 

listing of this species and proposed 

designation of its critical habitat. 

Critical habitat designation is expected 

to result in additional costs to real estate 

development projects due to mitigation 

and other conservation costs that may 

be required. The affected land is located 

within Riverside, San Diego, and Los 

Angeles Counties (although the 

proposed designation is contained in 

only Los Angeles and San Diego 

Counties), and under private ownership 

by individuals who will either 

undertake a development project on 

their own or sell the land to developers 

for development. For businesses 

involved with land development, the 

relevant threshold for ‘‘small’’ is annual 

revenues of $6 million or less. The 

North American Industry Classification 

System (NAICS) code 237210 is 

comprised of establishments primarily 

engaged in servicing land (e.g., 

excavation, installing roads and 

utilities) and subdividing real property 

into lots for subsequent sale to builders. 

Land subdivision precedes actual 

construction, and typically includes 

residential properties, but may also 

include industrial and commercial 

properties. 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Proposed Rules 51745 

It is likely that development 

companies, the entities directly 

impacted by the regulation, would not 

bear the additional cost of Navarretia 

fossalis conservation (approximately 

$2.3 to $6.7 million annualized) within 

the essential habitat, but pass these 

costs to the landowner through a lower 

land purchase price. Considering 

approximately 65 percent of the 

developable land within the essential 

habitat is classified as agriculture land, 

it is likely that farmers will bear some 

of the costs. The remaining 35 percent 

of the potentially developable land is 

privately owned and classified as 

vacant. To comply with the SBA 

recommendation that Federal agencies 

consider impacts to entities that may be 

indirectly affected by the proposed 

regulation, this screening level analysis 

presents information on land 

subdivision and farming businesses for 

Riverside, San Diego, and Los Angeles 

Counties as these are the businesses that 

would likely be impacted directly or 

indirectly by the regulation. The 

majority of the land subdivision and 

farming businesses within the counties 

are considered small businesses. 

It is important to note that the identity 

and number of land subdivision and 

farming businesses potentially impacted 

by the critical habitat designation is not 

known. In addition, the identity and 

number of affected businesses classified 

as ‘‘small’’ is also not known. 

Nevertheless, the county-level 

information is the smallest region for 

which data relevant to this analysis 

exist (see Table A–1 in the draft 

economic analysis). This clearly overrepresents the potential number of small 

businesses impacted by developmentrelated Navarretia fossalis conservation 

efforts as the privately owned 

developable land within the essential 

habitat (approximately 15,084 ac 

(6,104.5 ha)) comprises less than twotenths of one percent of the land area in 

the counties (9,908,520 ac (4,009,978 

ha)), and only 2,969 ac (1,201.6 ha) of 

this private land is forecasted to be 

developed between 2006 and 2025. The 

effects on small businesses in the land 

development sector would be 

concentrated in San Diego County, 

where more than 65 percent of the 

development is expected to take place. 

Within the proposed critical habitat 

designation, the effects on small 

businesses in the land development 

sector would be concentrated in 

Ramona, where approximately 30 

percent of the development in the 

proposed critical habitat designation is 

forecast to take place (Unit 4E). 

While the identity and number of 

land subdivision and farming business 

impacted by the critical habitat 

designation is not known, this analysis 

relates the economic impacts to real 

estate prices in the three counties that 

encompass the essential habitat (see 

Table A–2 in the draft economic 

analysis). Navarretia fossalis-related 

conservation efforts are expected to cost 

between $390 and $11,300 per 

residential dwelling unit developed, 

$0.81 to $5.90 per square foot of 

commercial property developed, and 

$0.53 to $3.82 per square foot of 

industrial property developed, 

depending on residential dwelling unit 

density, lot coverage (i.e., the percent of 

the lot developed), and conservation 

and mitigation activities required. The 

median sales price for single family 

residences in the counties ranged from 

$315,000 to $460,000 in 2004, and the 

weighted average sales price of 

commercial and industrial properties in 

2004 ranged from $130 to $293 and $50 

to $180 per square foot, respectively. 

Thus, the economic impacts of 

Navarretia fossalis conservation to the 

development industry are equal to 0.1 

percent to 2.9 percent of the 2004 

median price of a single family 

residence, 0.4 percent to 4.5 percent of 

the 2004 weighted average sales price of 

commercial property, and 0.4 percent to 

5.4 percent of the 2004 weighted 

average sales price of industrial 

property. These costs may be borne by 

the developer or passed on to the 

landowner through a lower land 

purchase price. 

Based on these data, we have 

determined that this proposed 

designation would not result in a 

significant economic impact on a 

substantial number of small entities, in 

particular to land developers or farmers 

in Los Angeles, Riverside, or San Diego 

Counties. We may also exclude areas 

from the final designation if it is 

determined that these localized areas 

have an impact to a substantial number 

of businesses and a significant 

proportion of their annual revenues. As 

such, we are certifying that this 

proposed designation of critical habitat 

would not result in a significant 

economic impact on a substantial 

number of small entities. Please refer to 

Appendix A of our draft economic 

analysis of this designation for a more 

detailed discussion of potential 

economic impacts to small business 

entities. 

Executive Order 13211 

On May 18, 2001, the President issued 

Executive Order (E.O.) 13211 on 

regulations that significantly affect 

energy supply, distribution, and use. 

E.O. 13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This 

proposed rule is considered a significant 

regulatory action under E.O. 12866 

because it raises novel legal and policy 

issues, but it is not expected to 

significantly affect energy supplies, 

distribution, or use. Therefore, this 

action is not a significant action, and no 

Statement of Energy Effects is required. 

Please refer to Appendix A of our draft 

economic analysis of this proposed 

designation for a more detailed 

discussion of potential effects on energy 

supply. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501), 

the Service makes the following 

findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, 

tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

condition of federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance; or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

51746 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Proposed Rules 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. Non-Federal 

entities that receive Federal funding, 

assistance, permits, or otherwise require 

approval or authorization from a Federal 

agency for an action, may be indirectly 

impacted by the designation of critical 

habitat. However, the legally binding 

duty to avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Furthermore, to the extent that 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 draft economic 

analysis of the proposed designation of 

critical habitat for Navarretia fossalis, 

there are 12 city governments are either 

adjacent to or bisect the essential 

habitat: Moreno Valley (population 

142,381), Perris (population 36,189), 

Lakeview (population 1,619), Nuevo 

(population 4,135), Winchester 

(population 2,155), Hemet (population 

58,812), Temecula (population 57,716), 

San Marcos (population 54,977), 

Carlsbad (population 78,247), Ramona 

(population 15,691), San Diego 

(population 1,223,400), and Chula Vista 

(population 173,556). Moreno Valley, 

Hemet, Temecula, San Marcos, 

Carlsbad, San Diego, and Chula Vista 

exceed the criteria (service population 

of 50,000 or less) for small entity. 

However, there is no record of 

consultation between the Service and 

the five remaining ‘‘small’’

governments, the City of Perris, 

Lakeview, Nuevo, Winchester, and 

Ramona, since the Navarretia fossalis 

was listed in 1998. Indeed, it is not 

likely that these cities would be 

involved in a land development project 

involving a section 7 consultation, 

although a city may be involved in land 

use planning or permitting, and may 

play a role as an interested party in 

infrastructure projects (such as the City 

of Perris with the San Jacinto River 

Flood Control Project). Any cost 

associated with this activity/ 

involvement is anticipated to be a very 

small portion of the city’s budget. 

Consequently, we do not believe that 

the designation of critical habitat for 

Navarretia fossalis will significantly or 

uniquely affect these small 

governmental entities. As such, a Small 

Government Agency Plan is not 

required. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of proposing critical 

habitat for Navarretia fossalis. Critical 

habitat designation does not affect 

landowner actions that do not require 

Federal funding or permits, nor does it 

preclude development of habitat 

conservation programs or issuance of 

incidental take permits to permit actions 

that do require Federal funding or 

permits to go forward. In conclusion, 

the designation of critical habitat for 

Navarretia fossalis does not pose 

significant takings implications. 

Author 

The primary authors of this notice are 

the staff of the Carlsbad Fish and 

Wildlife Office (see ADDRESSES section). 

Authority: The authority for this action is 

the Endangered Species Act of 1973 (16 

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

Dated: August 23, 2005. 

Paul Hoffman, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 05–17452 Filed 8–29–05; 3:05 pm] 

BILLING CODE 4310–55–P