[Federal Register: July 7, 2006 (Volume 71, Number 130)]
[Proposed Rules]               
[Page 38593-38597]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU50

Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the Laguna Mountains Skipper 
(Pyrgus ruralis lagunae)

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 Laguna Mountains skipper (Pyrgus ruralis 
lagunae) 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 to range from $6.5 million 
to $8.9 million (undiscounted) over 20 years. Discounted future costs 
are estimated to be $3.7 million to $5.1 million over this same time 
period ($351,000 to $480,000 annually) using a real rate of 7 percent, 
or $5.0 million to $6.9 million ($337,000 to $461,000 annually) using a 
real rate of 3 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 August 7, 

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 
FW8pchskipper@fws.gov. For directions on how to submit e-mail comments, 

see the ``Public Comments Solicited'' section.
    5. Federal eRulemaking Portal: http://www.regulations.gov. Follow 

the instructions for submitting comments.

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 
December 13, 2005 (70 FR 73699), and on our draft economic analysis of 
the proposed designation. We will consider information and 
recommendations from all interested parties. We particularly seek 
comments concerning:
    (1) 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 and whether the 
benefit of designation will outweigh any threats to the species due to 
    (2) Specific information on: the amount and distribution of Laguna 
Mountains skipper habitat; which areas should be included in the 
designation that were occupied at the time of listing and contain the 
physical and biological features that are essential to the conservation 
of the species and why; and which areas not occupied at the time of 
listing are essential to the conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities;
    (5) Whether the draft economic analysis identifies all State and 
local costs, and, if not, what other costs should be included;
    (6) 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;
    (7) Whether the economic analysis correctly assesses the effect on 
regional costs associated with land- and water

[[Page 38594]]

use controls that derive from the designation;
    (8) Whether the designation will result in disproportionate 
economic impacts to specific areas that should be evaluated for 
possible exclusion from any final designation;
    (9) Whether the economic analysis appropriately identifies all 
costs and benefits that could result from the critical habitat 
    (10) Whether there is information about 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
    (11) 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 Laguna Mountains skipper 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 or 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 file and avoid the use of any special characters or any 
form of encryption. Also, please include ``Attn: Laguna Mountains 
skipper'' 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 FW8pchskipper@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. We will not consider anonymous comments and we will 
make all comments 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 Laguna Mountains skipper 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 December 13, 2005, we published a proposed rule in the Federal 
Register (70 FR 73699) to designate critical habitat for the Laguna 
Mountains skipper. We proposed to designate approximately 6,662 acres 
(ac) (2,696 hectares (ha)) of critical habitat in two units on Laguna 
and Palomar Mountains in San Diego County, California. For more 
information on the Laguna Mountains skipper, refer to the final rule 
listing the species as endangered, published in the Federal Register on 
January 16, 1997 (62 FR 2313).
    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 December 13, 2005 (70 FR 73699), proposed designation of critical 
habitat for the Laguna Mountains skipper.
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of the Laguna Mountains 
skipper, 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 Laguna Mountains skipper 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.
    Laguna Mountains skipper conservation activities are likely to 
primarily impact recreational camping and utility maintenance 
activities. The draft economic analysis estimates the potential total 
future impacts to range from $6.5 million to $8.9 million 
(undiscounted) over 20 years. Discounted future costs are estimated to 
be $3.7 million to $5.1 million over this same time period ($351,000 to 
$480,000 annually) using a real rate of 7 percent, or $5.0 million to 
$6.9 million ($337,000 to $461,000 annually) using a real rate of 3 
percent. Differences in the low and high impact estimates result 
primarily from uncertainty regarding the potential impacts to utility 
companies conducting

[[Page 38595]]

maintenance activities and making repairs in proposed critical habitat. 
The low-end estimate of costs assumes grazing on private lands is not 
affected and biologists' time on site during utility repairs and 
maintenance is limited to one day per project. Costs under this 
estimate are dominated (88 percent) by welfare losses to campers in 
Subunits 1A and 1C. The high-end estimate of costs assumes grazing 
activities on private lands in proposed critical habitat will be 
restricted and that utility projects will last longer than a single 
day. Costs under this estimate are dominated by lost camping 
opportunities (64 percent) and to a lesser extent costs to utilities 
(22 percent). In the low-end estimate, 95 percent of the costs are 
associated with Subunits 1A and 1C. In the high-end estimate, Subunits 
1A and 1C again dominate total costs, accounting for 83 percent of 
total estimated impacts.

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 $480,000 annually, applying a 7 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, 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 Laguna Mountains skipper would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities (e.g., hiking, 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 Laguna Mountains skipper would be 
incurred for activities involving (1) Grazing activities, (2) 
recreational camping activities, (3) recreational hiking activities, 
(4) utility activities, (5) rural development, (6) other activities on 
Federal lands, and (7) Laguna Mountains skipper management activities 
on State lands. Of these seven categories, impacts of skipper 
conservation are not anticipated to affect small entities in five of 
these categories: hiking, utilities, rural development, other 
activities on Federal lands, and management activities on State lands. 
Residential development is unlikely to be impacted by skipper 
conservation activities (see Chapter 6 of draft economic analysis). 
Since neither Federal nor State governments are defined as small 
entities by the Small Business Administration (SBA), the economic 
impacts borne by the United States Forest Service (USFS) and the 
California Department of Fish and Game (CDFG) resulting from 
implementation of skipper conservation activities or modifications to 
activities on Federal lands are not relevant to this analysis (for 
further discussion see Chapters 5, 6, 7, and 8 of draft economic 
analysis). Likewise, neither of the major utility companies involved 
(SDG&E and AT&T)

[[Page 38596]]

would fit the SBA definition of small entities. Accordingly, the small 
business analysis focuses on economic impacts to grazing and 
recreational camping activities.
    The proposed designation includes areas of USFS and private lands 
that are used for livestock grazing. On some Federal allotments that 
contain Laguna Mountains skipper habitat, meadow areas have been 
excluded from grazing, thus reducing the carrying capacity, or 
permitted Animal Unit Months (AUMs), on those allotments. Historically, 
returns to cattle operations have been low throughout the West. In 
recent years, these returns have been lower due to the recent wildfires 
and droughts in California. As a result, any reductions in grazing 
effort for the Laguna Mountains skipper may affect the sustainability 
of ranching operations in these areas. The analysis assumes that in the 
future, grazing efforts on proposed critical habitat areas will be 
reduced, or in the high-end estimate, eliminated on private land due to 
skipper concerns. Private ranchers could be affected either by 
reductions in federally-permitted AUMs that they hold permits to, or by 
reductions on grazing efforts on private property to avoid adverse 
impacts on Laguna Mountains skipper habitat. The expected reduction in 
AUMs is based on an examination of historic grazing levels, section 7 
consultations, and discussions with range managers, wildlife 
biologists, and permittees. Based on this analysis, the high-end impact 
on grazing activities is estimated at an annual reduction of 1,980 
AUMs, of which 1,363 are Federally permitted and 617 are private. The 
majority of these AUM reductions fall on two ranchers: one operating in 
Subunit 1A and another operating in Subunit 2A. Therefore, cumulatively 
over 20 years, two ranchers could be affected by total reductions in 
AUMs due to Laguna Mountains skipper conservation activities. These 
impacts doe not represent a substantial number of small entities and 
the potential impact is not considered significant.
    This analysis considers lower and upper bounds of potential 
economic impact on recreational camping activities. The lower bound 
equals no economic impact. In the upper bound, economic impacts are 
estimated for recreational campers whose activities may be interrupted 
by Laguna Mountains skipper conservation activities resulting in a 
decrease in the number of camping trips. This scenario concludes that 
camping trips may decrease by as many as 5,352 trips per year. If fewer 
camping trips were to occur within proposed critical habitat areas, 
local establishments providing services to campers may be indirectly 
affected by Laguna Mountains skipper 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 
    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 camping-
related industries in the one county (San Diego County) associated with 
Laguna Mountains skipper conservation activities. Commonly used by 
State and Federal agencies for policy planning and evaluation purposes, 
IMPLAN translates estimates of initial trip expenditures (e.g., food, 
lodging, and gas) into changes in demand for inputs to affected 
industries. Changes in output and employment are calculated for all 
industries and then aggregated to determine the regional economic 
impact of reduced recreational camping-related expenditures potentially 
associated with Laguna Mountains skipper conservation activities.
    This analysis uses the average expenditures reported by the 2001 
National Survey of Fishing, Hunting, and Wildlife-Associated Recreation 
for California for fishing, hunting and wildlife-associated recreation, 
or approximately $26.23 per trip. This per-trip estimate of 
expenditures is then combined with the number of camping trips 
potentially lost due to Laguna Mountains skipper conservation 
activities (a 1-year loss of 5,352 trips per year) to estimate the 
regional economic impacts. When compared to the $192 billion dollar 
regional economy of San Diego County, the potential loss generated by a 
decrease in camping trips is a relatively small impact (i.e., less than 
0.01 percent). Therefore based on these results, this analysis 
determines no significant effect on camping-related industries due to 
Laguna Mountains skipper conservation activities in San Diego County.
    We may also exclude areas from the final designation if it is 
determined that designation of critical habitat in 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

[[Page 38597]]

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 
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 did not identify or examine small 
governments that fall within proposed critical habitat areas 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 


    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 Laguna Mountains skipper. 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 
Laguna Mountains skipper does not pose significant takings 


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


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

    Dated: June 27, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E6-10577 Filed 7-6-06; 8:45 am]