[Federal Register: July 3, 2006 (Volume 71, Number 127)]
[Proposed Rules]               
[Page 37881-37886]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU30

Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the Southern California Distinct 
Vertebrate Population Segment of the Mountain Yellow-Legged Frog (Rana 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of public comment period and notice of 
availability of draft economic analysis.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the proposed designation of 
critical habitat for the southern California distinct vertebrate 
population segment of the mountain yellow-legged frog (Rana muscosa), 
and the availability of a draft economic analysis of the proposed 
designation of critical habitat. The draft economic analysis estimates 
the potential total future impacts, including costs resulting from 
modifications to fishing and other types of activities, to range from 
$11.4 million to $12.9 million (undiscounted) over 20 years. Discounted 
future costs are estimated to be $7.5 million to $8.9 million over this 
same time period ($704,000 to $842,000 annually) using a real rate of 
seven percent, or $9.3 million to $10.8 million ($626,000 to $725,000 
annually) using a real rate of three percent. We are reopening the 
comment period to allow all interested parties an opportunity to 
comment simultaneously on the proposed rule and the associated draft 
economic analysis. Comments previously submitted on the proposed rule 
need not be resubmitted as they have already been incorporated into the 
public record and will be fully considered in our final determination.

DATES: We will accept public comments and information until July 24, 

ADDRESSES: Written comments and materials may be submitted to us by any 
one of the following methods:
    1. You may submit written comments and information to Jim Bartel, 
Field Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley 
Road, Carlsbad, CA 92011.
    2. You may hand-deliver written comments and information to our 
Carlsbad Fish and Wildlife Office at the above address.
    3. You may fax your comments to 760/431-9624.
    4. You may send your comments by electronic mail (e-mail) to 
FW1CFWO_MYLFPCH@fws.gov. For directions on how to submit e-mail 

comments, see the ``Public Comments Solicited'' section.
    5. You may submit comments via the Federal Rulemaking Portal: 
http://www.regulations.gov. Follow the instructions for submitting 


[[Page 37882]]

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, at the address listed in ADDRESSES (telephone 
760/431-9440; facsimile 760/431-9624).


Public Comments Solicited

    We will accept written comments and information during this 
reopened comment period. We solicit comments on the original proposed 
critical habitat designation, published in the Federal Register on 
September 13, 2005 (70 FR 54106), and on our draft economic analysis of 
the proposed designation. We will consider information and 
recommendations from all interested parties. We are particularly 
interested in comments concerning:
    (1) Specific information on the southern California distinct 
vertebrate population segment (DPS) of the mountain yellow-legged frog, 
such as the locations of known occurrences of individuals or 
subpopulations; the dispersal behavior and distances of adults, 
juveniles and tadpoles; the developmental time of tadpoles and their 
habitat requirements throughout the year; genetic information on the 
mountain yellow-legged frog;, recreation impacts; and impacts of non-
native predators;
    (2) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Endangered Species 
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), including 
whether it is prudent to designate critical habitat;
    (3) Specific information as to whether the physical and biological 
features we have identified as being essential to the conservation of 
the frog are accurate and whether they exist on those areas we have 
identified as occupied;
    (4) If those unoccupied areas proposed to be designated are all 
essential to the conservation to the species;
    (5) Whether the benefit of exclusion of any particular area 
outweighs the benefit of inclusion under section 4(b)(2) of the Act, in 
particular the lands proposed for exclusion in the proposed rule (non-
Federal lands within existing Public/Quasi Public (PQP) lands, proposed 
conceptual reserve design lands, and lands targeted for conservation 
within the Western Riverside County Multiple Species Habitat 
Conservation Plan);
    (6) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (7) Information on any foreseeable economic, national security, or 
other potential impacts resulting from the proposed designation and, in 
particular, any impacts on small entities or families;
    (8) Information on whether the draft economic analysis identifies 
all State and local costs attributable to the proposed critical habitat 
designation. If not, what other costs should be included;
    (9) Information on whether the draft economic analysis makes 
appropriate assumptions regarding current practices and likely 
regulatory changes imposed as a result of the listing of the species or 
the designation of critical habitat;
    (10) Information on whether the draft economic analysis correctly 
assesses the effect on regional costs associated with land- and water-
use controls that may derive from the designation of critical habitat;
    (11) Information on whether the designation will result in 
disproportionate economic impacts to specific areas that should be 
evaluated for possible exclusion from any final critical habitat 
    (12) Information on whether the economic analysis appropriately 
identifies all costs that could result from the critical habitat 
    (13) Information on whether there are areas that could be used as 
substitutes for the economic activities planned in critical habitat 
areas that would offset the costs and allow for the conservation of 
critical habitat areas; and
    (14) Information on 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.
    All previous comments and information submitted during the initial 
comment period on the proposed rule need not be resubmitted. 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 section). Our final determination concerning 
designation of critical habitat for the mountain yellow-legged frog 
will take into consideration all comments and any additional 
information received during both comment periods. On the basis of 
public comment on the critical habitat proposal, the draft economic 
analysis, 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 wish to submit comments electronically, please submit them 
in an ASCII format and avoid the use of any special characters or any 
form of encryption. Also, please include ``Attn: Mountain Yellow-Legged 
Frog'' and your name and return address in your e-mail message. If you 
do not receive a confirmation from the system that we have received 
your e-mail message, please contact the person listed under FOR FURTHER 
INFORMATION CONTACT or submit your comments in writing using one of the 
alternate methods listed in the ADDRESSES section. Please note that the 
Internet address FW1CFWO_MYLFPCH@fws.gov will be closed at the 
termination of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address, which we will honor to the extent allowable by law. 
There also may be circumstances in which we would withhold a 
respondent's identity, as allowable by law. If you wish us to withhold 
your name and/or address, you must state this prominently at the 
beginning of your comments, but you should be aware that the Service 
may be required to disclose your name and address pursuant to the 
Freedom of Information Act. However, we will not consider anonymous 
comments. We will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety.
    Comments and materials received, as well as supporting 
documentation used in preparation of the proposal to designate critical 
habitat, will be available for public inspection, by appointment, 
during normal business hours at the Carlsbad Fish and Wildlife Office 
at the address listed under ADDRESSES. Copies of the proposed critical 
habitat rule for the mountain yellow-legged frog and the draft economic 
analysis are also available on the Internet at http://www.fws.gov/carlsbad.
 In the event that our Internet connection is not functional, 

please obtain copies of documents directly from the Carlsbad Fish and 
Wildlife Office.


    On September 13, 2005, we published a proposed rule in the Federal 
Register (70 FR 54106) to designate critical habitat for the mountain 
yellow-legged frog. We identified approximately 8,770

[[Page 37883]]

acres (ac) (3,549 hectares (ha)) of streams and riparian areas in 
southern California as containing features essential to the 
conservation of the mountain yellow-legged frog. From this total, we 
proposed approximately 8,283 ac (3,352 ha) for designation as critical 
habitat in three units, including 14 subunits, in Los Angeles, San 
Bernardino, and Riverside counties, California. Approximately 96 
percent of the proposed lands are under Federal ownership on U.S. 
Forest Service (USFS) lands, and the remaining lands are split between 
State and private ownership. Approximately 487 ac (197 ha) of non-
Federal lands covered under the Western Riverside County Multiple 
Species Habitat Conservation Plan (MSHCP) in Riverside County contain 
features essential to the conservation of the mountain yellow-legged 
frog and are proposed for exclusion pursuant to section 4(b)(2) of the 
Act. The first comment period for the proposed critical habitat rule 
closed on November 14, 2005. For more information on this species, 
refer to the final rule listing this species as endangered, published 
in the Federal Register on July 2, 2002 (67 FR 44382).
    Critical habitat is defined in section 3 of the Act as the specific 
areas within the geographic 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 geographic 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, pursuant to section 7(a)(2) of 
the Act.
    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat on the basis of the best scientific data available, 
after taking into consideration the economic impact, impact to national 
security, and any other relevant impacts of specifying any particular 
area as critical habitat. We have prepared a draft economic analysis of 
the September 13, 2005 (70 FR 54106), proposed designation of critical 
habitat for the mountain yellow-legged frog.
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of the mountain yellow-
legged frog, including costs associated with sections 4, 7, and 10 of 
the Act, and including those attributable to designating 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 the mountain yellow-legged frog in areas 
containing features essential to the conservation of this species. The 
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 (e.g., lost 
economic opportunities associated with restrictions on land use). This 
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 decision-makers to assess whether the effects of the 
designation might unduly burden a particular group or economic sector. 
Finally, this analysis looks retrospectively at costs that have been 
incurred since the date the species was listed as an endangered species 
and considers those costs that may occur in the 20 years following the 
designation of critical habitat.
    Frog conservation activities are likely to primarily impact 
recreational activities, including trout fishing, hiking, camping, and 
rock climbing in the Angeles and San Bernardino National Forests. In 
particular, significant uncertainty exists regarding the potential 
impact to trout fishing. As a result, the draft economic analysis 
applies two methodologies to put upper and lower bounds on the range of 
potential costs. The lower-bound estimate assumes that anglers' overall 
welfare is unaffected, because numerous substitute fishing sites exist. 
The upper-bound estimate assumes that fishing trips currently taken to 
streams in essential habitat are foregone and not substituted 
elsewhere. The actual impact likely falls between these two bounds. The 
draft economic analysis assumes that the probability distribution of 
impacts between these bounds is continuous, and the distribution is not 
skewed toward either bound. With these two assumptions, the average of 
the two estimates represents the best estimate of trout fishing 
    Total future impacts, including costs resulting from modifications 
to fishing and other types of activities, range from $11.4 million to 
$12.9 million (undiscounted) over 20 years. Assuming a three percent 
discount rate, present value impacts range from $9.3 million to $10.8 
million over the 20-year period, or an annualized impact of $626,000 to 
$725,000. Assuming a seven percent discount rate, present value impacts 
range from $7.5 million to $8.9 million over the 20-year period, or an 
annualized impact of $704,000 to $842,000. Impacts are dominated by 
welfare losses and other costs related to recreational fishing, 
accounting for over 50 percent of the total impact. Lost fishing 
opportunities occur in Big Rock Creek, South Fork (Subunit 1B), Little 
Rock Creek (Subunit 1C), and San Jacinto River, North Fork (Subunit 
3A). The costs of modifications to fire management practices, costs of 
modifying hiking trails, and welfare losses to rock climbers resulting 
from a temporary closure of Williamson Rock in the area of Little Rock 
Creek (Subunit 1C) account for approximately 30 and 40 percent of the 
total impact.

Required Determinations--Amended

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues. 
However, because the draft economic analysis indicates the potential 
economic impact associated with a designation of all habitat with 
features essential to the conservation of this species would total no 
more than $842,000 per year, applying a seven percent discount rate, we 
do not anticipate that this final rule will have an annual effect on 
the economy of $100 million or more or affect the economy in a material 
way. Due to the time line 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 A-4, September 17, 2003). Pursuant to 
Circular A-4, once it has been determined that the Federal regulatory 
action is appropriate, the agency will need to consider alternative 
regulatory approaches. Since the determination of critical habitat is a 
statutory requirement pursuant to the Act, we must then evaluate 
alternative regulatory approaches, where feasible,

[[Page 37884]]

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 providing that 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 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (e.g., 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. In our proposed rule, 
we withheld our determination of whether this designation would result 
in a significant effect as defined under SBREFA until we completed our 
draft economic analysis of the proposed designation so that we would 
have the factual basis for our determination.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as 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 
the mountain yellow-legged frog would affect a substantial number of 
small entities, we considered the number of small entities affected 
within particular types of economic activities (e.g., recreational 
fishing, hiking, rock climbing, and residential 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; non-Federal activities are not affected by the 
    If this proposed critical habitat designation is made final, 
Federal agencies must consult with us 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.
    Our draft economic analysis determined that costs involving 
conservation measures for the mountain yellow-legged frog would be 
incurred for activities involving: (1) Recreational trout fishing 
activities; (2) recreational hiking activities; (3) recreational rock 
climbing activities; (4) residential development activities; (5) fire 
management activities; and (6) other activities on Federal lands. Of 
these six categories, impacts of frog conservation are not anticipated 
to affect small entities in three of these categories: Residential 
development, fire management, and other activities on Federal lands. As 
stated in our economic analysis, residential development is unlikely to 
be impacted by frog conservation activities for several reasons, 
including the unsuitability of large-scale development of these private 
lands due to their location in mountainous areas and the easy 
incorporation into building designs of a 50-foot buffer around streams 
to protect mountain yellow-legged frog habitat. Further, since neither 
Federal nor State governments are defined as small entities by the 
Small Business Administration (SBA), the economic impacts borne by the 
USFS and the California Department of Fish and Game (CDFG) resulting 
from implementation of frog conservation activities or modifications to 
activities on Federal lands, including installation of signs and 
relocation of hiking trails, fire suppression efforts, monitoring 
recreational mining activity, development of hazardous spills 
management plans, and surveying and monitoring activities, are not 
relevant to the SBRFA analysis. The total miles of hiking trails 
potentially affected by frog conservation activities represent a small 
percentage, less than three percent, of the total miles of hiking 
trails available to National Forest visitors. Therefore, the draft 
economic analysis assumes that adequate substitute hiking trails are 
available to offset potential restrictions placed on recreational 
hiking within critical habitat and does not estimate any welfare losses 
to recreational hikers. Accordingly, the small business analysis 
focuses on economic impacts to recreational trout fishing and rock 
climbing activities.
    The draft economic analysis considers two scenarios to bound the 
range of potential economic impacts on recreational trout fishing 
activities. Under the first scenario--the lower- bound estimate---
future costs are limited to compliance costs associated with installing 
fish barriers and removing nonnative trout. The directly regulated 
entities under this scenario include the USFS and CDFG, both of which 
are large government agencies. As a result, the directly affected 
entities are not subject to this SBRFA analysis. Under the second 
scenario--the upper-bound estimate--economic impacts are also estimated 
for recreational trout anglers whose activities may be interrupted by 
frog conservation activities resulting in a decrease in the number of 
trout fishing trips. This second scenario concludes that fishing trips 
may decrease by as many as 7,100 to 14,300 trips per year. If fewer 
recreational fishing trips occur to areas within critical habitat, 
local establishments providing services to anglers may be indirectly 
affected by mountain yellow-legged frog conservation activities. 
Decreased visitation may reduce the amount of money spent in the region 
across a variety of industries, including food and beverage stores, 
food service and drinking places, accommodations, transportation and 
rental services.

[[Page 37885]]

    The draft economic analysis uses regional economic modeling--in 
particular a software package called IMPLAN--to estimate the total 
economic effects of the reduction in economic activity in recreational 
fishing-related industries in the counties (Los Angeles and Riverside 
Counties) associated with mountain yellow-legged frog conservation 
activities. Based on the 2001 National Survey of Fishing, Hunting, and 
Wildlife-Associated Recreation for California, average expenditures per 
fishing trip are approximately $38 (in 2005 dollars), with the bulk of 
these expenditures occurring in the food service and gasoline 
industries. This per-trip estimate of expenditures is combined with the 
number of fishing trips potentially lost due to frog conservation 
activities (7,100 to 14,300 trips per year) to estimate total 
expenditures of $271,000 to $543,000 due to recreational trout fishing 
in proposed critical habitat areas. According to IMPLAN, these 
recreational fishing-related expenditures contribute between $471,000 
and $943,000 per year to the regional economy. When compared to the 
total output of the industry sectors directly impacted by these 
expenditures (e.g., groceries, restaurants, gasoline stations, and 
lodging) in the regional economy of Los Angeles and Riverside Counties 
(or $29.4 billion), the potential loss generated by a decrease in 
recreational trout fishing trips is less than one-hundredth of one 
    The economic analysis also estimates welfare losses to rock 
climbers as the result of a temporary 1-year closure of Williamson 
Rock, adjacent to Little Rock Creek (Subunit 1C) in Los Angeles County. 
The analysis concludes that a 1-year closure will result in the loss of 
approximately 10,600 to 14,600 rock climbing trips in 2006. If fewer 
rock climbing trips occur to areas within proposed critical habitat, 
local establishments providing services to rock climbers may be 
indirectly affected by frog conservation activities. Decreased 
visitation may reduce the amount of money spent in the region across a 
variety of industries, including food and beverage stores, food service 
and drinking places, and gas and transportation services.
    To determine the potential regional economic impacts of decreases 
in rock climbing trips, the draft economic analysis again used IMPLAN 
to quantify the dollar value of goods and services produced and 
employment generated by consumer expenditures. Ideally, this analysis 
would develop and use a per-trip estimate of expenditures for rock 
climbing based on the existing economics literature. However, no such 
data are available. Instead, this analysis uses the average 
expenditures of approximately $26.23 per trip reported by the 2001 
National Survey of Fishing, Hunting, and Wildlife-Associated Recreation 
for California. This per-trip estimate of expenditures is then combined 
with the number of rock climbing trips potentially lost due to frog 
conservation activities (a 1-year loss of 10,600 to 14,600 trips per 
year) to estimate total expenditures of $278,000 to $382,000 due to 
rock climbing in proposed critical habitat areas. According to IMPLAN, 
these rock climbing-related expenditures contribute between $480,000 
and $660,000 per year to the regional economy. When compared to the 
total output of the industry sectors directly impacted by these 
expenditures (e.g., groceries, restaurants, and gasoline stations) in 
the regional economy of Los Angeles County (or $21.6 billion), the 
potential loss generated by a decrease in rock climbing trips is less 
than one-hundredth of one percent.
    We may exclude areas from the final designation if it is determined 
that designation of critical habitat in these localized areas would 
have an impact to a substantial number of businesses and a significant 
proportion of their annual revenues. Based on the above data, we have 
determined that this proposed designation would not result in a 
significant economic impact on a substantial number of small entities. 
As such, we are certifying that this proposed designation of critical 
habitat would not result in a significant economic impact on a 
substantial number of small entities. Please refer to Appendix A of our 
draft economic analysis of the proposed designation for a more detailed 
discussion of potential economic impacts to small business entities.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 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. This proposed rule is 
considered a significant regulatory action under E.O. 12866 because it 
raises novel legal and policy issues. On the basis of our draft 
economic analysis, the proposed critical habitat designation is not 
expected to significantly affect energy supplies, distribution, or use. 
Therefore, this action is not a significant action, and no Statement of 
Energy Effects is required. Please refer to Appendix A of our draft 
economic analysis of the proposed designation for a more detailed 
discussion of potential effects on energy supply.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), 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, 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. At the time of 
enactment, these entitlement programs were: Medicaid; AFDC 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 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. Non-Federal entities that receive Federal 
funding, assistance, permits, or otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly

[[Page 37886]]

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) The draft economic analysis does not identify or examine small 
governments that fall within proposed critical habitat because there 
were no estimates of impacts to small governments. Consequently, we do 
not believe that this rule will significantly or uniquely affect small 
governments. As such, a Small Government Agency Plan is not required.


    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 critical habitat for the mountain yellow-legged frog. 
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 designation of critical 
habitat for the mountain yellow-legged frog does not pose significant 
takings implications.


    The primary authors of this notice are the staff of the Carlsbad 
Fish and Wildlife Office (see ADDRESSES section).


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

    Dated: June 26, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-10458 Filed 6-30-06; 8:45 am]