[Federal Register: May 4, 2006 (Volume 71, Number 86)]
[Proposed Rules]               
[Page 26311-26315]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT93

Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Alameda Whipsnake

AGENCY: Fish and Wildlife Service, Interior.

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


SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening 
of the comment period on the proposed designation of critical habitat 
for the Alameda whipsnake (Masticophis lateralis euryxanthus) and the 
availability of the draft economic analysis of the proposed designation 
of critical habitat. The draft economic analysis identifies potential 
costs of approximately $532 million over a 20-year period, or 
approximately $47 million per year, as a result of the proposed 
designation of critical habitat, including those costs coextensive with 
listing. If this cost is annualized (adjusted for inflation and value 
over the time period to equate to an annual cost) over the 20 year 
period, the potential costs are predicted to be approximately $47 
million per year. 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 need not be resubmitted as they will be 
incorporated into the public record as part of this comment period, and 
will be fully considered in preparation of the final rule.

DATES: We will accept public comments until June 5, 2006.

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 the Field 
Supervisor, U.S. Fish and Wildlife Service, 2800 Cottage Way, Suite W-
2605, Sacramento, CA 95825;
    2. You may hand-deliver written comments and information to our 
Sacramento Fish and Wildlife Office, at the above address.
    3. You may fax your comments to 916/414-6712; or

http://www.regulations.gov. For directions on how to file comments 

electronically, see the ``Public Comments Solicited'' section. In the 
event that our Internet connection is not functional, please submit 
your comments by one of the alternate methods mentioned above.
    Copies of the draft economic analysis and the proposed rule for 
critical habitat designation are available on the Internet at http://www.fws.gov/sacramento
 or from the Sacramento Fish and Wildlife Office 

at the address and contact numbers above.

FOR FURTHER INFORMATION CONTACT: Arnold Roessler, Sacramento Fish and 
Wildlife Office, at the address listed in ADDRESSES (telephone 916/414-
6600; facsimile 916/414-6712).


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 (70 FR 60608; October 18, 2005) 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) The reasons why 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 the benefits of exclusion outweigh the benefits of 
including such area as part of critical habitat;
    (2) Specific information on the amount and distribution of Alameda 
whipsnake, and what habitat is essential to the conservation of this 
species and why;
    (3) Land use designations and current or planned activities in the 
subject area and their possible impacts on proposed habitat;
    (4) Information on whether, and, if so, how many of, the State and 
local environmental protection measures referenced in the draft 
economic analysis were adopted largely as a result of the listing of 
the Alameda whipsnake, and how many were either already in place or 
enacted for other reasons;
    (5) Information on whether the draft economic analysis identifies 
all State and local costs attributable to the proposed critical habitat 
designation, and information on any costs that have been inadvertently 
    (6) Information on whether the draft economic analysis makes 
appropriate assumptions regarding current practices and likely 
regulatory changes imposed as a result of the designation of critical 
    (7) Information on whether the draft economic analysis correctly 
assesses the effect on regional costs associated with any land use 
controls that may derive from the designation of critical habitat;
    (8) Information on areas that could potentially be 
disproportionately impacted by an Alameda whipsnake critical habitat 
designation. The draft economic analysis indicates potentially 
disproportionate impacts to areas within Contra Costa, Alameda, San 
Joaquin, and Santa Clara counties. Based on this information, we are 
considering excluding portions of these areas from the final 
designation per our discretion under section 4(b)(2) of the Act;
    (9) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, and in particular, any 
impacts on small entities or families; the reasons why our conclusion 
that the proposed designation of critical habitat will not result in a 
disproportionate effect to small businesses should or should not 
warrant further consideration; and other information that would 
indicate that the designation of critical habitat would or would not 
have any impacts on small entities or families;
    (10) Information on whether the draft economic analysis 
appropriately identifies all costs that could result from the 
designation; and
    (11) Information on whether our approach to critical habitat 
designation could be improved or modified in any way to provide for 
greater public participation and understanding, or to assist us in 
accommodating public concern and comments.
    An area may be excluded from critical habitat if it is determined 
that the benefits of such exclusion outweigh the benefits of including 
a particular area as critical habitat, unless the failure to designate 
such area as critical habitat will result in the extinction of the 
species. We may exclude an area from designated critical habitat based 
on economic impacts, national security, or any other relevant impact.
    All previous comments and information submitted during the initial 
comment period on the October 18, 2005, proposed rule (70 FR 60608) 

[[Page 26312]]

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 designation of critical habitat will take into consideration 
all comments and any additional information we received during both 
comment periods. On the basis of public comment on this analysis, the 
critical habitat proposal, and the final economic analysis, we may 
during the development of our final determination find that areas 
proposed are not essential, are appropriate for exclusion under section 
4(b)(2) of the Act, or not appropriate for exclusion.
    Please submit electronic comments in an ASCII file format and avoid 
the use of special characters and encryption. Please also include 
``Attn: RIN 1018-AT93'' 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 
    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 addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record 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 
comment, 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 inspection, by appointment, during 
normal business hours, at the Sacramento Fish and Wildlife Office at 
the address listed under ADDRESSES.
    Copies of the proposed rule and draft economic analysis are 
available on the Internet at: http://www.fws.gov/sacramento/. You may 

also obtain copies of the proposed rule and economic analysis from the 
Sacramento Fish and Wildlife Office (see ADDRESSES), or by calling 916/


    We published a proposed rule to designate critical habitat for the 
Alameda whipsnake on October 18, 2005 (70 FR 60608). The proposed 
critical habitat totaled approximately 203,342 acres (ac) (82,289 
hectares (ha)) in Contra Costa, Alameda, San Joaquin, and Santa Clara 
counties, California. Per settlement agreement, we will submit for 
publication in the Federal Register a final critical habitat 
designation for the Alameda whipsnake on or before October 1, 2006.
    Critical habitat is defined in section 3 of the Act as the specific 
areas within the geographical area occupied by a species, at the time 
it is listed in accordance with the Act, on which are found those 
physical or biological features essential to the conservation of the 
species and that may require special management considerations or 
protection, and specific areas outside the geographical area occupied 
by a species at the time it is listed, upon a determination that such 
areas are essential for the conservation of the species. If the 
proposed rule is made final, section 7 of the Act will prohibit 
destruction or adverse modification of critical habitat by any activity 
funded, authorized, or carried out by any Federal agency. Federal 
agencies proposing actions affecting areas designated as critical 
habitat must consult with us on the effects of their proposed actions, 
pursuant to section 7(a)(2) of the Act.
    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial data 
available, after taking into consideration the economic impact, impact 
on national security, or any other relevant impact of specifying any 
particular area as critical habitat. Based on the October 18, 2005, 
proposed rule to designate critical habitat for the Alameda whipsnake 
(70 FR 60608), we have prepared a draft economic analysis of the 
proposed critical habitat designation.
    The current draft economic analysis estimates the foreseeable 
economic impacts of the proposed critical habitat designation on 
government agencies and private businesses and individuals. The 
economic analysis identifies potential costs of approximately $532 
million over a 20-year period, or approximately $47 million per year, 
as a result of the proposed critical habitat designation, including 
those costs coextensive with listing. If this cost is annualized 
(adjusted for inflation and value over the time period to equate to an 
annual cost) over the 20 year period, the potential costs are predicted 
to be approximately $47 million per year. The analysis measures lost 
economic efficiency associated with residential and commercial 
development, and public projects and activities, such as economic 
impacts on transportation projects, the energy industry, and Federal 
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of the Alameda 
whipsnake, 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 Alameda whipsnake in essential habitat areas. The 
draft analysis considers both economic efficiency and distributional 
effects. In the case of habitat conservation, efficiency effects 
generally reflect the ``opportunity costs'' associated with the 
commitment of resources to comply with habitat protection measures 
(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 draft analysis looks retrospectively at 
costs that have been incurred since the date the species was listed as 
a threatened species (December 5, 1997; 62 FR 64306) and considers 
those costs that may occur in the 20 years following a designation of 
critical habitat.
    As stated earlier, we solicit data and comments from the public on 
this draft economic analysis, as well as on all aspects of the 
proposal. We may revise the proposal, or its supporting documents, to 
incorporate or address new information received during the comment 
period. In particular, we may exclude an area from critical habitat if 
we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    Costs related to conservation activities for the proposed Alameda 

[[Page 26313]]

critical habitat pursuant to sections 4, 7, and 10 of the Act are 
estimated to be approximately $532 million from 2006 to 2026. Overall, 
the residential and commercial industry is anticipated to experience 
the highest estimated costs. The draft analysis was conducted at the 
census tract level. Of the 49 census tracts that are part of this 
current proposal, 17 are identified as census tracts responsible for 
over 80 percent of the most economically impacted areas. Annualized 
impacts of costs attributable to the proposed critical habitat 
designation are projected to be approximately $47 million.

Required Determinations--Amended

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise novel legal and policy issues. 
However, it is not anticipated to have an annual effect on the economy 
of $100 million or more or affect the economy in a material way. Due to 
the timeline for publication in the Federal Register, the Office of 
Management and Budget (OMB) did not formally review the proposed rule.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, Circular 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 then need to consider 
alternative regulatory approaches. Since the determination of critical 
habitat is a statutory requirement pursuant to the Endangered Species 
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), 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 effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. 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; 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 
the Alameda whipsnake would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities (e.g., residential and 
commercial development). We considered each industry or category 
individually to determine if certification is appropriate. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement; some 
kinds of activities are unlikely to have any Federal involvement and so 
will not be affected by the designation of critical habitat. 
Designation of critical habitat only affects activities conducted, 
funded, permitted, or authorized by Federal agencies; non-Federal 
activities are not affected by the designation.
    If this proposed critical habitat designation is made final, 
Federal agencies must consult with us under section 7 of the Act if 
their activities may affect designated critical habitat. Consultations 
to avoid the destruction or adverse modification of critical habitat 
would be incorporated into the existing consultation process.
    In our draft economic analysis of the proposed critical habitat 
designation, we evaluated the potential economic effects on small 
business entities resulting from conservation actions related to the 
listing of the Alameda whipsnake and proposed designation of its 
critical habitat. We determined from our analysis that the small 
business entities that may be affected are firms in the new home 
construction sector. We estimated the number of affected small 
businesses and calculated the number of houses built per small firm. It 
appears that the annual number of affected small firms would be fewer 
than four in the affected counties. Note that if one firm closed in the 
first year, then this same firm would be affected in subsequent years. 
The number of small firms will not decrease every year. These firms may 
be affected by activities associated with the conservation of the 
Alameda whipsnake, inclusive of activities associated with listing, 
recovery, and critical habitat. In the development of our final 
designation, we will explore potential alternatives to minimize impacts 
to any affected small business entities. These alternatives may include 
the exclusion of all or portions of critical habitat units in areas 
where the number of small businesses are disproportionately affected. 
However, we are seeking comment on potentially excluding areas from the 
final critical habitat designation if it is determined that there will 
be a substantial and significant impact to small real estate 
development businesses in the affected areas.
    Critical habitat designation for the Alameda whipsnake is expected 
to have the largest impacts on the market for developable land. The 
proposed critical habitat designation for Alameda whipsnake occurs in a 
number of

[[Page 26314]]

rapidly growing areas. Regulatory requirements to avoid on-site impacts 
and mitigate off-site affect the welfare of both producers and 
consumers. In the scenario presented here, mitigation requirements 
increase the cost of development, and avoidance requirements are 
assumed to reduce the construction of new housing. In this scenario, 
the proposed critical habitat designation is expected to impose losses 
of over $532 million over the 20-year study period.
    The economic impacts of the proposed critical habitat designation 
vary widely even with the county. That is, the impacts of designation 
are frequently localized. This finding is sensible from an economic 
point of view and is consistent with the teachings of urban economics. 
Housing prices vary over urban areas, typically declining as the 
location of the house becomes more remote. Critical habitat is not 
evenly distributed across the landscape, and large impacts may result 
if a particular area has a large fraction of developable land in 
critical habitat. Some areas have few alternate sites for development, 
or have highly rationed housing resulting in high prices. Any of these 
factors may cause the cost of critical habitat designation to increase.
    The precise spatial scale of the analysis permits identification of 
specific locations, or parts of individual critical habitat units, that 
result in the largest economic impacts. The maps contained at the end 
of the draft economic analysis are instructive in this regard. The maps 
identify the census tracts within the counties where the impacts are 
predicted to occur.
    Please refer to our draft economic analysis of the proposed 
critical habitat designation for a more detailed discussion of 
potential economic impacts.

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, but it 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.

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, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
two exceptions. It excludes ``a condition of federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding'' and the State, local, 
or tribal governments ``lack authority'' to adjust accordingly. (At the 
time of enactment, these entitlement programs were: Medicaid; Aid to 
Families with Dependent Children work programs; Child Nutrition; Food 
Stamps; Social Services Block Grants; Vocational Rehabilitation State 
Grants; Foster Care, Adoption Assistance, and Independent Living; 
Family Support Welfare Services; and Child Support Enforcement.) 
``Federal private sector mandate'' includes a regulation that ``would 
impose an enforceable duty upon the private sector, except (i) a 
condition of Federal assistance; or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on 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) As discussed in the draft economic analysis of the proposed 
designation of critical habitat for the Alameda whipsnake, the impacts 
on nonprofits and small governments are expected to be small. There is 
no record of consultations between the Service and any of these 
governments since the Alameda whipsnake was listed as threatened on 
December 5, 1997 (62 FR 64306). It is likely that small governments 
involved with developments and infrastructure projects will be 
interested parties or involved with projects involving section 7 
consultations for the Alameda whipsnake within their jurisdictional 
areas. Any costs associated with this activity are likely to represent 
a small portion of a local government's budget. Consequently, we do not 
believe that the designation of critical habitat for the Alameda 
whipsnake will significantly or uniquely affect these small 
governmental entities. 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 Alameda whipsnake. 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 Alameda 
whipsnake does not pose significant takings implications.


    The primary author of this notice is the staff of the Sacramento 
Fish and Wildlife Office.


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

[[Page 26315]]

    Dated: April 26, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-6720 Filed 5-3-06; 8:45 am]