[Federal Register Volume 75, Number 212 (Wednesday, November 3, 2010)]
[Proposed Rules]
[Pages 67676-67681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27773]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2009-0078; MO 92210-0-0009-B4]
RIN 1018-AW53


Endangered and Threatened Wildlife and Plants; Revised Critical 
Habitat for Astragalus jaegerianus (Lane Mountain Milk-Vetch)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on our April 1, 2010, proposed revised 
designation of critical habitat for Astragalus jaegerianus (Lane 
Mountain milk-vetch) under the Endangered Species Act of 1973, as 
amended (Act). We also announce the availability of a draft economic 
analysis (DEA) of the proposed revised designation of critical habitat 
for Astragalus jaegerianus and an amended required determinations 
section of the proposal. We are reopening the comment period for an 
additional 30 days to allow all interested parties an opportunity to 
comment on the items listed above. Comments previously submitted need 
not be resubmitted and will be fully considered in preparation of the 
final rule.

DATES: We will consider public comments we receive on or before 
December 3, 2010. Comments must be received by 11:59 p.m. Eastern Time 
on the closing 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:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on Docket No. FWS-R8-
ES-2009-0078.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R8-ES-2009-0078; 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).

[[Page 67677]]


FOR FURTHER INFORMATION CONTACT: Connie Rutherford, Listing and 
Recovery Coordinator, Ventura Fish and Wildlife Office, 2493 Portola 
Road, Suite B, Ventura, CA 93003; telephone (805) 644-1766; facsimile 
(805) 644-3958. 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 
will be based on the best scientific data available and will be as 
accurate and effective as possible. Therefore, we request comments or 
information from other concerned government agencies, the scientific 
community, industry, or any other interested party during this reopened 
comment period on the proposed revised designation of critical habitat 
for Astragalus jaegerianus published in the Federal Register on April 
1, 2010 (75 FR 16404), including the draft economic analysis of the 
proposed revised designation of critical habitat for A. jaegerianus and 
the amended required determinations provided in this document. We will 
consider information and recommendations from all interested parties. 
We are particularly interested in comments concerning:
    (1) The reasons why we should or should not revise the designation 
of habitat as ``critical habitat'' under section 4 of the 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 of 
critical habitat is not prudent.
    (2) Specific information on:
    <bullet> The amount and distribution of Astragalus jaegerianus 
habitat,
    <bullet> What areas within the geographical area occupied by the 
species at the time of listing that contain features essential to the 
conservation of the species we should include in the designation and 
why, and
    <bullet> What areas outside the geographical area occupied at the 
time of listing are essential to the conservation of the species and 
why.
    (3) Land-use designations and current or planned activities in the 
subject areas and their possible effects on proposed revised critical 
habitat for Astragalus jaegerianus.
    (4) Any foreseeable 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 from the 
proposed designation that exhibit these impacts.
    (5) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the DEA, and how the consequences 
of such reactions, if likely to occur, would relate to the conservation 
and regulatory benefits of the proposed critical habitat designation.
    (6) Comments or information that may assist us in identifying or 
clarifying the primary constituent elements and the resulting physical 
and biological features essential to the conservation of Astragalus 
jaegerianus.
    (7) How the proposed revised critical habitat boundaries could be 
refined to more closely circumscribe the landscapes identified as 
essential.
    (8) Information on the potential effects of climate change on 
Astragalus jaegerianus and its habitat.
    (9) Any foreseeable impacts on energy supplies, distribution, and 
use resulting from the proposed revised designation and, in particular, 
any impacts on electricity production, and the benefits of including or 
excluding any particular areas that exhibit these impacts.
    (10) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to better accommodate public 
concerns and comments.
    (11) Information on whether the DEA makes appropriate assumptions 
regarding current practices and any regulatory changes that likely may 
occur if we designate proposed revised critical habitat for Astragalus 
jaegerianus.
    (12) Information on the accuracy of our methodology in the DEA for 
distinguishing baseline and incremental costs, and the assumptions 
underlying the methodology.
    (13) Information on whether the DEA correctly assesses the effect 
on regional costs associated with any land use controls that may result 
from the proposed revised designation of critical habitat for 
Astragalus jaegerianus.
    (14) Information on whether the proposed revised designation of 
critical habitat will result in disproportionate economic impacts to 
specific areas or small businesses, including small businesses in the 
land development sector in San Bernardino County.
    (15) Information on whether the DEA identifies all costs that could 
result from the proposed revised designation of critical habitat for 
Astragalus jaegerianus.
    (16) Economic data on the incremental costs of designating a 
particular area as revised critical habitat.
    If you submitted comments or information on the proposed revised 
rule (75 FR 16404) during the initial comment period from April 1, 
2010, to June 1, 2010, please do not resubmit them. We will incorporate 
them into the public record as part of this comment period, and we will 
fully consider them in the preparation of our final determination. Our 
final determination concerning revised critical habitat will take into 
consideration all written comments and any additional information we 
receive during both comment periods. On the basis of public comments, 
we may, during the development of our final determination, find that 
areas proposed are not essential, are appropriate for exclusion under 
section 4(b)(2) of the Act, or are not appropriate for exclusion.
    You may submit your comments and materials concerning our proposed 
rule, the associated DEA, and our amended required determinations by 
one of the methods listed in the ADDRESSES section. We will not 
consider comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. If you submit a hard copy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hard copy comments on http://www.regulations.gov.
    Comments and materials we receive (and have received), as well as 
supporting documentation we used in preparing the proposed rule and 
DEA, will be available for public inspection on http://www.regulations.gov (Docket Number FWS-R8-ES-2009-0078), or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).
    You may obtain copies of the proposed rule and DEA by mail from the 
Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT), 
by visiting the Federal eRulemaking Portal at http://www.regulations.gov (Docket Number FWS-R8-ES-2009-0078), or on our Web 
site at http://www.fws.gov/ventura.

[[Page 67678]]

Background

    It is our intent to discuss only those topics directly relevant to 
the proposed revised designation of critical habitat for Astragalus 
jaegerianus in this document. For more information on previous Federal 
actions concerning A. jaegerianus, refer to the proposed revised 
designation of critical habitat published in the Federal Register on 
April 1, 2010 (75 FR 16404). Additional information on A. jaegerianus 
may also be found in the final listing rule published in the Federal 
Register on October 6, 1998 (63 FR 53596), and the proposed designation 
of critical habitat for A. jaegerianus in the Federal Register on April 
6, 2004 (69 FR 18018). These documents are available on the Ventura 
Fish and Wildlife Office Web site at http://www.fws.gov/ventura.
    On April 8, 2005 (70 FR 18220), we published our final designation 
of critical habitat for Astragalus jaegerianus. Because we excluded all 
proposed acreage from the designation, the final designation included 
zero (0) acres (0 hectares). On December 19, 2007, the 2005 critical 
habitat determination was challenged by the Center for Biological 
Diversity (Center for Biological Diversity v. United States Fish and 
Wildlife Service et al., Case No. CV-07-08221-JFW-JCRx). In a 
settlement agreement accepted by the court on June 27, 2008, we agreed 
to reconsider the critical habitat designation for A. jaegerianus. The 
settlement stipulated that we submit a proposed revised critical 
habitat rule for A. jaegerianus to the Federal Register for publication 
on or before April 1, 2010, and submit a final revised determination on 
the proposed critical habitat rule to the Federal Register for 
publication on or before April 1, 2011.
    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If the proposed rule is 
made final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
affecting areas designated as critical habitat must consult with us on 
the effects of their proposed actions, under section 7(a)(2) of the 
Act.
    Under section 4(b)(2) of the Act, we may exclude an area from 
critical habitat if we determine that the benefits of such exclusion 
outweigh the benefits of including that particular area as critical 
habitat, unless failure to designate that specific area as critical 
habitat will result in the extinction of the species. We may exclude an 
area from designated critical habitat based on economic impacts, 
national security, or any other relevant impact, including but not 
limited to the value and contribution of continued, expanded, or newly 
forged conservation partnerships.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus (activities conducted, funded, permitted, 
or authorized by Federal agencies); the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species; and any benefits that may result from designation due 
to State or Federal laws that may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan. In the case of 
Astragalus jaegerianus, the benefits of critical habitat include public 
awareness of the presence of A. jaegerianus and the importance of 
habitat protection, and, where a Federal nexus exists, increased 
habitat protection for A. jaegerianus due to protection from adverse 
modification or destruction of critical habitat. In practice, 
situations with a Federal nexus exist primarily on Federal lands or for 
projects undertaken by Federal agencies.

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 prepared a DEA of our April 1, 
2010 (75 FR 16404), proposed revised designation of critical habitat 
for Astragalus jaegerianus.
    The intent of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed revised designation of 
critical habitat for Astragalus jaegerianus. The DEA quantifies the 
economic impacts of all potential conservation efforts for A. 
jaegerianus; some of these costs will likely be incurred regardless of 
whether we designate revised critical habitat. The economic impact of 
the proposed revised designation of critical habitat for A. jaegerianus 
is analyzed by comparing scenarios both ``with critical habitat'' and 
``without critical habitat.'' The ``without critical habitat'' scenario 
represents the baseline for the analysis, considering protections 
already in place for the species (for example, under the Federal 
listing and other Federal, State, and local regulations). The baseline, 
therefore, represents the costs incurred regardless of whether critical 
habitat is designated and may include costs incurred in the future. The 
``with critical habitat'' scenario describes the incremental impacts 
associated specifically with the designation of critical habitat for 
the species. The incremental conservation efforts and associated 
impacts are those not expected to occur absent the designation of 
critical habitat for the species. In other words, the incremental costs 
are those attributable solely to the designation of critical habitat 
above and beyond the baseline costs; these are the costs we may 
consider in the final designation of critical habitat. The analysis 
looks retrospectively at baseline impacts incurred since we listed the 
species, and forecasts both baseline and incremental impacts likely to 
occur if we finalize the proposed revised designation of critical 
habitat for the A. jaegerianus. For a further description of the 
methodology of the analysis, see Chapter 2, ``Framework for the 
Analysis,'' of the DEA.
    The current DEA estimates the foreseeable economic impacts of the 
proposed revised designation of critical habitat for Astragalus 
jaegerianus by identifying the potential resulting incremental costs. 
The DEA analyzed economic impacts of A. jaegerianus conservation 
efforts on the following activities: Recreational OHV use, recreational 
surface mining, and wind energy development. It also assessed possible 
indirect impacts to economic activities as the result of possible 
applications of the California Environmental Quality Act (CEQA), and 
regulatory uncertainty or delay. The DEA considers future baseline and 
incremental impacts over the next 20 years (2011 to 2030), which was 
determined to be the appropriate period for analysis because limited 
planning information is available for most

[[Page 67679]]

activities to forecast activity levels for projects beyond a 20-year 
timeframe.
    The DEA estimates that no economic impacts are likely to result 
from the designation of critical habitat. The main reason for this 
conclusion is that approximately 79 percent of the designated area is 
Federal land that is either being managed for Astragalus jaegerianus 
conservation by the Bureau of Land Management (BLM) under the guidance 
of the California Desert Conservation Area Plan, as modified by the 
West Mojave Plan, or is being held by the Department of Defense (DOD). 
Because the DOD acquired these lands as mitigation for the expansion of 
Fort Irwin, it will not permit any ground-disturbing activities on 
them. Ultimately, the DOD will transfer the lands to the BLM, and BLM 
will manage them as part of the Coolgardie Mesa and West Paradise Areas 
of Critical Environmental Concern. The Service, DOD, and BLM do 
anticipate consultation on the land transfer, but expect that the 
consultation would be informal and not require a formal biological 
opinion under section 7 of the Act. An additional reason that no 
economic impacts are likely to result from the designation of critical 
habitat is that the private lands (remaining 21 percent of designation 
interspersed in a checkerboard fashion among the BLM ACECs lands) occur 
in a remote region where access, development, and construction are 
limited. Also land use activities specifically within ACECs are 
limited. These private lands are being targeted through the WMP for 
acquisition by Federal agencies from willing sellers to eventually 
become part of one of the two ACECs. No section 7 consultations have 
occurred regarding activities on private lands within the area since 
the listing of the desert tortoise (Gopherus agassizii) in 1990. The 
federally threatened desert tortoise occurs throughout the area that we 
have proposed as critical habitat; critical habitat for the desert 
tortoise also completely overlaps the areas proposed as critical 
habitat for A. jaegerianus. Consequently, based on discussions with 
land managers and the lack of consultations on private lands in this 
area since the listing of the desert tortoise, we do not anticipate any 
land use changes that will result in future consultations.
    The DEA also discusses the potential benefits associated with the 
designation of critical habitat. The primary intended benefit of 
critical habitat is to support the conservation of endangered and 
threatened species, such as Astragalus jaegerianus. However, economic 
benefits are not quantified or monetized in the DEA. As described in 
the DEA, modifications to future projects are unlikely given the 
extensive baseline protections already provided to A. jaegerianus 
habitat, the anticipated lack of economic activity, and lack of a 
Federal nexus on privately owned, unprotected parcels.
    The DEA considered both economic efficiency and distributional 
effects. In the case of habitat conservation, efficiency effects 
generally reflect the ``opportunity costs'' associated with the 
commitment of resources to comply with habitat protection measures 
(e.g., lost economic opportunities associated with restrictions on land 
use). The DEA also addresses how potential economic impacts are likely 
to be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, small entities, and the 
energy industry. We can use this information to assess whether the 
effects of the revised designation might unduly burden a particular 
group or economic sector.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as on all aspects of the proposed revised 
designation of critical habitat, and our amended required 
determinations. We may revise the proposed rule or the economic 
analysis to incorporate or address information we receive during this 
public comment period. In particular, we may exclude an area from 
critical habitat if we determine that the benefits of excluding the 
area outweigh the benefits of including the area as critical habitat, 
provided the exclusion will not result in the extinction of the 
species.

Required Determinations--Amended

    In our proposed rule dated April 1, 2010 (75 FR 16404), 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. 12630 (Takings), 
E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's 
memorandum of April 29, 1994, ``Government-to-Government Relations with 
Native American Tribal Governments'' (59 FR 22951). Based on the DEA 
data, we are also affirming our required determinations made in the 
proposed rule concerning the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.), Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), and 
E.O. 13211 (Energy, Supply, Distribution, and Use).

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

    Under the Regulatory Flexibility Act, as amended by the Small 
Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. Based on our DEA of the proposed 
revised designation, we provide our analysis for determining whether 
the proposed rule would result in a significant economic impact on a 
substantial number of small entities. Based on comments we receive, we 
may revise this determination as part of a final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.

[[Page 67680]]

    To determine if the proposed revised designation of critical 
habitat for Astragalus jaegerianus would affect a substantial number of 
small entities, we considered the number of small entities affected 
within particular types of economic activities, such as residential and 
commercial development. In order to determine whether it is appropriate 
for our agency to certify that this rule would not have a significant 
economic impact on a substantial number of small entities, we 
considered each industry or category individually. In estimating the 
numbers of small entities potentially affected, we also considered 
whether their activities have any Federal involvement. Critical habitat 
designation will not affect activities that do not have any Federal 
involvement; designation of critical habitat only affects activities 
conducted, funded, permitted, or authorized by Federal agencies. Some 
kinds of activities are unlikely to have any Federal involvement and so 
will not be affected by critical habitat designation. In areas where 
the species is present, Federal agencies already are required to 
consult with us under section 7 of the Act on activities they fund, 
permit, or implement that may affect A. jaegerianus. If the proposed 
critical habitat designation is finalized, consultations to avoid the 
destruction or adverse modification of critical habitat would be 
incorporated into the existing consultation process.
    In the DEA of the proposed revised designation of critical habitat, 
we evaluated the potential economic effects resulting from 
implementation of conservation actions related to the proposed revised 
designation of critical habitat. The DEA estimates that no economic 
impacts are likely to result from the designation of critical habitat 
for Astragalus jaegerianus. This determination is based on the fact 
that approximately 79 percent of the proposed critical habitat is 
already subject to conservation measures that benefit the plant. 
Economic impacts are unlikely in the remaining 21 percent, given the 
limited potential for future economic activity and the low probability 
of a Federal nexus that would require consultation with the Service. 
Based on that analysis, no impacts to small entities are expected as a 
result of the proposed critical habitat designation. Please refer to 
chapter 3 of the DEA for a more detailed discussion of our analysis.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and the Service. For the 
reasons discussed above, and based on currently available information, 
we certify that if promulgated, the proposed designation would not have 
a significant economic impact on a substantial number of small business 
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 an agency to prepare a Statement of 
Energy Effects when undertaking certain actions. We implement this 
executive order using the Office of Management and Budget's guidance 
which outlines nine outcomes that may constitute ``a significant 
adverse effect'' when compared to no regulatory action. As discussed in 
chapter 3, the DEA finds that this proposed revised critical habitat 
designation is expected not to have any impacts on the energy industry. 
As a result, a Statement of Energy Effects is not required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act, the Service 
makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local or Tribal governments,'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. ``Federal private 
sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) as a condition of 
Federal assistance; or (ii) a duty arising from participation in a 
voluntary Federal program.''
    Critical habitat designation does not impose a legally binding duty 
on non-Federal government entities or private parties. Under the Act, 
the only regulatory effect is that Federal agencies must ensure that 
their actions do not destroy or adversely modify critical habitat under 
section 7. Designation of critical habitat may indirectly impact non-
Federal entities that receive Federal funding, assistance, or permits, 
or that otherwise require approval or authorization from a Federal 
agency for an action that may affect designated critical habitat. 
However, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency. 
Furthermore, to the extent that non-Federal entities are indirectly 
impacted because they receive Federal assistance or participate in a 
voluntary Federal aid program, the Unfunded Mandates Reform Act would 
not apply, nor would critical habitat shift the costs of the large 
entitlement programs listed above on to State governments.
    (b) As discussed in the DEA of the proposed designation of critical 
habitat for Astragalus jaegerianus, 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 that critical habitat 
designation for A. jaegerianus is not likely to result in incremental 
direct or indirect impacts to economic activities. Because no 
incremental costs are anticipated, no small entities are expected to be 
affected by the designation. Consequently, we do not believe that the 
revised critical habitat designation would 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 http://www.regulations.gov or from the Ventura Fish and Wildlife Office (see 
FOR FURTHER INFORMATION CONTACT section).

[[Page 67681]]

Authors

    The primary authors of this notice are staff members of the Ventura 
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Authority

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

    Dated: October 25, 2010.
Will Shafroth,
Acting Assistant Secretary for Fish & Wildlife and Parks.
[FR Doc. 2010-27773 Filed 11-2-10; 8:45 am]
BILLING CODE 4310-55-P