27690 Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 

continue to be in effect although the 

train movement, switching operation, or 

other activity is temporarily suspended. 

Issued in Washington, DC, on May 7, 2010. 

Karen Rae, 

Deputy Administrator, Federal Railroad 

Administration. 

[FR Doc. 2010–11484 Filed 5–17–10; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2009–0054] 

[MO 92210–0–0009–B4] 

RIN 1018–AW20 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Ambrosia pumila (San 

Diego ambrosia) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

reopening of the comment period on our 

August 27, 2009, proposed rule to 

designate critical habitat for Ambrosia 

pumila (San Diego ambrosia). We also 

announce the availability of the draft 

economic analysis (DEA), revisions to 

proposed critical habitat, and an 

amended required determinations 

section of the proposal. We are 

reopening the comment period to allow 

all interested parties an opportunity to 

comment simultaneously on the 

proposed critical habitat, the associated 

DEA, the proposed addition of three 

subunits based on new information, and 

the amended required determinations 

section. If you submitted comments 

previously, you do not need to resubmit 

them because we have already 

incorporated them into the public 

record and will fully consider them in 

preparation of the final rule. 

DATES: The comment period for the 

proposed rule published August 27, 

2009, at 74 FR 44238, is reopened. We 

will consider comments from all 

interested parties received or 

postmarked on or before June 17, 2010. 

Please note that if you use the Federal 

eRulemaking Portal (see ADDRESSES

section, below), the deadline for 

submitting an electronic comment is 

11:59 p.m. Eastern Time on this date. 

Any comments that we receive after the 

closing date may not be considered in 

the final decision on this action. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

on docket number FWS–R8–ES–2009– 

0054. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R8– 

ES–2009–0054; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, U.S. Fish and 

Wildlife Service, Carlsbad Fish and 

Wildlife Office, 6010 Hidden Valley 

Road, Suite 101, Carlsbad, CA 92011; 

telephone (760) 431–9440; facsimile 

(760) 431–5901. 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 

We intend that any final action 

resulting from the proposed rule is 

based on the best scientific data 

available and will be accurate and as 

effective as possible. Therefore, we 

request comments or information from 

other concerned government agencies, 

the scientific community, industry, and 

any other interested party during this 

reopened comment period on the 

proposed rule to designate critical 

habitat for Ambrosia pumila (San Diego 

ambrosia) that was published in the 

Federal Register on August 27, 2009 (74 

FR 44238), including comments on the 

addition of subunits 3B, 4D, and 5B to 

the proposed critical habitat; the DEA of 

the revised proposed designation; and 

the amended required determinations 

provided in this document. We are 

particularly interested in comments 

concerning: 

(1) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the 

Endangered Species Act of 1973, as 

amended (Act; 16 U.S.C. 1531 et seq.), 

including whether there are threats to 

the species from human activity, the 

degree of which can be expected to 

increase due to the designation, and 

whether that increase in threat 

outweighs the benefit of designation 

such that the designation is not prudent. 

(2) Specific information that may 

assist us in clarifying or identifying 

more specific primary constituent 

elements (PCEs). Available information 

does not identify a consistent pattern in 

specific life-history requirements and 

habitat types where this species is 

found. For these reasons, the PCEs in 

the proposed rule are broad and based 

on our assessment of the ecosystem 

settings in which the species has most 

frequently been detected and our best 

assessment regarding its life-history 

requisites. We specifically seek 

information that may assist us in 

defining those physical and biological 

features essential to the conservation of 

the species which may require special 

management considerations or 

protection, or in identifying specific 

areas outside the geographical area 

occupied by the species at the time it 

was listed that may be essential for the 

conservation of the species. In 

particular, answers to the following 

questions may be helpful to clarify or 

identify more specific PCEs of A. 

pumila habitat: 

• Does the species reproduce via seed? 

If so, does the species rely on some 

aspect of its environment to trigger seed 

germination? 

•What are the key factors determining 

why the species occupies the particular 

areas it occupies (but not other areas 

with the same habitat type)? For 

example, what role does proximity to 

waterways or vernal pools play? 

(3) Specific information on: 

•The amount and distribution of areas 

proposed as critical habitat for 

Ambrosia pumila; 

• Areas occupied at the time of listing 

that contain features essential to the 

conservation of the species and why we 

should include or exclude these areas in 

the designation; and 

• Areas not occupied at the time of 

listing that are essential for the 

conservation of the species and why. 

(4) How the proposed critical habitat 

boundaries could be refined to more 

closely circumscribe the areas identified 

as essential. We also seek 

recommendations to improve the 

methodology used to delineate the areas 

proposed as critical habitat; we 

especially seek comments regarding 

how we might more accurately 

determine how much area beyond the 

surface covered by above-ground stems 

that we need to include for each 

occurrence of Ambrosia pumila in the 

critical habitat designation to ensure 

that habitat areas include unseen 

underground portions (rhizomes) of A. 

pumila plants (see step number 4 in the 

Methods section of the proposed critical 

habitat rule (74 FR 44246, August 27, 

2009)). 

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(5) Land use designations and current 

or planned activities in the areas 

proposed as critical habitat and their 

possible impacts on the species and the 

proposed critical habitat. 

(6) Any special management 

considerations or protections that the 

physical and biological features 

essential to the conservation of 

Ambrosia pumila may require. 

(7) Whether we could improve or 

modify our approach to designating 

critical habitat in any way to provide for 

greater public participation and 

understanding, or to better 

accommodate public concerns and 

comments. 

(8) Any probable economic, national 

security, or other relevant impacts of 

designating any area that may be 

included in the final designation. We 

are particularly interested in any 

impacts on small entities, and the 

benefits of including or excluding areas 

that exhibit these impacts. 

(9) Whether the benefit of an 

exclusion of any particular area 

outweighs the benefit of inclusion under 

section 4(b)(2) of the Act, in particular 

for those areas covered by the Western 

Riverside County Multiple Species 

Habitat Conservation Plan (Western 

Riverside County MSHCP), and Subarea 

Plans (City of San Diego and County of 

San Diego) under the San Diego 

Multiple Species Conservation Program 

(MSCP), and specific reasons why. 

(10) Information on the extent to 

which the description of potential 

economic impacts in the DEA is 

complete and accurate. 

If you submitted comments or 

information on the proposed rule (74 FR 

44238) during the initial comment 

period from August 27, 2009, to October 

26, 2009, please do not resubmit them. 

These comments are included in the 

public record for this rulemaking and 

we will fully consider them in the 

preparation of our final determination. 

Our final determination concerning the 

critical habitat for Ambrosia pumila will 

take into consideration all written 

comments and any additional 

information we receive during both 

comment periods. On the basis of public 

comments, we may, during the 

development of our final determination, 

find that areas within the proposed 

critical habitat designation do not meet 

the definition of critical habitat, that 

some modifications to the described 

boundaries are appropriate, or that areas 

may or may not be appropriate for 

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

Act. 

You may submit your comments and 

materials concerning our proposed rule, 

the associated DEA, the additional 

subunits we are proposing in this 

document, and our amended required 

determinations by one of the methods 

listed in the ADDRESSES section. 

If you submit a comment via http:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hard copy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hard copy submissions 

on http://www.regulations.gov. Please 

include sufficient information with your 

comments to allow us to verify any 

scientific or commercial information 

you include. 

Comments and materials we receive, 

as well as supporting documentation 

used to prepare this notice, will be 

available for public inspection at http:// 

www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Carlsbad Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). You may obtain copies of the 

original proposed designation of critical 

habitat (74 FR 44238) and the DEA on 

the Internet at http:// 

www.regulations.gov at Docket No. 

FWS–R8–ES–2009–0054, or by mail 

from the Carlsbad Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Background 

It is our intent to discuss only those 

topics directly relevant to the proposed 

designation of critical habitat for 

Ambrosia pumila in this notice. For 

more information on previous Federal 

actions concerning A. pumila, refer to 

the 2009 proposed designation of 

critical habitat published in the Federal 

Register on August 27, 2009 (74 FR 

44238), or contact the Carlsbad Fish and 

Wildlife Office (see FOR FURTHER

INFORMATION CONTACT). 

Section 3 of the Act defines critical 

habitat as the specific areas within the 

geographical area occupied by a species, 

at the time it is listed in accordance 

with the Act, on which are found those 

physical or biological features essential 

to the conservation of the species and 

that may require special management 

considerations or protection, and 

specific areas outside the geographical 

area occupied by a species at the time 

it is listed, upon a determination that 

such areas are essential for the 

conservation of the species. If we 

finalize the proposed critical habitat 

designation, Federal agencies must 

consult with us under section 7 of the 

Act if any activity they fund, authorize, 

or carry out may affect designated 

critical habitat. 

Draft Economic Analysis 

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

we designate critical habitat based on 

the best scientific and commercial data 

available, after taking into consideration 

the economic impact, impact on 

national security, and any other relevant 

impact of specifying any particular area 

as critical habitat. 

We prepared a DEA (Industrial 

Economics, Inc. 2010) that identifies 

and analyzes the potential, probable 

economic impacts associated with the 

proposed designation of critical habitat. 

Additionally, the DEA looks 

retrospectively at costs incurred since 

the July 2, 2002 (67 FR 44372), listing 

of A. pumila as an endangered species. 

The DEA quantifies the probable 

economic impacts of all potential 

conservation efforts for A. pumila; some 

of these costs will likely be incurred 

regardless of whether we finalize the 

critical habitat rule, as they are 

attributable to the listing of the species 

under the Act. The economic impact of 

the proposed critical habitat designation 

is analyzed by comparing a ‘‘with 

critical habitat’’ scenario with a ‘‘without 

critical habitat’’ scenario. The ‘‘without 

critical habitat’’ scenario represents the 

baseline for the economic analysis and 

considers protections already in place 

for the species (for example, protections 

resulting from the Federal listing, and 

protections provided by other Federal, 

State, and local regulations). The 

baseline costs, therefore, represent the 

costs incurred regardless of whether 

critical habitat is designated. The ‘‘with 

critical habitat’’ scenario describes the 

incremental impacts associated 

specifically with the designation of 

critical habitat for the species. The 

incremental conservation efforts and 

associated impacts are those not 

expected to occur absent the designation 

of critical habitat for A. pumila. In other 

words, the incremental costs are those 

attributable solely to the designation of 

critical habitat above and beyond the 

baseline costs; these are the costs we 

may consider in the final designation of 

critical habitat relative to areas that may 

be excluded under section 4(b)(2) of the 

Act. The analysis looks retrospectively 

at baseline impacts incurred since the 

species was listed, and forecasts both 

baseline and incremental impacts likely 

to occur if we finalize the proposed 

critical habitat. 

The DEA (made available with the 

publication of this document and 

referred to throughout this document 

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27692 Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 

unless otherwise noted) estimates the 

foreseeable economic impacts of the 

proposed critical habitat designation for 

Ambrosia pumila. The economic 

analysis identifies potential incremental 

costs as a result of the proposed critical 

habitat designation, which are those 

costs attributed to critical habitat over 

and above those baseline costs 

coextensive with listing. It also 

discusses potential benefits that may be 

derived from the designation in a 

qualitative manner. 

Baseline economic impacts are those 

that result from listing and other 

conservation efforts for Ambrosia 

pumila. Future baseline impacts in the 

areas proposed as critical habitat are 

entirely attributed to development 

activities; no future baseline impacts 

were attributed to transportation 

construction and maintenance. Total 

future baseline impacts are estimated to 

be $20.6 million ($1.9 million 

annualized using a 7 percent discount 

rate over the next 20 years (2010-2029)) 

in areas proposed as critical habitat 

(Industrial Economics, Inc. 2010, p. ES6). 

All incremental impacts attributed to 

the proposed critical habitat designation 

are expected to be related to 

development; no future incremental 

impacts were attributed to 

transportation construction and 

maintenance. The DEA estimates total 

potential incremental economic impacts 

in areas proposed as critical habitat over 

the next 20 years (2010-2029) to be 

$118,750 ($11,203 annualized using a 7 

percent discount rate) (Industrial 

Economics, Inc. 2010, p. ES-7). 

In this notice, we propose to add 338 

acres (ac) (137 hectares (ha)) (Subunits 

3B, 4D, and 5B) to the 802 ac (324 ha) 

that we proposed as critical habitat on 

August 27, 2009 (74 FR 44238), bringing 

the total to 1,140 ac (461 ha) of 

proposed critical habitat for Ambrosia 

pumila (see Changes to Proposed 

Critical Habitat below). The additional 

acreage in Subunits 3B, 4D, and 5B have 

not been assessed in the DEA 

announced in this notice. However, all 

incremental costs estimated in the DEA 

for all properties within the originally 

proposed critical habitat are attributed 

to the minor administrative costs of 

conducting adverse modification 

analyses during jeopardy analyses ($448 

annualized using a 7 percent discount 

rate per property). Because the three 

newly proposed subunits are all 

occupied by the species, we only 

anticipate minor incremental costs 

associated with adverse modification 

analyses conducted during jeopardy 

analyses. For this reason, we do not 

expect the incremental costs for the 

newly proposed areas to exceed those 

estimated for properties included in the 

DEA. The final economic analysis will 

reflect the baseline and incremental 

economic impacts of critical habitat 

designation for the entire 1,140 ac (461 

ha). 

The DEA considers both economic 

efficiency and distributional effects. In 

the case of habitat conservation, 

efficiency effects generally reflect the 

‘‘opportunity costs’’ associated with the 

commitment of resources to comply 

with habitat protection measures (for 

example, lost economic opportunities 

associated with restrictions on land 

use). The DEA also addresses how 

potential economic impacts are likely to 

be distributed, including an assessment 

of any local or regional impacts of 

habitat conservation and the potential 

effects of conservation activities on 

government agencies, private 

businesses, and individuals. The DEA 

describes economic impacts of 

Ambrosia pumila conservation efforts 

associated with residential and 

commercial development, and 

transportation-related construction and 

maintenance. The DEA also analyzes the 

economic impact on small entities and 

the energy industry. Decision-makers 

can use this information to assess 

whether the effects of the designation 

might unduly burden a particular group 

or economic sector (see Regulatory 

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

Changes to Proposed Critical Habitat 

In this document, we are proposing 

additional subunits to Ambrosia pumila 

critical habitat in Units 3, 4, and 5, 

which were initially identified and 

described in the proposed rule that was 

published in the Federal Register on 

August 27, 2009 (74 FR 44238). We 

obtained data after the publication of 

the proposed rule informing us of the 

existence of one occurrence not 

previously known to us (Subunit 3B), 

and confirming the continued existence 

of an occurrence thought to be 

extirpated (Subunit 5B). Based on a 

public comment received during the 

public comment period, we re-evaluated 

all available data for A. pumila 

occurrences throughout the range of the 

species. As a result of our re-evaluation, 

we determined an additional area in San 

Diego County (Subunit 4D) meets the 

definition of critical habitat for A. 

pumila because, although it is small in 

size (approximately 20 ac (8 ha)), it is 

occupied, and otherwise meets the 

definition of critical habitat and the 

criteria for inclusion in critical habitat 

as set forth in our proposal (see Subunit 

4D: Gird Road/Monserate Hill below). 

The purpose of the revisions described 

below is to better delineate the areas 

that meet the definition of critical 

habitat for A. pumila. These three 

additional subunits were within the 

geographic range occupied by the 

species at the time it was listed and 

contain the physical and biological 

features essential to the conservation of 

the species. Subunits 3B, 4D, and 5B 

were not included in the proposed rule 

(74 FR 44238, August 27, 2009); 

therefore, this document includes the 

full descriptions and maps for these 

subunits. As a result of these proposed 

additions, the overall area proposed as 

critical habitat for A. pumila is 1,140 ac 

(461 ha), an increase of 338 ac (137 ha) 

from the 802 ac (324 ha) that we 

proposed as critical habitat on August 

27, 2009 (74 FR 44238). 

Subunit 3B: Murrieta Creek 

We were not aware of the Murrieta 

Creek occurrence (Subunit 3B) of 

Ambrosia pumila when we developed 

the proposed rule to designate critical 

habitat for the species (74 FR 44238; 

August 27, 2009); therefore, this 

occurrence was not included in the 

proposed rule. Based on new 

information obtained from the 

California Natural Diversity Database 

(CNDDB 2010), we are proposing 

Subunit 3B as critical habitat because 

this area is within the geographical area 

occupied by the species at the time of 

listing, contains the physical and 

biological features that are essential to 

the conservation of the species, and 

meets our criteria for inclusion in 

critical habitat. We have concluded that 

this area was occupied at the time the 

species was listed because individuals 

of species with a clonal growth habit 

like A. pumila are usually long-lived 

(Watkinson and White 1985, pp. 44–45; 

Tanner 2001, p. 1980). To our 

knowledge, the area had not been 

surveyed for A. pumila previously, and 

we have no reason to believe the plant 

was imported or had dispersed into 

these areas from other areas after A. 

pumila was listed. Occurrences 

identified since listing were likely in 

existence for many years and were only 

recently detected due to increased 

awareness of this species. We mapped 

the boundary of this subunit using our 

current mapping methodology as 

described in the Methods section of the 

proposed rule (74 FR 44245–44247, 

August 27, 2009). Unit 3 as described in 

the proposed rule (74 FR 44248–44249) 

is now Subunit 3A. 

Subunit 3B is located in the City of 

Temecula in southwestern Riverside 

County, California. This subunit is near 

the western end of 1st Street, just west 

of Murrieta Creek. Subunit 3B consists 

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of approximately 44 ac (18 ha) of 

privately owned land. This subunit 

meets the definition of critical habitat 

for this species because of its 

contribution to the genetic diversity of 

the species (McGlaughlin and Friar 

2007, p. 329; see ‘‘Genetics’’ section of 

the proposed rule (74 FR 44241)). 

Subunit 3B contains physical and 

biological features that are essential to 

the conservation of Ambrosia pumila, 

including sandy loam or clay soils 

located on an upper terrace of a water 

source, which provide nutrients, 

moisture, and periodic flooding 

presumed necessary for the plant’s 

persistence (PCE 1), and nonnative 

grassland habitat type, which allows 

adequate sunlight and airflow for A. 

pumila (PCE 2). The physical and 

biological features essential to the 

conservation of the species in this 

subunit may require special 

management considerations or 

protection to address threats from 

nonnative plant species in situations 

where nonnative species are outcompeting A. pumila for resources, from 

human foot and vehicle traffic that may 

occur in the area, and from 

development. Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of the proposed rule 

(74 FR 44244–44245, August 27, 2009) 

for a discussion of the threats to A. 

pumila habitat and potential 

management considerations. 

Subunit 4D: Gird Road/Monserate Hill 

We re-evaluated all information 

available for Ambrosia pumila 

occurrences and determined that the 

Gird Road/Monserate Hill area (Subunit 

4D) meets the definition of critical 

habitat, despite its small size relative to 

other proposed units. We are proposing 

Subunit 4D as critical habitat because 

this area is within the geographical area 

occupied by the species at the time of 

listing, contains the physical and 

biological features essential to the 

conservation of the species, and meets 

the criteria for inclusion in critical 

habitat. We mapped the boundary of 

this subunit using our current mapping 

methodology as described in the 

Methods section of the proposed rule 

(74 FR 44245–44247, August 27, 2009). 

Subunit 4D is located in the Fallbrook 

area of northern San Diego County, 

California. This subunit is adjacent to 

the north side of State Route 76, almost 

the same distance from both Gird Road 

(to the west) and Monserate Hill Road 

(to the east). Subunit 4D consists of 

approximately 20 ac (8 ha) of privately 

owned land and 1 ac (0.5 ha) of Stateowned land for a total of approximately 

21 ac (9 ha). This subunit meets the 

definition of critical habitat for the 

species because of its contribution to the 

genetic diversity of the species 

(McGlaughlin and Friar 2007, p. 329; 

see ‘‘Genetics’’ section of the proposed 

rule (74 FR 44241)). Subunit 4D 

contains physical and biological 

features that are essential to the 

conservation of Ambrosia pumila, 

including sandy loam or clay soils 

located on an upper terrace of a water 

source, which provide nutrients, 

moisture, and periodic flooding 

presumed necessary for the plant’s 

persistence (PCE 1), and nonnative 

grassland habitat type, which allows 

adequate sunlight and airflow for A. 

pumila (PCE 2). The physical and 

biological features essential to the 

conservation of the species in this 

subunit may require special 

management considerations or 

protection to address threats from 

nonnative plant species in situations 

where nonnative species are outcompeting A. pumila for resources, from 

foot and vehicle traffic in the area, and 

from development and road 

maintenance. Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of the proposed rule 

(74 FR 44244–44245, August 27, 2009) 

for a discussion of the threats to A. 

pumila habitat and potential 

management considerations. 

Subunit 5B: Lake Hodges West – Crosby 

Estates 

We were unaware that the Crosby 

Estates occurrence (Subunit 5B) of 

Ambrosia pumila is extant when we 

developed the proposed rule to 

designate critical habitat for the species 

(74 FR 44238, August 27, 2009); 

therefore, this area was not included in 

the proposed rule. This occurrence was 

extant at the time of listing, but was 

thought to have been extirpated. We 

have since obtained information (The 

Crosby at Rancho Santa Fe Habitat 

Management Plan Annual Report 2008 

(Rincon Consultants, Inc. 2008)) 

confirming this occurrence is extant and 

viable. Based on this information, we 

are proposing Subunit 5B as critical 

habitat because it is currently occupied, 

is within the geographical area occupied 

by the species at the time of listing, 

contains the physical and biological 

features that are essential to the 

conservation of the species, and meets 

the criteria for inclusion in critical 

habitat. We mapped the boundary of 

this subunit using our current mapping 

methodology as described in the 

Methods section of the proposed rule 

(74 FR 44245–44247, August 27, 2009). 

Unit 5 as described in the proposed rule 

(74 FR 44249–44250) is now Subunit 

5A. 

Subunit 5B is located just west of 

Lake Hodges in the western portion of 

central San Diego County, California. 

This subunit is on and adjacent to the 

west side of the Crosby National Golf 

Club. Subunit 5B consists of 

approximately 116 ac (47 ha) of 

privately owned land, 2 ac (1 ha) of 

local government owned land, and 155 

ac (63 ha) of County-owned land for a 

total of approximately 273 ac (111 ha). 

This subunit is meets the definition of 

critical habitat for this species because 

of its contribution to the genetic 

diversity of the species (McGlaughlin 

and Friar 2007, p. 329; see ‘‘Genetics’’ 

section of the proposed rule (74 FR 

44241)). Subunit 5B contains physical 

and biological features that are essential 

to the conservation of Ambrosia pumila, 

including sandy loam or clay soils 

located on an upper terrace of a water 

source, which provide nutrients, 

moisture, and periodic flooding 

presumed necessary for the plant’s 

persistence (PCE 1), and nonnative 

grassland habitat type, which allows 

adequate sunlight and airflow for A. 

pumila (PCE 2). The physical and 

biological features essential to the 

conservation of the species in this 

subunit, including features within the 

approximately 155 ac (63 ha) portion of 

Subunit 5B that is conserved (57 

percent), may require special 

management considerations or 

protection to address threats from 

nonnative plant species in situations 

where nonnative species are outcompeting A. pumila for resources, from 

human encroachment that may occur in 

the area, and from golf course 

maintenance. Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of the proposed rule 

(74 FR 44244–44245, August 27, 2009) 

for a discussion of the threats to A. 

pumila habitat and potential 

management considerations. 

Additional Areas Currently Considered 

For Exclusion Under Section 4(b)(2) of 

the Act –Western Riverside County 

Multiple Species Habitat Conservation 

Plan (Western Riverside County 

MSHCP) 

Under section 4(b)(2) of the Act, the 

proposed rule discusses approximately 

263 ac (106 ha) proposed as critical 

habitat in Unit 1 (Subunits 1A and 1B), 

Unit 2, and Subunit 3A (formerly Unit 

3 in the proposed rule) that we are 

considering whether or not to exercise 

our discretion to exclude from critical 

habitat designation. We are also 

considering exclusion of approximately 

44 ac (18 ha) of Ambrosia pumila 

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27694 Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 

habitat on permittee-owned or 

controlled lands in Subunit 3B that 

meet the definition of critical habitat for 

A. pumila within the Western Riverside 

County MSHCP plan area. We are 

considering exercising our discretion to 

exclude this subunit because the 

implementation of the Western 

Riverside County MSHCP addresses 

threats to A. pumila and features 

essential to its conservation through a 

regional planning effort and outlines 

species-specific objectives and criteria 

for the conservation of A. pumila and its 

habitat. No land in Subunit 3B is 

currently conserved by the MSHCP; 

however, all of the subunit falls within 

the Criteria Area where conservation 

under the habitat conservation plan 

(HCP) may occur (any projects in this 

area should be implemented through the 

Joint Project Review Process to ensure 

that the requirements of the MSHCP 

permit and the Implementing 

Agreement are properly met (Western 

Riverside County MSHCP, Volume 1, 

section 6.6.2 in Dudek 2003, p. 6–82)). 

Additionally, all 44 ac (18 ha) fall 

within our Conceptual Reserve Design 

where conservation is likely to occur. 

Please see ‘‘Exclusions Based on Habitat 

Conservation Plans (HCPs)’’ in the 

proposed rule (74 FR 44253–44257, 

August 27, 2009) for a more detailed 

discussion of the protections afforded to 

A. pumila by the Western Riverside 

County MSHCP. We will analyze the 

benefits of inclusion in and exclusion 

from critical habitat of this area under 

section 4(b)(2) of the Act in the final 

rule. 

Additional Areas Currently Considered 

For Exclusion Under Section 4(b)(2) of 

the Act –San Diego Multiple Species 

Conservation Program (MSCP)—City 

and County of San Diego Subarea Plans 

Under section 4(b)(2) of the Act, the 

proposed rule discusses 278 ac (113 ha) 

proposed as critical habitat in Subunit 

5A (formerly Unit 5 in the proposed 

rule), Unit 6, and Subunits 7A, 7B, and 

7C that we are considering exercising 

our discretion to exclude from critical 

habitat designation. We are also 

considering excluding approximately 

273 ac (111 ha) of non-Federal lands in 

Subunit 5B that meet the definition of 

critical habitat for Ambrosia pumila 

within the County of San Diego MSCP 

Subarea Plan under section 4(b)(2) of 

the Act. Implementation of the County 

of San Diego MSCP Subarea Plan helps 

to address threats to the species and the 

features essential to its conservation 

through a regional planning effort rather 

than through a project-by-project 

approach, and outlines species-specific 

objectives and criteria for the 

conservation of A. pumila and its 

habitat. Approximately 184 ac (74 ha) of 

Subunit 5B is within the MSCP MultiHabitat Planning Area. Please see 

‘‘Exclusions Based on Habitat 

Conservation Plans (HCPs)’’ in the 

proposed rule (74 FR 44253–44257, 

August 27, 2009) for a more detailed 

discussion of the protections afforded to 

A. pumila by the County of San Diego 

MSCP Subarea Plan. We will analyze 

the benefits of inclusion in and 

exclusion from critical habitat of this 

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

As we stated earlier, we are soliciting 

data and comments from the public on 

the DEA, all aspects of the proposed 

critical habitat rule (including the 

additions of Subunits 3B, 4D, and 5B to 

proposed critical habitat, and the 

additional areas considered for 

exclusion from critical habitat 

designation), and our amended required 

determinations. The final rule may 

differ from the proposed rule based on 

information we receive during the 

public comment periods. In particular, 

we may exclude an area from critical 

habitat if we determine that the benefits 

of excluding the area outweigh the 

benefits of including the area as critical 

habitat, provided the exclusion will not 

result in the extinction of the species. 

Required Determinations–—Amended 

In our proposed rule published in the 

Federal Register on August 27, 2009 (74 

FR 44238), we indicated that we would 

defer our determination of compliance 

with several statutes and Executive 

Orders until the information concerning 

potential economic impacts of the 

designation and potential effects on 

landowners and stakeholders became 

available in the DEA. We have now 

made use of the DEA to make these 

determinations. In this document, we 

affirm the information in our proposed 

rule concerning Executive Order (E.O.) 

12866 (Regulatory Planning and 

Review), E.O. 13132 (Federalism), E.O. 

12988 (Civil Justice Reform), E.O. 12630 

(Takings), the Paperwork Reduction Act 

(44 U.S.C. 3501 et seq.), the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.), 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 in the DEA, we are 

amending our required determinations 

concerning the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.), E.O. 13211 

(Energy Supply, Distribution, or Use), 

and the Unfunded Mandates Reform Act 

(2 U.S.C. 1501 et seq.). 

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 effect of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions), as described below. 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Based on our DEA of the proposed 

designation, we provide our analysis for 

determining whether the proposed rule 

would result in a significant economic 

impact on a substantial number of small 

entities. Based on comments we receive, 

we may revise this determination as part 

of a final rulemaking. 

According to the Small Business 

Administration, small entities include 

small organizations, such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term significant economic 

impact is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the proposed 

designation of critical habitat for 

Ambrosia pumila would affect a 

substantial number of small entities, we 

consider the number of small entities 

affected within particular types of 

economic activities, such as residential 

and commercial development. In order 

to determine whether it is appropriate 

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for our agency to certify that this rule 

would not have a significant economic 

impact on a substantial number of small 

entities, we considered each industry or 

category individually. In estimating the 

numbers of small entities potentially 

affected, we also considered whether 

their activities have any Federal 

involvement. Critical habitat 

designation will not affect activities that 

do not have any Federal involvement; 

designation of critical habitat affects 

activities conducted, funded, permitted, 

or authorized by Federal agencies. 

If we finalize the proposed critical 

habitat designation, Federal agencies 

must consult with us under section 7 of 

the Act if their activities may affect 

designated critical habitat. In areas 

where Ambrosia pumila is present, 

consultations to avoid the destruction or 

adverse modification of critical habitat 

would be incorporated into the existing 

consultation process because A. pumila 

is listed as an endangered species under 

the Act. 

Appendix A.1 of the DEA evaluates 

the potential economic effects on small 

business entities resulting from 

implementation of conservation actions 

related to the proposed critical habitat 

for Ambrosia pumila. The analysis is 

based on the estimated incremental 

impacts associated with the proposed 

rule as described in sections 1 through 

3 of the DEA. The SBREFA analysis 

evaluates the potential for economic 

impacts related to project modifications 

on privately held developable land 

(Industrial Economics, Inc. p. A-3). The 

incremental impacts considered for the 

SBREFA analysis are the impacts that 

will affect development companies 

considered to be small businesses. The 

DEA indicates that 3 out of a total of a 

possible 9,222 land development 

companies in the counties where critical 

habitat is proposed would be affected by 

the designation of critical habitat 

(Industrial Economics, Inc. 2010, 

Appendix A, ES-8). Due to the 

designation of critical habitat the annual 

incremental impacts to these 3 small 

businesses will be approximately $448 

each at a 7 percent discount rate 

(Industrial Economics, Inc. 2010, 

Appendix A, 3-14). We do not believe 

these 3 small businesses represent a 

substantial number of the total number 

of development companies or that an 

annual impact of $448 per company is 

a significant economic impact. 

Therefore, we do not find that the 

designation of critical habitat for A. 

pumila will have a significant economic 

impact on a substantial number of small 

entities. 

In summary, we considered whether 

the proposed designation would result 

in a significant economic impact on a 

substantial number of small entities. For 

the above reasons and based on 

currently available information, we 

certify that, if promulgated, the 

proposed critical habitat for Ambrosia 

pumila would not 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. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. The OMB’s 

guidance for implementing this 

Executive Order outlines nine outcomes 

that may constitute ‘‘a significant 

adverse effect’’ when compared to no 

regulatory action. As discussed in 

Appendix A, the DEA finds that none of 

these criteria are relevant to this 

analysis. The DEA concludes that no 

incremental impacts are forecast 

associated specifically with this 

rulemaking on the production, 

distribution, or use of energy. Therefore, 

designation of critical habitat for A. 

pumila is not expected to lead to any 

adverse outcomes (such as a reduction 

in electricity production or an increase 

in the cost of energy production or 

distribution). A Statement of Energy 

Effects is not required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act, the Service 

makes the following findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

Tribal governments, or the private 

sector, and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

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

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

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or Tribal 

governments,’’ with two exceptions. 

First, it excludes ‘‘a condition of federal 

assistance.’’ Second, it also excludes ‘‘a 

duty arising from participation in a 

voluntary Federal program,’’ unless the 

regulation ‘‘relates to a then-existing 

Federal program under which 

$500,000,000 or more is provided 

annually to State, local, and Tribal 

governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance; or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

Critical habitat designation does not 

impose a legally binding duty on nonFederal Government entities or private 

parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. Designation of 

critical habitat may indirectly impact 

non-Federal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency. 

However, the legally binding duty to 

avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Furthermore, to the extent that nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply, nor would 

critical habitat shift the costs of the large 

entitlement programs listed above on to 

State governments. 

(b) As discussed in the DEA of the 

proposed designation of critical habitat 

for Ambrosia pumila, we do not believe 

that this rule would significantly or 

uniquely affect small governments 

because it would not produce a Federal 

mandate of $100 million or greater in 

any year; that is, it is not a ‘‘significant 

regulatory action’’ under the Unfunded 

Mandates Reform Act. The DEA 

concludes incremental impacts may 

occur due to administrative costs of 

section 7 consultations for development 

activities; however, these are not 

expected to affect small governments. 

Incremental impacts stemming from 

species conservation and developmentcontrol activities associated with this 

critical habitat designation are not 

expected to significantly or uniquely 

affect small government entities. As 

such, a Small Government Agency Plan 

is not required. 

References Cited 

A complete list of all references we 

cited in the proposed rule and in this 

document is available on the Internet at 

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http://www.regulations.gov or by 

contacting the Carlsbad Fish and 

Wildlife Office (see FOR FURTHER

INFORMATION CONTACT). 

Author(s) 

The primary authors of this notice are 

the staff members of the Carlsbad Fish 

and Wildlife Office (see FOR FURTHER

INFORMATION CONTACT). 

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 amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

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 Ambrosia 

pumila (San Diego ambrosia), which 

was proposed for addition to § 17.96(a) 

on August 27, 2009, at 74 FR 44237, is 

proposed to be amended by: 

a. Removing the index map at 

paragraph (5) and adding in its place a 

new index map as set forth below; 

b. Revising paragraph (7)(ii); 

c. Revising paragraph (8); and 

d. Revising paragraph (9), to read as 

follows: 

§ 17.96 Critical habitat—plants. 

(a) Flowering plants. 

* * * * * 

Family Asteraceae: Ambrosia pumila 

(San Diego ambrosia) 

* * * * * 

(5) * * * 

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27698 Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 

(7) * * * 

(ii) Note: Map of Units 2 and 3, with 

Subunits 3A and 3B, of critical habitat 

for Ambrosia pumila (San Diego ambrosia), Riverside County, California, 

follows: 


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(8) Unit 4, Subunits 4A, 4B, 4C, and 

4D, San Diego County, California. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Unit 4, with 

Subunits 4A, 4B, 4C, and 4D, of critical 

habitat for Ambrosia pumila (San Diego 

ambrosia), San Diego County, California, 

follows: 


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27700 Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 

(9) Unit 5, Subunits 5A and 5B, San 

Diego County, California. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Unit 5, with 

Subunits 5A and 5B, of critical habitat 

for Ambrosia pumila (San Diego 

ambrosia), San Diego County, California, 

follows: 

* * * * * Dated: May 7, 2010 

Will Shafroth, 

Acting Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2010–11674 Filed 5–17–10; 8:45 am] 

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