Federal Register / Vol. 72, No. 200 / Wednesday, October 17, 2007 / Proposed Rules 58793 

(e) Expedited Processing of Request. 

* * * 

(f) Denial of Request. In denying a 

request for records, in whole or in part, 

the Commission shall state the reason 

for denial, set forth the name and title 

or position of the person responsible for 

the denial of the request, make a 

reasonable effort to estimate the volume 

of the records denied, and provide this 

estimate to the person making the 

request, unless providing such an 

estimate would harm an interest 

protected by the exemption pursuant to 

which the request is denied, and, if an 

appeal is denied, notify the requester of 

the right to obtain judicial review of the 

Commission’s action under 5 U.S.C. 

552(a)(4)(B)–(G). 

(g) Partial Response to Request. * * * 

4. In section 2702.4, remove the 

introductory text and paragraphs (c) and 

(d) and revise paragraphs (a) and (b) to 

read as follows: 

§ 2702.4 Materials available. 

(a) FOIA Reading Room. Materials 

which may be made publicly available 

for inspection and copying at the 

Commission’s on-site FOIA Reading 

Room, 601 New Jersey Ave., NW., Suite 

9500, Washington, DC, include, but are 

not limited to: 

(1) Final opinions, including 

concurring and dissenting opinions, as 

well as orders, made in the adjudication 

of cases; 

(2) Those statements of policy and 

interpretations which have been 

adopted by the agency and are not 

published in the Federal Register; 

(3) Administrative staff manuals and 

instructions to staff that affect a member 

of the public; 

(4) Copies of all records, regardless of 

form or format, which have been 

released to any person under this 

subpart and which, because of the 

nature of their subject matter, the 

Commission determines have become or 

are likely to become the subject of 

subsequent requests for substantially the 

same records; and 

(5) A general index of records referred 

to under this paragraph. 

(b) E–FOIA Reading Room. Materials 

created on or after November 1, 1996 

under paragraphs (a)(1) through (5) of 

this section may also be accessed 

electronically through the Commission’s 

Web site at http://www.fmshrc.gov. 

5. Revise section 2702.6 to read as 

follows: 

§ 2702.6 Fee schedule. 

(a) Search fee. The fee for searching 

for information and records shall be the 

salary rate (that is, basic pay plus 16%) 

of the employee making the search. This 

hourly rate is listed on the 

Commission’s Web site at http:// 

www.fmshrc.gov. Fees for searches of 

computerized records shall be the actual 

cost to the Commission but shall not 

exceed $300 per hour. This fee includes 

machine time and that of the operator 

and clerical personnel. If search charges 

are likely to exceed $50, the requester 

shall be notified of the estimated 

amount of fees, unless the requester has 

indicated in advance his willingness to 

pay fees as high as those anticipated. 

Fees may be charged even if the 

documents are not located or if they are 

located but withheld on the basis of an 

exemption. 

(b) Review fee. The review fee shall be 

charged for the initial examination by 

the Chief FOIA Officer of documents 

located in response to a request in order 

to determine if they may be withheld 

from disclosure, and for the deletion of 

portions that are exempt from 

disclosure, but shall not be charged for 

review by the Chairman or the 

Commissioners. See § 2702.3. The 

review fee is the salary rate (that is, 

basic pay plus 16%) of the employee 

reviewing the records. This hourly rate 

is listed on the Commission’s Web site 

at http://www.fmshrc.gov. 

(c) Duplicating fee. The copy fee for 

each page of paper up to 81⁄2′′x14′′ shall 

be $.15 per copy per page. Any private 

sector services required will be assessed 

at the charge to the Commission. The fee 

for copying photographs and other 

nonstandard documents will be the 

actual direct cost incurred by the 

Commission. For copies prepared by 

computer, such as tapes or printouts, 

the Commission shall charge the actual 

cost, including operator time, of 

production of the tape or printout. For 

other methods of reproduction or 

duplication, the Commission will 

charge the actual direct costs of 

producing the document(s). If 

duplication charges are likely to exceed 

$50, the requester shall be notified of 

the estimated amount of fees, unless the 

requester has indicated in advance his 

willingness to pay fees as high as those 

anticipated. 

6. In § 2702.7, revise paragraph (a) 

and paragraph (b)(2) to read as follows: 

§ 2702.7 No fees; waiver or reduction of 

fees. 

(a) No fees shall be charged to any 

requester, including commercial use 

requesters, if the anticipated cost of 

processing and collecting the fee would 

be equal or greater than the fee itself. 

Accordingly, the Commission has 

determined that fees of less than $20 

shall be waived. 

(b) * * * 

(2) The Chief FOIA Officer, upon 

request, shall determine whether a 

waiver or reduction of fees is warranted. 

Requests shall be made concurrently 

with requests for information under Sec. 

2702.3. In accordance with the 

procedures set forth in Sec. 2702.3, 

appeals of adverse decisions may be 

made to the Commission within 5 

working days. Determination of appeals 

will be made by the Commission within 

10 working days of receipt. 

Dated: October 11, 2007. 

Michael F. Duffy, 

Chairman, Federal Mine Safety and Health 

Review Commission. 

[FR Doc. E7–20380 Filed 10–16–07; 8:45 am] 

BILLING CODE 6735–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU84 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Berberis nevinii (Nevin’s 

barberry) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period, revisions to proposed 

critical habitat, 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 designation of critical habitat 

for Berberis nevinii (Nevin’s barberry) 

under the Endangered Species Act of 

1973, as amended (Act). We are also 

using this comment period to announce 

revisions to proposed critical habitat 

subunits 1B, 1D, and 1E as described in 

the proposed rule published in the 

Federal Register on February 6, 2007, 

and announce the availability of the 

draft economic analysis for the 

proposed critical habitat designation 

and an amended Required 

Determinations section of the proposal. 

The draft economic analysis estimates 

potential costs to be approximately 

$169,000 to $172,000 in undiscounted 

dollars over a 20-year period in areas 

proposed as critical habitat and 

approximately $1.7 to $433.5 million in 

undiscounted dollars over a 20-year 

period (or 40-year period for impacts 

related to management of Vail Lake) in 

areas proposed for exclusion from 

critical habitat under section 4(b)(2) of 


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58794 Federal Register / Vol. 72, No. 200 / Wednesday, October 17, 2007 / Proposed Rules 

the Act. We are reopening the comment 

period to allow all interested parties to 

comment simultaneously on the 

proposed rule, our revisions to the 

proposed rule, the associated draft 

economic analysis, and the amended 

Required Determinations section. 

Comments previously submitted need 

not be resubmitted as they will be 

incorporated into the public record as 

part of this comment period and will be 

fully considered in preparation of the 

final rule. 

DATES: We will accept public comments 

until November 16, 2007. 

ADDRESSES: You may submit written 

comments and materials to us by any 

one of the following methods: 

(1) E-mail: Please submit electronic 

comments to 

fw8cfwocomments@fws.gov. Include 

‘‘Nevin’s barberry’’ in the subject line. 

For more information, please see the 

Public Comments Solicited section 

under SUPPLEMENTARY INFORMATION. 

(2) Facsimile: You may fax your 

comments to 760/431–5901. 

(3) U.S. mail or hand-delivery: You 

may submit written comments and 

information to Jim Bartel, Field 

Supervisor, Carlsbad Fish and Wildlife 

Office, 6010 Hidden Valley Road, 

Carlsbad, CA 92011. 

(4) Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, Carlsbad Fish 

and Wildlife Office, at the address listed 

in the ADDRESSES section (telephone: 

760/431–9440). Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We will accept written comments and 

information during this reopened 

comment period on the proposed 

critical habitat designation for Berberis 

nevinii published in the Federal 

Register on February 6, 2007 (72 FR 

5552), the revisions to proposed critical 

habitat described herein (see Revisions 

to Proposed Critical Habitat section), 

and the draft economic analysis of the 

revised proposed designation. We will 

consider information and 

recommendations from all interested 

parties. We are particularly interested in 

comments concerning: 

(1) Critical Habitat Subunits 1B, 1D, 

and 1E as revised in this notice (see 

Revisions to Proposed Critical Habitat 

section). 

(2) The reasons why habitat should or 

should not be designated as critical 

habitat under section 4 of the Act (16 

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

(3) Specific information on the 

amount and distribution of Berberis 

nevinii habitat; what habitat or habitat 

features are essential to the conservation 

of this species and why; which areas 

occupied at the time of listing 

containing these features should be 

included in the critical habitat 

designation and why; and which areas 

not occupied at the time of listing but 

currently occupied should be included 

in the final designation and why. 

(4) The geographical extent, number 

of plants, and/or reproductive status of 

native Berberis nevinii occurrences, 

particularly those in the Loma Linda 

Hills area (vicinity of San Timoteo 

Canyon and Scott Canyon) in San 

Bernardino County and those in western 

Riverside County (including in the 

vicinity of Vail Lake, the Agua Tibia 

Mountain foothills on the Cleveland 

National Forest (CNF), in the Soboba 

Badlands east of the San Jacinto 

Wildlife Area, the Jurupa Hills area, and 

near the City of Temecula). 

(5) Specific information on three 

historical Berberis nevinii records from 

Los Angeles County—two from the 

Arroyo Seco near the City of Pasadena 

(California Natural Diversity Database 

(CNDDB) element occurrences 8 and 9) 

and one from the Big Tujunga Wash 

near San Fernando (CNDDB element 

occurrence 10)—such as whether the 

species still exists in these areas and 

where. 

(6) Whether any areas not currently 

known to be occupied by Berberis 

nevinii, but essential to the conservation 

of the species, should be included in the 

designation. 

(7) Information that demonstrates a 

species-specific pollinator-plant 

relationship for Berberis nevinii; 

information on seed dispersal 

mechanisms and dispersal distance for 

B. nevinii; whether seed banks exist for 

this species and, if so, for how long and 

under what conditions; and whether 

such information should be applied to 

or considered a primary constituent 

element for the species. 

(8) Land use designations and current 

or planned activities in the mapped 

critical habitat subunits and their 

possible impact on proposed critical 

habitat. 

(9) Our proposed exclusion of 

Berberis nevinii habitat covered under 

the approved Western Riverside County 

Multiple Species Habitat Conservation 

Plan (MSHCP) and whether the benefits 

of excluding these areas outweigh the 

benefits of their inclusion under section 

4(b)(2) of the Act (see 72 FR 5552, 

‘‘Relationship of Critical Habitat to 

Approved Habitat Conservation Plans 

(HCPs)—Exclusion Under Section 

4(b)(2) of the Act’’ section for details on 

the Western Riverside County MSHCP). 

If the Secretary determines the benefits 

of including these lands outweigh the 

benefits of excluding them, they will not 

be excluded from final critical habitat. 

(10) Additional information regarding 

management plans covering lands 

managed by the Bureau of Land 

Management (BLM) on Oak Mountain 

and by the U.S. Forest Service (USFS) 

on the CNF, and whether these plans 

provide specific management for 

Berberis nevinii such that consideration 

of exclusion of these lands under 

section 4(b)(2) of the Act would be 

appropriate. 

(11) Whether the benefits of exclusion 

of any particular area outweigh the 

benefits of inclusion under section 

4(b)(2) of the Act. 

(12) Information on the extent to 

which any State and local 

environmental protection measures 

referred to in the draft economic 

analysis may have been adopted largely 

as a result of the listing of Berberis 

nevinii. 

(13) Information on whether the draft 

economic analysis identifies all State 

and local costs attributable to the 

proposed critical habitat designation, 

and information on any costs that have 

been inadvertently overlooked. 

(14) Information on whether the draft 

economic analysis makes appropriate 

assumptions regarding current practices 

and likely regulatory changes imposed 

as a result of the designation of critical 

habitat. 

(15) Information on whether the draft 

economic analysis correctly assesses the 

effect on regional costs associated with 

any land use controls that may derive 

from the designation of critical habitat. 

(16) Information on whether there are 

any quantifiable economic benefits that 

could result from the designation of 

critical habitat. 

(17) Information on areas that could 

potentially be disproportionately 

impacted by designation of critical 

habitat for Berberis nevinii. 

(18) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation, and, in particular, any 

impacts on small entities, and the 

benefits of including or excluding areas 

that exhibit these impacts. 

(19) Information on whether the draft 

economic analysis appropriately 


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Federal Register / Vol. 72, No. 200 / Wednesday, October 17, 2007 / Proposed Rules 58795 

identifies all costs that could result from 

the designation. 

(20) Economic data on the 

incremental effects that would result 

from designating any particular area as 

critical habitat, since it is our intent to 

include the incremental costs attributed 

to the revised critical habitat 

designation in the final economic 

analysis. 

(21) Information on whether our 

approach to critical habitat designation 

could be improved or modified in any 

way to provide for greater public 

participation and understanding, or to 

assist us in accommodating public 

concern and comments. 

Pursuant to section 4(b)(2) of the Act, 

an area may be excluded from critical 

habitat if it is determined that the 

benefits of such exclusion outweigh the 

benefits of including a particular area as 

critical habitat, unless the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. We may exclude an area from 

designated critical habitat based on 

economic impacts, national security, or 

any other relevant impact. 

All previous comments and 

information submitted during the initial 

comment period from February 6, 2007, 

to April 9, 2007, on the proposed rule 

(72 FR 5552) need not be resubmitted as 

they will be incorporated into the public 

record as part of this comment period 

and will be fully considered in 

preparation of the final rule. If you wish 

to comment, you may submit your 

comments and materials concerning 

proposed rule, draft economic analysis, 

or the amended Required 

Determinations provided in this 

document by any one of several 

methods (see ADDRESSES). Our final 

designation of critical habitat will take 

into consideration all written comments 

and any additional information we have 

received during both comment periods. 

On the basis of public comment on this 

analysis, the revised critical habitat 

proposal, and the final economic 

analysis, we may, during the 

development of our final determination, 

find that areas proposed are not 

essential, are appropriate for exclusion 

under section 4(b)(2) of the Act, or are 

not appropriate for exclusion. 

You may submit your comments and 

material concerning the above actions 

by any one of several methods (see 

ADDRESSES). If you use e-mail to submit 

your comments, please include ‘‘Attn: 

Nevin’s barberry’’ in your e-mail subject 

header, preferably with your name and 

return address in the body of your 

message. If you do not receive a 

confirmation from the system that we 

have received your e-mail, contact us 

directly by calling our Carlsbad Fish 

and Wildlife Office at (760) 431–9440. 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

You may obtain copies of the 

proposed rule and draft economic 

analysis by mail from the Carlsbad Fish 

and Wildlife Office (see ADDRESSES) or 

by visiting our website at http:// 

www.fws.gov/carlsbad/. 

Background 

On August 10, 2004, the Center for 

Biological Diversity and California 

Native Plant Society challenged our 

failure to designate critical habitat for 

Berberis nevinii and four other plant 

species (Center for Biological Diversity 

et al. v. Gale Norton, Secretary of the 

Department of the Interior et al., C–04–

3240 JL, N. D. Cal.). In a court approved 

settlement agreement, the Service 

agreed to propose critical habitat for B. 

nevinii, if prudent, on or before January 

30, 2007, and finalize the designation on 

or before January 30, 2008. On February 

6, 2007, we published a proposed rule 

to withdraw our previous not prudent 

finding and designate critical habitat for 

B. nevinii (72 FR 5552), identifying 

approximately 417 acres (ac) (169 

hectares (ha)) in Riverside County, 

California, that met the definition of 

critical habitat for this species. Of this, 

we proposed to exclude 385 ac (156 ha) 

of non-Federal land from the final 

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

Act because these lands are protected by 

an approved Habitat Conservation Plan 

(HCP) (see 72 FR 5552, ‘‘Relationship of 

Critical Habitat to Approved Habitat 

Conservation Plans—Exclusion Under 

Section 4(b)(2) of the Act’’ section for 

details), leaving a proposed final 

designation of 32 ac (13 ha) of Federal 

land. 

We are now proposing revisions to 

three of the proposed critical habitat 

subunits: 1B, 1D, and 1E (see ‘‘Revisions 

to Proposed Critical Habitat’’ section); 

accordingly, approximately 361 ac (146 

ha) in Riverside County, California, 

meets the definition of critical habitat 

for this species, a reduction of 56 ac (23 

ha). Of this, we propose to exclude 

approximately 344 ac (139 ha) of nonFederal land protected by an approved 

HCP from the final designation under 

section 4(b)(2) of the Act. These 344 ac 

(139 ha) are a subset of the 385 ac (156 

ha) proposed for exclusion in the 

proposed rule. Other than these 

changes, the proposed rule of February 

6, 2007, remains intact. 

Critical habitat is defined in section 3 

of the Act as the specific areas within 

the geographical area occupied by a 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features essential to the conservation of 

the species and that may require special 

management considerations or 

protection, and specific areas outside 

the geographical area occupied by a 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. If the proposed rule as revised 

herein is made final, section 7 of the Act 

will prohibit destruction or adverse 

modification of critical habitat by any 

activity funded, authorized, or carried 

out by any Federal agency. Federal 

agencies proposing actions affecting 

areas designated as critical habitat must 

consult with us on the effects of their 

proposed actions, pursuant to section 

7(a)(2) of the Act. 

Draft Economic Analysis 

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

we designate or revise critical habitat 

based upon the best scientific and 

commercial data available, after taking 

into consideration the economic impact, 

impact on national security, or any 

other relevant impact of specifying any 

particular area as critical habitat. We 

have prepared a draft economic analysis 

of the proposed critical habitat 

designation based on the February 6, 

2007, proposed rule to designate critical 

habitat for Berberis nevinii (72 FR 5552) 

and subsequent revisions to the 

proposed rule described herein (see 

Revisions to Proposed Critical Habitat). 

The draft economic analysis is 

intended to quantify the economic 

impacts of all potential conservation 

efforts for Berberis nevinii; some of 

these costs will likely be incurred 

regardless of whether critical habitat is 

designated. Potential economic impacts 

in areas proposed as critical habitat are 

estimated over a 20-year period, 

whereas estimated economic impacts in 

areas proposed for exclusion from 

critical habitat follow various 

timeframes, depending on the activity 

(e.g., a 5-year period for economic 

impacts related to administration, a 20- 

year period for economic impacts 

related to development, and a 40-year 

period for economic impacts related to 

management of Vail Lake). The draft 

economic analysis estimates potential 

costs to be approximately $169,000 to 


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58796 Federal Register / Vol. 72, No. 200 / Wednesday, October 17, 2007 / Proposed Rules 

$172,000 in undiscounted dollars over a 

20-year period in areas proposed as 

critical habitat and approximately $1.7 

to $433.5 million in undiscounted 

dollars over a 20-year period (or 40-year 

period for impacts related to 

management of Vail Lake) in areas 

proposed for exclusion from critical 

habitat under section 4(b)(2) of the Act. 

These impacts would only occur if the 

area proposed for exclusion is instead 

designated as critical habitat. The cost 

estimates are based on revisions to the 

proposed designation of critical habitat 

described in this notice and include 

costs coextensive with listing and 

recovery. 

Discounted future costs in areas 

proposed as critical habitat are 

estimated to be approximately $136,000 

to $139,000 ($10,000 annualized) at a 3 

percent discount rate or approximately 

$107,000 to $110,000 ($11,000 

annualized) at a 7 percent discount rate. 

Discounted future costs in areas 

proposed for exclusion from critical 

habitat are estimated to be 

approximately $1.2 to $232.5 million at 

a 3 percent discount rate ($82,000 to 

$10.1 million annualized) or 

approximately $0.9 to $118.1 million at 

a 7 percent discount rate ($81,000 to 

$8.9 million annualized). For areas 

proposed for exclusion, the economic 

analysis provides an analysis of 

potential economic impacts related to 

residential/urban development, 

management of Vail Lake, and 

administration, with the timeframe for 

analysis varying based on the activity 

(1–5 years, 6–20 years, and 21–40 

years). Estimated discounted future 

costs (3 percent discount rate) 

associated with management of Vail 

Lake range from zero to $12.2 million 

for the 2008 through 2012 timeframe, 

from zero to $117.4 million for the 2013 

through 2027 timeframe, and from zero 

to $99.7 million for the 2028 through 

2047 timeframe. Similarly, estimated 

discounted future costs (3 percent 

discount rate) associated with 

development range from $333,000 to 

$967,000 for the 2008 through 2012 

timeframe and from $873,000 to $2.3 

million for the 2013 through 2027 

timeframe in areas proposed for 

exclusion from critical habitat. Lastly, 

the discounted future cost (3 percent 

discount rate) associated with 

administration is estimated at $19,000 

for the 2008 through 2012 timeframe in 

these same subunits. 

The draft economic analysis considers 

the potential economic effects of actions 

relating to the conservation of Berberis 

nevinii, including costs associated with 

sections 4, 7, and 10 of the Act, and 

including those attributable to the 

designation of critical habitat. It further 

considers the economic effects of 

protective measures taken as a result of 

other Federal, State, and local laws that 

aid habitat conservation for B. nevinii in 

areas containing features essential to the 

conservation of the species. The draft 

analysis considers both economic 

efficiency and distributional effects. In 

the case of habitat conservation, 

efficiency effects generally reflect the 

‘‘opportunity costs’’ associated with the 

commitment of resources to comply 

with habitat protection measures (such 

as lost economic opportunities 

associated with restrictions on land 

use). 

This analysis also addresses how 

potential economic impacts are likely to 

be distributed, including an assessment 

of any local or regional impacts of 

habitat conservation and the potential 

effects of conservation activities on 

government agencies, private 

businesses, and individuals. The 

analysis measures lost economic 

efficiency associated with residential 

and commercial development and 

public projects and activities, such as 

economic impacts on water 

management and transportation 

projects, Federal lands, small entities, 

and the energy industry. This 

information can be used by decisionmakers to assess whether the effects of 

the designation might unduly burden a 

particular group or economic sector. 

Finally, this draft analysis looks 

retrospectively at costs that have been 

incurred since the date Berberis nevinii 

was listed as endangered (October 13, 

1998; 63 FR 54956), and considers those 

costs that may occur in the years 

following the designation of critical 

habitat, with the timeframes for this 

analysis varying by activity. Because the 

draft economic analysis considers the 

potential economic effects of all actions 

relating to the conservation of B. nevinii, 

including costs associated with sections 

4, 7, and 10 of the Act and those 

attributable to designating critical 

habitat, this may result in an 

overestimate of the potential economic 

impacts of the designation. 

As stated earlier, we are soliciting 

data and comments from the public on 

this draft economic analysis, as well as 

on all aspects of the proposal. We may 

revise the proposal or its supporting 

documents to incorporate or address 

new information received during the 

comment period. In particular, we may 

exclude an area from critical habitat if 

we determine that the benefits of 

excluding the area outweigh the benefits 

of including the area as critical habitat, 

provided such exclusion will not result 

in the extinction of the species. 

Changes to the Proposed Rule 

By this notice, we are also advising 

the public of revisions to three of the 

subunits described in the February 6, 

2007, proposed rule (72 FR 5552): 

Subunit 1B (Agua Tibia Mountain 

Foothills), Subunit 1D (North of Vail 

Lake), and Subunit 1E (South of Vail 

Lake/Peninsula). 

During the first comment period for 

the proposed rule, we were informed by 

Cleveland National Forest (CNF) that 

proposed Subunit 1B (Agua Tibia 

Mountain Foothills), which we had 

identified as including approximately 

17 ac (7 ha) of USFS land and 

approximately 5 ac (2 ha) of adjacent 

private land, was inaccurately mapped 

because it was based on inexact location 

information for the Berberis nevinii 

occurrence on CNF lands. Hence, we are 

revising the location and boundaries of 

proposed critical habitat Subunit 1B to 

reflect new location information 

provided by the CNF, and we are now 

proposing to designate less than 3 ac (1 

ha) of Federal (CNF) land in Subunit 1B, 

rather than the approximately 22 ac (9 

ha) of Federal and private land 

identified in the proposed rule. We 

delineated critical habitat based on the 

criteria outlined in the February 6, 2007, 

proposed rule, which resulted in this 

subunit no longer including any private 

land. Revised Subunit 1B was occupied 

at the time of listing and contains the 

primary constituent elements (PCEs), 

those physical or biological features 

essential to conservation of the species. 

We also reevaluated proposed critical 

habitat subunits bordering Vail Lake 

based on updated aerial photographs 

and Vail Lake storage/volume data 

provided by Rancho California Water 

District (RCWD) for the economic 

analysis. We removed areas along the 

shoreline from subunits 1D (North of 

Vail Lake) and 1E (South of Vail Lake/ 

Peninsula) that do not contain the PCEs 

required by Berberis nevinii and are not 

occupied by the species due to lakelevel fluctuations and recurrent, 

episodic inundation, sometimes for 

relatively long periods of time. We 

removed approximately 1 ac (1 ha) from 

proposed Subunit 1D and 

approximately 34 ac (14 ha) from 

proposed Subunit 1E, leaving 

approximately 21 ac (8 ha) and 

approximately 217 ac (88 ha) in 

proposed subunits 1D and 1E, 

respectively. 

When delineating proposed critical 

habitat (72 FR 5552), we tried to exclude 

areas from proposed subunits near Vail 

Lake that were identified as being under 

water, and therefore did not contain the 

PCEs. We based subunit delineations in 


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the proposed rule on USGS 1-meter 

resolution color-balanced, color infrared 

aerial photography acquired in May/ 

June 2002 for the Vail Lake area, 

western Riverside County. Based on 

information provided by RCWD for the 

draft economic analysis, the lake was 

storing between approximately 19,750 

acre-feet (May 1, 2002) and 19,180 acrefeet (June 30, 2002) of water during this 

time period. However, water levels at 

Vail Lake can fluctuate greatly, 

depending on the amount of local runoff 

reaching the lake, both within any given 

year and annually, frequently exceeding 

the 2002 water levels for relatively long 

periods of time. The RCWD, the entity 

that owns and operates/manages Vail 

Dam and Vail Lake, has a surface water 

storage permit in the lake for up to 

40,000 acre-feet from November 1 to 

April 30, annually. Thus, we revised 

proposed critical habitat boundaries for 

subunits bordering Vail Lake based on 

lake levels at RCWD’s permitted storage 

capacity, resulting in boundary changes 

to proposed subunits 1D and 1E. 

Water volume in Vail Lake has been 

known to exceed 40,000 acre-feet, even 

filling and surpassing lake storage 

capacity (50,000 acre-feet) with water 

flowing over the spillway. The creation 

of Vail Lake in 1948 may have resulted 

in the loss of some Berberis nevinii 

individuals; however, the occurrences 

that are now located closest to Vail Lake 

have not been inundated or affected by 

rising water levels and fluctuations in 

the recent past (Boyd 2007). Thus, the 

revisions to proposed critical habitat 

subunits 1D and 1E are not likely to 

result in B. nevinii individuals in this 

area falling outside the revised subunit 

boundaries. These revisions will, on the 

other hand, more accurately represent B. 

nevinii habitat in subunits 1D and 1E. 

Table 1 contains the corrected area 

values based on revisions to proposed 

critical habitat subunits 1B, 1D, and 1E. 

The revisions to these three proposed 

subunits change the legal description 

published in the February 6, 2007, 

proposed rule. This notice republishes 

the legal descriptions for subunits 1B, 

1D, and 1E based on the revisions 

described herein, along with a map 

depicting the revised location of 

proposed critical habitat for Berberis 

nevinii. 

TABLE 1.—AREAS PROPOSED AS CRITICAL HABITAT FOR BERBERIS NEVINII AND AREAS BEING CONSIDERED FOR

EXCLUSION FROM THE FINAL CRITICAL HABITAT DESIGNATION UNDER SECTION 4(B)(2) OF THE ACT

[Area is displayed in acres (ac) (hectares (ha)).] 

Critical habitat unit Land ownership Area proposed as critical 

habitat 

Area proposed for 

exclusion from final critical 

habitat 

Area proposed as final 

critical habitat 

1. Agua Tibia/Vail Lake 

1A. Big Oak Mountain 

Summit.

BLM ................................... 14.8 ac (6.0 ha) ................ 0 ac (0 ha) ........................ 14.8 ac (6.0 ha). 

1B. Agua Tibia Mountain 

Foothills.

USFS ................................. 2.5 ac (1.0 ha) .................. 0 ac (0 ha) ........................ 2.5 ac (1.0 ha). 

1C. South Flank Big Oak 

Mountain.

Private ............................... 86.5 ac (35.0 ha) .............. 86.5 ac (35.0 ha) .............. 0 ac (0 ha). 

1D. North of Vail Lake ....... Private 1 ............................. 20.8 ac (8.4 ha) ................ 20.8 ac (8.4 ha) ................ 0 ac (0 ha). 

1E. South of Vail Lake/Peninsula.Private 1 ............................. 216.7 ac (87.7 ha) ............ 216.7 ac (87.7 ha) ............ 0 ac (0 ha). 

1F. Temecula Creek East Private ............................... 19.8 ac (8.0 ha) ................ 19.8 ac (8.0 ha) ................ 0 ac (0 ha). 

Total ........................... ........................................... 361.1 ac (146.1 ha) .......... 343.8 ac (139.1 ha) .......... 17.3 ac (7.0 ha). 

1Private lands in Subunits 1D and 1E include a total of 2.8 ac (1.1 ha) owned by the Rancho California Water District. 

Below, we present brief descriptions 

of the revised proposed subunits and 

reasons why they meet the definition of 

critical habitat for Berberis nevinii. 

These revised subunit descriptions 

replace those provided in the February 

6, 2007, proposed rule (72 FR 5552). 

Unit Descriptions 

Subunit 1B: Agua Tibia Mountain 

Foothills 

Subunit 1B consists of approximately 

3 ac (1 ha) of federally-owned land 

managed by the USFS on the CNF near 

the Agua Tibia Wilderness Area in 

southern Riverside County, California. 

Five Berberis nevinii individuals are 

known from this area and are located at 

the edge of a stream channel (PCE 1) 

growing in association with coast live 

oak and riparian woodland species (PCE 

3). Nearby chaparral includes such 

species as Quercus berberidifolia, 

Adenostoma fasciculatum, and 

Haplopappus squarrosus, and nearby 

desert species include Yucca schidigera 

(CNDDB 2006). These B. nevinii plants 

are growing under a canopy of Quercus 

agrifolia and Platanus racemosa with 

the following species: Heteromeles 

arbutifolia, Q. berberidifolia, Elymus 

condensatus, Mimulus aurantiacus, 

Lonicera subspicata, Pterostegia 

drymarioides, and Epilobium canum. 

Soils in this area are classified as rough 

broken land and Visalia gravelly sandy 

loam, with 5 to 9 percent slopes (PCE 

2) (Service GIS data 2007). 

We are proposing this subunit as 

critical habitat because it contains 

features essential to conservation of 

Berberis nevinii and it contains a 

relatively large natural occurrence of the 

species. Additionally, Service personnel 

visited this site in June 2006 while B. 

nevinii was in fruit and found that 

several of the fruits had three to four 

seeds, which may be significant for a 

species that appears to rarely set seed. 

Berberis nevinii occupied this subunit at 

the time of listing, as identified in the 

final listing rule (63 FR 54956, October 

13, 1998). 

The Berberis nevinii occurrence on 

the CNF is not as well protected as the 

occurrence on the Angeles National 

Forest (USFS 2005, p. 238). The primary 

threats to B. nevinii habitat in this area 

are human recreation (off-highway 

vehicle use, shooting); wildland fire, 

including an increased risk of fire 

ignition due to the proximity of State 

Highway 79 (USFS 2005, pp. 232, 237); 

fuels and fire management activities 

(USFS 2005, p. 237); and invasive, 

nonnative plants, including potential 

short-term adverse effects associated 

with control efforts (USFS 2005, p. 234). 

The CNF occurrence burned in 1996 

followed by vigorous resprouting (USFS 

2005, p. 237), and this location has also 

shown signs of disturbance from road 


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activities, with unauthorized use of offhighway vehicles occurring close to but 

not within the area occupied by the 

species (USFS 2005, p. 235). 

Nonetheless, the magnitude of impacts 

associated with roads and recreational 

activity in this area appears to be low 

(USFS 2005, p. 238). Also, the USFS 

does not anticipate substantial camping 

and hiking-related impacts to B. nevinii 

habitat, and these impacts will be 

avoided or mitigated by use of Forest 

Plan standards (USFS 2005, p. 234). 

The February 6, 2007, proposed rule 

(72 FR 5552) identified the proximity of 

Highway 79 as a potential threat to the 

Berberis nevinii occurrence and habitat 

on the CNF, in part due to proposed 

highway widening and realignment 

activities. However, we no longer 

anticipate that these activities, if or 

when they occur, will affect Subunit 1B 

as the revised subunit is now more than 

one-tenth mile (160 meters) south of the 

highway. Invasive, nonnative plants and 

their management may also impact the 

B. nevinii occurrence and habitat at this 

site. Based on the weed management 

strategy in the USFS’ Revised Land 

Management Plan for the four Southern 

California National Forests (USFS 2005), 

the CNF anticipates an eradication effort 

of the nonnative Arundo and other 

invasive grasses present in this subunit. 

One of the greatest threats to occupied 

habitat and the PCEs contained therein 

on the CNF is from wildland fire and 

the management of fire and fuels (i.e., 

fire suppression and prevention 

activities). The Wildland-Urban 

Interface (WUI) Defense Zone overlaps 

about 43 percent of occupied habitat on 

the CNF (USFS 2005, p. 237; Service 

2005, p. 127). Some plants or habitat 

within the WUI Defense Zone could be 

removed or degraded under the Revised 

Land and Resource Management Plan 

due to fuel removal for fire protection or 

overly frequent fuel treatments (Service 

2005, p. 127). Special management 

considerations or protection of the PCEs 

may be required to minimize 

disturbance to the vegetation and soils 

within this subunit; control invasive, 

nonnative plants; and maintain the 

natural fire regime of the area. 

Subunit 1B is included in the Western 

Riverside County Multiple Species 

Habitat Conservation Plan’s (MSHCP) 

Conservation Area as existing Public/ 

Quasi-Public (PQP) Conserved Lands. 

Since the CNF is not a signatory to the 

MSHCP and is not required to comply 

with the MSHCP’s conservation 

measures, we are not proposing lands 

within this subunit for exclusion under 

section 4(b)(2) of the Act (see 72 FR 

5552, ‘‘Exclusions under Section 4(b)(2) 

of the Act for Berberis nevinii’’ section 

for a detailed discussion). 

During the first comment period for 

the proposed rule, we were informed 

that the Species Management Guide for 

Mahonia [Berberis] nevinii (Gray) Fedde 

(Mistretta and Brown 1989) developed 

for the Angeles National Forest was 

subsequently adopted by the CNF (Fege 

1992, p. 1; Holtrop 2007, p. 2). 

Additionally, the CNF informed us that 

the species account for Berberis nevinii 

developed to support the environmental 

analysis for the USFS Land Management 

Plans for four southern California 

National Forests (USFS 2005) is meant 

to provide guidance for conservation 

and management of B. nevinii on USFS 

lands (Young 2007). However, these 

documents provide general guidance 

only and do not direct decisions 

regarding USFS site-specific project 

proposals. Additionally, these 

documents do not provide specific 

recommendations for the B. nevinii 

occurrence on the CNF. Therefore, as 

stated in the February 6, 2007, proposed 

rule (72 FR 5552), we are not proposing 

USFS lands within this subunit for 

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

Act based on these plans. 

Subunit 1D: North of Vail Lake 

Subunit 1D consists of approximately 

21 ac (8 ha) of private land located 

immediately north of Vail Lake in 

southern Riverside County, California. 

The Berberis nevinii occurrence at this 

location is mapped along a canyon just 

above the high water line of Vail Lake, 

and consists of seven plants based on a 

1989 survey (CNNDB 2006). Berberis 

nevinii individuals in this area are 

found in sandy and gravelly soils in a 

drainage bottom (PCE 1 and 2). The 

vegetation community is classified as 

coastal scrub and valley foothill riparian 

(PCE 3) (Service GIS data 2006). At this 

site, B. nevinii is associated with 

Adenostoma fasciculatum, 

Arctostaphylos glauca, Rhus 

integrifolia, Juniperus californica, and 

Rhamnus crocea; to the north is a large 

grove of Prosopis glandulosa (CNDDB 

2006). Soils in this area are classified as 

badland (PCE 2) (Service GIS data 2006). 

We are proposing this subunit as 

critical habitat because it contains the 

features essential to conservation of 

Berberis nevinii, and it contains a 

relatively large natural occurrence of the 

species (CNDDB 2006). This subunit is 

important for conserving B. nevinii as it 

is one of several relatively large 

occurrences in the Vail Lake area and 

thus has a greater potential for 

regeneration by seed. Berberis nevinii 

occupied this subunit at the time of 

listing, as identified in the final listing 

rule (63 FR 54956, October 13, 1998). 

The primary threat to Berberis nevinii 

habitat in this area that may require 

special management considerations or 

protection of the PCEs is urban/ 

residential development. This subunit, 

as well as subunits 1C, 1E, and 1F, 

consists entirely of private land that 

may be developed, excluding flood 

easement lands held by the RCWD. This 

and the other subunits just mentioned 

fall within the Criteria Area of the 

Western Riverside County MSHCP and 

are targeted, in whole or in part, for 

acquisition and inclusion in the MSHCP 

Conservation Area as Additional 

Reserve Lands. Regardless, indirect 

effects of urban development could 

threaten B. nevinii habitat in this area, 

including human recreation activities; 

erosion; incursion or spread of invasive, 

nonnative plants; and changes to the 

natural fire regime (i.e., increased 

ignitions and fire frequency and 

shortened fire return intervals) that can 

lead to type conversion of shrublands to 

annual grasslands. Rising lake levels 

may also pose a threat, though the 

occurrences closest to Vail Lake have 

not been inundated or affected by rising 

water levels and fluctuations in the 

recent past (Boyd 2007). 

We are proposing to exclude the 

private lands within this subunit from 

the final designation of critical habitat 

for Berberis nevinii based on 

conservation measures for the species in 

the MSHCP (see 72 FR 5552, 

‘‘Relationship of Critical Habitat to 

Approved Habitat Conservation Plans 

(HCPs)—Exclusion Under Section 

4(b)(2) of the Act—Western Riverside 

County Multiple Species Habitat 

Conservation Plan’’ section for a 

detailed discussion). 

Subunit 1E: South of Vail Lake/ 

Peninsula 

Subunit 1E consists of approximately 

217 ac (88 ha) of private land located on 

the south and southwest side of Vail 

Lake in southern Riverside County, 

California. This site has the largest 

known natural occurrence of Berberis 

nevinii, collectively consisting of 134 

plants based on a 1987 survey (Boyd 

1987, pp. 7, 61–72; CNDDB 2006). These 

plants are located in several stands 

along both sides of the southwest arm of 

Vail Lake, the south shore and 

peninsula, and part of the west shore of 

the southeast arm of Vail Lake. Berberis 

nevinii individuals in this area are 

found in canyons, in a wash of 15 

percent slope, and on north-facing 

ridges and slopes between 35 and 70 

percent slope (PCE 1) (Boyd 1987, p. 

61–72; CNDDB 2006), primarily in 


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association with coastal scrub, mixed 

chaparral, and valley foothill riparian 

communities (PCE 3) (Service GIS data 

2006). Associated species include, but 

are not limited to: Artemisia californica, 

Adenostoma fasciculatum, Eriogonum 

fasciculatum, Salvia mellifera, 

Rhamnus crocea, Rhus ovata, Encelia 

farinosa, Baccharis glutinosa, and 

Yucca sp. (Boyd 1987, p. 61–72). Soils 

in this area are classified as sandy loams 

(Arlington and Greenfield fine sandy 

loams, 8 to 15 percent slopes, eroded; 

Cajalco rocky fine sandy loam, 15 to 50 

percent slopes, eroded; Hanford coarse 

sandy loam, 8 to 15 percent slopes, 

eroded; Lodi rocky loam, 25 to 50 

percent slopes, eroded; Monserate sandy 

loam, 8 to 15 percent slopes, eroded; 

Monserate sandy loam, 15 to 25 percent 

slopes, severely eroded; Pachappa fine 

sandy loam, 2 to 8 percent slopes, 

eroded), gullied land, riverwash, and 

rough broken land (PCE 2) (Service GIS 

data 2006). 

We are proposing this subunit as 

critical habitat because it contains 

features essential to conservation of 

Berberis nevinii, and it contains the 

largest known natural occurrence of the 

species (CNDDB 2006). This location 

also contains the bulk of known 

individuals in the Vail Lake/Oak 

Mountain area. Additionally, we 

interpret that reproduction has occurred 

at this site in the past based on the 

presence of several size (age) classes 

during Nishida’s 1987 survey of the area 

(Boyd 1987, p. 62). Berberis nevinii 

occupied this subunit at the time of 

listing, as identified in the final listing 

rule (63 FR 54956, October 13, 1998). 

The primary threat to Berberis nevinii 

habitat in this area that may require 

special management considerations or 

protection of the PCEs is urban/ 

residential development. This subunit, 

as well as subunits 1C, 1D, and 1F, 

consists entirely of private land that 

may be developed, excluding areas held 

as flood easement by the RCWD. This 

and the other subunits just mentioned 

fall within the Criteria Area of the 

Western Riverside County MSHCP and 

are targeted, in whole or in part, for 

acquisition and inclusion in the MSHCP 

Conservation Area as Additional 

Reserve Lands. Regardless, indirect 

effects of urban development—

including human recreation activities; 

erosion; incursion or spread of invasive, 

nonnative plants (including annual 

grasses, Tamarix sp., Nicotiana glauca, 

and others); and changes to the natural 

fire regime (i.e., increased ignitions and 

fire frequency and shortened fire return 

intervals) that can lead to type 

conversion of shrublands to annual 

grasslands—could threaten B. nevinii 

habitat in this area. 

This Berberis nevinii occurrence has 

burned in the past, and regeneration by 

stump sprouting has been observed 

(CNDDB 2006). Part of this area is fairly 

inaccessible, except by boat; however, 

other parts are in close proximity to 

roads, equestrian trails, and the boat 

launch area (Boyd 1987, pp. 61–72; 

CNDDB 2006), and thus may be more 

heavily impacted by recreational 

activities. Rising lake levels were also 

identified as a potential threat to this 

occurrence by Nishida (Boyd 1987, pp. 

61–72; CNNDB 2006), though the 

occurrences closest to Vail Lake have 

not been inundated or affected by rising 

water levels and fluctuations in the 

recent past (Boyd 2007). 

We are proposing to exclude the 

private lands within this subunit from 

the final designation of critical habitat 

for Berberis nevinii based on 

conservation measures for the species in 

the Western Riverside County MSHCP 

(see 72 FR 5552, ‘‘Relationship of 

Critical Habitat to Approved Habitat 

Conservation Plans (HCPs)—Exclusion 

Under Section 4(b)(2) of the Act—

Western Riverside County Multiple 

Species Habitat Conservation Plan’’

section for a detailed discussion). 

Required Determinations—Amended 

In our February 6, 2007, proposed 

rule (72 FR 5552), 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 was 

available in the draft economic analysis. 

Those data are now available for our use 

in making these determinations. In this 

notice we are affirming the information 

contained in the proposed rule 

concerning Executive Order (E.O.) 

13132, E.O. 12988, the Paperwork 

Reduction Act, and the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951). Based on 

the information made available to us in 

the draft economic analysis, we are 

amending our Required Determinations, 

as provided below, concerning E.O. 

12866 and the Regulatory Flexibility 

Act, E.O. 13211, E.O. 12630, and the 

Unfunded Mandates Reform Act. 

Regulatory Planning and Review 

In accordance with E.O. 12866, this 

document is a significant rule because it 

may raise novel legal and policy issues. 

Based on our draft economic analysis of 

the proposed designation of critical 

habitat for Berberis nevinii, costs related 

to conservation activities for B. nevinii 

pursuant to sections 4, 7, and 10 of the 

Act are estimated to be approximately 

$169,000 to $172,000 in undiscounted 

dollars over a 20-year period in areas 

proposed as critical habitat and 

approximately $1.7 to $433.5 million in 

undiscounted dollars over a 20-year 

period (or 40-year period for impacts 

related to management of Vail Lake) in 

areas proposed for exclusion from 

critical habitat. These impacts would 

only occur if the area proposed for 

exclusion is instead designated as 

critical habitat. These cost estimates are 

based on revisions to the proposed 

designation of critical habitat described 

in this notice and includes costs 

coextensive with listing and recovery. 

Discounted future costs in areas 

proposed as critical habitat are 

estimated to be approximately $136,000 

to $139,000 ($10,000 annualized) at a 3 

percent discount rate or approximately 

$107,000 to $110,000 ($11,000 

annualized) at a 7 percent discount rate. 

Discounted future costs in areas 

proposed for exclusion from critical 

habitat are estimated to be 

approximately $1.2 to $232.5 million at 

a 3 percent discount rate ($82,000 to 

$10.1 million annualized) or 

approximately $0.9 to $118.1 million at 

a 7 percent discount rate ($81,000 to 

$8.9 million annualized). For areas 

proposed for exclusion, estimated 

discounted future costs (3 percent 

discount rate) associated with 

management of Vail Lake range from 

zero to $12.2 million for the 2008 

through 2012 timeframe, from zero to 

$117.4 million for the 2013 through 

2027 timeframe, and from zero to $99.7 

million for the 2028 through 2047 

timeframe. Similarly, estimated 

discounted future costs (3 percent 

discount rate) associated with 

development range from $333,000 to 

$967,000 for the 2008 through 2012 

timeframe and from $873,000 to $2.3 

million for the 2013 through 2027 

timeframe in areas proposed for 

exclusion from critical habitat. Lastly, 

the discounted future cost (3 percent 

discount rate) associated with 

administration is estimated at $19,000 

for the 2008 through 2012 timeframe in 

these same subunits. 

Therefore, based on our draft 

economic analysis, we have determined 

that the proposed designation of critical 

habitat for Berberis nevinii would not 

result in an annual effect on the 

economy of $100 million or more or 

affect the economy in a material way. 

Due to the necessary timeline for 

publication in the Federal Register, the 

Office of Management and Budget 


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(OMB) has not formally reviewed the 

proposed rule or accompanying 

economic analysis. 

Further, E.O. 12866 directs Federal 

agencies promulgating regulations to 

evaluate regulatory alternatives (Office 

of Management and Budget, Circular A–

4, September 17, 2003). Pursuant to 

Circular A–4, once it has been 

determined that the Federal regulatory 

action is appropriate, the agency will 

then need to consider alternative 

regulatory approaches. Since the 

designation of critical habitat is a 

statutory requirement pursuant to the 

Act, we must then evaluate alternative 

regulatory approaches, where feasible, 

when promulgating a designation of 

critical habitat. 

In developing our designations of 

critical habitat, we consider economic 

impacts, impacts to national security, 

and other relevant impacts pursuant to 

section 4(b)(2) of the Act. Based on the 

discretion allowable under this 

provision, we may exclude any 

particular area from the designation of 

critical habitat providing that the 

benefits of such exclusion outweigh the 

benefits of specifying the area as critical 

habitat and that such exclusion would 

not result in the extinction of the 

species. As such, we believe that the 

evaluation of the inclusion or exclusion 

of particular areas, or combination 

thereof, in a designation constitutes our 

regulatory alternative analysis. 

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

et seq.) 

Under the Regulatory Flexibility Act 

(RFA) (5 U.S.C. 601 et seq.), as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (5 U.S.C. 

802(2)) (SBREFA), whenever an agency 

is required to publish a notice of 

rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 

flexibility analysis that describes the 

effect of the rule on small entities (i.e., 

small businesses, small organizations, 

and small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Based upon our draft economic analysis 

of the proposed designation, we provide 

our analysis for determining whether 

the proposed rule would result in a 

significant economic impact on a 

substantial number of small entities. 

Based on comments received, this 

determination is subject to revision as 

part of the final rulemaking. 

According to the Small Business 

Administration (SBA), small entities 

include small organizations, such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term significant economic 

impact is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the proposed 

designation of critical habitat for 

Berberis nevinii would affect a 

substantial number of small entities, we 

considered the number of small entities 

affected within particular types of 

economic activities, such as residential 

and commercial development. We 

considered each industry or category 

individually to determine if certification 

is appropriate. In estimating the 

numbers of small entities potentially 

affected, we also considered whether 

their activities have any Federal 

involvement; some kinds of activities 

are unlikely to have any Federal 

involvement and thus will not be 

affected by the designation of critical 

habitat. Designation of critical habitat 

only affects activities conducted, 

funded, permitted, or authorized by 

Federal agencies; non-Federal activities 

are not affected by the designation. 

If this proposed critical habitat 

designation is made final, Federal 

agencies must consult with us under 

section 7 of the Act if their activities 

may affect designated critical habitat. 

Consultations to avoid the destruction 

or adverse modification of critical 

habitat would be incorporated into the 

existing consultation process. 

In our draft economic analysis of the 

proposed critical habitat designation, 

we evaluated the potential economic 

effects on small business entities 

resulting from conservation actions 

related to the listing of Berberis nevinii 

and proposed designation of its critical 

habitat. 

Impacts of conservation activities are 

not anticipated to affect small entities in 

the following categories: Fire 

management on Federal lands; invasive, 

nonnative plant species management on 

Federal lands; recreation management 

on Federal lands; and surveying, 

monitoring, and other activities on 

Federal lands. As described in Chapters 

4 through 6 of the draft economic 

analysis, the cost associated with 

modifications to activities on Federal 

lands will be borne by the USFS and 

BLM. The Federal Government is not 

considered a small entity by the SBA. 

As described in Chapter 3 of the draft 

economic analysis, potential impacts 

related to management of Vail Lake will 

be borne entirely by the RCWD and 

account for the majority of the total 

anticipated upper-bound future impacts 

in areas proposed for exclusion from the 

final designation of critical habitat (up 

to $429.1 million over the next 40 years 

in undiscounted dollars). The RCWD is 

not considered a small entity/ 

governmental jurisdiction by the SBA 

because it services a population 

exceeding the criteria for a ‘‘small 

entity.’’ Additionally, transportation 

projects that are reasonably foreseeable 

within the 20-year analysis period are 

not anticipated to impact areas 

proposed as critical habitat. Only 

impacts to land development activities 

(Chapter 2) are expected to be borne by 

small entities. Accordingly, the small 

business analysis (Appendix B of the 

economic analysis) focuses on the 

economic impacts of land development 

activities on private lands. 

Seventy percent of the developmentrelated impacts are expected to be borne 

by private landowners ($2.3 million), 

with the remainder borne by local 

government (25 percent or $810,000) 

and State and Federal government (5 

percent or $180,000). Three private 

landowners in Riverside County will be 

directly impacted by the proposed 

regulation, with one landowner owning 

the majority (approximately 85 percent 

or 291 ac (118 ha)) of the 341 ac (138 

ha) of private (non-RCWD) lands 

proposed as critical habitat. Chapter 2 of 

the draft economic analysis concludes 

that some residential/commercial 

development is likely in or adjacent to 

proposed critical habitat on private 

lands near Vail Lake. Current zoning 

laws limit the type of development that 

may take place on these private lands to 

one single-family home per 10 ac (4 ha) 

or 20 ac (8 ha), depending on specific 

zoning. Also, RCWD’s flood easement 

for Vail Lake precludes development 

from approximately 34 ac (14 ha) of 

private land within proposed critical 


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habitat adjacent to Vail Lake. Lastly, the 

topography (steepness) of much of this 

area makes it unlikely that the land will 

be used for dense development in the 

future. Still, the likelihood and eventual 

density of houses in or near proposed 

critical habitat, and whether such 

development will pose a threat to 

Berberis nevinii habitat is unknown. 

The private land proposed as critical 

habitat for Berberis nevinii is located 

within the Criteria Area of the Western 

Riverside County MSHCP and is 

targeted, in whole or in part, for 

acquisition and inclusion in the MSHCP 

Conservation Area as Additional 

Reserve Lands. Based on the MSHCP, 

the economic analysis assumes 90 

percent or approximately 277 ac (112 

ha) of the privately-owned land within 

potential critical habitat and outside 

RCWD’s flood easement (which is 

approximately 307 of 341 ac (or 124 of 

138 ha) of private land) will be targeted 

for acquisition as Additional Reserve 

Lands, with compensation to the private 

landowners. The economic analysis 

considers the cost of land acquisition, 

reserve management (including fire, 

invasive species, and recreation 

management), biological monitoring, 

adaptive management, and program 

administration for preserving these 277 

ac (112 ha) of private land with longterm conservation value for B. nevinii as 

the total economic impact of the 

proposed critical habitat designation as 

it relates to development. The total 

economic impact for these activities 

over the next 20 years is estimated to 

range from $1.6 to $4.4 million in 

undiscounted dollars, or $1.2 to $3.3 

million per year and $0.8 to $2.3 million 

per year at the 3 percent and 7 percent 

discount rate, respectively. 

Every small land subdivision and 

construction business in the MSHCP 

Plan Area is expected to be indirectly 

affected by conservation efforts for 

Berberis nevinii due to mitigation and 

density bonus fees that will be required 

for all new development. The economic 

analysis estimates that there are 3,146 

small land subdivision and building 

construction businesses in Riverside 

County, but it is unknown how many of 

these are within the MSHCP Plan Area, 

which encompasses only the western 

part of the County. However, it is 

expected that these small entities would 

pass any additional costs associated 

with conservation measures to the 

consumer (i.e., the purchaser of the 

finished building), and thus we do not 

anticipate that this proposed regulation 

will result in a significant impact to a 

substantial number of small business 

entities. Please refer to our draft 

economic analysis of the proposed 

critical habitat designation for a more 

detailed discussion of potential 

economic impacts. 

In summary, we have considered 

whether this proposed rule would result 

in a significant economic effect on a 

substantial number of small entities. For 

the above reasons and based on 

currently available information, we 

certify that the rule will not, if 

promulgated, have a significant 

economic impact on a substantial 

number of small entities. Therefore, an 

initial 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. E.O. 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking 

certain actions. This proposed 

designation of critical habitat for 

Berberis nevinii is considered a 

significant regulatory action under E.O. 

12866 due to its potentially raising 

novel legal and policy issues. OMB has 

provided guidance for implementing 

this Executive Order that outlines nine 

outcomes that may constitute ‘‘a 

significant adverse effect’’ when 

compared without the regulatory action 

under consideration. The draft 

economic analysis finds that none of 

these criteria are relevant to this 

analysis. Thus, based on information in 

the draft economic analysis, energyrelated impacts associated with B. 

nevinii conservation activities within 

proposed critical habitat are not 

expected. As such, the proposed 

designation of critical habitat is not 

expected to significantly affect energy 

supplies, distribution, or use, and a 

Statement of Energy Effects is not 

required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

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

the Service makes the following 

findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

Tribal governments, or the private 

sector, and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

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

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

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal 

governments,’’ with two exceptions. It 

excludes ‘‘a condition of federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and Tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. (At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement.) ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance; or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. Non-Federal 

entities that receive Federal funding, 

assistance, permits, or otherwise require 

approval or authorization from a Federal 

agency for an action may be indirectly 

impacted by the designation of critical 

habitat. However, the legally binding 

duty to avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Furthermore, to the extent that 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, anticipated 

future impacts in areas proposed for 

final designation as critical habitat will 

be borne by the Federal Government; in 

areas proposed for exclusion from the 

final designation, the majority of the 


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total anticipated upper-bound future 

impacts will be borne by the RCWD, 

with private landowners, local 

government, and Federal and State 

governments bearing the rest. The 

Federal government is not considered a 

small governmental jurisdiction or 

entity by the SBA, and neither is the 

RCWD because it services a population 

exceeding the criteria for a ‘‘small 

entity.’’ Consequently, we do not 

believe that critical habitat designation 

would significantly or uniquely affect 

small government entities. As such, a 

Small Government Agency Plan is not 

required. 

Executive Order 12630—Takings 

In accordance with E.O. 12630 

(‘‘Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights’’), we have analyzed the 

potential takings implications of 

proposing critical habitat for Berberis 

nevinii in a takings implications 

assessment. The takings implications 

assessment concludes that this proposed 

designation of critical habitat for B. 

nevinii does not pose significant takings 

implications. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Carlsbad Fish and Wildlife Office (see 

ADDRESSES). 

Authors 

The primary authors of this notice are 

the staff of the Nevada Fish and Wildlife 

Office and the Carlsbad Fish and 

Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to further 

amend part 17, subchapter B of chapter 

I, title 50 of the Code of Federal 

Regulations, as proposed to be amended 

at 72 FR 5552, February 6, 2007, as set 

forth below: 

PART 17—[AMENDED] 

1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted. 

2. Critical habitat for Berberis nevinii 

(Nevin’s barberry) in § 17.96(a), which 

was proposed to be added on February 

6, 2007, at 72 FR 5552, is proposed to 

be amended by revising paragraphs 

(5)(ii), (5)(iv), and (5)(v), and by revising 

Map 1 in paragraph (5)(vii), as follows: 

§ 17.96 Critical habitat—plants. 

(a) Flowering plants. 

* * * * * 

Family Berberidaceae: Berberis 

nevinii (Nevin’s barberry) 

* * * * * 

(5) Unit 1. Agua Tibia/Vail Lake, 

Riverside County, California. 

* * * * * 

(ii) Subunit 1B for Berberis nevinii, 

Agua Tibia Mountain Foothills Subunit, 

Riverside County, California. From 

USGS 1:24,000 quadrangle Vail Lake, 

lands bounded by the following UTM 

NAD27 coordinates (E, N): 504200, 

3702900; 504300, 3702900; 504300, 

3702800; 504200, 3702800; thence 

returning to 504200, 3702900. 

* * * * * 

(iv) Subunit 1D for Berberis nevinii, 

North of Vail Lake Subunit, Riverside 

County, California. From USGS 1:24,000 

quadrangles Sage and Vail Lake, lands 

bounded by the following UTM NAD27 

coordinates (E, N): 502600, 3706600; 

502900, 3706600; 502900, 3706300; 

502626, 3706300; thence follow the 

1,461 foot Vail lake contour to 502600, 

3706368; thence returning to 502600, 

3706600. 

(v) Subunit 1E for Berberis nevinii, 

South of Vail Lake/Peninsula Subunit, 

Riverside County, California. From 

USGS 1:24,000 quadrangle Vail Lake, 

lands bounded by the following UTM 

NAD27 coordinates (E, N): 503300, 

3704300; 503600, 3704300; 503600, 

3704100; 503500, 3704100; 503500, 

3703900; 503200, 3703900; 503200, 

3704100; 503100, 3704100; 503100, 

3704600; 502700, 3704600; 502700, 

3704700; 502300, 3704700; 502300, 

3704500; 502200, 3704500; 502200, 

3704200; 502000, 3704200; 502000, 

3704000; 501600, 3704000; 501600, 

3704290; thence follow the 1,461 foot 

Vail lake contour to 503300, 3704595; 

thence returning to 503300, 3704300. 

Continuing to lands bounded by the 

following UTM NAD27 coordinates (E, 

N): 501700, 3705100; 501812.94, 

3705100; thence follow the 1,461 foot 

Vail lake contour to 501700, 370444.25; 

thence returning to 501700, 3705100. 

* * * * * 

(vii) Map of Subunits 1A through 1F 

(Map 1) follows: 

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Federal Register / Vol. 72, No. 200 / Wednesday, October 17, 2007 / Proposed Rules 58803 

* * * * * Dated: October 5, 2007. 

David M. Verhey, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 07–5063 Filed 10–16–07; 8:45 am] 

BILLING CODE 4310–55–C 


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