[Federal Register: June 26, 2007 (Volume 72, Number 122)]
[Proposed Rules]               
[Page 35025-35028]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU91

Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Marbled Murrelet (Brachyramphus marmoratus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, notice of 
availability of draft economic analysis, and amended required 


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on the proposed designation of critical 
habitat for the marbled murrelet (Brachyramphus marmoratus) under the 
Endangered Species Act of 1973, as amended (Act). We also announce the 
availability of the draft economic analysis for the proposed critical 
habitat designation and amended required determinations for the 
proposal. The draft economic analysis estimates the post-designation 
impacts associated with marbled murrelet conservation efforts in areas 
proposed for final critical habitat designation to range from $69.4 
million to $1.42 billion at present value over a 20-year period in 
undiscounted dollars, $38.1 million to $535 million ($2.22 million to 
$16.8 million annualized) assuming a 3 percent discount rate, or $24.2 
million to $251 million ($2.18 million to $12 million annualized) 
assuming a 7 percent discount rate. We are reopening the comment period 
to allow all interested parties the 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 are already part of the public record and will 
be fully considered in preparation of the final rule.

DATES: We will accept public comments until July 26, 2007.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials by any one of several methods:
    1. Submit written comments and information by mail or hand deliver 
to Ken Berg, Field Supervisor, U.S. Fish and Wildlife Service, Western 
Washington Fish and Wildlife Office, 510 Desmond Drive, SE., Suite 101, 
Lacey, WA 98503-1273.
    2. Send comments by electronic mail (e-mail) to MurreletCH@fws.gov. 
Please see the Public Comments Solicited section below for information 
about electronic filing.
    3. Fax your comments to 360-753-9405.
    4. Go to the Federal eRulemaking Portal: http://www.regulations.gov.
 Follow the instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT: Ken Berg, Field Supervisor, Western 
Washington Fish and Wildlife Office, at the address listed in the 
ADDRESSES section (telephone 360-753-9440; facsimile 360-753-9405).


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 12, 2006 (71 FR 53838), 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 habitat should or should not be designated as 
critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq.), 
including whether the benefit of designation would outweigh threats to 
the species caused by designation such that the designation of critical 
habitat is prudent;
    (2) Specific information on the amount and distribution of marbled 
murrelet habitat, what areas should be

[[Page 35026]]

included in the designations that were occupied at the time of listing 
that contain features essential to the conservation of the species and 
why, and what areas that were not occupied at the time of listing that 
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, and the benefits of including or excluding 
areas that exhibit these impacts;
    (5) 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;
    (6) The extent to which the description of economic impacts in the 
draft economic analysis is complete and accurate;
    (7) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the draft economic analysis, and 
how the consequences of such reactions, if likely to occur, would 
relate to the conservation and regulatory benefits of the proposed 
critical habitat designation;
    (8) Whether the benefits of exclusion in any particular area 
outweigh the benefits of inclusion under section 4(b)(2) of the Act; 
    (9) Economic data on the incremental effects that would result from 
designating any particular area as critical habitat.
    If you wish to submit comments electronically, please include 
``Attn: RIN 1018-AU91'' in the e-mail subject header and your name and 
return address in the body of your message. If you do not receive a 
confirmation from the system that we have received your message, 
contact us directly by calling our Western Washington Fish and Wildlife 
Office at 360-753-9440. Please note that the e-mail address 
MurreletCH@fws.gov will be closed at the termination of the public 

comment period.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.
    Comments and materials received, as well as supporting 
documentation used in preparation of the proposal to designate critical 
habitat, will be available for inspection, by appointment, during 
normal business hours at the Western Washington Fish and Wildlife 
Office (see ADDRESSES section). Copies of the proposed critical habitat 
rule for the marbled murrelet and the draft economic analysis are 
available on the Internet at http://www.fws.gov/westwafwo/ or by 

request to the Field Supervisor (see FOR FURTHER INFORMATION CONTACT 


    On September 12, 2006, we published a proposed rule to revise 
critical habitat for the marbled murrelet in Washington, Oregon, and 
California (71 FR 53838). For a description of Federal actions 
concerning the marbled murrelet that occurred prior to our September 
12, 2006, proposed rule, please refer to that proposed rule and the 
original final critical habitat rule for the marbled murrelet (61 FR 
26256; May 24, 1996).
    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.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial data 
available, after taking into consideration the economic impact, impact 
on national security, or any other relevant impact of specifying any 
particular area as critical habitat. Based on the September 12, 2006, 
proposed rule to revise critical habitat for the marbled murrelet (71 
FR 53838), we have prepared a draft economic analysis of the proposed 
critical habitat designation.
    The draft economic analysis is intended to quantify the economic 
impacts of all potential conservation efforts for the marbled murrelet; 
some of these costs will likely be inrurred regardless of whether 
critical habitat is designated. The analysis quantifies economic 
impacts of murrelet conservation efforts associated with the following 
land uses: (1) Timber management, (2) development, (3) recreation, (4) 
other land use activities including transportation and mining, and (5) 
administrative costs associated with Endangered Species Act section 7 
    The draft economic analysis estimates the post-designation impacts 
associated with murrelet conservation efforts in areas proposed for 
final critical habitat designation to range from $69.4 million to $1.42 
billion at present value over a 20-year period in undiscounted dollars, 
$38.1 million to $535 million ($2.22 million to $16.8 million 
annualized) assuming a 3 percent discount rate, or $24.2 million to 
$251 million ($2.18 million to $12 million annualized) assuming a 7 
percent discount rate.
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of the marbled 
murrelet, including costs associated with sections 4, 7, and 10 of the 
Act, and including those attributable to the designation of 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 marbled murrelet in areas containing 
features essential to the conservation of the species. The draft 
analysis considers both economic efficiency and distributional effects. 
In the case of habitat conservation, efficiency effects generally 
reflect the ``opportunity costs'' associated with the commitment of 
resources to comply with habitat protection measures (such as lost 
economic opportunities associated with restrictions on land use).
    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

[[Page 35027]]

incurred since the date the marbled murrelet was listed as threatened 
(57 FR 45328; October 1, 1992), 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.

Required Determinations--Amended

    In our September 12, 2006, proposed rule (71 FR 53838), we 
indicated that we would be deferring our determination of compliance 
with several statutes and Executive Orders until information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders was available in the draft economic 
analysis. Those data are now available for our use in making these 
determinations. In this notice we are affirming the information 
contained in the proposed rule concerning Executive Order (E.O.) 13132; 
E.O. 12988; the Paperwork Reduction Act; and the President's memorandum 
of April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951). Based on the information 
made available to us in the draft economic analysis, we are amending 
our Required Determinations, as provided below, concerning E.O. 12866 
and the Regulatory Flexibility Act, E.O. 13211, E.O. 12630, and the 
Unfunded Mandates Reform Act.

Regulatory Planning and Review

    In accordance with E.O. 12866, this document is a significant rule 
because it may raise novel legal and policy issues. However, on the 
basis of our draft economic analysis, we do not anticipate that the 
designation of critical habitat for the marbled murrelet would 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) has not 
formally reviewed the proposed rule or accompanying draft economic 
    Further, E.O. 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, and then 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 our 
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, 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 marbled murrelet would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities (e.g., timber management 
activities). 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.
    In our draft economic analysis of the proposed critical habitat 
designation, we evaluated the potential economic effects on small 
entities resulting from the protection of the marbled murrelet and its 
habitat related to the listing of the species and the proposed 
designation of its critical habitat. Small timber management interests 
were identified as entities that could be affected by the proposed 
rule. Impacts described in Section 4 and Appendix B of the draft 
economic analysis are predominantly decreased land values associated 
with precluding timber harvest in areas proposed for final critical 
habitat for the marbled murrelet. These impacts would be expected to be 
born by the current landowners at the time of final critical habitat 
designation. The potentially affected timber acres are

[[Page 35028]]

few relative to the total timberland area in the counties containing 
areas proposed for critical habitat. As a result, regional businesses 
that support or are supported by the timber companies (e.g., sawmills 
and logging operations) are not expected to be measurably affected by 
murrelet conservation. 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--Energy Supply, Distribution, and Use

    On May 18, 2001, the President issued 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 designation of critical 
habitat for the marbled murrelet is considered a significant regulatory 
action under E.O. 12866 due to its potential raising of novel legal and 
policy issues. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared without the regulatory 
action under consideration. The draft economic analysis finds that none 
of these criteria are relevant to this analysis. Thus, based on the 
information in the draft economic analysis, energy-related impacts 
associated with the marbled murrelet conservation activities within 
proposed critical habitat are not expected. As such, the proposed 
designation of critical habitat is not expected to significantly affect 
energy supplies, distribution, or use, and a Statement of Energy 
Effects is not 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), we make 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 of the Act. Non-Federal entities that receive 
Federal funding, assistance, or permits, or that 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 large Federal entitlement 
programs on to State governments.
    (b) We do not believe that the proposed designation will 
significantly or uniquely affect small governments, because it will not 
produce a Federal mandate of $100 million or greater in any year; that 
is, it is not a ``significant regulatory action'' under the Unfunded 
Mandates Reform Act. The proposed designation of critical habitat 
imposes no obligations on State or local governments. As such, a Small 
Government Agency Plan is not required.

Executive Order 12630--Takings

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing critical habitat for the marbled murrelet. 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 require Federal funding or permits to go forward. In 
conclusion, the designation of critical habitat for the marbled 
murrelet does not pose significant takings implications.


    The authors of this notice are the staff of the Division of 
Endangered Species, Pacific Region, U.S. Fish and Wildlife Service.


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

    Dated: June 12, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-3134 Filed 6-21-07; 4:37 pm]