[Federal Register: July 18, 2005 (Volume 70, Number 136)]
[Proposed Rules]               
[Page 41183-41186]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT68

Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Central Population of California Tiger 

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 Central population of the California tiger salamander and the 
availability of the draft economic analysis of the proposed designation 
of critical habitat. The draft economic analysis identifies potential 
costs of approximately $367 million over a 20-year period or $32.8 
million per year as a result of the designation of critical habitat, 
including those costs coextensive with listing. 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 August 3, 2005.

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 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 
office, at the above address, or fax your comments to 916/414-6710; or
    3. You may send comments by electronic mail (e-mail) to: 
fw1Central_cts_pch@fws.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 you 
comments by 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://sacramento.fws.gov/
 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 above (telephone 916/414-6600; 
facsimile 916/414-6710).


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 (69 FR 48570, August 10, 2004) 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 
California tiger salamander (CTS) habitat, 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 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 CTS, and how many 
were either already in place or enacted for other reasons;
    (5) 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 overlooked;
    (6) Whether the draft economic analysis makes appropriate 
assumptions regarding current practices and likely regulatory changes 
imposed as a result of the designation of critical habitat;
    (7) Whether the draft economic analysis correctly assesses the 
effect on regional costs associated with land use controls that derive 
from the designation of critical habitat;
    (8) The draft economic analysis indicated potentially 
disproportionate impacts to areas within Alameda, Contra Costa, and 
Monterey 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. We are specifically 
seeking comment along with additional information concerning our final 
determination for these three areas along with any other areas with 
potentially disproportionate impacts.
    (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; does our conclusion that the 
proposed designation of critical habitat will not result in a 
disproportionate effect to small businesses warrant further 
consideration, and is there other information that would indicate that 
the designation of critical habitat would or would not have any impacts 
on small entities or families;
    (10) Whether the draft economic analysis appropriately identifies 
all costs that could result from the designation; and
    (11) 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.

[[Page 41184]]

    (12) We are also considering excluding, and are requesting comments 
on the benefits of excluding or including in critical habitat the 
following areas from the final designation:
    (a) The areas in east Contra Costa County covered by the Draft East 
Contra Costa Habitat Conservation Plan. This document will be out for 
public review soon and will be available on the Internet at http://sacramento.fws.gov
 (Central Valley Region Units 14, 15, 16 and portions 

of 17);
    (b) The proposed critical habitat within the San Luis Refuge 
National Wildlife Complex (Central Valley Region Units 12 and 13) and 
the San Francisco Bay National Wildlife Complex (East Bay Region Unit 
4); and
    (c) The subunits within the Fort Hunter Liggett Army Installation 
(Central Coast Region Unit 5a and 5b).
    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 for the August 10, 2004 proposed rule need not be 
resubmitted. Refer to the ADDRESSES section for information on how to 
submit written comments and information. Our final determination on the 
proposed critical habitat will take into consideration all comments and 
any additional information we receive.
    Please submit electronic comments in an ASCII file format and avoid 
the use of special characters and encryption. Please also include 
``Attn: RIN 1018-AT68'' 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. In some circumstances, we would withhold 
from the rulemaking record a respondent's identity, as allowable by 
law. If you wish for us to withhold your name and/or address, you must 
state this prominently at the beginning of your comments. 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 draft economic analysis are available on the Internet 
at: http://sacramento.fws.gov/. You may obtain copies of the proposed 

rule from the above address, by calling 916/414-6600.


    We published a proposed rule to designate critical habitat on 
August 10, 2004 (69 FR 48570). The proposed critical habitat totaling 
approximately 382,666 acres (ac) (154,860 ha (ha)) in 4 geographic 
regions in 47 units, is in the following 20 counties in central 
California: Alameda, Amador, Calaveras, Contra Costa, Fresno, Kern, 
Kings, Madera, Mariposa, Merced, Monterey, Sacramento, San Benito, San 
Joaquin, San Luis Obispo, Santa Clara, Solano, Stanislaus, Tulare, and 
Yolo. This proposed critical habitat does not include areas within 
Santa Barbara or Sonoma Counties. A final critical habitat designation 
for the California tiger salamander in Santa Barbara County was 
published on November 24, 2004 (69 FR 68568). We are also currently in 
the process of completing a proposed designation for the California 
tiger salamander in Sonoma County which will be published in the 
Federal Register at a future date. Per settlement agreement, we will 
submit for publication in the Federal Register a final critical habitat 
designation for the CTS in Sonoma County on or before December 1, 2005.
    Critical habitat is defined in section 3 of the Act as the specific 
areas within the geographic area occupied by a species, at the time it 
is listed in accordance with the Act, on which are found those physical 
or biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographic area occupied by a species at the 
time it is listed, upon a determination that such areas are essential 
for the conservation of the species. If the proposed rule is made 
final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
affecting areas designated as critical habitat must consult with us on 
the effects of their proposed actions, pursuant to section 7(a)(2) of 
the Act.
    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial data 
available, after taking into consideration the economic or any other 
relevant impact of specifying any particular area as critical habitat. 
Based on the August 10, 2004, proposed rule to designate critical 
habitat for the Central population of California tiger salamander, 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 $367 
million over a 20-year period or $32.8 million per year as a result of 
the designation of critical habitat, including those costs coextensive 
with listing. The analysis measures lost economic efficiency associated 
with residential and commercial development, public projects and 
activities, such as economic impacts on transportation projects, the 
energy industry, University of California, Merced, and public lands 
such as those managed by the Department of Defense, Bureau of Land 
Management, Fish and Wildlife Service, and Bureau of Indian Affairs.
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of the Central 
population of California tiger salamander 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 California 
tiger salamander in essential habitat areas. The analysis considers 
both economic efficiency and distributional effects. In the case of 
habitat conservation, efficiency effects generally reflect the 
``opportunity costs'' associated with the commitment of resources to 
comply with habitat protection measures (e.g., lost economic 
opportunities associated with restrictions on land use). This analysis

[[Page 41185]]

also addresses how potential economic impacts are likely to be 
distributed, including an assessment of any local or regional impacts 
of habitat conservation and the potential effects of conservation 
activities on small entities and the energy industry. This information 
can be used by decision-makers to assess whether the effects of the 
designation might unduly burden a particular group or economic sector. 
Finally, this analysis looks retrospectively at costs that have been 
incurred since the date the species was listed as a threatened species 
and considers those costs that may occur in the 20 years following the 
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 
California tiger salamander critical habitat pursuant to sections 4, 7, 
and 10 of the Act are estimated to be approximately $283 to 367 million 
from 2005 to 2025. Overall, the residential and commercial industry is 
calculated to experience the highest of estimated costs. Of the 20 
counties that are part of this current proposal, the four most impacted 
counties are Alameda, Contra Costa, Monterey and Santa Clara. 
Annualized impacts of costs attributable to the designation of critical 
habitat are projected to be between approximately $32.8 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) has not formally reviewed the proposed 

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 this proposed designation of critical habitat for 
the California tiger salamander 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 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 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 California tiger salamander 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, the number of houses built per small firm was calculated, 
and it appears that less than two small firms maybe be affected in 
Sacramento County, and one, or less than one, each in Contra Costa, 
Alameda, Monterey, Fresno, Santa Clara, and San Benito counties. These 
firms may be affected by activities associated with the conservation of 
the Central population of California tiger salamander, inclusive of 
activities associated with listing, recovery, and critical habitat. 
Critical habitat is not expected to result in significant small 
business impacts. Thus, in the development of our final rule, we will 
explore potential alternatives to minimize impacts to these affected 
small business entities. These alternatives may include the exclusion 
of all or portions of critical habitat units in these counties. As 
such, we expect that the final designation of critical habitat for the 
Central population of California tiger salamander will not result in a 
significant impact on small business entities.
    Therefore, we believe that the designation for the Central 
population of California tiger salamander will not result in a 
disproportionate effect to these small business entities. 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 particular counties.
    We determined that the critical habitat designation is expected to 
have the largest impacts on the market for

[[Page 41186]]

developable land. The proposed critical habitat designation for 
California tiger salamander occurs in a number of rapidly growing 
communities. Regulatory requirements to avoid onsite impacts and 
mitigate offsite affect the welfare of both producers and consumers. 
Two scenarios are considered. In the first scenario, avoidance 
requirements are assumed to reduce the stock of new housing. Given the 
importance of regulation of housing development even in the absence of 
critical habitat, this scenario is taken as the base case. In this 
scenario, critical habitat is expected to impose losses of over $367 
million over the 20-year study period. An alternative scenario is 
constructed in which all avoidance requirements are accommodated 
through densification. In this case, welfare losses from critical 
habitat are $283 million over the 20-year study period.
    These economic impacts of critical habitat designation vary widely 
among the 20 affected counties, and even within counties. The counties 
most impacted by the critical habitat designation include: Alameda 
($131 million), Contra Costa ($91 million), Monterey ($67 million), 
Santa Clara ($23 million), and San Benito ($23 million). Further, 
economic impacts are unevenly distributed within counties. The analysis 
was conducted at the census tract level, resulting in a high degree of 
spatial precision.
    Please refer to our draft economic analysis of this 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 Central population of CTS, the 
impacts on non-profits and small governments are expected to be 
negligible and are not examined in this analysis. There is no record of 
consultations between the Service and any of these governments since 
the Central population of CTS was listed in 2004. 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 Central population of CTS within their 
jurisdictional areas. Any costs associated with this activity are 
likely to represent a small portion of a city's budget. Consequently, 
we do not believe that the designation of critical habitat for the 
Central population of CTS will significantly or uniquely affect these 
small governmental entities. As such, a Small Government Agency Plan is 
not required.


    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing critical habitat for Central population of CTS. 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 
Central population of CTS does not pose significant takings 


    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.).

    Dated: July 13, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-14119 Filed 7-14-05; 1:13 pm]