2013-15487. Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Arctostaphylos franciscana

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule; revision and reopening of comment period.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the September 5, 2012, proposed designation of critical habitat for Arctostaphylos franciscana (Franciscan manzanita) under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of the draft economic analysis (DEA) for the proposed critical habitat designation and an amended required determinations section of the proposal. In addition, in this document, we have corrected the acreage calculations for our September 5, 2012, proposal due to a mapping error. We also propose to increase the September 5, 2012, proposed designation of critical habitat for A. franciscana by approximately 73 acres (30 hectares) by adding two additional units in the City and County of San Francisco, California. We are reopening the comment period on the September 5, 2012, proposed rule for an additional 30 days to allow all interested parties an opportunity to comment simultaneously on that proposed critical habitat, the revisions to proposed critical habitat described in this document, the associated DEA, and the amended required determinations section. Comments previously submitted need not be resubmitted and will be fully considered in preparation of the final rule.

DATES:

The comment period for the proposed rule published September 5, 2012 (77 FR 54517), is reopened. We will consider comments received or postmarked on or before July 29, 2013. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES section, below) must be received by 11:59 p.m. Eastern Time on the closing date. Any comments that we receive after the closing date may not be considered in the final decision on this action.

ADDRESSES:

Document availability: You may obtain copies of the DEA and this document on the internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2012-0067, or by mail from the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Written Comments: You may submit written comments by one of the following methods:

(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R8-ES-2012-0067, which is the docket number for this rulemaking.

(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R8-ES-2012-0067; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.

We request that you send comments only by the methods described above. 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:

Karen Leyse, Listing Coordinator, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, California 95825; telephone [phone]; facsimile 916-414-6612. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

We will accept written comments and information during this comment period on our proposed designation of critical habitat for Arctostaphylos franciscana that was published in the Federal Register on September 5, 2012 (77 FR 54517), the revisions to that proposed designation of critical habitat that are described in this document, our DEA of the proposed designation, 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. 1531 et seq.), including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat may not be prudent.

(2) Specific information on:

(a) Areas containing the physical and biological features essential to the conservation of A. franciscana that we should include in the final critical habitat designation and why. Include information on the distribution of these essential features and what special management considerations or protections may be required to maintain or enhance them;

(b) Areas proposed as revised critical habitat that do not contain the physical and biological features essential for the conservation of the species and that should not be designated as critical habitat;

(c) Areas not occupied or not known to be occupied at the time of listing that are essential for the conservation of the species and why; and

(d) Information on the projected and reasonably likely impacts of climate change on A. franciscana and proposed critical habitat and whether the critical habitat may adequately account for these potential effects.

(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.

(4) Information on the new areas that we are proposing for critical habitat designation in this document.

(5) Information that may assist us identifying or clarifying the physical and biological features essential to the conservation of A. franciscana.

(6) Whether any specific areas being proposed as critical habitat for A. franciscana should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. See the Exclusions section of the September 5, 2012, proposed rule (77 FR 54517) for further discussion. We have not proposed to exclude any areas from critical habitat. However, we have received requests from the Presidio Trust and the National Park Service (NPS) to exclude some areas within the proposed Units 1, 2, and some areas within proposed Subunits 3A, 4B, and 5A and all of Subunit 3A at the Presidio. We will examine conservation actions for A. franciscana, including current management planning documents, in our consideration of these areas for exclusion from the final designation of critical habitat for A. franciscana, under section 4(b)(2) of the Act. We specifically solicit comments on the inclusion or exclusion of these areas.

(7) Any foreseeable economic, national security, or other relevant impacts that may result from designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas from the proposed designation that are subject to these impacts.

(8) Information on the extent to which the description of probable economic impacts in the DEA is complete and accurate, and specifically:

(a) Whether there are incremental costs of critical habitat designation (for example, costs attributable solely to the designation of critical habitat for A. franciscana) that have not been appropriately identified or considered in our economic analysis, including costs associated with future administrative costs or project modifications that may be required by Federal agencies related to section 7 consultation under the Act; and

(b) Whether there are additional project modifications that may result from the designation of critical habitat for A. franciscana and what those potential project modifications might represent.

(9) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.

If you submitted comments or information on the proposed rule (77 FR 54517) during the initial comment period from September 5, 2012, to November 5, 2012, 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 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 the proposed revised rule or DEA 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, this document, and the DEA, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R8-ES-2012-0067, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule (77 FR 54517), this document, and the DEA on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2012-0067, or by mail from the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Background

It is our intent to discuss only those topics directly relevant to the designation of critical habitat for Arctostaphylos franciscana in this document. For more information on previous Federal actions concerning A. franciscana, refer to the proposed designation of critical habitat published in the Federal Register on September 5, 2012 (77 FR 54517). For more information on the taxonomy or biology of A. franciscana or its habitat, refer to the final listing rule published in the Federal Register on September 5, 2012 (77 FR 54434), which is available online at http://www.regulations.gov (at Docket No. FWS-R8-ES-2010-0049 or from the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). More information on A. franciscana and its habitat is also available in the Recovery Plan for Coastal Plants of the Northern San Francisco Peninsula (Service 2003), which is available from the Environmental Conservation Online System (ECOS) (http://ecos.fws.gov/​ecos) and the Sacramento Fish and Wildlife Office Web site (http://www.fws.gov/​sacramento/​).

Previous Federal Actions

On September 5, 2012, we published a final rule to list A. franciscana (77 FR 54434) and a proposed rule to designate critical habitat for A. franciscana (77 FR 54517). We proposed to designate as critical habitat approximately 318 acres (ac) (197 hectares (ha)) that we have now corrected to 197 ac (80 ha) in 11 units located in the City and County of San Francisco, California. That proposal had a 60-day comment period, ending November 5, 2012. We will submit for publication in the Federal Register a final critical habitat designation for A. franciscana after we receive public comment on the revisions to the proposed critical habitat described in this document, the DEA, and the amended required determinations provided in this document.

Critical Habitat

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 critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.

Corrections to the Proposed Critical Habitat

We have corrected the acreage calculations for our September 5, 2012, proposal (77 FR 54517) due to a mapping error. The September 5, 2012, proposal identified 318 ac (129 (ha); the corrected total acreage is 197 ac (80 ha) for the 11 units proposed (see Revisions to Proposed Critical Habitat). We are providing corrected acreage because we have learned that our original acreage calculations were inadvertently made using a map projection that is used for web-based mapping (WGS84) rather than the local area projection used as a standard by the Service (UTM NAD83). The WGS84 projection is not designed for accurate local area measurement and resulted in inflated acreages, which have been corrected. The total acreage that we proposed has been recalculated, resulting in a total acreage of 197 ac (80 ha) proposed in the September 5, 2012, proposed rule (77 FR 54517). Please see Table 1 for revised acreages for each of these units.

Table 1—Critical Habitat Units for Arctostaphylos Franciscana Proposed on September 5, 2012 (77 FR 54517): Published and Corrected Acreages

[Area estimates reflect all land within critical habitat unit boundaries.]

Critical habitat unit	Land ownership by type	Published acres (hectares)	Corrected acres (hectares)
1. Fort Point	Federal	12 (5)	7.7 (3.1)
	State	0	0
	Local	0	0
	Private	0	0
2. Fort Point Rock	Federal	36 (15)	21.3 (8.6)
	State	0	0
	Local	0	0
	Private	0	0
3A. World War II Memorial	Federal	1 (0.6)	0.8 (0.3)
	State	0	0
	Local	0	0
	Private	0	0
3B. World War II Memorial	Federal	2 (0.7)	1.1 (0.5)
	State	0	0
	Local	0	0
	Private	0	0
4A. Immigrant Point	Federal	0.7 (0.3)	0.4 (0.2)
	State	0	0
	Local	0	0
	Private	0	0
4B. Immigrant Point	Federal	6 (3)	4.0 (1.6)
	State	0	0
	Local	0	0
	Private	0	0
5A. Inspiration Point	Federal	21 (9)	13.2 (5.4)
	State	0	0
	Local	0	0
	Private	0	0
5B. Inspiration Point	Federal	3 (1)	2.1 (0.9)
	State	0	0
	Local	0	0
	Private	0	0
6. Corona Heights	Federal	0	0
	State	0	0
	Local	10 (4)	6.1 (2.5)
	Private	0	0
7. Twin Peaks	Federal	0	0
	State	0	0
	Local	62 (25)	42.2 (17.1)
	Private	9 (4)	1.6 (0.6)
8. Mount Davidson	Federal	0	0
	State	0	0
	Local	11 (4)	6.6 (2.6)
	Private	1 (0.5)	0.7 (0.3)
9. Diamond Heights	Federal	0	0
	State	0	0
	Local	34 (14)	21.3 (8.6)
	Private	0.3 (0.1)	0*
10. Bernal Heights	Federal	0	0
	State	0	0
	Local	24 (10)	14.9 (6.0)
	Private	0.3 (0.1)	0
11. Bayview Park	Federal	0	0
	State	0	0
	Local	56 (23)	42.2 (17.1)
	Private	29 (12)	11.0 (4.4)
Total	Federal	83 (34)
	State	0	0
	Local	196 (79)
	Private	40 (16)
	Total acreage	318 (129)	197.3 (79.8)
Note: Area sizes may not sum due to rounding. Acreages are carried out to one decimal place to show small units. Areas less than 0.1 ac are denoted as 0*.

Revisions to Proposed Critical Habitat Designation

On September 5, 2012, we proposed 11 units, consisting of approximately 318 ac (129 ha) in City and County of San Francisco, California, as critical habitat for Arctostaphylos franciscana (77 FR 54517). As stated above, we are correcting the acreage of the original proposal to a total of 197 ac (80 ha).

We are now proposing to increase the designation by approximately 73 ac (30 ha) to a total of approximately 270 ac (109 ha) in 13 critical habitat units in the City and County of San Francisco, California. We propose this increase based on additional information on habitat suitability that San Francisco Parks and Recreation Department (SFPRD) staff provided to us. The additional areas include: Two subunits in Unit 9 (Diamond Heights) so that the unit now consists of three subunits; and two new units at McLaren Park: Unit 12 (McLaren Park East), which consists of two subunits, and Unit 13 (McLaren Park West). Below, under Revised Proposed Critical Habitat: Additional Units, we provide an updated unit description for proposed Unit 9 and unit descriptions for proposed Units 12 and 13. We also modified the methods we used to delineate the proposed critical habitat; see “Methods” below.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. We review available information pertaining to the habitat requirements of the species. In accordance with the Act and its implementing regulations at 50 CFR 424.12(e), we consider whether designating additional areas—outside those currently occupied as well as those occupied at the time of listing, if listing occurs before the designation of critical habitat—are necessary to ensure the conservation of the species. We are proposing to designate critical habitat in areas within the geographical area currently occupied by the species (see final listing determination published in the Federal Register on September 5, 2012 (77 FR 54434)). We also are proposing to designate specific areas outside the geographical area occupied by the species at the time of listing (in this case, the geographical area currently occupied by the species), which were historically occupied but are presently unoccupied, because such areas are essential for the conservation of the species.

This section provides details of the criteria and process we used to delineate the proposed critical habitat for Arctostaphylos franciscana. The areas being proposed for critical habitat within this document and previous proposed rule are based largely on habitat characteristics identified from the “rediscovery site” near Doyle Drive, the currently occupied transplantation site, and historically occupied areas identified in voucher specimens and historical records. We also used the Recovery Plan for Coastal Plants of the Northern San Francisco Peninsula (Service 2003, pp. 1-322); the Conservation Plan for Arctostaphylos franciscana (the Franciscan Manzanita) (Chasse et al. 2009, pp. 1-44); the Raven's Manzanita Recovery Plan (Service 1984, pp. 1-73), which provide habitat characteristics of the historically co-occurring species; and information received from peer reviewers and the public on our proposed listing for A. franciscana (76 FR 55623; September 8, 2011). Due to the rapid development of the San Francisco peninsula and limited historical information on plant location and distribution, it is difficult to determine the exact range of the species. Given the amount of remaining habitat available with the appropriate characteristics, we looked at all areas within the vicinity of San Francisco that met our criteria as potential habitat. Based on this information, we propose to designate critical habitat in areas within the geographical area currently occupied by A. franciscana (which is the same as the geographical area occupied by the species at the time of listing) and unoccupied areas that are essential for the conservation of the species (see the Distribution and Habitat section in the September 5, 2012, proposed designation (77 FR 54517) for more information on the range of the species.

Although a recovery plan for Arctostaphylos franciscana has not been developed, the species is discussed along with the endangered A. hookeri ssp. ravenii (Raven's manzanita) in the Recovery Plan for Coastal Plants of the Northern San Francisco Peninsula (Service 2003). The taxonomic name for Raven's manzanita has been changed to A. montana ssp. ravenii. The recovery plan calls for a three-part strategy in conserving A. montana ssp. ravenii, as well as additional recommendations for establishment in areas outside the Presidio at historic and other rock outcrop sites in conjunction with A. franciscana (Service 2003, pp. 75-77). The strategy includes: (1) Protecting the existing plant and surrounding habitat; (2) increasing the number of independent populations throughout suitable habitat within the Presidio; and (3) restoring the natural ecological interactions of the species with its habitat, including allowing gene flow with A. franciscana. As mentioned above, the recovery plan also identifies establishing additional areas, along with populations of A. franciscana, within rock outcrops throughout suitable habitat. We believe that a recovery strategy for A. franciscana would be similar to the recovery strategy for A. montana ssp. ravenii in many aspects, based on: (1) The existence of only one “wild” individual of each species; (2) the species' co-occurrence in similar habitat within the Presidio and elsewhere at historical locations; and (3) the seeming dependence of A. montana ssp. ravenii on A. franciscana to produce viable seed and maintain gene flow with A. franciscana in the absence of more than the single individual or clones of A. montana ssp. ravenii. In order to accomplish portions of this strategy, we have identified areas we believe are essential to the conservation of A. franciscana through the following criteria:

(1) Determine, in accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, the physical or biological habitat features essential to the conservation of the species and which may require special management considerations or protection.

(2) Identify multiple independent sites for A. franciscana. These sites should be throughout the historic range of the species (generally on the San Francisco peninsula north of Mount Davidson) within or near rock outcrops of various origins but especially on ridges or slopes within serpentine or greenstone formations along the Franciscan fault zone between Potrero Hills and the Golden Gate (see Figure 2 in the September 5, 2012, proposed rule at 77 FR 54517).

(3) In accordance with section 2(b) of the Act, select areas that would conserve the ecosystem upon which the species depends. This includes areas that contain the natural ecological interactions of the species with its habitat or areas with additional management that may be enhanced. The conservation of A. franciscana is dependent on several factors including, but not limited to, selection of areas of sufficient size and configuration to sustain natural ecosystem components, functions, and processes (such as full sun exposure, summer fog, natural fire and hydrologic regimes, intact mycorrhizal or edaphic interactions); protection of existing substrate continuity and structure; connectivity among groups of plants of this species within geographic proximity to facilitate gene flow among the sites through pollinator activity and seed dispersal; and sufficient adjacent suitable habitat for vegetative reproduction and population expansion.

(4) In selecting areas to propose as critical habitat, consider factors such as size, connectivity to other habitats, and rangewide recovery considerations. We rely upon principles of conservation biology, including: (a) Resistance and resiliency, to ensure sufficient habitat is protected throughout the range of the species to support population viability (e.g., demographic parameters); (b) redundancy, to ensure multiple viable populations are conserved throughout the species' range; and (c) representation, to ensure the representative genetic and life history of A. franciscana are conserved.

We have determined that the additional units and subunits we are proposing as critical habitat in this document are essential for the conservation and recovery of A. franciscana because they provide the physical or biological features necessary for the reestablishment of wild populations of A. franciscana within the species' historical range. Due to the small number of individual plants and low population size, suitable habitat and space for expansion or reintroduction are essential to achieving population levels that would be necessary for recovery.

We have identified the additional units and subunits in part because of information indicating that some critical habitat units may be or may become unsuitable for A. franciscana because of soilborne pathogens or plant diseases. Therefore, it is important to identify as many independent units as feasible to increase the odds that at least some of these would remain free of these pathogens into the foreseeable future (Swiecki 2013, p. 3). The additional units proposed below provide further resistance, resiliency, and redundancy. Additionally, the McLaren Park West and McLaren Park East units would provide connectivity between the Bayview Park and Diamond Heights units.

Methods

In order to identify the physical or biological features on the ground based on our criteria outlined above, we used the following methods to delineate the proposed critical habitat:

(1) We compiled and reviewed all available information on A. franciscana habitat and distribution from historic voucher specimens, literature, and reports.

(2) We also compiled and reviewed all available information on A. montana ssp. ravenii habitat and distribution from similar sources, as these two species have similar habitat requirements and often occurred together historically.

(3) We reviewed available information on rock outcrops, bedrock, and areas identified as serpentine, greenstone, or of Franciscan formation within the San Francisco peninsula and surrounding areas south of Mount Davidson and north into Marin County to determine the extent of these features on the landscape.

(4) We compiled species occurrence information including historic record locations, the current occupied site within the Presidio, and information on the “rediscovery site” near Doyle Drive.

(5) We then compiled all this information into a Geographic Information System (GIS) database using ESRI ArcMap 10.0.

(6) We screen digitized and mapped the specific areas on which are found those physical or biological features essential to the conservation of the species or other areas determined to be essential for the conservation of the species.

Additionally, in the analysis for the additional areas we are proposing as critical habitat in this document, we used the following methods to delineate the proposed critical habitat:

(1) We used additional information we received about the suitability of habitat through our November 15, 2012, site visit and discussions with SFPRD staff. In our analysis for the proposed rule we had missed portions of Diamond Heights and McLaren Park as appropriate habitat.

(2) We examined higher-resolution imagery (0.3 meter pixel resolution versus 1.0 meter pixel resolution that was used in the September 5, 2012, proposed critical habitat). We used U.S. Geological Survey High Resolution Orthoimage USNG 10SEG325910. Orthoimage are remotely sensed image data in which the displacement of features in the image caused by terrain relief and sensor orientation have been mathematically removed. The natural color orthoimages were produced at 0.3-meter (approximately 1-foot) pixel resolution. We reviewed the remaining habitat available with the appropriate characteristics. We looked at all additional areas within San Francisco City and County that met our criteria as potential critical habitat. We double-checked suitable habitat we located against imagery that was used in the September 5, 2012, critical habitat.

(3) We mapped critical habitat. The image data were acquired between October 20, 2003, and January 21, 2004, using North American Datum (NAD) 83 Universal Transverse Mercator Zone 10N coordinates.

When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical and biological features for A. franciscana. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands, especially within such an urbanized area as San Francisco. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of the proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical and biological features in the adjacent critical habitat.

The units of critical habitat are proposed for designation based on sufficient elements of physical or biological features being present to support life-history processes for A. franciscana. Some units contain all of the identified elements of physical or biological features and support multiple life-history processes. Some units contain only some elements of the physical or biological features necessary to support the use of that habitat by A. franciscana.

The critical habitat designation is defined by the maps, as modified by any accompanying regulatory text, presented at the end of this document in the Proposed Regulation Promulgation section. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points, or both, on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R8-ES-2012-0067, on our Internet site at http://www.fws.gov/​sacramento,, and at the Fish and Wildlife office responsible for the designation (see FOR FURTHER INFORMATION CONTACT above).

Revised Proposed Critical Habitat: Additional Units

We are now proposing to increase the proposed critical habitat designation for Arctostaphylos franciscana by: Adding two subunits to Unit 9 (Diamond Heights) so that the unit now consists of three subunits; and by adding two additional units at McLaren Park: Unit 12 (McLaren Park East), which consists of two subunits, and Unit 13 (McLaren Park West). The additional units provide an increase of approximately 73 ac (30 ha) above the September 5, 2012, proposed designation (77 FR 54517). We have updated the unit description for proposed Unit 9, and we have added unit descriptions for proposed Units 12 and 13. Please refer to the September 5, 2012, proposed designation (77 FR 54517) for information on the other proposed units. Table 2 shows the occupancy status of the newly proposed subunits of Unit 9, and Units 12, and 13, while Table 3 provides the acreage of each of those areas, by subunit.

Table 2—Occupancy of Arctostaphylos Franciscana in Revised and Newly Proposed Critical Habitat Units

Unit	Occupied at time of listing?	Currently occupied?
9. Diamond Heights	No	No.
12. McLaren Park East	No	No.
13. McLaren Park West	No	No.

Table 3—Revised and Newly Proposed Critical Habitat Units for Arctostaphylos Franciscana

[Area estimates reflect all land within critical habitat boundaries]

Critical habitat unit	Land ownership by type	Acres (hectares)
9A. Diamond Heights *	Federal	0 (0)
	State	0 (0)
	Local	21.3 (8.6)
	Private	0 *
9B. Diamond Heights	Federal	0 (0)
	State	0 (0)
	Local	5.7 (2.3)
	Private	0 (0)
9C. Diamond Heights	Federal	0 (0)
	State	0 (0)
	Local	8.2 (3.3)
	Private	3.2 (1.3)
12A. McLaren Park East	Federal	0 (0)
	State	0 (0)
	Local	14.3 (5.8)
	Private	0 (0)
12B. McLaren Park East	Federal	0 (0)
	State	0 (0)
	Local	12.3 (5.0)
	Private	0 (0)
13. McLaren Park West	Federal	0 (0)
	State	0 (0)
	Local	29.7 (12.0)
	Private	0 (0)
Total	Federal	0 (0)
	State	0 (0)
	Local	91.5 (37)
	Private	3.2 (1.3)
Note: Area sizes may not sum due to rounding. Total includes subunit 9A which was included in the September 5, 2012 proposal (77 FR 54517). Acreages are carried out to one decimal place to show small units. Areas less than 0.1 ac are denoted as 0*.
* Subunit 9A was known as Unit 9 in the September 5, 2012, proposed critical habitat. Subunit 9A has not changed in acreage or configuration.

Unit 9: Diamond Heights

Unit 9 consists of a total of approximately 38 ac (16 ha) and is located near Diamond Heights Boulevard (Blvd.) south of Turquoise Way, and O'Shaughnessy Blvd. This unit is comprised of three subunits. Subunit 9A (22 ac (9 ha)), which is located near Diamond Heights Blvd. south of Turquoise Way, was proposed as Unit 9 in the proposed rule published on September 5, 2012 (77 FR 54517). Subunit 9B (6 ac (2 ha)) is located east of O'Shaughnessy Blvd., and subunit 9C (11 ac (4 ha)) is located west of O'Shaughnessy Blvd. Unit 9 is currently unoccupied. The unit is within an area that: Experiences summer fog; is located on sloping terrain; and contains Franciscan Complex (greenstone) bedrock outcrops of chert, volcanic, and sedimentary materials, as well as soils derived from these formations; and open grassland habitat. The unit represents one of several areas identified for the species within the Mount Davidson area. Mount Davidson is the only site still remaining that was known to be previously occupied by the species. The units in this area would assist in establishing populations of A. franciscana outside the Presidio. The additional subunits provide additional rock outcrop areas within the matrix of natural land. As a result, we have determined that the area is essential for the conservation of the species, because it provides for one of multiple independent sites for A. franciscana and contains some of the last remaining appropriate habitat within the area.

Unit 12: McLaren Park East

Unit 12 consists of a total of approximately 27 ac (11 ha) and is located at McLaren Park south of Mansell Street (St.) near Visitacion Avenue (Ave.). This unit is comprised of two subunits. Subunit 12A (14 ac (6 ha)) is located south of Mansell St. and west of Visitacion Ave. Subunit 12B (12 ac (5 ha)) is located south of Mansell St. and east of Visitacion Ave. This unit is currently unoccupied. The unit is within an area that experiences summer fog and is located on sloping terrain. It contains Franciscan Complex (greenstone) bedrock and serpentine outcrops, soils derived from these formations, and open grassland habitat. This unit would assist in establishing an additional population of A. franciscana outside the Presidio and Mount Davidson areas. This unit and Unit 13 (McLaren Park West) are located roughly midway between the remaining appropriate habitat at Diamond Heights and Bayview Park and thereby provide increased connectivity between these units. As a result, we have determined that the area is essential for the conservation of the species, because it provides for one of multiple independent sites for A. franciscana, contains some of the last remaining appropriate habitat within the area, and provides additional connectivity between Unit 9 (Diamond Heights) and Unit 11 (Bayview Park).

Unit 13: McLaren Park West

Unit 13 consists of approximately 30 ac (12 ha) and is located at McLaren Park between Geneva Ave. and Sunnydale Ave. This unit is currently unoccupied. The unit is within an area that experiences summer fog; is located on sloping terrain; and contains Franciscan Complex (greenstone) bedrock outcrops of volcanic materials, soils derived from these formations, and open grassland habitat. Including this unit would assist in establishing additional populations of A. franciscana outside the Presidio and Mount Davidson areas. This unit and Unit 12 (McLaren Park East) are located roughly midway between remaining appropriate habitat at Diamond Heights and Bayview Park. As a result, we have determined that the area is essential for the conservation of the species, because it provides for one of multiple independent sites for A. franciscana, contains some of the last remaining appropriate habitat within the area, and provides connectivity between Unit 9 (Diamond Heights) and Unit 11 (Bayview Park).

Consideration of Impacts Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific 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 may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.

When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.

When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. In the case of A. franciscana, the benefits of critical habitat include public awareness of the presence of A. franciscana and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for A. franciscana 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.

We have not proposed to exclude any areas from critical habitat. However, we will review the requests from NPS, the Presidio Trust, and the public to exclude some areas within proposed Units 1, and 2, and some areas within proposed Subunits 3B, 4B, and 5A, as well as all of Subunit 3A at the Presidio. NPS wrote in support of an exclusion for portions of Units 1 and 2 where NPS plans remediation of contaminated soils and other cultural resource management. NPS and the Presidio Trust requested an exclusion for portions of Subunit 3B and all of Subunit 3A because of concerns that designating these subunits will impair their abilities to manage habitat for the federally endangered A. montana ssp. ravenii (Ravens' manzanita), threatened Hesperolinon congestum (Marin dwarf-flax), and endangered Presidio clarkia (Clarkia franciscana); H. congestum and C. franciscana require a more open serpentine grassland habitat than does A. franciscana. The Presidio Trust requested an exclusion for portions of Subunits 4B and 5A due to their designations as an historic forest zone within their vegetation management plan, the lack of suitable soils for A. franciscana, and/or concerns that designating these subunits will impair the Trust's abilities to manage habitat for H. congestum and C. franciscana. The final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a DEA concerning the proposed critical habitat designation, which is available for review and comment (see ADDRESSES).

Draft Economic Analysis

The purpose of the DEA is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for A. franciscana. The DEA describes the economic impacts of all potential conservation efforts for A. franciscana; some of these costs will likely be incurred regardless of whether we designate critical habitat. The economic impact of the proposed critical habitat designation 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 (e.g., 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. 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 when evaluating the benefits of excluding particular areas under section 4(b)(2) of the Act. The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts both baseline and incremental impacts likely to occur if we finalize the proposed critical habitat designation. For a further description of the methodology of the analysis, see Chapter 2, “Methodology,” of the DEA.

The DEA provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for A. franciscana over the next 20 years (2013 to 2032), which was determined to be the appropriate period for analysis because limited planning information is available for most activities to forecast activity levels for projects beyond a 20-year timeframe. It identifies potential incremental costs as a result of the proposed critical habitat designation; these are those costs attributed to critical habitat over and above those baseline costs attributed to listing.

The DEA quantifies economic impacts of A. franciscana conservation efforts associated with the following categories of activity: (1) NPS and Presidio Trust management and habitat restoration activities; (2) NPS and Presidio Trust soil remediation activities; (3) road maintenance and construction activities; (4) broadcast facility maintenance and construction activities; and (5) other activities, such as SFPRD trail maintenance and species reintroduction. The DEA considers both economic efficiency and distributional effects that may result from efforts to protect A. franciscana and its habitat. Economic efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources required to accomplish species and habitat conservation. The DEA also addresses how potential economic impacts are likely to be distributed.

The DEA concludes that incremental impacts resulting from the critical habitat designation would be limited to additional administrative costs of section 7 consultation. Estimating the impact of a regulation on future outcomes is inherently uncertain. Administrative time for consultations and other additional costs are project dependent and exhibit wide variability. The timing of future projects affects the present value of the cost estimates because of the time value of money, but the precise timing is uncertain. The quantity and type of future consultations will be influenced by economic, demographic, political, and biological variables that cannot be forecast precisely.

The DEA estimates total potential incremental economic impacts in areas proposed as critical habitat over the next 20 years (2013 to 2032) to be approximately $28,222 ($1,411 annualized) in present-value terms applying a 7 percent discount rate (RTI International 2013, pp. ES-2 and 3-2). NPS and the Presidio Trust manage lands within the four proposed unoccupied critical habitat units (Units 1, 2, 3, and 4) and the one proposed occupied critical habitat unit (Unit 5) on Federal lands at the Presidio. The remaining proposed critical habitat units (Units 6 through 13) occur on non-Federal lands unoccupied by A. franciscana. The primary incremental economic impacts are administrative costs associated with section 7 consultations with NPS and the Presidio Trust on their activities within proposed Units 1, 2, 3, and 4.

Administrative costs associated with section 7 consultations on a variety of NPS and Presidio Trust activities (including NPS and Presidio Trust management plans, soil remediation, and unspecified activities) on Federal lands in proposed occupied and unoccupied critical habitat (Units 1, 2, 3, 4, and 5) account for approximately 91 percent of the forecast undiscounted incremental impacts (RTI International 2013, pp. ES-2 and 3-2). Within these administrative costs, the largest incremental economic impacts are associated with section 7 consultations with NPS and the Presidio Trust for unspecified activities within Units 1, 2, 3, 4, and 5; these unspecified consultations represent approximately 75 percent of the total undiscounted incremental costs and are expected to total $32,672 (undiscounted) over the 20-year period, with costs of formal consultations distributed evenly among all 5 units and costs of informal consultations distributed evenly among the 4 unoccupied units (RTI International 2013, pp. ES-2 and p. 3-2).

The second largest incremental economic impact is associated with section 7 consultations with NPS and the Presidio Trust for soil remediation activities within Units 1 and 2. These consultations represent approximately 19 percent of the total undiscounted incremental costs and are expected to total $8,083 over the 20-year period distributed evenly between the two units (RTI International 2013, p. ES-2) (all soil remediation activities are anticipated to occur within the first year, and, therefore are not discounted) (RTI International 2013, p. 3-5).

The third largest incremental economic impact is associated with section 7 consultations on federally funded trail maintenance on SFRPD lands within proposed unoccupied critical habitat Units 12 and 13. These consultations represent approximately 6 percent of the total undiscounted incremental costs and are expected to total $2,690 (undiscounted) over the next 20 years distributed evenly between the two units (RTI International 2013, p. ES-2). The SFRPD is estimated to incur costs of approximately $363 from these consultations, with the remaining costs accruing to the Service and the Federal action agency (RTI International 2013, p. ES-3).

The fourth largest incremental economic impact is associated with the reinitiation of section 7 consultation with NPS and the Presidio Trust for their management plans within proposed critical habitat Units 1 through 5. This consultation represents approximately 0.4 percent of the total incremental costs and is expected to total $115 over the 20-year period, distributed evenly among the five units (the reinitiation of consultation on the NPS and Presidio Trust management plans is anticipated to occur within the first year and, therefore, is not discounted).

With regard to other activities on non-Federal lands, the potential for Federal nexus is very low. Therefore, no consultations were estimated for miscellaneous activities on non-Federal land within Units 6 through 11. Thus, there are no anticipated incremental economic impacts associated with the designation of critical habitat within Units 6 through 11. The only other consultations that may be anticipated on non-Federal lands include reintroduction of A. franciscana into areas where other endangered species, such as the mission blue butterfly (Icaricia icarioides missionensis), are present. Reintroduction consultations are likely to be intra-Service, and costs are likely to be minimal and administrative in nature. Furthermore, the costs would be considered baseline costs.

Regarding road maintenance and construction, the California Department of Transportation indicated in a personal communication that any projects on the roads adjacent to the proposed units would not likely affect the A. franciscana or the proposed critical habitat; additionally, no projects are anticipated (RTA International 2013, pp. 3-1, 3-6). Similarly, no maintenance and construction projects related to radio and broadcast towers are expected to affect A. franciscana or the proposed critical habitat (RTA International 2013, pp. 3-1, 3-6). Lastly, any consultation regarding species reintroduction would be considered intra-Service consultation and consist of little (if any) administrative effort.

As stated earlier, we are soliciting data and comments from the public on the DEA, as well as on all aspects of the proposed rule, the revisions to that proposed rule that are described in this document, and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the 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, provided the exclusion will not result in the extinction of this species.

Required Determinations—Amended

In our September 5, 2012, proposed rule (77 FR 54517), 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 data to make these determinations. In this document, we affirm the information in our proposed rule concerning Executive Orders (E.O.s) 12866 and 13563 (Regulatory Planning and Review), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). However, based on the DEA data, we are amending our required determination concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and E.O. 12630 (Takings).

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

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 effects 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 the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. Based on our DEA of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of our final rulemaking.

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

To determine if the proposed designation of critical habitat for A. franciscana would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as habitat restoration activities; road maintenance and construction; broadcast facility maintenance and construction; and trail maintenance. In order to determine whether it is appropriate for our agency to certify that this proposed 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. In areas where A. franciscana 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 the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

In the DEA, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for A. franciscana. Because the Service, Presidio Trust, NPS, and the SFRPD are the only entities with expected direct compliance costs and are not considered small entities, this rule would not result in any impact to small entities. Please refer to the DEA of the proposed critical habitat designation for a more detailed discussion of potential economic impacts.

The Service's current understanding of recent case law is that Federal agencies are only required to evaluate the potential impacts of rulemaking on those entities directly regulated by the rulemaking; therefore, they are not required to evaluate the potential impacts to those entities not directly regulated. The designation of critical habitat for an endangered or threatened species only has a regulatory effect where a Federal action agency is involved in a particular action that may affect the designated critical habitat. Under these circumstances, only the Federal action agency is directly regulated by the designation, and, therefore, consistent with the Service's current interpretation of RFA and recent case law, the Service may limit its evaluation of the potential impacts to those identified for Federal action agencies. Under this interpretation, there is no requirement under the RFA to evaluate potential impacts to entities not directly regulated, such as small businesses. However, Executive Orders 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consequently, it is the current practice of the Service to assess to the extent practicable these potential impacts, if sufficient data are available, whether or not this analysis is believed by the Service to be strictly required by the RFA. In other words, while the effects analysis required under the RFA is limited to entities directly regulated by the rulemaking, the effects analysis under the Act, consistent with the E.O. regulatory analysis requirements, can take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable.

In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. Information for this analysis was gathered from the Small Business Administration, stakeholders, and the Service. Because the Service, Presidio Trust, NPS and SFRPD are the only entities with expected direct compliance costs and are not considered small entities, this rule would not result in a significant impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.

Executive Order 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 designating critical habitat for Arctostaphylos franciscana 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 allow actions that do require Federal funding or permits to go forward. The takings implications assessment concludes that this proposed designation of critical habitat does not pose significant takings implications for lands within or affected by the designation. However, we will further evaluate this issue as we complete our final economic analysis, and review and revise this assessment as appropriate.

References Cited

A complete list of all references we cited in the September 5, 2012, proposed rule and in this document is available on the Internet at http://www.regulations.gov under Docket No. FWS-R8-ES-2012-0067 or by contacting the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Authors

The primary authors of this notice are the staff members of the Sacramento Fish and Wildlife Office, Region 8, U.S. Fish and Wildlife Service.

List of Subjects in 50 CFR Part 17

• Endangered and threatened species
• Exports
• Imports
• Reporting and recordkeeping requirements
• Transportation

Proposed Regulation Promulgation

Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, which was proposed to be amended at 77 FR 54517, September 5, 2012, as set forth below:

PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; unless otherwise noted.

2. In § 17.96(a), amend the entry for “Family Ericaceae: Arctostaphylos franciscana (Franciscan manzanita)” by:

a. Revising the index map at paragraph (a)(5);

b. Revising paragraph (a)(14); and

c. Adding paragraphs (a)(17) and (18).

These revisions and additions read as follows:

§ 17.96

Critical habitat—plants.

* * * * *

(a) * * *

Family Ericaceae: Arctostaphylos franciscana (Franciscan manzanita)

* * * * *

(5) Index map follows:

* * * * *

(14) Unit 9: Diamond Heights, San Francisco County, California. Map of Unit 9 follows:

* * * * *

(17) Unit 12: McLaren Park East, San Francisco County, California. Map of Unit 12 follows:

(18) Unit 13: McLaren Park West, San Francisco County, California. Map of Unit 13 follows:

* * * * *

Dated: June 20, 2013.

Rachel Jacobson,

Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.