The Secretary shall designate critical habitat on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. An area may be excluded from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of including a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species.

Comments and information submitted during the initial comment period on the December 14, 2006, proposed rule (71 FR 75189) need not be resubmitted as they will be incorporated into the public record as part of this comment period and will be fully considered in preparation of the final rule. If you wish to comment, you may submit your comments and materials concerning the draft economic analysis and the proposed rule by any one of several methods (see ADDRESSES). Our final designation of critical habitat will take into consideration all comments and any additional information we receive during both comment periods. On the basis of public comment on the draft economic analysis, the critical habitat proposal, and the final economic analysis, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

If you use email to submit your comments, please include ``Attn: RIN 1018AU83'' in your email subject header, preferably with your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your e mail, contact the persons listed under FOR FURTHER INFORMATION CONTACT.

Before including your address, phone number, email address, or other personal identifying information in your comments, you should be aware that your entire commentincluding your personal identifying informationmay be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate revised critical habitat, will be available for public inspection, by appointment during normal business hours, at the Ventura Fish and Wildlife Office (see ADDRESSES). Copies of the proposed critical habitat rule and the draft economic analysis are available on the Internet at: http://www.fws.gov/ventura/. You may also obtain copies of the proposed revised critical habitat rule and the draft economic analysis by contacting the Ventura Fish and Wildlife Office (see ADDRESSES), or by calling 8056441766 extension 301.

Background

Pursuant to the terms of a March 2006 settlement agreement, we agreed to submit for publication in the Federal Register a proposed revised critical habitat designation for Chorizanthe pungens var. pungens on or before December 7, 2006. We published a proposed rule to designate revised critical habitat for C. p. var. pungens on December 14, 2006 (71 FR 75189). The proposed revised critical habitat totals approximately 11,032 acres (ac) (4,466 hectares (ha)) for C. p. var. pungens in Monterey and Santa Cruz Counties, California.

Critical habitat is defined in section 3 of the Act as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are
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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, in accordance with section 7(a)(2) of the Act. Draft Economic Analysis

Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. Based on the December 14, 2006, proposed rule to designate critical habitat for Chorizanthe pungens var. pungens (71 FR 75189), we have prepared a draft economic analysis of the proposed revised critical habitat designation for C. p. var. pungens.

The draft economic analysis is intended to quantify the economic impacts of all potential conservation efforts for Chorizanthe pungens var. pungens; some of these costs will likely be incurred regardless of whether revised critical habitat is designated. The draft economic analysis provides estimated costs of conservationrelated measures that are likely to be associated with future economic activities that may adversely affect the habitat within the proposed revised boundaries over a 20year period. It also considers past costs associated with conservation of the species from the time it was listed (February 4, 1994; 59 FR 5499) until the year the proposed revised critical habitat rule was published (December 14, 2006; 71 FR 75189). For a further description of the methodology of the analysis, see section 1.4 (Approach to Estimating Economic Impacts) of the draft economic analysis.

The draft economic analysis describes economic impacts of Chorizanthe pungens var. pungens conservation efforts associated with the following activities: (1) Removal and control of invasive, nonnative plant species; (2) recreational activities, including foot traffic, and offroad vehicles; (3) overspray of pesticides from agricultural operations; (4) munitions cleanup methods on former military ranges that remove and chip all standing vegetation; (5) expansion of unregulated vehicle parking on the sand dunes; and (6) vegetation clearing associated with road and trail maintenance. With regard to the removal and control of invasive, nonnative plant species, as well as recreational activities management, we acknowledge that most or all of these activities identified have been, and will continue to be, directed at the protection of several sensitive species, including C. p. var. pungens. Therefore, in the draft economic analysis, the attribution of such costs solely to C. p. var. pungens likely overstates the economic impact of the critical habitat designation.

The draft economic analysis estimates predesignation costs associated with the conservation of the species to be approximately $5.2 million (undiscounted). Discounted costs are estimated to be approximately $6.2 million at a 3 percent discount rate or approximately $7.9 million at a 7 percent discount rate. The draft economic analysis estimates postdesignation costs associated with conservation efforts for Chorizanthe pungens var. pungens to be approximately $17 million (undiscounted) over a 20year period as a result of the proposed designation of revised critical habitat, including those costs coextensive with listing and recovery. Discounted future costs are estimated to be approximately $13 million ($0.85 million annualized) at a 3 percent discount rate or approximately $9.6 million ($0.85 million annualized) at a 7 percent discount rate.

The draft economic analysis considers the potential economic effects of actions relating to the conservation of Chorizanthe pungens var. pungens, including costs associated with sections 4, 7, and 10 of the Act, and including those attributable to the designation of revised critical habitat. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for C. p. var. pungens in areas containing features essential to the conservation of the species. The draft analysis considers both economic efficiency and
distributional effects. In the case of habitat conservation, efficiency effects generally reflect the ``opportunity costs'' associated with the commitment of resources to comply with habitat protection measures (such as lost economic opportunities associated with restrictions on land use).

The draft analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by decisionmakers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, the draft analysis looks retrospectively at costs that have been incurred since the date Chorizanthe pungens var. pungens was listed as threatened (February 4, 1994; 59 FR 5499) and considers those costs that may occur in the 20 years following a designation of critical habitat. Forecasts of economic conditions and other factors beyond this point would be speculative.

As stated earlier, we solicit data and comments from the public on the draft economic analysis, as well as on all aspects of the proposal. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion would not result in the extinction of the species.

Required DeterminationsAmended

In our December 14, 2006, proposed rule (71 FR 75189), we indicated that we would be deferring our determination of compliance with several statutes and Executive Orders until information concerning potential economic impacts of the revised designation and potential effects on landowners and stakeholders was available in the draft economic analysis. Those data are now available for our use in making these determinations. In this notice we are affirming the information contained in the proposed rule concerning Executive Order (E.O.) 13132 (Federalism); E.O. 12988; the Paperwork Reduction Act; and the President's memorandum of April 29, 1994, ``GovernmenttoGovernment Relations with Native American Tribal Governments'' (59 FR 22951). Based on the information made available to us in the draft economic analysis, we are amending our Required Determinations, as provided below, concerning E.O. 12866 and the Regulatory Flexibility Act, E.O. 13211, E.O. 12630 (Takings), and the Unfunded Mandates Reform Act. [[Page 58621]]

Regulatory Planning and Review

In accordance with Executive Order 12866, this document is a significant rule because it may raise novel legal and policy issues. Based on our draft economic analysis of the proposed designation of critical habitat for Chorizanthe pungens var. pungens, future costs associated with conservation efforts for C. p. var. pungens are estimated to be approximately $17 million (undiscounted) over a 20year period as a result of the proposed designation of revised critical habitat, including those costs coextensive with listing and recovery. Discounted future costs are estimated to be approximately $13 million ($0.85 million annualized) at a 3 percent discount rate or approximately $9.6 million ($0.85 million annualized) at a 7 percent discount rate. As described in the draft economic analysis, four entities are anticipated to experience the highest estimated costs. These include California Department of Parks and Recreation (CDPR), with potential economic impacts estimated at approximately $10.5 million (undiscounted) over the next 20 years; the Department of the Army (on former Fort Ord), with potential economic impacts estimated at approximately $3.5 million (undiscounted) over the next 20 years; the University of California (on former Fort Ord), with potential economic impacts estimated at approximately $1.5 million (undiscounted) over the next 20 years; and the Bureau of Land Management (BLM), with potential economic impacts estimated at approximately $0.83 million
(undiscounted) over the next 20 years. Therefore, based on our draft economic analysis, we have determined that the proposed designation of revised critical habitat for C. p. var. pungens will not result in an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in the Federal Register, the Office of Management and Budget (OMB) did not formally review the proposed rule.

Further, Executive Order 12866 directs Federal Agencies promulgating regulations to evaluate regulatory alternatives (Office of Management and Budget, Circular A4, September 17, 2003). Pursuant to Circular A4, once it has been determined that the Federal regulatory action is appropriate, the agency will then need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement under the Act, we must evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat.

In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts pursuant to section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat provided the benefits of such exclusion outweigh the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the species. As such, we believe that the evaluation of the inclusion or exclusion of particular areas, or combination thereof, in a designation constitutes our regulatory alternative analysis. Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based upon our draft economic analysis of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments received, this determination is subject to revision as part of the final rulemaking.

According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

To determine if the proposed designation of revised critical habitat for Chorizanthe pungens var. pungens would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (e.g., residential and commercial development). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies; nonFederal activities are not affected by the designation.

If the proposed revised critical habitat designation is made final, Federal agencies must consult with us under section 7 of the Act if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

In our draft economic analysis of the proposed revised critical habitat designation, we evaluate the potential economic effects on small business entities resulting from conservation actions related to the listing of Chorizanthe pungens var. pungens and proposed designation of revised critical habitat. We determined from our draft analysis that the small business entities that could potentially be affected include one city government (City of Pacific Grove), and one private farm. However, costs were not associated with the City of Pacific Grove or the private farm because of the small likelihood that these landowners would undertake actions to conserve the species in the future. It is unknown at this time whether a third entity, Fort Ord Reuse Authority (FORA), would be classified as a small entity because the local agencies that will receive land from FORA are unknown because the Habitat
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Conservation Plan (HCP) that will provide the framework for distribution and management of former Fort Ord lands has not been completed. Therefore, for the purpose of the draft economic analysis, FORA was not classified as a small entity. From this analysis, we certify that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, an initial regulatory flexibility analysis is not required. Executive Order 13211Energy Supply, Distribution, and Use

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. One critical habitat unit (Prunedale, Unit 7) contains 17 ac (7 ha) of land held in a conservation easement owned by Pacific Gas and Electric Company. Pacific Gas and Electric Company maintains power lines that cross this unit; however, because the company does not plan to develop this land any further, the designation of revised critical habitat is not expected to have an adverse effect on energy production. Although the proposed designation of revised critical habitat for Chorizanthe pungens var. pungens is considered a significant regulatory action under E.O. 12866 because it may raise novel legal and policy issues, it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

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

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Service makes the following findings:
(a) This rule would 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 thenexisting Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,'' if the provision would ``increase the stringency of conditions of assistance'' or ``place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding'' and the State, local, or tribal governments ``lack authority'' to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) ``Federal private sector mandate'' includes a regulation that ``would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.''

The designation of critical habitat does not impose a legally binding duty on nonFederal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. NonFederal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that nonFederal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.
(b) As discussed in the draft economic analysis of the proposed designation of revised critical habitat for Chorizanthe pungens var. pungens, there is expected to be no impact on small governments or small entities. There is no record of consultations between the Service and any of these governments since C. p. var. pungens was listed as threatened on February 4, 1994 (59 FR 5499). It is likely that small governments involved with developments and infrastructure projects would be interested parties or involved with projects involving section 7 consultations for C. p. var. pungens within their jurisdictional areas. Any costs associated with this activity are likely to represent a small portion of a local government's budget. Consequently, we do not believe that the designation of revised critical habitat for the C. p. var. pungens would significantly or uniquely affect these small governmental entities. As such, a Small Government Agency Plan is not required.

Executive Order 12630Takings

In accordance with Executive Order 12630 (``Government Actions and Interference with Constitutionally Protected Private Property Rights''), we have analyzed the potential takings implications of proposing revised critical habitat for Chorizanthe pungens var. pungens. 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. The takings implications assessment concludes that this proposed designation of revised critical habitat for C. p. var. pungens does not pose significant takings implications. Authors

The primary authors of this notice are the staff 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: October 5, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. E720241 Filed 101507; 8:45 am]
BILLING CODE 431055P

FOR FURTHER INFORMATION CONTACT

Diane Steeck, Ecologist, or Connie Rutherford, Listing and Recovery Coordinator, Ventura Fish and Wildlife Office, at the address listed in ADDRESSES (telephone 8056441766; facsimile 8056443958). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800 8778339.