[Federal Register: January 12, 2010 (Volume 75, Number 7)]
[Proposed Rules]
[Page 1568-1574]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja10-24]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[RIN 1018-AW21]
[Docket No. FWS-R1-ES-2009-0046]
[MO 92210-0-0009-B4]
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for Limnanthes floccosa ssp.
grandiflora (Large-Flowered Woolly Meadowfoam) and Lomatium cookii
(Cook's Lomatium)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period, availability of
draft economic analysis, amended required determinations, and
announcement of public hearing.
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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 two plants, Limnanthes floccosa ssp. grandiflora (large-
flowered woolly meadowfoam) and Lomatium cookii (Cook's lomatium, also
known as Cook's desert parsley), under the Endangered Species Act of
1973, as amended (Act). We also announce the availability of a draft
economic analysis (DEA) and an amended required determinations
[[Page 1569]]
section of the proposal. We are reopening the comment period for an
additional 30 days to allow all interested parties an opportunity to
comment simultaneously on the proposed designation of critical habitat
for L.f. ssp. grandiflora and Lomatium cookii, the associated DEA, and
the amended required determinations section. If you submitted comments
previously, you do not need to resubmit them because we have already
incorporated previously submitted comments into the public record and
will fully consider them in preparation of the final rule. We also
announce a public hearing; the public is invited to review and comment
on any of the above actions associated with the proposed critical
habitat designation at the public hearing or in writing.
DATES: Written Comments: We will consider public comments received or
postmarked on or before February 11, 2010. Please note that if you are
using the Federal eRulemaking Portal (see ``ADDRESSES'' section,
below), the deadline for submitting an electronic comment is Eastern
Standard Time on this date.
Public Hearing: We will hold a public hearing on February 2, 2010,
from 5:30 p.m. to 7:30 p.m. Pacific Time in Medford, Oregon. An
informational meeting will be held earlier that day from 3:30 p.m. to
5:00 p.m.
ADDRESSES: Written Comments: You may submit comments by one of the
following methods:
Federal eRulemaking Portal: http://www.regulations.gov. In
the box that reads ``Enter Keyword or ID,'' enter the docket number for
this proposed rule, which is FWS-R1-ES-2009-0046. Check the box that
reads ``Open for Comment/Submission,'' and then click the Search
button. You should then see an icon that reads ``Submit a Comment.''
Please ensure that you have found the correct rulemaking before
submitting your comment.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R1-ES-2009-0046; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
Public Hearing: We will hold the public hearing at the Jackson
County Library Services Medford Library Branch Conference Room, 205
South Central Avenue, Medford, OR 97501.
Availability of Comments: We will post all comments and the public
hearing transcript on http://www.regulations.gov. This generally means
that we will post any personal information you provide us (see the
Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Paul Henson, State Supervisor, U.S.
Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE
98th Avenue, Suite 100, Portland, OR 97266; by telephone (503-231-
6179); or by facsimile (503-231-6195). Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written comments and information during this
reopened comment period on the proposed designation of critical habitat
for Limnanthes floccosa ssp. grandiflora and Lomatium cookii that was
published in the Federal Register on July 28, 2009 (74 FR 37314), the
DEA of the proposed designation of critical habitat for Limnanthes
floccosa ssp. grandiflora and Lomatium cookii, and the amended required
determinations provided in this rule. Verbal testimony or written
comments may also be presented during the public hearing (see the
Public Hearing section below for more information). We will consider
information and recommendations from all interested parties. We are
particularly interested in comments concerning:
1) The reasons why we should or should not designate areas as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to Limnanthes floccosa ssp.
grandiflora and Lomatium cookii from human activity, the degree of
which could be expected to increase due to a designation, and whether
the benefit of designation would outweigh threats to the species caused
by a designation, such that the designation of critical habitat would
be prudent.
2) Specific information on:
The amount and distribution of L.f. ssp. grandiflora and
Lomatium cookii habitat;
What areas occupied at the time of listing that contain
features essential to the conservation of the species should be
included in the designation and why;
Special management considerations or protections that the
features essential to L.f. ssp. grandiflora and Lomatium cookii
conservation that have been identified in the proposed rule, including
managing for the potential effects of climate change; and
What areas not occupied at the time of listing are
essential to the conservation of the species and why.
3) Specific information on L.f. ssp. grandiflora and Lomatium
cookii and the habitat components (physical and biological features)
essential to the conservation of these species, such as soil moisture
gradient, microsite preferences, and light requirements.
4) Any information on the biological or ecological requirements of
these species.
5) Land-use designations and current or planned activities in
areas occupied by the species, and their impacts on the species and the
proposed critical habitat.
6) 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 are subject to these impacts.
7) Whether the benefits of excluding any particular area from
critical habitat would outweigh the benefits of including that area as
critical habitat under section 4(b)(2) of the Act.
8) 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.
You may submit your comments and materials concerning our proposed
rule, the associated DEA, and our amended required determinations by
one of the methods listed in the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
submission? including any personal identifying information?will be
posted on the website. If your submission is made via a hardcopy that
includes personal identifying information, you may request at the top
of your document that we withhold this personal identifying information
from public review. However, we cannot guarantee that we will be able
to do so. We will post all hardcopy submissions on http://
www.regulations.gov. Please include sufficient information with your
comments to allow us to verify any scientific or commercial information
you include.
Comments and materials we receive, as well as supporting
documentation used to prepare this notice, will be available for public
inspection at http://www.regulations.gov, or by appointment, during
normal business hours, at the U.S. Fish and Wildlife Service, Oregon
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).
You may obtain copies of the proposed rule and DEA on the Internet
[[Page 1570]]
at http://www.regulations.gov at Docket Number FWS-R1-ES-2009-0046,
from our Web site at http://www.fws.gov/oregonfwo/, or by mail from the
Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT
section).
Public Hearing
We are holding a public hearing on the date listed in the DATES
section at the address listed in the ADDRESSES section. We are holding
this public hearing to provide interested parties an opportunity to
provide verbal testimony (formal, oral comments) or written comments
regarding the proposed critical habitat designation, the associated
DEA, and the amended required determinations section. An informational
session will be held on the day of the hearing from 3:30 p.m. to 5:00
p.m. Pacific Time. During this session, Service biologists will be
available to provide information and address questions on the proposed
rule in advance of the formal hearing.
People needing reasonable accommodations in order to attend and
participate in the public hearings should contact Paul Henson, Oregon
Fish and Wildlife Office, at 503-231-6179, as soon as possible (see FOR
FURTHER INFORMATION CONTACT section). In order to allow sufficient time
to process requests, please call no later than one week before the
hearing date.
Background
It is our intent to discuss only those topics directly relevant to
the proposed designation of critical habitat for Limnanthes floccosa
ssp. grandiflora and Lomatium cookii in this notice. For more
information on previous Federal actions concerning L.f. ssp.
grandiflora and Lomatium cookii, refer to the proposed designation of
critical habitat published in the Federal Register on July 28, 2009 (74
FR 37314). For more information on L.f. ssp. grandiflora and Lomatium
cookii or their habitat, please refer to the final listing rule
published in the Federal Register on November 7, 2002 (67 FR 68004), or
contact the Oregon Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT section).
On December 19, 2007, the Center for Biological Diversity filed a
complaint against the Service (Center for Biological Diversity v.
Kempthorne, et al., 07-CV-2378 IEG, (S.D. CA)) for failure to designate
critical habitat for four plant species, including Limnanthes floccosa
ssp. grandiflora and Lomatium cookii. In a settlement agreement reached
on April 11, 2008, we agreed to complete a critical habitat
determination for L.f. ssp. grandiflora and Lomatium cookii in a single
rulemaking because they share similar habitats. We also addressed the
other two species in this settlement agreement; however, further work
on these species will be completed in separate rules. We agreed to
submit a proposed critical habitat rule for both L.f. ssp. grandiflora
and Lomatium cookii to the Federal Register by July 15, 2009, and a
final rule by July 15, 2010. The proposed rule for these two species
was signed on July 13, 2009, and subsequently published in the Federal
Register on July 28, 2009 (74 FR 37314).
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by the species, at the time it is
listed in accordance with the provisions of section 4 of the Act, on
which are found those physical or biological features essential to the
conservation of the species and which may require special management
considerations or protection, and specific areas outside the
geographical area occupied by the 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 that affect critical
habitat must consult with us on the effects of their proposed actions,
under section 7(a)(2) of the Act.
Under section 4(b)(2) of the Act, we may exclude an area from
critical habitat if we determine that the benefits of such exclusion
outweigh the benefits of including that particular area as critical
habitat, unless failure to designate that specific area as critical
habitat will result in the extinction of the species. In making a
decision to exclude areas, we consider the economic impact, impact on
national security, or any other relevant impact of the designation.
Draft Economic Analysis
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific data available, after
taking into consideration the economic impact, impact on national
security, or any other relevant impact of specifying any particular
area as critical habitat.
We have prepared a Draft Economic Analysis (DEA), which identifies
and analyzes the potential economic impacts associated with the
proposed designation of critical habitat for Limnanthes floccosa ssp.
grandiflora and Lomatium cookii that we published in the Federal
Register on July 28, 2009 (74 FR 37314). The DEA quantifies the
economic impacts of all potential conservation efforts for L.f. ssp.
grandiflora and Lomatium cookii; some of these costs will likely be
incurred regardless of whether or not we designate critical habitat.
The economic impact of the proposed critical habitat designation is
analyzed by comparing scenarios both ``with critical habitat'' and
``without critical habitat.'' The ``without critical habitat'' scenario
represents the baseline for the analysis, considering protections
already in place for the species (e.g., under the Federal listing and
other Federal, State, and local regulations). The baseline, therefore,
represents the costs incurred regardless of whether critical habitat is
designated. The ``with critical habitat'' scenario describes the
incremental impacts associated specifically with the designation of
critical habitat for the species. The incremental conservation efforts
and associated impacts are those not expected to occur absent the
designation of critical habitat for the species. In other words, the
incremental costs are those attributable solely to the designation of
critical habitat above and beyond the baseline costs; these are the
costs we may consider in the final designation of critical habitat. The
analysis looks retrospectively at baseline impacts incurred since the
species was listed, and forecasts both baseline and incremental impacts
likely to occur if we finalize the proposed critical habitat
designation.
The DEA estimates impacts based on activities that are reasonably
foreseeable, including, but not limited to, activities that are
currently authorized, permitted, or funded, or for which proposed plans
are currently available to the public. The DEA provides estimated costs
of the foreseeable potential economic impacts of the proposed critical
habitat designation for Limnanthes floccosa ssp. grandiflora and
Lomatium cookii over the next 20 years, which we determined to be the
appropriate period for analysis because limited planning information
was available for most activities to reasonably forecast activity
levels for projects beyond a 20-year timeframe. The DEA identifies
potential incremental costs as a result of the proposed critical
habitat designation; these are those costs attributed to critical
habitat over and above those baseline costs attributed to listing. The
DEA quantifies economic impacts of conservation efforts for L.f. ssp.
grandiflora and Lomatium cookii associated with the following
categories
[[Page 1571]]
of activity: (1) residential, urban, and commercial development; (2)
transportation; and (3) species conservation and management activities.
A number of economic activities considered in the economic analysis are
not forecast to incur baseline or incremental impacts. Therefore, the
DEA considers potential impacts to agriculture, grazing, timber
harvest, fire management, recreation, and mining activities, but does
not quantify potential costs because these activities are either not
forecast to occur within the proposed critical habitat, or are not
subject to a Federal nexus requiring consultation with the Service.
Total forecast baseline impacts over the 20 years following the
designation of critical habitat (2010-2029) are estimated to be $7.83
million to $157 million using a 7 percent discount rate. Baseline
impacts are those anticipated regardless of a critical habitat
designation. The majority of the total future baseline impacts are
associated with development projects ($6.4 million to $156 million).
The broad range in baseline impacts is due to the range of impacts
estimated for future development activities. Under the low-forecast
development scenario, the analysis assumes that future development will
occur only in units where it has occurred in the past, at its past
rate. Under the high-forecast development scenario, this analysis
assumes full build-out over the next 20 years of developable areas
within units where development has occurred in the past, or within
units where the proposed rule identifies development as a potential
threat to the two plant species and their habitat. Baseline impacts to
transportation and species management activities are the same under
both the low-and high-impact scenarios. Under the low-impact scenario,
subunit RV9B (Medford Airport) has the highest levels of impacts ($2.2
million), stemming primarily from conservation actions applied to
comply with section 404 of the Clean Water Act as part of a future
airport runway expansion project. Under the high-impact scenario,
subunit RV6A (White City) has the highest levels of impacts ($32.8
million), stemming primarily from conservation actions applied to
comply with section 404 of the Clean Water Act during future
development projects.
The DEA estimates that total potential incremental economic impacts
in areas proposed as critical habitat over the next 20 years will be
$95,200 to $403,000 applying a 7 percent discount rate. Development
activities would be the primary economic sector affected;
transportation activities and species habitat and conservation
management activities would see some minor incremental impacts. All
incremental impacts attributed to the designation of critical habitat
are administrative costs associated with addressing adverse
modification in future section 7 consultations. . As described above
for baseline impacts, the range in total incremental impacts is due to
the range in development forecasts.
The lack of incremental impacts stemming from sources other than
administrative costs is due to the fact that critical habitat
designation for Limnanthes floccosa ssp. grandiflora and Lomatium
cookii is not expected to change the level, design, or regulation of
forecast economic activities. That is, the designation of critical
habitat is not expected to result in a decrease in economic activities
or additional project modification above and beyond those that would be
undertaken as part of the baseline (e.g., to comply with Clean Water
Act requirements or to avoid jeopardy to the species).
As stated earlier, we are seeking data and comments from the public
on the DEA, as well as all aspects of the proposed rule and our amended
required determinations. We may revise the proposed rule or supporting
documents to incorporate or address information we receive during the
public comment period, including information received during or in
response to the public hearing. In particular, we may exclude an area
from critical habitat if we determine that the benefits of excluding
the area outweigh the benefits of including the area, provided the
exclusion will not result in the extinction of the species.
Required Determinations--Amended
In our July 28, 2009, proposed rule (74 FR 37314), we indicated
that we would defer our determination of compliance with several
statutes and Executive Orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the DEA. We have now
made use of the DEA data in making these determinations. In this
document, we affirm the information in our proposed rule concerning:
Executive Order (E.O.) 13132 (Federalism), E.O. 12988 (Civil Justice
Reform), the Paperwork Reduction Act, the National Environmental Policy
Act, and the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR
22951). However, based on the DEA data, we are amending our required
determinations concerning E.O. 12866 (Regulatory Planning and Review),
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211
(Energy Supply, Distribution, and Use), E.O. 12630 (Takings), and the
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.).
Regulatory Planning and Review (E.O. 12866)
The Office of Management and Budget (OMB) has determined that this
proposed rule is not significant and has not reviewed this proposed
rule under E.O. 12866. The OMB based its determination upon the
following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
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),
as described below. 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.
Based on our DEA of the proposed designation, we provide our analysis
for determining whether the proposed rule would result in a significant
economic impact on a substantial number of small entities. Based on
comments we receive, we may revise this determination as part of a
final rulemaking.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than
[[Page 1572]]
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
Limnanthes floccosa ssp. grandiflora and Lomatium cookii would affect a
substantial number of small entities, we considered the number of small
entities affected within particular types of economic activities, such
as residential and commercial development. In order to determine
whether it is appropriate for our agency to certify that this rule
would not have a significant economic impact on a substantial number of
small entities, we considered each industry or category individually.
In estimating the numbers of small entities potentially affected, we
also considered whether their activities have any Federal involvement.
Critical habitat designation will not affect activities that do not
have any Federal involvement; designation of critical habitat only
affects activities conducted, funded, permitted, or authorized by
Federal agencies.
If we finalize this proposed critical habitat designation, Federal
agencies must consult with us under section 7 of the Act if their
activities may affect designated critical habitat. In areas where
Limnanthes floccosa ssp. grandiflora and Lomatium cookii are present,
Federal agencies are already required to consult with us under section
7 of the Act, due to the current endangered status of the species.
Consultations to avoid the destruction or adverse modification of
critical habitat would be incorporated into the existing consultation
process.
Appendix A.1 of the DEA evaluates the potential economic effects of
the proposed designation on small entities, based on the estimated
incremental impacts associated with the critical habitat. Based on the
quantification of incremental impacts of the proposed designation of
critical habitat for Limnanthes floccosa ssp. grandiflora and Lomatium
cookii as detailed in Chapters 3, 4, and 5 of the DEA, we considered
whether any small entities may bear the incremental impacts of this
proposed rulemaking. The DEA does not forecast any incremental impacts
beyond additional administrative costs associated with considering
adverse modification during future Federal section 7 consultations.
Small entities may participate in consultation under section 7 of the
Act regarding L.f. ssp. grandiflora and Lomatium cookii as a third
party applicant (the primary consulting parties being the Service and
the Federal action agency) and may spend additional time and effort
considering potential critical habitat issues. These incremental
administrative costs of consultation borne by third parties were the
subject of the analysis for potential impacts of the proposed
rulemaking on small entities.
The DEA forecasts section 7 consultations associated with Federal
involvement in development, transportation, and species conservation
and management activities. The potential incremental costs associated
with these activities are analyzed in Chapters 3, 4, and 5 of the DEA,
and are summarized as follows.
Development. Chapter 3 of the DEA anticipates that any
future consultations on development will be triggered by the need for a
section 404 permit pursuant to the Clean Water Act, which requires
section 7 consultation if a project may affect a listed species. The
U.S. Army Corps of Engineers (USACE) is the consulting Federal agency
on consultations for section 404 permits. Future consultations for 404
permits would also include third parties, such as private developers or
county agencies. Private developers may be considered small entities if
their annual income is less than $7.0 million. The DEA assumes that
consultation costs will be borne by developers as an additional project
expense, rather than by landowners who would experience consultation
costs as an effect on land values.
Transportation. As described in Chapter 4 of the DEA, all
incremental impacts are forecast to be incurred by the Service and the
Oregon Department of Transportation, which, as a State agency, is not
considered small.
Species management conservation. Chapter 5 describes that
all incremental impacts are forecast to be borne by the U.S. Bureau of
Land Management, a Federal agency, and the Service. As a result, no
incremental impacts are expected to be borne by small entities.
As incremental impacts to development activities are the only
incremental impacts that may be borne by small entities, the remainder
of this analysis focuses on development. Based on the forecast low
scenario for future development activity (as described in Chapter 3 of
the DEA), approximately 1.13 development projects are expected to occur
annually within the study area. Based on the forecast high scenario for
future development activity, approximately 6.55 development projects
are expected to occur annually within the study area. This analysis
assumes that all future development projects within the study area will
require formal section 7 consultation triggered by the need for a
section 404 permit pursuant to the Clean Water Act. Thus, 1.13 formal
consultations are forecast to occur annually under the low scenario,
while 6.55 formal consultations are forecast to occur annually under
the high scenario. Applying the third party costs of addressing adverse
modification during formal section 7 consultation (estimated at $875)
to the number of forecast consultations annually, the DEA estimates
that the present value of incremental third party costs is equal to
$11,200 for all small entities combined under the low-impact scenario
and $65,000 under the high-impact scenario over 20 years. In terms of
annualized impacts, these present values translate to $1,050 for all
small entities under the low-impact scenario and $6,140 under the high-
impact scenario (applying a 7 percent discount rate).
Third parties involved in past development consultations include
Jackson County and private developers. The population of Jackson County
was approximately 201,000 in 2008; thus, Jackson County exceeds the
small governmental jurisdiction population threshold of 50,000 people.
Forecast consultations on development projects are expected to include
Jackson County agencies, local private developers, and relatively large
commercial entities as contained in the consultation history. To the
extent that forecast consultations include Jackson County agencies or
large commercial entities, incremental administrative costs will not be
borne by small entities.
However, a large portion of forecast consultations for development
activities are expected to include local private developers, which may
be small entities depending on their annual revenues. In the past,
development projects within the study area have included site
[[Page 1573]]
preparation such as leveling of land, filling of wetlands, and
excavation, in addition to building construction. Therefore, land
subdivision, which includes excavating land and preparing it for future
residential, commercial, and industrial construction, is identified as
the most-applicable industry to capture local private developers that
may bear incremental administrative costs due to the designation of
critical habitat.
Absent information on the specific third parties that may be
involved in future development consultations, the DEA conservatively
assumes that all of the entities involved in future consultation
efforts are small land subdivision companies. Expected annual impacts
to the land subdivision industry ($1,050 under the low-impact scenario
and $6,140 under the high-impact scenario) are significantly less than
the maximum annual revenues that could be generated by a single small
land subdivision entity ($7.0 million). Annual revenues of small
development companies within the study area are expected to be roughly
$910,000. While 95 land subdivision companies operate within the
counties containing proposed critical habitat, the number of these that
may be involved in development projects subject to consultation for
Limnanthes floccosa ssp. grandiflora and Lomatium cookii is unknown.
The estimated annualized impact may be borne by one company or
distributed across many. If all impacts were borne by a single small
development company, the estimated annualized impact would represent
less than 1 percent of total annual revenues under both the low-and
high-impact scenarios (assuming average annual revenues for a small
development company of $910,000).
In summary, we have considered whether the proposed critical
habitat designation would result in a significant economic impact on a
substantial number of small entities. As the only anticipated
incremental cost of the designation are administrative costs associated
with section 7 consultations, the vast majority of incremental costs
associated with the proposed designation will be borne by Federal
agencies. The only incremental costs identified for small entities are
potential costs associated with development activities. Based on the
DEA, even if all incremental costs associated with development
activities were to be borne by a single development company, which we
consider unlikely, the estimated annualized impact would be less than 1
percent of total annual revenues under both the low-and high-impact
scenarios considered in the DEA. For these reasons, we certify that, if
promulgated, the proposed designation of critical habitat for
Limnanthes floccosa ssp. grandiflora and Lomatium cookii would not have
a significant economic impact on a substantial number of small business
entities. Therefore, an initial regulatory flexibility analysis is not
required.
Executive Order 13211--Energy Supply, Distribution, and Use
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions that may affect the
supply, distribution, and use of energy. The OMB's guidance for
implementing this Executive Order outlines nine outcomes that may
constitute ``a significant adverse effect'' when compared to no
regulatory action. As discussed in Appendix A.2, the DEA finds none of
these criteria are relevant to this analysis. The DEA concludes that
energy-related impacts associated with conservation actions within the
potential critical habitat are not expected. All forecast impacts are
expected to occur associated with the listing of Limnanthes floccosa
ssp. grandiflora and Lomatium cookii, regardless of the designation of
critical habitat. Therefore, designation of critical habitat is not
expected to lead to any adverse outcomes (such as a reduction in
electricity production or an increase in the cost of energy production
or distribution). 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, 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. First, it excludes ``a condition of federal
assistance.'' Second, it 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. ``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.''
Critical habitat designation 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 consult with
the Service to ensure that their actions do not destroy or adversely
modify critical habitat under section 7. Designation of critical
habitat may indirectly impact non-Federal entities that receive Federal
funding, assistance, or permits, or that otherwise require approval or
authorization from a Federal agency for an action. 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 DEA section of the proposed designation of
critical habitat for Limnanthes floccosa ssp. grandiflora and Lomatium
cookii, we do not believe that this rule would significantly or
uniquely affect small governments because it would 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 DEA concludes that any incremental impacts are limited
to the administrative costs of section 7 consultations; however, these
are not expected to affect small governments. Consequently, a critical
habitat designation would not significantly or uniquely affect small
government entities. 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
[[Page 1574]]
proposing critical habitat for Limnanthes floccosa ssp. grandiflora and
Lomatium cookii in a takings implications assessment. Our taking
implications assessment concludes that critical habitat for L.f.
grandiflora and Lomatium cookii would not pose significant takings
implications.
References Cited
A complete list of all references we cited in the proposed rule and
in this document is available on the Internet at http://
www.regulations.gov or by contacting the Oregon Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT section).
Authors
The primary authors of this rulemaking are the staff members of the
Oregon Fish and Wildlife Office.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: December 30, 2009.
Eileen Sobeck,
Acting Assistant Secretary of Fish Wildlife and Parks.
[FR Doc. 2010-323 Filed 1-11- 10; 8:45 am]
BILLING CODE 4310-55-S