        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [FWS-R8-ES-2008-0078; 92210-1117-0000-B4]
        RIN 1018-AV03
        Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Cirsium loncholepis (La Graciosa thistle)

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period, notice of availability of draft economic analysis, and amended required determinations.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on the proposed revised designation of critical habitat for Cirsium loncholepis (common name La Graciosa thistle) under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of the January 16, 2009, draft economic analysis (DEA) of the proposed revised designation of critical habitat for C. loncholepis and announce an amended required determinations section of the proposal. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed revised designation of critical habitat for C. loncholepis, the associated DEA, and the amended required determinations section. Comments previously submitted on this rulemaking do not need to be resubmitted. These comments have already been incorporated into the public record and will be fully considered in preparation of the final rule.

          DATES:
          We will accept public comments received or postmarked on or before April 9, 2009.

          ADDRESSES:
          You may submit comments by one of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • U.S. mail or hand-delivery: Public Comments Processing, Attn: RIN 1018-AV03; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

          We will not accept e-mail or faxes. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

          FOR FURTHER INFORMATION CONTACT:
          Diane K. Noda, Field Supervisor, Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA  93003, (telephone 805-644-1766; facsimile 805-644-3958). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Public Comments

        We will accept written comments and information during this reopened comment period on the proposed revised designation of critical habitat for Cirsium loncholepis published in the Federal Register on August 6, 2008 (73 FR 45805), the DEA of the proposed revised designation of critical habitat for Cirsium loncholepis, and the amended required determinations provided in this document. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:
        1. The reasons why we should or should not designate habitat as critical habitat under section 4 of the Act (16 U.S.C. 1533), including whether the benefit of designation would outweigh threats to the species caused by the designation, such that the designation of critical habitat is prudent.
        2. Specific information on:
        • The amount and distribution of Cirsium loncholepis habitat,

        • The importance of including habitat that provides connectivity between extant populations of Cirsium loncholepis to the species' conservation and recovery, and the amount and distribution of such habitat,
        • What areas occupied at the time of listing and that contain features essential for the conservation of the species should be included in the designation and why, and
        • What areas not occupied at the time of listing are essential to the conservation of the species and why.

        3. Land use designations and current or planned activities in the subject areas and their possible impacts on proposed revised designation of critical habitat for Cirsium loncholepis.

        4. Probable economic, national security, or other impacts from designating particular areas as critical habitat. We are particularly interested in any impacts on small entities and specific impacts on national security, and the benefits of including or excluding areas that exhibit these impacts.

        5. Any proposed critical habitat areas covered by existing or proposed conservation or management plans that we should consider for exclusion from the designation under section 4(b)(2) of the Act. We specifically request information on any final or draft habitat conservation plans that include Cirsium loncholepis as a covered species that have been prepared under section 10(a)(1)(B) of the Act, or any other management plan, conservation plan, or agreement that benefits this plant or its primary constituent elements.

        6. Land use designations and current or planned activities in the subject areas and their possible impacts on the proposed revised designation of critical habitat for Cirsium loncholepis.

        7. Additional scientific information that will help us to better delineate areas that contain the primary constituent elements.

        8. Any foreseeable environmental impacts directly or indirectly resulting from the proposed revised designation of critical habitat for Cirsium loncholepis.

        9. Information on whether the DEA makes appropriate assumptions regarding current practices and any regulatory changes that likely may occur if we designate proposed revised critical habitat for Cirsium loncholepis.

        10. Information on whether the DEA correctly assesses the effect on regional costs associated with any land use controls that may result from the proposed revised designation of critical habitat for Cirsium loncholepis.

        11. Information on whether the proposed revised designation of critical habitat will result in disproportionate economic impacts to specific areas or small businesses that should be evaluated under 4(b)(2) of the Act for possible exclusion from the proposed revised designation of critical habitat for Cirsium loncholepis and whether the failure to designate such areas as critical habitat will result in the extinction of C. loncholepis.

        12. Information on the accuracy of our methodology in the DEA for distinguishing baseline and incremental costs, and the assumptions underlying the methodology.

        13. Information on whether the DEA identifies all costs that could result from the proposed revised designation of critical habitat for Cirsium loncholepis.

        14. Information on any quantifiable economic benefits of the proposed revised designation of critical habitat for Cirsium loncholepis.

        15. Whether the benefits of excluding any particular area outweigh the benefits of including that area under section 4(b)(2) of the Act, in particular lands in Units 4, 5, and 6 covered by a draft endangered species conservation agreement for Cirsium loncholepis that was submitted to the Service by Vandenberg Air Force Base (VAFB) for further evaluation and consideration during the public comment period.
        16. Information on any economic impacts associated with implementing the draft conservation agreement covering specified lands in Units 4, 5, and 6 submitted to the Service for further evaluation and consideration.
        17. Economic data on the incremental costs of designating a particular area as revised critical habitat.

        18. Any foreseeable impacts on energy supplies, distribution, and use resulting from the proposed revised designation of critical habitat for Cirsium loncholepis and, in particular, any impacts on electricity production, and the benefits of including or excluding areas that exhibit these impacts.
        19. Whether we could improve or modify our approach to designating critical habitat to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.

        20. Information on potential critical habitat exclusions from the proposed revised designation of critical habitat for Cirsium loncholepis.

        If you submitted comments or information on the proposed revised rule (73 FR 45805) during the initial comment period from August 6, 2008, to October 6, 2008, please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final determination. Our final determination concerning revised critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. On the basis of public comments, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

        You may submit your comments and materials concerning our proposed rule, the associated DEA, and our amended required determinations by one of the methods listed in the ADDRESSES section. We will not consider comments sent by e-mail or fax or to an address not listed in the ADDRESSES section.
        If you submit a comment via http://www.regulations.gov, your entire comment, including any personal identifying information, will be posted on the Web site. If you submit a hard copy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hard copy comments on http://www.regulations.gov.

        Comments and materials we receive (and have received), as well as supporting documentation we used in preparing this notice, will be available for public inspection on http://www.regulations.gov [Docket Number FWS-R8-ES-2008-0078], or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

        You may obtain copies of the proposed rule and DEA by mail from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT), by visiting the Federal eRulemaking Portal at http://www.regulations.gov, or on our Web site at http://www.fws.gov/ventura.

        Background

        It is our intent to discuss only those topics directly relevant to the proposed revised designation of critical habitat for Cirsium loncholepis in this notice. For more information on previous Federal actions concerning C. loncholepis, refer to the proposed revised designation of critical habitat published in the Federal Register on August 6, 2008 (73 FR 45805). For more information on the endangered C. loncholepis or its habitat, refer to the proposed and final listing rules published in the Federal Register on March 30, 1998 (63 FR 15164), and on March 20, 2000 (65 FR 14888), the proposed rule to designate critical habitat (66 FR 57559; November 15, 2001), and the final designation of critical habitat for C. loncholepis (69 FR 12553; March 17, 2004), or from the Ventura Fish and Wildlife Office (see
          FOR FURTHER INFORMATION CONTACT).

        In March 2005, the Homebuilders Association of Northern California, et al., filed suit against the Service challenging the merits of the final critical habitat designations for several species, including C. loncholepis. In March 2006, a settlement was reached that required us to re-evaluate five final critical habitat designations, including critical habitat designated for C. loncholepis. The settlement (as modified by a court-approved amendment) stipulated that any proposed revisions to C. loncholepis critical habitat designation would be submitted for publication to the Federal Register on or before July 27, 2008, and final revisions would be submitted on or before July 27, 2009.
        Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.

        Under section 4(b)(2) of the Act, we may exclude an area from critical habitat if we determine that the benefits of such exclusion outweigh the benefits of including that particular area as critical habitat, unless failure to designate that specific area as critical habitat will result in the extinction of the species. We may exclude an area from designated critical habitat based on economic impacts, national security, or any other relevant impact, including but not limited to the value and contribution of continued, expanded, or newly forged conservation partnerships.
        When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus; the educational benefits of mapping essential habitat for recovery of the listed species; and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.

        When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan that provides equal to or more conservation than a critical habitat designation would provide. In the case of Cirsium loncholepis, the benefits of critical habitat include public awareness of C. loncholepis presence and the importance of habitat protection, and where a Federal nexus exists, increased habitat protection for C. loncholepis due to protection from adverse modification or destruction of critical habitat. In practice, situations with a Federal nexus exist primarily on Federal lands or for projects undertaken by Federal agencies. Since C. loncholepis was listed in 2000, we have had few projects on privately owned lands that had a Federal nexus to trigger consultation under section 7 of the Act, and have consulted only once with a Federal agency regarding its effects to C. loncholepis on Federal lands.
        When we evaluate the benefits of excluding an area being managed under an existing conservation plan, we consider a variety of factors, including but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical and biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.
        After evaluating the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to determine whether the benefits of exclusion outweigh those of inclusion. If we determine that they do, we then determine whether exclusion would result in extinction. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.
        Draft Economic Analysis

        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We have prepared a draft economic analysis of our August 6, 2008 (73 FR 45805), proposed revised designation of critical habitat for Cirsium loncholepis.

        The intent of the DEA is to identify and analyze the potential economic impacts associated with the proposed revised designation of critical habitat for Cirsium loncholepis. Additionally, the economic analysis looks retrospectively at costs incurred since the March 20, 2000 (65 FR 14888), listing of C. loncholepis as endangered. The DEA quantifies the economic impacts of all potential conservation efforts for C. loncholepis; some of these costs will likely be incurred regardless of whether we designate revised critical habitat. The economic impact of the proposed revised designation of critical habitat for C. loncholepis is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (for example, under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated and may include costs incurred in the future. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we may consider in the final designation of critical habitat. The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts both baseline and incremental impacts likely to occur if we finalize the proposed revised designation of critical habitat for C. loncholepis. For a further description of the methodology of the analysis, see Chapter 2, “Framework for the Analysis”, of the DEA.

        The current DEA estimates the foreseeable economic impacts of the proposed revised designation of critical habitat for Cirsium loncholepis by identifying the potential resulting incremental costs. The DEA describes economic impacts of C. loncholepis conservation efforts associated with the following categories of activity: (1) Military activities on Vandenberg Air Force Base; (2) recreation (primarily off-highway vehicle use); (3) residential and commercial development; (4) agriculture and ranching; (5) oil and gas operations; and (6) other public lands management.

        Baseline economic impacts are those impacts that result from listing and other conservation efforts for Cirsium loncholepis not attributable to designation of critical habitat and thus are expected to occur regardless of whether we designate critical habitat. Total future baseline impacts are estimated to be $11.0 million ($720,000 annualized) to $320 million (approximately $20.9 million annualized) in present value terms using a 3 percent discount rate, and $10.4 million ($915,000 annualized) to $230 million (approximately $20.3 million annualized) in present value terms, using a 7 percent discount rate, over the next 20 years (2009 to 2028) in areas proposed as revised critical habitat. Impacts to recreation in Unit 1 (Callender-Guadalupe Dunes) represent the majority of the total post-designation baseline impacts (between 96 and 97 percent), depending on the discount rate.
        Future baseline impacts for areas currently considered for exclusion were calculated separately from other areas proposed as revised critical habitat. The baseline impacts for VAFB were estimated to be between $0.21 million using a 3 percent discount rate, and $0.15 million using a 7 percent discount rate over the next 20 years (2009 to 2028).

        The DEA estimates total potential incremental economic impacts in areas proposed as revised critical habitat over the next 20 years (2009 to 2028) to range from $405,000 ($26,500 annualized) to $55.6 million ($3.6 million annualized) in present value terms using a 3 percent discount rate, and from $355,000 ($31,300 annualized) to $39.6 million ($3.5 million annualized) in present value terms using a 7 percent discount rate. Almost all incremental impacts attributed to the proposed revised designation of critical habitat are expected to be related to recreation (approximately 99.89 percent); the remaining incremental impacts are related to development and public lands management (approximately 0.11 percent).

        The DEA considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures (e.g., lost economic opportunities associated with restrictions on land use). The DEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. The DEA measures lost economic efficiency associated with residential and commercial development, ranching and agriculture, and off-highway vehicle recreation, and its effects on Federal lands, small entities, and the energy industry. Decision-makers can use this information to assess whether the effects of the revised designation might unduly burden a particular group or economic sector.
        As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as on all aspects of the proposed revised designation of critical habitat and our amended required determinations. We may revise the proposed rule or its supporting documents to incorporate or address information we receive during this public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided the exclusion will not result in the extinction of the species.
        Areas Considered for Exclusion
        Department of Defense Lands

        Based on comments submitted during the initial public comment period from August 6, 2008, to October 6, 2008, we are considering exclusion of lands on VAFB (13,832 ac (5,598 ha) total) in Units 4, 5, and 6 from critical habitat. In their comment letter, dated September 29, 2008, VAFB requested to be excluded from the revised designation of critical habitat based on: (1) Their draft Integrated Natural Resources Management Plan (INRMP), (2) a draft conservation agreement for Cirsium loncholepis (included as an appendix), and (3) reasons of national security.
        Under section 4(a)(3)(B)(i) of the Act, the Secretary of the Interior (Secretary) is prohibited from designating as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. An INRMP is currently being prepared in coordination with the Service that will ensure conservation of the species. However, because the INRMP is not yet final and approved by the Secretary, the statutory prohibition on designation of these lands as critical habitat is inapplicable.

        We are also considering excluding these areas under section 4(b)(2) of the Act based on a draft endangered species conservation agreement for Cirsium loncholepis that proposes a C. loncholepis conservation partnership and agreement between VAFB and the Service. This draft conservation agreement focuses on the continuation of compliance with Federal and State laws, conducting surveys for federally listed species, and protecting and enhancing existing populations and habitats of threatened and endangered species. We are currently working with VAFB to complete this draft conservation agreement. We will assess the benefits of excluding VAFB lands included in this conservation agreement and consider these lands for exclusion from the revised critical habitat final rule under section 4(b)(2) of the Act. If this conservation agreement is finalized before the designation and our analysis results in a determination that the benefits of excluding lands from the final designation outweigh the benefits of designating those lands as critical habitat, then we will exclude the lands from the revised final designation, provided the exclusion will not result in the extinction of the species.

        You may obtain a copy of the draft conservation agreement for lands on VAFB by visiting the Federal eRulemaking Portal at http://www.regulations.gov, at http://www.fws.gov/ventura, or by requesting copies of these documents by mail from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
        We are also considering excluding these areas under section 4(b)(2) of the Act for reasons of national security. Lands may be excluded from designation as critical habitat if the Secretary determines that the benefits of exclusion, including the benefits with respect to national security, outweigh the benefits of inclusion, unless failure to designate that specific area as critical habitat will result in the extinction of the species, as explained below.
        Vandenberg Air Force Base is a U.S. Air Force installation. It operates as a missile test and aerospace center, supporting west coast launch activities for the U.S. Air Force, Department of Defense, National Aeronautics and Space Administration, and commercial contractors. Vandenberg Air Force Base is headquarters for the 30th Space Wing, the Air Force's Space Command unit that operates VAFB and the western test range. Activities on the grounds of VAFB consist of the following:
        • Mission operations such as:
         ○ Space and missile launch programs,
         ○ Security and antiterrorism operations,
         ○ Explosive ordnance management,
         ○ Air operations, and
         ○ Miscellaneous mission operations;
        • Infrastructure support such as:
         ○ Paved and unpaved road maintenance,
         ○ Utility installation, maintenance and removal,
         ○ Landscaping, and
         ○ Fencing installation, maintenance, and replacement;
        • Infrastructure development;
        • Environmental management programs such as:
         ○ Installation restoration,
         ○ Military munitions response,
         ○ Environmental compliance,
         ○ Archeological support,
         ○ Invasive and pest species removal,
         ○ Cropland management,
         ○ Grazing and livestock, and
         ○ Sensitive species management; and
        • Fire management.

        Vandenberg Air Force Base stated in their comment letter submitted September 29, 2008, regarding the proposed revised designation of critical habitat that the need for additional consultations and possible conservation restrictions would limit the amount of natural infrastructure available for ongoing and future mission execution and training needed for national security; not designating these areas on VAFB as critical habitat for Cirsium loncholepis would not result in the extinction of the species; and operations at VAFB do not constitute either a long-term threat or adverse modification of suitable C. loncholepis habitat. Short-notice, mission-critical activities not previously analyzed may be delayed in order to conduct section 7 consultations under the Act.
        Aside from these areas now being considered for exclusion from the final revised designation of critical habitat, no other areas are being considered for exclusion and the proposed revised designation of critical habitat remains unchanged as presented.
        Required Determinations—Amended

        In our proposed rule dated August 6, 2008 (73 FR 45805), we indicated that we would defer our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. We have now made use of the DEA to make these determinations. In this document, we affirm the information in our proposed rule concerning Executive Order (E.O.) 13132 (Federalism), E.O. 12988 (Civil Justice Reform), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National Environmental Policy Act (42 U.S.C. 4321 et seq.), the President's memorandum of April 29, 1994, and “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). However, based on the DEA data, we are amending our required determinations concerning E.O. 12866 (Regulatory Planning and Review) and the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211 (Energy, Supply, Distribution, and Use), E.O. 12630 (Takings), and the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.).
        Regulatory Planning and Review (E.O. 12866)
        The Office of Management and Budget (OMB) has determined that this proposed rule is not significant and has not reviewed this proposed rule under E.O. 12866. The OMB bases its determination upon the following four criteria:
        (a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
        (b) Whether the rule will create inconsistencies with other Federal agencies' actions.
        (c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
        (d) Whether the rule raises novel legal or policy issues.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

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

        To determine if the proposed revised designation of critical habitat for Cirsium loncholepis would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as residential and commercial development. In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation. In areas where the species is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect Cirsium loncholepis. Federal agencies also must consult with us if their activities may affect critical habitat.
        In the DEA of the proposed revised designation of critical habitat, we evaluated the potential economic effects on small business entities resulting from implementation of conservation actions related to the proposed revised designation of critical habitat. The DEA identified the estimated incremental impacts associated with the proposed revised designation of critical habitat as described in sections 2 through 9, and evaluated the potential for economic impacts related to activity categories including military-related activities on VAFB, residential and commercial development, agriculture and ranching, recreation, oil and gas operations, and public lands management. The DEA concluded that the incremental impacts resulting from this rulemaking that may be borne by small businesses will be associated with agriculture and ranching, and recreation. Incremental impacts are either not expected for the other types of activities considered or, if expected, will not be borne by small entities.

        As discussed in Appendix A of the DEA, the potential impacts of the proposed revised designation of critical habitat on agriculture and ranching over the next 20 years would result from unquantified delay costs associated with future construction of up to four cooling facilities or processing plants in Unit 2; and future vineyard conversion projects in Unit 3. The delay costs associated with future construction of cooling facilities or processing plants will potentially affect fewer than one small agricultural entity per year. The delay costs associated with future vineyard conversion projects will affect one small entity (one landowner).
        As discussed in Appendix A of the DEA, impacts on small businesses associated with recreation are provided through two scenarios; the lower bound assumes that no restrictions are placed on off-highway vehicle (OHV) recreation at Oceano Dunes State Vehicle Recreation Area (ODSVRA), and the upper bound assumes that five percent of critical habitat within ODSVRA is closed to OHV recreation, and that some people who would have made a trip to ODSVRA for OHV recreation will forego future trips due to the closure of five percent of the riding area. Since there are no impacts to small businesses with the lower bound scenario, only costs for the upper bound scenario are given. In this case, the DEA identifies estimated lost opportunity costs associated with OHV recreation at ODSVRA over the next 20 years (2009 to 2028) at $55.2 million in present value terms using a 3 percent discount rate, and $39.3 million in present value terms using a 7 percent discount rate. The costs would be borne by businesses in the region surrounding the ODSVRA that provide lodging, food and beverage, retail shopping, and vehicle-related services to OHV users, and is based on the assumption in the DEA that OHV use would decline if portions of the ODSVRA are closed to OHV use due to critical habitat. The DEA assumes that an average of 85 percent of the businesses that supply goods and services to OHV users are small businesses.

        In summary, we have considered whether the proposed revised designation of critical habitat would result in a significant economic impact on a substantial number of small entities. We have identified small businesses that may be affected within the ranching and agriculture and recreation sectors. However, for the construction of cooling facilities/processing plants, less than one small entity per year may be affected; and for vineyard conversion, only one small entity may be affected by the proposed revised designation of critical habitat. Within the recreation sector, the DEA identifies a large percentage of small businesses that may be impacted by the proposed revised designation of critical habitat. Although this action has a potential to impact small businesses that provide goods and services to OHV users, we believe that the ODSVRA can incorporate measures to ensure the long-term conservation of Cirsium loncholepis in proposed critical habitat Unit 1 without closing large areas that are currently open to OHV users. Therefore, it is likely that these small businesses will not bear the majority of the estimated impacts, which are associated with lost opportunity costs stemming from reduced OHV use of ODSVRA. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed revised designation of critical habitat for C. loncholepis would not have a significant economic impact on a substantial number of small business entities. Therefore, a regulatory flexibility analysis is not required.
        Executive Order 13211—Energy Supply, Distribution, and Use
        On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The OMB's guidance for implementing this Executive Order outlines nine outcomes that may constitute “a significant adverse effect” when compared to no regulatory action. As discussed in Appendix A, the DEA finds that none of these criteria are relevant to this analysis. The DEA identifies that the most likely energy-related activity to occur is the re-activation of an existing well, which generally will not result in incremental impacts; therefore, designation of critical habitat is not expected to lead to any adverse outcomes (such as a reduction in electricity production or an increase in the cost of energy production or distribution), and a Statement of Energy Effects is not required.
        Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
        In accordance with the Unfunded Mandates Reform Act, the Service makes the following findings:
        a. This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments,” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or Tribal governments “lack authority” to adjust accordingly. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”
        Critical habitat designation does not impose a legally binding duty on 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 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 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 Cirsium loncholepis, we do not believe that this rule would significantly or uniquely affect small governments because it would not produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The DEA concludes incremental impacts may occur due to project modifications that may need to be made for agriculture and development activities; however, these are not expected to affect small governments. Consequently, we do not believe that the revised critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.
        Executive Order 12630—Takings

        In accordance with E.O. 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing revised critical habitat for Cirsium loncholepis in a takings implications assessment. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. In conclusion, the proposed revision to critical habitat for C. loncholepis does not pose significant takings implications.
        References Cited

        A complete list of all references we cited in the proposed rule and in this document is available on the Internet at http://www.regulations.gov or by contacting the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).
        Authors
        The primary authors of this rulemaking are the staff members of the Ventura Fish and Wildlife Office.
        Authority

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

          Dated: February 20, 2009.
           Jane Lyder,
          Assistant Deputy Secretary, Department of the Interior.

       [FR Doc. E9-4788 Filed 3-9-09; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To Delist the Gray Wolf (Canis lupus) in Nevada

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of petition finding.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service, announce a 90-day finding on a petition to delist the gray wolf (Canis lupus) in Nevada. We find that the petition and the available literature cited in the petition do not present substantial scientific or commercial information indicating that delisting may be warranted. We will not be initiating a further status review in response to this petition. We ask the public to submit to us any new information that becomes available concerning the status of or threats to the gray wolf. This information will help us monitor and encourage the conservation of this species.

          DATES:
          The finding announced in this document was made on December 9, 2005. You may submit new information concerning this species for our consideration at any time.

          ADDRESSES:
          Data, information, or questions concerning this petition or this 90-day finding should be sent to the Field Supervisor, Nevada Fish and Wildlife Office, U.S. Fish and Wildlife Service, 1340 Financial Boulevard, Suite 234, Reno, Nevada 89502-7147. The petition finding and supporting information are available for public inspection, by appointment, during normal business hours at the above address.

          FOR FURTHER INFORMATION CONTACT:
          Robert D. Williams, Nevada Fish and Wildlife Office (see ADDRESSES) (telephone: 775/861-6300; facsimile: 775/861-6301).

        SUPPLEMENTARY INFORMATION:
        Background

        Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to indicate that the petitioned action may be warranted. We are to base this finding on information provided in the petition. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of this finding promptly in the Federal Register.
        Our standard for substantial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial information was presented, we are required to promptly commence a review of the status of the species.
        In making this finding, we relied on information provided by the petitioners and evaluated that information in accordance with 50 CFR 424.14(b). Our process of coming to a 90-day finding under section 4(b)(3)(A) of the Act and section 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold.

        We do not conduct additional research at this point, nor do we subject the petition to rigorous critical review. Rather, at the 90-day finding stage, we accept the petitioner's sources and characterizations of the information, to the extent that they appear to be based on accepted scientific principles (such as citing published and peer reviewed articles, or studies done in accordance with valid methodologies), unless we have specific information to the contrary.
        Petition
        On June 24, 2003, we received a petition, dated June 9, 2003, from the Nevada Division of Wildlife (now known as the Nevada Department of Wildlife)  (NDOW or petitioner) requesting that we delist wolves in Nevada. The NDOW petition states that the historic presence of wolves in Nevada was limited to transient, solitary individuals, Nevada does not contain suitable habitat to support wolf populations, and no viable populations of wolves ever existed in Nevada. The petition asserts that the 1978 listing of gray wolves as endangered in Nevada was in error (43 FR 9607, March 9, 1978), and that the 2003 reclassification of gray wolves as threatened in Nevada (68 FR 15804, April 1, 2003) was also in error. The petition also asserts that gray wolf recovery, as detailed within the Northern Rocky Mountain Recovery Plan (USFWS 1987) has been achieved, and wolves should be delisted.
        We sent a letter to NDOW dated July 29, 2003, acknowledging receipt of their petition. We initially planned to address the June 30, 2003, delisting petition as part of the process to delist wolves due to recovery throughout the Western Distinct Population Segment (Western DPS), which included Nevada. See the Advance Notice of Proposed Rulemaking; Removing the Western Distinct Population Segment of Gray Wolf from the List of Endangered and Threatened Wildlife (68 FR 15879, April 1, 2003). However, the delisting process has been delayed due to court action (See Previous Federal Action section, below), and therefore, we are now addressing the subject petition. On May 4, 2005, we received a 60-day notice of intent to sue from the Attorney General, Nevada Department of Justice, regarding our failure to meet the statutory timeframes for making petition findings.
        Biology and Species Information
        For detailed information on this species see the April 1, 2003, Final rule to reclassify and remove the gray wolf from the list of endangered and threatened wildlife in portions of the conterminous United States (68 FR 15804).
        Previous Federal Action
        The eastern timber wolf (Canis lupus lycaon) was listed as endangered in Minnesota and Michigan, and the northern Rocky Mountain wolf (C. l. irremotus) was listed as endangered in Montana and Wyoming in the first list of species that were protected under the 1973 Act, published in May 1974 (USDI 1974). A third gray wolf subspecies, the Mexican wolf (C. l. baileyi), was listed as endangered on April 28, 1976 (41 FR 17740), with its known range given as “Mexico, USA (Arizona, New Mexico, Texas).” On June 14, 1976 (41 FR 24064), the subspecies C. l. monstrabilis was listed as endangered (using the nonspecific common name “Gray wolf”), and its range was described as “Texas, New Mexico, Mexico.”

        On March 9, 1978, we published a rule (43 FR 9607) relisting the gray wolf at the species level (Canis lupus) as endangered throughout the conterminous 48 States and Mexico, except for Minnesota, where the gray wolf was reclassified to threatened to eliminate problems with listing separate subspecies of the gray wolf and identifying relatively narrow geographic areas in which those subspecies are protected. In addition, critical habitat was designated in that rulemaking. In 50 CFR 17.95(a), we described Isle Royale National Park, Michigan, and Minnesota wolf management zones 1, 2, and 3 (delineated in 50 CFR 17.40(d)(1)) as critical habitat. We also promulgated special regulations under section 4(d) of the Act for operating a wolf management program in Minnesota at that time. The depredation control portion of the special regulation was later modified (50 FR 50793, December 12, 1985); these special regulations are found in 50 CFR 17.40(d)(2).
        On November 22, 1994, we designated areas in Idaho, Montana, and Wyoming as nonessential experimental populations in order to initiate gray wolf reintroduction projects in central Idaho and the Greater Yellowstone Area (59 FR 60252; 59 FR 60266). On January 12, 1998, a nonessential experimental population was established for the Mexican gray wolf in portions of Arizona, New Mexico, and Texas (63 FR 1752). These experimental population designations also contain special regulations that govern take of wolves within these geographic areas (50 CFR 17.84(i), (k), and (n)).
        In order to have the gray wolf's status under the Act match its recovery progress, we published a proposed rule (65 FR 43450) on July 13, 2000, to revise the listing of the gray wolf across most of the conterminous United States. The proposal included establishing four DPSs, and included recommended wording for three special regulations that would apply to those wolves proposed for reclassification to threatened status. The proposal also included delisting the gray wolf in parts or all of 30 States, including Nevada, because we believed that gray wolf restoration was not necessary and not feasible in those areas, or because the area was historic red wolf habitat.
        On April 1, 2003, we published a final rule (68 FR 15804) revising the listing status of the gray wolf across most of the conterminous United States. As a result of comments received during the comment period and additional analysis on our part, several changes were made to the July 13, 2000, proposed rule. This included dividing the previous listing of the species into three DPS's instead of four; reclassifying gray wolves in two of the DPS's from endangered to threatened; and including gray wolves in portions of the Eastern DPS and part of the Western DPS in special regulations under section 4(d) of the Act, thus allowing State and Tribal natural resource officials, under certain conditions, to “take” those wolves that were attacking domestic animals. The final rule also removed the gray wolf in parts or all of 16 States where historically it did not occur, rather than parts or all of 30 States, as proposed. In addition, on July 21, 2004, we proposed to delist all gray wolves in the 2003 Eastern Distinct Population Segment (69 FR 43664).
        On January 31, 2005, and August 19, 2005, the U.S. District Courts in Oregon and Vermont, respectively, concluded that the 2003 final reclassification rule violated the Act. The Courts' rulings invalidated the April 2003 changes to the Act listing for the gray wolf. Therefore, the USFWS currently considers the gray wolf to have the status that existed prior to the 2003 reclassification. Gray wolves in Minnesota are classified as threatened, as a result of a 1978 reclassification. Gray wolves in the remaining 47 conterminous States, including Nevada, are endangered, except where they are listed as part of an Experimental Population for reintroduction purposes (throughout Wyoming and in portions of Montana, Idaho, Arizona, New Mexico, and Texas). The 1994, 1998, and 2005 Experimental Population Regulations (under section 10(j) of the Act) remain in effect for the Experimental Populations in the west and southwest. The special regulations enacted under section 4(d) of the Act that apply to Minnesota wolves remain in effect. The 2003 special regulations enacted under section 4(d) of the Act are not being implemented, because they were enjoined by the U.S. District Court.

        We have received several petitions during the past decade requesting consideration to delist the gray wolf in all or part of the 48 conterminous States. We subsequently published findings that these petitions did not present substantial information that delisting gray wolves in all or part of the conterminous 48 United States was warranted (54 FR 16380, April 24, 1989; 55 FR 49656, November 30, 1990; 63 FR 55839, October 19, 1998). We also received petitions from Defenders of Wildlife to list gray wolf DPSs in the southern Rocky Mountains, northern California—southern Oregon, and western Washington, and to grant endangered status to gray wolves in those DPSs. Because wolves were already protected as endangered in those areas, we took no action on these petitions. In addition, we have received petitions from the Minnesota Conservation Federation and from Lawrence Krak, a Wisconsin resident, to delist the gray wolf in Minnesota, Michigan, and Wisconsin; our 12-month findings on these petitions concluded that delisting was warranted and were made in our 2004 proposed rule (69 FR 43664, July 21, 2004). On October 26, 2005, we published a finding responding to petitions to delist the gray wolf in the Northern Rocky Mountains from Friends of Northern Yellowstone Elk Herd and the State of Wyoming (70 FR 61770). We have responded by initiating a status review for the northern Rocky Mountain population of gray wolves to determine if it may qualify as a DPS and whether delisting may be warranted.
        Review of the Petition
        The NDOW petition requests that wolves in the State of Nevada should be delisted on one of three basis: (1) That it was listed in error; (2) it is a DPS that is neither threatened nor endangered; and (3) wolves in Nevada are part of a recovered Rocky Mountain population of gray wolves. The factors for listing, delisting, or reclassifying a species are described at 50 CFR 424.11. We may delist a species only if the best scientific and commercial data available substantiate that it is neither endangered nor threatened. Delisting may be warranted as a result of: (1) Extinction, (2) recovery, or (3) a determination that the original data used for classification of the species as endangered or threatened were in error.
        The petition provides a substantial and comprehensive presentation of the historic range and occurrences of wolves in Nevada. The information in the petition confirms that wolves, whether in packs or solitary transient individuals, historically existed in Nevada. Therefore, since wolves historically occurred in Nevada there is no basis to conclude that listing in Nevada was in error.
        The petitioner has also indicated that wolves in the State of Nevada should be delisted due to recovery. Such action would be appropriate if the gray wolves in Nevada: (1) qualify as a DPS that is neither endangered nor threatened, or (2) are part of a larger listed entity that is neither threatened nor endangered.
        To implement the measures prescribed by the Act and its Congressional guidance, we developed a joint policy with the National Marine Fisheries Service that addresses the recognition of DPSs of vertebrate species for potential listing and delisting actions (61 FR 4722, February 7, 1996).
        Under our DPS policy, three elements are considered in a decision regarding the status of a possible DPS as endangered or threatened under the Act. These elements are applied similarly for additions to the list of endangered and threatened species, reclassification, and removal from the list. The elements are: (1) Discreteness of the population segment in relation to the remainder of the taxon; (2) the significance of the population segment to the taxon to which it belongs; and (3) the population segment's conservation status in relation to the Act's standards for listing (i.e., is the population segment, when treated as if it were a species, endangered or threatened?). A systematic application of the above elements is appropriate, with discreteness criteria applied first, followed by significance analysis. If we determine that a population segment is discrete and significant, we then evaluate it for endangered or threatened status based on the Act's standards.
        Discreteness refers to the isolation of a population from other members of the species and we evaluate this based on specific criteria. A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation. (2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.
        The NDOW petition discusses discreteness in relation to historical occurrence in Nevada. The petition indicates that the source areas of wolves that historically occurred in Nevada include Idaho, northern California, and Oregon. The petition notes that at the California-Nevada border, the Sierra-Nevada range creates a rain shadow causing arid conditions in the Great Basin (Houghton et al. 1975). The petition notes that those arid conditions reduce the quality of wolf habitat at the Nevada border, and that the arid conditions of the Great Basin occurring in the southeast corner of Oregon along the Oregon-Nevada border would not have functioned as suitable wolf habitat.
        The petition also discusses the other surrounding States and regions along Nevada's eastern and southern border, and states that they do not seem to have been good sources for wolf ingress. The petition states that Utah historically had wolves (Barnes 1922; Durrant 1952) in low densities, but the entire western extreme of the State is primarily a salt flat within the lakebed of historic Lake Bonneville and is largely devoid of ungulate species. The petition also states that on Nevada's southern border, southern California and Arizona are within the Mojave Desert region, and it is well established that wolves were generally absent from arid deserts (Young and Goldman 1944; Hall and Kelson 1959; Mech 1970).
        We agree that large expanses of arid habitat, with little cover or adequate prey base, could serve as potential barriers to discourage wolf dispersal; however, none of the features described in the petition are unique to, or terminate discretely at, the Nevada State border. For example, the Great Basin comprises a large geographic area in western North America, including parts of the States of Oregon, California, Nevada, Utah, and Idaho. Historic Lake Bonneville is known to have extended across much of the eastern portion of the Great Basin, including parts of the States of Nevada, Utah, and Idaho. The Mojave Desert includes parts of the States of Nevada, California, and Arizona. In all these cases, these geographic areas discussed in the petition extend well beyond the State of Nevada to encompass much larger areas. These geographic areas are not encompassed within the State of Nevada nor do they correspond to the Nevada State boundaries. Since the petition did not present substantial information that the wolves in Nevada are a discrete population, we do not need to further evaluate whether this entity represents a DPS.

        The petition also states that the gray wolf in Nevada is neither endangered nor threatened due to the fact that wolves within the Western DPS have achieved the Northern Rocky Mountain Recovery Plan (Service 1987) objectives, and should therefore be delisted. We agree that the biological recovery objectives as described in the Recovery Plan for gray wolves in the northern Rocky Mountains have been achieved. The area covered by the Northern Rocky Mountain Recovery Plan would have been incorporated within the Western DPS, which also included Nevada. However, as noted under previous Federal Actions, the Western DPS was vacated by recent court rulings, and a delistable entity is no longer in place for the northern Rocky Mountain wolf population.
        Finding
        Our evaluation of the petition indicates that in general, the petition provides a substantial assessment of the historic distribution and occurrence of wolves in Nevada. The information in the petition confirms that wolves, whether in packs or solitary transient individuals, historically existed in Nevada. Thus, the petition does not provide substantial information that wolves were listed in error in Nevada.
        The petition states that the inclusion of Nevada within the now vacated Western DPS was erroneous, and requests the delisting of Nevada alone without providing information on how the borders of the State of Nevada would function as ecological or physical factors to delimit wolves in Nevada as an entity that would be discrete from the rest of the taxon. The petition does not identify a discrete entity that qualifies as a DPS and therefore can not be evaluated for delisting. Also, as discussed in the DPS policy, recognition of political boundaries such as State lines is inappropriate for establishing the discreteness of a DPS (61 FR 4723-4724).
        The petition also states that wolves in Nevada are neither endangered nor threatened because the northern Rocky Mountain populations have achieved their recovery objectives. We agree that the wolf populations in the northern Rocky Mountain area have achieved their biological recovery objectives. However, as noted under “Previous Federal Actions,” the Western DPS was vacated by recent court rulings, and a delistable entity is no longer in place for the northern Rocky Mountain wolf population. The NDOW petition did not provide substantial information to delineate that the Nevada wolves are part of any delistable entity.
        We have reviewed the petition to delist the gray wolf in Nevada and the literature cited in the petition that was available to us. After this review, we find that there is no substantial scientific information in the petition to demonstrate that the gray wolf did not historically occur in the State of Nevada and was listed in error, that wolves in the State of Nevada are a delistable entity, or that the Nevada gray wolf is part of a larger population that could at present be delisted. Although a non-substantial finding does not initiate a formal a status review for these species, we encourage additional information gathering and research to increase our understanding of the status of these species.

        If you wish to provide information regarding the gray wolf, you may submit your information or materials to the State Supervisor, Nevada Fish and Wildlife Office (see ADDRESSES).
        References Cited

        A complete list of all references cited herein is available, upon request, from the Nevada Fish and Wildlife Office (see ADDRESSES).
        Author

        The primary author of this notice is staff of the U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office (see ADDRESSES).

          Authority:

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

          Dated: November 22, 2005.
          Matt Hogan,
          Director, Fish and Wildlife Service.

      [FR Doc. 05-23840 Filed 12-8-05; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R1-ES-2011-0098; 4500030113]
        RIN 1018-AX14
        Endangered and Threatened Wildlife and Plants; Listing 38 Species on Molokai, Lanai, and Maui as Endangered and Designating Critical Habitat on Molokai, Lanai, Maui, and Kahoolawe for 135 Species

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; extension of comment period.

          SUMMARY:
          We, the U.S. Fish and Wildlife Service (Service), are extending the comment period on our proposed rule to, among other things, list 38 species on the Hawaiian Islands of Molokai, Lanai, and Maui as endangered species under the Endangered Species Act of 1973, as amended, and designate critical habitat on Molokai, Lanai, Maui, and Kahoolawe for 135 species. We made the proposed rule available for public comment on June 11, 2012.

          DATES:

          The comment period end date is September 10, 2012. The deadline for submitting an electronic comment using the Federal eRulemaking Portal (see ADDRESSES section, below) is 11:59 p.m. Eastern Time on this date. After September 10, 2012, you must submit information directly to the Division of Policy and Directives Management (see ADDRESSES section below). Please note that we might not be able to address or incorporate information that we receive after the above requested date.

          ADDRESSES:
          You may submit information by one of the following methods:
          (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R1-ES-2011-0098, which is the docket number for this action. Then click on the Search button. You may submit a comment by clicking on “Comment Now!”
          (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R1-ES-2011-0098; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.
          We will post all information we receive on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Request for Information section below for more details).

          FOR FURTHER INFORMATION CONTACT:
          Loyal Mehrhoff, Field Supervisor, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Box 50088, Honolulu, HI 96850; by telephone at 808-792-9400; or by facsimile at 808-792-9581. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Background
        On June 11, 2012 (77 FR 34464), we published in the Federal Register, for review and comment, a proposed rule to list 38 species (35 plants and 3 tree snails) on the Hawaiian Islands of Molokai, Lanai, and Maui as endangered species, and concurrent designation of 271,062 acres (ac) (109,695 hectares (ha)) as critical habitat. We are also proposing revision of critical habitat for 85 plants and designation of critical habitat for 11 listed plants and animals that do not have designated critical habitat on these islands. Approximately 47 percent of the area being proposed as critical habitat is already designated as critical habitat for the 85 plant species or for other species. We also propose to delist the plant Gahnia lanaiensis, due to new information that this species is synonymous with G. lacera, a widespread species from New Zealand. In addition, we propose name changes or corrections for 11 endangered plants and 2 endangered birds, and we propose to reaffirm the listings for 2 endangered plant species with taxonomic revisions. We are also considering excluding approximately 40,973 ac (16,581 ha) of privately owned lands on Maui and Molokai.
        We received a request to extend the public comment period beyond the August 10, 2012, due date on our June 11, 2012 (77 FR 34464), proposal. We are working with our partners and local landowners to inform them of the proposed listings and critical habitat designations. In order to ensure that the public has an adequate opportunity to review and comment on our proposed rule, we are extending the comment period for an additional 30 days.
        Request for Information
        We will accept written comments and information during this extended comment period. We will consider information and recommendations from all interested parties and intend that any final action resulting from this proposal will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we solicit comments or suggestions on this proposed rule from the public, other concerned governmental agencies, the scientific community, industry, or other interested parties. We particularly seek comments concerning:
        (1) Biological, commercial trade, or other relevant data concerning threats (or the lack thereof) to the 40 species proposed or being reevaluated for listing, and regulations that may be addressing those threats.
        (2) Additional information concerning the range, distribution, and population sizes of each of the 40 species proposed or being reevaluated for listing, including the locations of any additional populations of these species.
        (3) Any information on the biological or ecological requirements of the 40 species proposed or being reevaluated for listing.

        (4) The reasons why we should or should not designate areas for any of the species in this proposal 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 these species from human activity, the degree to which can be expected to increase due to the designation, and whether the benefit of designation would outweigh threats to these species caused by the designation, such that the designation of critical habitat is prudent.
        (5) Whether a revision of critical habitat is warranted for the 85 plant species that are already listed as endangered or threatened under the Act and that currently have designated critical habitat.
        (6) Specific information on:

        • The amount and distribution of critical habitat for the species included in this proposed rule;

        • What areas currently occupied, and that contain the necessary physical or biological features essential for the conservation of the species, we should include in the designation and why;
        • Whether special management considerations or protections may be required for the physical or biological features essential to the conservation of the species in this proposed rule; and
        • What areas not currently occupied are essential to the conservation of the species and why.
        (7) Land use designations and current or planned activities in the areas occupied by the species, and the possible impacts of critical habitat on these designations or activities.
        (8) Any foreseeable economic, national security, or other relevant impacts of designating any area as critical habitat. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas that may experience these impacts.
        (9) Whether the benefits of excluding any particular area from critical habitat outweigh the benefits of including that area as critical habitat under section 4(b)(2) of the Act, after considering the potential impacts and benefits of the proposed critical habitat designation. Under section 4(b)(2), the Secretary may exclude an area from critical habitat if he determines 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 request specific information on:
        • The benefits of including specific areas in the final designation and supporting rationale;
        • The benefits of excluding specific areas from the final designation and supporting rationale; and
        • Whether any specific exclusions may result in the extinction of the species and why.
        (10) Whether the proposed critical habitat on private lands and under consideration for exclusion under section 4(b)(2) of the Act should or should not be excluded and why.
        (11) Information concerning any habitat conservation or management plans, conservation plans or programs, or other such agreements for our consideration under section 4(b)(2) of the Act.
        (12) Information on the projected and reasonably likely impact of climate change on the species included in this proposed rule, and any special management needs or protections that may be needed in the critical habitat areas we are proposing.
        (13) Information on any special management needs or protections that may be needed in the critical habitat areas we are proposing.
        (14) 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.
        (15) Our proposal to revise taxonomic classifications with name changes or family changes for 11 plant species and 2 bird species identified in the proposed rule.
        (16) Specific information on ways to improve the clarity of this rule as it pertains to completion of consultations under section 7 of the Act.

        For more background on our proposed rule, see the June 11, 2012, Federal Register. The proposed rule is available at the Federal eRulemaking Portal at http://www.regulations.gov (see ADDRESSES section above).
        If you previously submitted comments or information on the proposed rule, please do not resubmit them. We have incorporated them into the public record, and we will fully consider them in our final rulemaking. Our final determination concerning this proposed rulemaking will take into consideration all written comments and any additional information we receive.

        You may submit your comments and materials concerning the proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.
        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. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy 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.

        Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R1-ES-2011-0098, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule on the Internet at http://www.regulations.gov at Docket No. FWS-R1-ES-2011-0098, or by mail from the Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
        Authors
        The primary authors of this notice are the staff of the U.S. Fish and Wildlife Service.
        Authority

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

          Dated: July 30, 2012.
          Rowan W. Gould,
          Acting Director, U.S. Fish and Wildlife Service.

      [FR Doc. 2012-19487 Filed 8-8-12; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF TRANSPORTATION
        Federal Motor Carrier Safety Administration
        49 CFR Part 391
        [Docket No. FMCSA-2019-0049]
        RIN 2126-AC21
        Medical Review Board Task 21-1 Report: FMCSA Proposed Alternative Vision Standard

          AGENCY:
          Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).

          ACTION:
          Notice of availability (NOA); request for comments.

          SUMMARY:
          In January 2021, FMCSA published a notice of proposed rulemaking (NPRM) to amend its regulations to permit individuals who cannot meet either the current distant visual acuity or field of vision standard, or both, in one eye to be physically qualified to operate a commercial motor vehicle (CMV) in interstate commerce. The comment period closed on March 15, 2021. The Agency received 69 comments. In May 2021, FMCSA requested, in part, that FMCSA's Medical Review Board (MRB) review and analyze the comments from medical professionals and associations and make recommendations regarding the proposed alternative vision standard for FMCSA to consider. The Agency announces the availability of the MRB's report and requests comments on the MRB's recommendations. MRB Task 21-1 Report is available in Docket Number FMCSA-2019-0049.

          DATES:
          Comments must be received on or before September 23, 2021.

          ADDRESSES:
          You may submit comments identified by Docket Number FMCSA-2019-0049 using any of the following methods:
          • Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/FMCSA-2019-0049/document. Follow the online instructions for submitting comments.
          • Mail: Dockets Operations, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001.
          • Hand Delivery or Courier: Dockets Operations, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.
          • Fax: (202) 493-2251.

          FOR FURTHER INFORMATION CONTACT:

          Ms. Christine A. Hydock, Chief, Medical Programs Division, FMCSA,1200 New Jersey Avenue SE, Washington, DC 20590, (202) 366-4001, FMCSAMedical@dot.gov. If you have questions on viewing or submitting material to the docket, call Dockets Operations at (202) 366-9826.

        SUPPLEMENTARY INFORMATION:
        I. Public Participation and Request for Comments
        A. Submitting Comments
        If you submit a comment, please include the docket number for this NOA (FMCSA-2019-0049), indicate the specific section of this document to which your comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so FMCSA can contact you if there are questions regarding your submission.
        To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2019-0049/document, click on this NOA, click “Comment,” and type your comment into the text box on the following screen.
        If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.
        FMCSA will consider all comments and material received during the comment period.
        Confidential Business Information (CBI)
        CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NOA contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NOA, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission that constitutes CBI as “PROPIN” to indicate it contains proprietary information. FMCSA will treat such marked submissions as confidential under the Freedom of Information Act, and they will not be placed in the public docket. Submissions containing CBI should be sent to Mr. Brian Dahlin, Chief, Regulatory Analysis Division, Office of Policy, FMCSA, 1200 New Jersey Avenue SE, Washington DC 20590-0001. Any comments FMCSA receives not specifically designated as CBI will be placed in the public docket.
        B. Viewing Comments and Documents

        To view any documents mentioned as being available in the docket, go to https://www.regulations.gov/docket/FMCSA-2019-0049/document and choose the document to review. To view comments, click this NOA, and click “Browse Comments.” If you do not have access to the internet, you may view the docket online by visiting Dockets Operations in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.
        C. Privacy Act

        DOT solicits comments from the public to better inform its rulemaking process, in accordance with 5 U.S.C. 553(c). DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice DOT/ALL 14—Federal Docket Management System (FDMS), which can be reviewed at www.transportation.gov/privacy.

        II. Background
        FMCSA's mission is to reduce crashes, injuries, and fatalities involving large trucks and buses. FMCSA is authorized by statute to establish minimum physical qualification standards for drivers of CMVs operating in interstate commerce. To ensure the physical qualification of CMV drivers, the Agency has established a vision standard, along with several other physical standards. The current vision standard can be found at 49 CFR 391.41(b)(10).
        The Federal Highway Administration, the predecessor agency to FMCSA, adopted the current vision standard April 22, 1970 (35 FR 6458). Under this standard, an individual is physically qualified to drive a CMV if the individual has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70 degrees in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing standard red, green, and amber (49 CFR 391.41(b)(10)). This standard has not changed since it became effective on January 1, 1971.
        Since 1998, FMCSA has maintained an exemption program for individuals who do not meet certain vision standards. The Agency considers vision exemptions on a case-by-case basis upon application by CMV drivers who do not meet either the distant visual acuity or field of vision standard, or both, of § 391.41(b)(10) in one eye. The Agency does not grant exemptions for color blindness.
        On January 12, 2021, FMCSA published an NPRM that proposed an alternative vision standard for individuals unable to meet either the current distant visual acuity or field of vision standard, or both (86 FR 2344). The comment period on the NPRM closed on March 15, 2021. The Agency received 69 comments.
        III. MRB Task 21-1

        The MRB was established to provide FMCSA with medical advice and recommendations on medical standards and guidelines for the physical qualifications of CMV operators, medical examiner education, and medical research (49 U.S.C. 31149(a)(1)). The MRB, in view of its statutory creation and advisory function, is chartered by DOT as an advisory committee under the provisions of the Federal Advisory Committee Act (5 U.S.C. App.) See also Announcement of Establishment of the Federal Motor Carrier Safety Administration Medical Review Board (70 FR 57642; Oct. 3, 2005). The members of the MRB are appointed by the Secretary to reflect expertise in a variety of medical specialties relevant to the driver fitness requirements of FMCSA (49 U.S.C. 31149(a)(2)).

        To assist in the development of a final rule, on May 11, 2021, FMCSA requested advice from the MRB for the Agency to consider. Specifically, FMCSA asked the MRB to review and analyze all comments from medical professionals and associations, make recommendations regarding the proposed alternative vision standard, and identify factors the Agency should consider regarding next steps in the vision rulemaking. In addition, FMCSA requested recommendations with respect to whether the information requested from eye specialists on the proposed Vision Evaluation Report provides sufficient information for a medical examiner to make a medical certification determination. The MRB held a public meeting to discuss MRB Task 21-1 on May 19 and 20, 2021. The Agency received the MRB's final report on July 20, 2021. Details of the meeting, including MRB Task 21-1, the MRB Task 21-1 Report, and supporting materials used by the MRB, are posted on the Agency's public website at https://www.fmcsa.dot.gov/medical-review-board-mrb-meeting-topics.

        IV. MRB Task 21-1 Report
        The MRB's final report is available in the docket (in addition to being available on the Agency's public website). The MRB Task 21-1 Report contains detailed recommendations for FMCSA to consider as it develops a final rule. The Agency believes that public comment on the recommendations will assist it in evaluating the advice it has received from the MRB. Comments must be limited to addressing the recommendations in the MRB Task 21-1 Report. The MRB made the following recommendations in its MRB Task 21-1 Report:

          I. Overview
          A. With respect to the medical aspects of the proposed alternative vision standard only, if the MRB does not make a specific recommendation to change a provision, the MRB concurs with the provision as proposed in the January 2021 NPRM.
          B. The MRB recommends that the Agency deemphasize that the alternative vision standard begins with the vision evaluation because the individual may be examined first by the medical examiner.
          II. Recommendations for the Regulatory Standards
          A. The MRB recommends that the current field of vision requirement be changed from 70 degrees to 120 degrees for the alternative vision standard for monocular vision drivers.
          B. The MRB agrees that the requirement for sufficient time to adapt to and compensate for the vision deficiency should not be changed in the proposed alternative vision standard. The MRB notes it does not have sufficient data to establish a specific waiting period for an individual who has a new vision deficiency.
          III. Recommendations for the Vision Evaluation Report
          A. The MRB recommends that the physical qualification standards for the alternative vision standard, as set forth in the paragraph below from Task 21-1 but modified to reflect a field of vision of at least 120 degrees, be added to page 1 in the instructions after FMCSA's definition of monocular vision:
          The proposal would provide that, to be physically qualified under the alternative vision standard, the individual must: (1) Have in the better eye distant visual acuity of at least 20/40 (Snellen), with or without corrective lenses, and field of vision of at least 120 degrees in the horizontal meridian; (2) be able to recognize the colors of traffic signals and devices showing standard red, green, and amber; (3) have a stable vision deficiency; and (4) have had sufficient time to adapt to and compensate for the vision deficiency.

          B. The MRB recommends that the Agency expand the medical opinion in question 12 to require that the individual can drive a CMV safely with the vision condition. The MRB notes that the medical opinion provided by the ophthalmologist or optometrist regarding whether the individual has adapted to and compensated for the change in vision sufficiently encompasses depth perception. The MRB notes further that question 12 sufficiently implies that time is needed to adapt and compensate for the change in vision but appropriately relies on the ophthalmologist or optometrist conducting the vision evaluation to determine the appropriate period of time on a case-by-case basis.
          C. The MRB recommends that the requests for information about stability in questions 11 and 13 both be retained. The questions solicit different information.
          D. The MRB recommends that the Agency change the order of the requested information to be questions 1 through 9, 10, 12, 13, and then 11.
          E. The MRB recommends that the vision evaluation report not request information relating to severe non-proliferative diabetic retinopathy and proliferative diabetic retinopathy because they are evaluated separately under the standard for insulin-treated diabetes mellitus.

        The Vision Evaluation Report, Form MCSA-5871, with the MRB's recommended edits is an attachment to the MRB Task 21-1 Report, which can be found in the docket (in addition to being available on the Agency's public website).
        V. Comments Requested
        Comments are requested on any and all of the recommendations provided in the MRB Task 21-1 Report but only on those recommendations. To the extent possible, comments should include supporting materials, such as data analyses, studies, reports, or journal articles. FMCSA will consider these comments, in addition to the comments submitted in response to the NPRM, in determining how to proceed in the vision rulemaking.

          Issued under authority delegated in 49 CFR 1.87.
          Meera Joshi,
          Deputy Administrator.

      [FR Doc. 2021-17850 Filed 8-23-21; 8:45 am]
      BILLING CODE 4910-EX-P