Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Spikedace and Loach Minnow, 32496-32503 [E6-8645]
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Federal Register / Vol. 71, No. 108 / Tuesday, June 6, 2006 / Proposed Rules
A public hearing has been scheduled
for October 24, 2006, at 10 a.m., in the
auditorium, Internal Revenue Building,
1111 Constitution Avenue, NW.,
Washington, DC. Due to building
security procedures, visitors must enter
at the Constitution Avenue entrance. In
addition, all visitors must present photo
identification to enter the building.
Because of access restrictions, visitors
will not be admitted beyond the
immediate entrance area more than 30
minutes before the hearing starts. For
information about having your name
placed on the building access list to
attend the hearing, see the FOR FURTHER
INFORMATION CONTACT section of this
preamble.
The rules of 26 CFR 601.601(a)(3)
apply to the hearing. Persons who wish
to present oral comments at the hearing
must submit electronic or written
comments and an outline of the topics
to be discussed and the time to be
devoted to each topic (a signed original
and eight (8) copies) by October 3, 2006.
A period of 10 minutes will be allotted
to each person for making comments.
An agenda showing the scheduling of
the speakers will be prepared after the
deadline for receiving outlines has
passed. Copies of the agenda will be
available free of charge at the hearing.
Drafting Information
The principal author of these
regulations is Jefferson VanderWolk of
the Office of the Associate Chief
Counsel (International). However, other
personnel from the IRS and Treasury
Department participated in their
development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and
recordkeeping requirements.
Proposed Amendments to the
Regulations
Paragraph 1. The authority citation
for part 1 is amended by adding an entry
in numerical order to read, in part, as
follows:
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Authority: 26 U.S.C. 7805 * * *
Section 1.7874–2 also issued under 26
U.S.C. 7874(c)(6) and (g). * * *
Par. 2. Section 1.7874–2 is added to
read as follows:
Surrogate foreign corporation.
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 604
[Docket No. FTA–2005–22657]
RIN 2132–AA85
Charter Service
Federal Transit Administration
(FTA), DOT.
ACTION: Notice of additional committee
members notice of and meeting dates
and times.
AGENCY:
SUMMARY: This notice lists the
additional committee members as
nominated by the Charter Bus
Negotiated Rulemaking Advisory
Committee (CBNRAC) and approved by
the Deputy Administrator of the Federal
Transit Administration (FTA). This
notice also includes new meeting dates
and times.
DATES: Effective Date: June 6, 2006. See
SUPPLEMENTARY INFORMATION section for
dates of future meetings.
FOR FURTHER INFORMATION CONTACT:
Elizabeth Martineau, Attorney-Advisor,
Office of the Chief Counsel, Federal
Transit Administration, 202–366–1936
(elizabeth.martineau@dot.gov). Her
mailing address at the Federal Transit
Administration is 400 Seventh Street,
SW., Room 9316, Washington, DC
20590.
April 10, 2006, FTA published a final
notice establishing the Charter Bus
Negotiated Rulemaking Advisory
Committee (CBNRAC) (71 FR 18056).
The CBNRAC held its first meeting in
Washington, DC on May 8 and 9. During
those meetings, the members of the
CBNRAC nominated four additional
members for inclusion on the CBNRAC.
Those individuals are:
(1) Michael Waters, Vice President
and General Manager, Coach USA;
(2) Dale Moser, Chief Operating
Officer, Coach America;
(3) Richard Ruddell, President and
Executive Director, Fort Worth
Transportation Authority;
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(4) Sandy Dragoo, Executive Director,
Capital Area Transportation Authority.
The Deputy Administrator considered
these names, and, on May 26, 2006,
approved the inclusion of these
individuals on the CBNRAC.
Schedule of Meetings
BILLING CODE 4830–01–P
New Members
PART 1—INCOME TAXES
[The text of proposed § 1.7874–2 is
the same as the text of § 1.7874–2T
Mark E. Matthews,
Deputy Commissioner for Services and
Enforcement.
[FR Doc. E6–8698 Filed 6–5–06; 8:45 am]
SUPPLEMENTARY INFORMATION:
Accordingly, 26 CFR part 1 is
proposed to be amended as follows:
§ 1.7874–2
published elsewhere in this issue of the
Federal Register].
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As mentioned above, the first
meetings of the CBNRAC occurred on
May 8 and 9 in Washington, DC. During
those meetings, the Committee agreed
on the following schedule for future
meetings:
June 19 from 9 a.m. to 4:30 p.m.
June 20 from 8:30 a.m. to 4 p.m.
July 17 from 9 a.m. to 4:30 p.m.
July 18 from 8:30 a.m. to 4 p.m.
September 12 from 9 a.m. to 4:30 p.m.
September 13 from 8:30 a.m. to 4 p.m.
October 25 from 9 a.m. to 4:30 p.m.
October 26 from 8:30 a.m. to 4 p.m.
December 6 from 9 a.m. to 4:30 p.m.
December 7 from 8:30 a.m. to 4 p.m.
All of the above meetings will be held
in room 2301 at 400 Seventh Street,
SW., Washington, DC. Any changes in
dates, times, or location, will be
announced in a Federal Register notice
in advance of the next meeting.
Issued this 31st day of May, 2006, in
Washington, DC.
Sandra K. Bushue,
Deputy Administrator.
[FR Doc. 06–5133 Filed 6–5–06; 8:45 am]
BILLING CODE 4910–57–M
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018–AU33
Endangered and Threatened Wildlife
and Plants; Proposed Designation of
Critical Habitat for the Spikedace and
Loach Minnow
Fish and Wildlife Service,
Interior.
ACTION: Revised proposed rule;
reopening of public comment period,
notice of availability of draft economic
analysis and draft environmental
assessment, notice of public hearings,
and updated legal descriptions for
critical habitat units.
AGENCY:
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), announce the
availability of the draft economic
analysis and draft environmental
assessment for the proposal to designate
critical habitat for the spikedace (Meda
fulgida) and loach minnow (Tiaroga
cobitis) under the Endangered Species
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Federal Register / Vol. 71, No. 108 / Tuesday, June 6, 2006 / Proposed Rules
Act of 1973, as amended (Act). The draft
economic analysis finds that costs
associated with spikedace and
loachminnow conservation activities are
forecast to range from $25.2 million to
$100.3 million in constant dollars over
the next 20 years. Adjusted for possible
inflation the costs would range from
$19.0 million to $83.6 million over 20
years, or $1.3 million to $5.7 million
annually, using a three percent
discount; or $13.9 million to $69.2
million over 20 years, or $1.4 million to
$6.7 million over 20 years annually,
using a seven percent discount rate.
We are also reopening the public
comment period for the proposal to
designate critical habitat to allow all
interested parties an opportunity to
comment on and request changes to the
proposed critical habitat designation, as
well as the associated draft economic
analysis and draft environmental
assessment. In addition, we are
proposing corrected legal descriptions
for some of the critical habitat units.
Comments previously submitted on the
December 20, 2005, proposed rule need
not be resubmitted as they have been
incorporated into the public record and
will be fully considered in preparation
of the final rule. We will hold two
public informational sessions and
hearings (see DATES and ADDRESSES
sections).
Comments must be submitted
directly to the Service (see ADDRESSES)
on or before July 6, 2006, or at the
public hearings.
We will hold a public informational
session from 3 p.m. to 4:30 p.m.,
followed by a public hearing from 6:30
p.m. to 8 p.m., on each of the following
dates:
1. June 13, 2006: Camp Verde,
Arizona.
2. June 20, 2006: Silver City, New
Mexico.
DATES:
ADDRESSES:
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Information Sessions/Hearings
The public informational sessions and
hearings will be held at the following
locations:
1. Camp Verde, AZ: Cliff Castle
Casino Hotel & Conference Center, TriCity Room, 555 Middle Verde Road.
2. Silver City, NM: Flame Convention
Center, 2800 Pinos Altos Road.
For information on requesting
reasonable accommodations to attend a
session, see ‘‘Public Comments
Solicited’’ under SUPPLEMENTARY
INFORMATION.
Comments
If you wish to comment on the
proposed rule, draft economic analysis,
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or draft environmental assessment, you
may submit your comments and
materials identified by RIN 1018–AU33,
by any of the following methods:
(1) E-mail: SD_LMComments@fws.gov.
Include RIN 1018–AU33 in the subject
line. Please submit electronic comments
in ASCII file format and avoid the use
of special characters or any form of
encryption. Please also include 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 Internet message,
contact us directly by calling our
Arizona Ecological Services Field Office
at (602) 242–0210.
(2) Fax: (602) 242–2513.
(3) Mail or hand delivery/courier:
Steve Spangle, Field Supervisor,
Arizona Ecological Services Field
Office, 2321 W. Royal Palm Road, Suite
103, Phoenix, AZ 85021.
(4) Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
You may obtain copies of the
proposed rule, draft economic analysis,
and draft environmental assessment by
mail or by visiting our Web site at
https://arizonaes.fws.gov/. You may
review comments and materials
received and review supporting
documentation used in preparation of
this proposed rule by appointment,
during normal business hours, at the
Arizona Ecological Services Field Office
(see ADDRESSES).
FOR FURTHER INFORMATION CONTACT:
Steve Spangle, Field Supervisor,
Arizona Ecological Services Field Office
(telephone, 602–242–0210; facsimile,
602–242–2513).
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We intend that any final action
resulting from this proposal will be as
accurate and as effective as possible.
Therefore, we solicit comments or
suggestions from the public, other
concerned governmental agencies, the
scientific community, industry, or any
other interested party concerning the
proposed rule, the draft economic
analysis, and the draft environmental
assessment. Based on public comment
on the proposed rule, the draft
economic analysis, and the
environmental assessment, as well as on
the conclusions of the final economic
analysis and environmental assessment,
we may find during the development of
our final determination that some areas
proposed do not contain the features
that are essential to the conservation of
the species, are appropriate for
exclusion under section 4(b)(2) of the
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Act, or are not appropriate for
exclusion. We particularly seek
comments concerning:
(1) The reasons any habitat should or
should not be determined to be critical
habitat as provided by section 4 of the
Endangered Species Act of 1973, as
amended (Act) (16 U.S.C. 1531 et seq.),
including whether it is prudent to
designate critical habitat;
(2) Specific information on the
distribution of the spikedace and loach
minnow, the amount and distribution of
the species’ habitat, and which habitat
contains the necessary features (primary
constituent elements) essential to the
conservation of these species and why;
(3) Land-use designations and current
or planned activities in the subject area
and their possible impacts on these
species or proposed critical habitat;
(4) 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 concerns and
comments;
(5) Any foreseeable environmental
impacts directly or indirectly resulting
from the proposed designation of
critical habitat;
(6) Any foreseeable economic or other
impacts resulting from the proposed
designation of critical habitat, and in
particular, any impacts on small entities
or families;
(7) Whether the economic analysis
identifies all State and local costs, and
if not, what other costs should be
included;
(8) Whether the economic analysis
makes appropriate assumptions
regarding current practices and likely
regulatory changes imposed as a result
of the designation of critical habitat;
(9) Whether the economic analysis
correctly assesses the effect on regional
costs associated with land- and wateruse controls that derive from the
designation;
(10) Whether the critical habitat
designation will result in
disproportionate economic impacts to
specific areas that should be evaluated
for possible exclusion from the final
designation;
(11) Whether the economic analysis
appropriately identifies all costs that
could result from the designation or
coextensively from the listing of these
species in 1986;
(12) Based on the information in the
draft economic analysis, we are
considering excluding the Verde River
Unit based on disproportionate costs
from the final designation per our
discretion under section 4(b)(2) of the
Act. We are specifically seeking
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Federal Register / Vol. 71, No. 108 / Tuesday, June 6, 2006 / Proposed Rules
comment along with additional
information on the estimated costs, how
these estimated costs are distributed
within the Verde River Unit, and
whether we should exclude all or a
portion of the Verde River Unit based on
disproportionate costs from the final
designation per our discretion under
section 4(b)(2) of the Act; and
(13) Whether the benefit of exclusion
in any particular area outweigh the
benefits of inclusion under Section
4(b)(2) of the Act.
Our practice is to make comments,
including names and home addresses of
respondents, available for public review
during regular business hours. We will
not consider anonymous comments and
we will make all comments available for
public inspection in their entirety.
Comments and materials received will
be available for public inspection, by
appointment, during normal business
hours at the Arizona Ecological Services
Field Office (see ADDRESSES).
All previous comments and
information submitted during the initial
comment period on the proposed rule
need not be resubmitted. If you wish to
comment, you may submit your
comments and materials concerning this
proposal by any one of several methods
(see ADDRESSES). Our final designation
of critical habitat for the spikedace and
loach minnow will take into
consideration all comments and any
additional information received during
both comment periods.
Persons needing reasonable
accommodations in order to attend and
participate in a public hearing should
contact the Field Supervisor, Arizona
Ecological Services Field Office, at the
address or phone number listed in the
ADDRESSES and FOR FURTHER
INFORMATION CONTACT sections as soon
as possible. In order to allow sufficient
time to process requests, please call no
later than one week before the hearing.
Information regarding this proposal is
available in alternative formats upon
request.
Background
On December 20, 2005, we proposed
to designate critical habitat for
spikedace and loach minnow of
approximately 633 stream miles (mi)
(1018.7 stream kilometers (km)) of
critical habitat, which includes various
stream segments and their associated
riparian areas, including the stream at
bankfull width and a 300-foot buffer on
either side of the stream banks (70 FR
75546). The proposed designation
includes Federal, State, Tribal, and
private lands in Arizona and New
Mexico.
Critical habitat identifies specific
areas containing features essential to the
conservation of a listed species and that
may require special management
considerations or protection. If the
proposed critical habitat designation is
finalized, section 7(a)(2) of the Act
would require that Federal agencies
ensure that actions they fund, authorize,
or carry out are not likely to result in the
destruction or adverse modification of
critical habitat.
Section 4 of the Act requires that we
consider economic and other relevant
impacts prior to making a final decision
on what areas to designate as critical
habitat. 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.
The draft economic analysis considers
and attempts to quantify the potential
economic effects of efforts to protect the
spikedace and loach minnow and their
habitat, collectively referred to as
‘‘spikedace and loach minnow
conservation activities,’’ in the proposed
critical habitat designation, as well as
the economic effects of protective
measures taken as a result of the listing
or other Federal, State, and local laws
that aid habitat conservation in the areas
proposed for designation. In the case of
habitat conservation, these costs would
reflect the costs associated with the
commitment of resources to comply
with habitat protection measures. The
analysis also addresses how potential
economic impacts are likely to be
distributed.
We did not propose Bear Creek, a
tributary of the Gila River in New
Mexico, as critical habitat because there
had been no information to indicate this
area was occupied by either species.
However, we have since received
information to indicate this area is
occupied by loach minnow. Due to our
tight timeframe for completion of the
final rule and associated documents we
are not able to consider inclusion of
Bear Creek at this time. However, if the
critical habitat designation is amended
in the future we will consider inclusion
of this area at that time.
Corrected Coordinates for Proposed
Units of Critical Habitat
Below we provide corrected legal
descriptions for the spikedace and loach
minnow proposed critical habitat
designation. Following the publication
of the proposed rule on December 20,
2005, and in part through comments we
received during the subsequent
comment period, we determined that
some of the critical habitat units were
incorrectly described. In particular, in
Table 2, the column headings for
Arizona and New Mexico were
inadvertently switched. We have since
corrected the descriptions and tables to
accurately reflect what we are proposing
as critical habitat, and we provide the
corrected descriptions for all critical
habitat units below. Table 1 below
provides a corrected version of Table 2
from the December 20, 2005, proposed
rule (70 FR 75546) with approximate
distances by major landowner type.
Corrected Geographic Information
System (GIS) layers are available at
https://criticalhabitat.fws.gov/.
TABLE 1.—APPROXIMATE CRITICAL HABITAT IN STREAM KILOMETERS AND MILES
[7 River Units]
New Mexico
km (mi)
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Land owner
Arizona
km (mi)
Total
km (mi)
Federal .............................................................................................................
Tribal ................................................................................................................
State .................................................................................................................
County ..............................................................................................................
Private ..............................................................................................................
167.71 (269.90)
0.0 (0.0)
1.32 (2.12)
0.0 (0.0)
89.73 (144.40)
197.99 (318.63)
33.00 (53.11)
8.32 (13.39)
0.0 (0.0)
134.44 (216.36)
365.7 (588.53)
33.00 (53.11)
9.64 (15.51)
0.0 (0.0)
224.17 (360.76)
Total ..........................................................................................................
258.75 (416.42)
373.75(601.49)
632.51 (1017.91)
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Circular A–4, September 17, 2003).
Pursuant to Circular A–4, once it has
been determined that the Federal
regulatory action is appropriate, the
agency will need to consider alternative
regulatory approaches. Since the
determination of critical habitat is a
statutory requirement pursuant to the
Act, we must then evaluate alternative
regulatory approaches, where feasible,
when promulgating a designation of
critical habitat.
In developing our designations of
critical habitat, we consider economic
impacts, impacts to national security,
and other relevant impacts under
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, provided that the
benefits of such exclusion outweigh the
benefits of specifying the area as critical
habitat and that such exclusion would
not result in the extinction of the
species. As such, we believe that the
evaluation of the inclusion or exclusion
of particular areas, or combination
thereof, in a designation constitutes our
regulatory alternative analysis.
Required Determinations—Amended
This revised proposed rule affirms the
information contained in the December
20, 2005, proposed rule (70 FR 75546)
concerning Executive Orders (EO) 13132
and EO 12988; the Paperwork Reduction
Act; the National Environmental Policy
Act; and the President’s memorandum
of April 29, 1994, ‘‘Government-toGovernment Relations with Native
American Tribal Governments’’ (59 FR
22951). Based on the draft economic
analysis, we are amending our required
determinations, as provided below,
concerning EO 12866 and the
Regulatory Flexibility Act; EO 13211
and 12630; and the Unfunded Mandates
Reform Act.
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No additional mileage was
incorporated into the proposed
designation through the corrections
provided in Table 1. Mileage was
reduced by approximately 0.51 mi (0.82
km) for Eagle Creek after correcting for
a mapping error in the original proposal.
Mileage was additionally modified for
East Fork Black River and North Fork
East Fork Black River due to a change
in our determination of the confluence
points of these two streams. Mileage
that was previously attributed to North
Fork East Fork Black River is now
encompassed in the mileage for East
Fork Black River. The overall mileage
for these two streams remained the
same. The majority of the changes
correct errors in the Township, Range,
and section descriptions provided for
each proposed critical habitat unit.
All legal descriptions for New Mexico
and Arizona are based on the Public
Lands Survey System (PLSS). Within
this system, all coordinates reported for
New Mexico are in the New Mexico
Principal Meridian (NMPM), while
those in Arizona are in the Gila and Salt
River Meridian (GSRM). All mileage
calculations were performed using GIS.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(RFA) (5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory
Enforcement Fairness Act (5 U.S.C.
802(2)) (SBREFA), 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.
Based upon our draft economic analysis
of the proposed designation, we provide
our factual basis for determining that
this rule will not result in a significant
economic impact on a substantial
number of small entities. This
determination is subject to revision
based on comments received as part of
the final rulemaking.
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
Regulatory Planning and Review
In accordance with EO 12866, this
document is a significant rule because it
may raise novel legal and policy issues.
However, based on our draft economic
analysis, it is not anticipated that the
proposed designation of critical habitat
for the spikedace and loach minnow
would result in 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 economic analysis.
Further, EO 12866 directs Federal
Agencies promulgating regulations to
evaluate regulatory alternatives (OMB,
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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
spikedace and loach minnow would
affect a substantial number of small
entities, we considered the number of
small entities affected within particular
types of economic activities (e.g., water
management and use, livestock grazing,
residential and related development,
spikedace- and loach minnow-specific
management activities, recreation
activities, fire management activities,
mining, and transportation). 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.
Our economic analysis of this
proposed designation evaluated the
potential economic effects on small
business entities and small governments
resulting from conservation actions
related to the listing of this species and
proposed designation of its critical
habitat. We evaluated small business
entities in nine categories: water
management and use, livestock grazing
activities, mining operations, spikedace
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and loach minnow-specific management
activities, recreation, residential and
commercial development, Tribal
activities, transportation activities, and
fire management activities. Based on our
analysis, impacts associated with small
entities are anticipated to occur to water
management and use, livestock grazing,
residential and commercial
development, Tribal businesses,
transportation, and fire management. It
should be noted that the majority of
Tribal lands are under consideration for
exclusion at this time. The following is
a summary of the information contained
in the draft economic analysis:
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(a) Water Management and Use Related
to Agricultural Production
According to the draft economic
analysis, spikedace and loach minnow
conservation activities have not
impacted private crop production since
the listing of the species in 1986.
However, because agricultural water use
comprises 98 percent of surface water
use and 81 percent of groundwater use
in counties that contain proposed
critical habitat, it appears most likely
that any additional water supplies
needed for the species would
potentially come from agriculture. The
economic analysis estimates that only
810 acres of cropland are included
within proposed critical habitat, and
only 6,310 acres of cropland are in the
vicinity of critical habitat. The average
small farm includes 4,600 acres, and
farms vary between 1,300 and 8,000
acres. Based on the fact that at most
9,000 acres of cropland are involved,
and small farms vary in size, we believe
that there are not many farms located
along the streams proposed for the
designation. Additionally, under the
assumption that all farms are small
(1,884 small business farming
operations across five affected counties),
there would be well less than one
percent of small farm businesses
impacted by this proposed designation.
As a result of this information, we have
determined that this proposed
designation will not have an effect on a
substantial number of small business
farming operations.
(b) Livestock Grazing Activities
Ranching operations that hold grazing
allotment permits are anticipated to be
impacted by conservation activities for
the spikedace and loach minnow. The
costs assumed to be incurred by
livestock operations are primarily due to
anticipated installation and
maintenance of riparian fencing. The
economic analysis concluded that
approximately 76 ranches—or 4.7
percent of ranches in affected counties
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that contain proposed critical habitat, or
1 percent of ranches in New Mexico and
Arizona—could be impacted by
conservation activities. Annual costs to
each of these 76 ranching operations
may be between $390 and $9,200 per
ranch. Average revenues of a ranch in
the proposed critical habitat region are
$133,000, or between 0.3 and 7 percent
of a ranch’s estimated average revenue.
Approximately 94 percent of beef cattle
ranching and farming operations in
counties containing spikedace and loach
minnow critical habitat are small
businesses; thus approximately 72 small
ranching operations may experience a
reduction in revenues. Because only 1
percent of ranches in New Mexico and
Arizona, or 4.7 percent of ranches, in
affected counties are estimated to be
impacted by this proposal, we have
determined that this proposed
designation will not have an effect on a
substantial number of small business
ranching operations. From this analysis,
we also have determined that this
proposed designation would also not
result in a significant effect to the
annual sales of these small businesses
impacted by this proposed designation
because the above analysis has
determined that annual costs may
represent between 0.3 and 7 percent of
a ranch’s estimated average revenue.
(c) Residential and Commercial
Development
The draft economic analysis
concludes that the most likely location
for development activities within the
proposed critical habitat designation is
within the Verde River Complex, which
contains a large amount of private land,
has a large population, and is projected
to have substantial human population
growth over the next 20 years. No North
American Industry Classification
System (NAICS) code exists for
landowners, and the Small Business
Administration does not provide a
definition of a small landowner.
However, recognizing that it is possible
that some of the landowners may be
small businesses, this analysis provides
information concerning the number of
landowners potentially affected and the
size of the impact on those owners. The
draft economic analysis (section 7)
estimates that 1,646 housing units could
be built on the approximately 2,880
privately owned acres within proposed
critical habitat over the next 20 years.
Impacts to developers are estimated to
include fencing costs, scientific studies,
surveying and monitoring requirements,
and possibly off-setting mitigation
(habitat set-aside). Costs are estimated to
range from $3.1 million to $4.8 million
per large development, or $3,900 to
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$5,900 per housing unit ($190 to $300
annually, if costs are distributed evenly
over 20 years). Actual conservation
requirements undertaken by an
individual landowner will depend on
how much of a parcel crosses proposed
critical habitat. It is important to note
that it is likely that some or all housing
subdivisions may be developed by large
corporations which do not qualify as
small businesses under RFA/SBRFA.
Furthermore, because there is no loss in
housing units estimated, there would
likely not be any impact to small
businesses that are residential housing
sub-contractors. In addition, individual
single-family home development has
not historically been subject to
consultation or habitat conservation
requirements for the spikedace and
loach minnow in Arizona or New
Mexico, although consultation could be
required if Federal permits from the
Army Corps of Engineers,
Environmental Protection Agency, or
Federal Emergency Management Agency
are required.
Because individual single-family
home development has not historically
been subject to consultation or habitat
conservation requirements as described
above, the probability that single-family
home development will involve many
larger businesses, as opposed to small
businesses, and because the impacts
will not reduce the number of housing
units, we have determined that this
proposed designation will not have an
effect on a substantial number of small
businesses that are part of residential
and commercial development. From this
analysis, we also have determined that
this proposed designation would also
not result in a significant effect to the
annual sales of these small businesses
impacted by this proposed designation.
This is because of the above analysis
which has determined that each housing
unit would bear at most a cost of $190
to $300 annually, if costs are distributed
evenly over 20 years.
(d) Tribal Businesses
The proposed critical habitat
development includes lands of the
Yavapai-Apache Nation (1.6 km (1 mi)
of tributary proposed as critical habitat),
San Carlos Apache Tribe (17.2 km (27.7
mi) of tributary proposed as critical
habitat), and White Mountain Apache
Tribe (12.5 km (20.1 mi) of tributary
proposed as critical habitat). The Tribes
have expressed concerns that critical
habitat on their lands will have a
disproportionate impact on their ability
to use resources on their sovereign lands
and to successfully achieve economic
self-sufficiency. However, Tribal
governments are not classified as small
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businesses under RFA/SBRFA, whereas
Tribal corporations may qualify as small
businesses under RFA/SBRFA. The
draft economic analysis concluded that
future economic costs of implementing
spikedace and loach minnow
conservation efforts on Tribal lands
could include administrative costs of
consultation, surveys and monitoring,
modifications to grazing, fire
management, and recreation activities,
and potential project modifications to
grazing, fire management, and
recreation activities, and potential
project modifications to restoration
activities. Impacts in each of these areas
could affect the Tribes’ revenues and
employment in the future; however,
many of these impacts may not fall on
Tribal corporations, as opposed to the
Tribal governments in question. It
should be noted that the lands of both
the White Mountain Apache Tribe and
the San Carlos Apache Tribe are
proposed for exclusion from the critical
habitat designation in the proposed rule.
Because both White Mountain Apache
Tribe and the San Carlos Apache Tribe
are proposed for exclusion from the
critical habitat designation in the
proposed rule and only 1.6 km (1 mi) of
stream tributary is proposed as critical
habitat on Yavapai-Apache Nation, we
have determined this proposed
designation will not have an effect on a
substantial number of small businesses
on Tribal lands.
(e) Recreation
Areas currently stocked with nonnative rainbow trout include the Camp
Verde area of the Verde River in
Complex 1 and East Fork Gila River in
complex 5. The future impact of
proposed critical habitat on the stocking
regimes in these reaches is unknown, as
is the reduction in fishing activity that
would occur if stocking is curtailed.
Further, it is unknown whether
nonnative fish stocking may be replaced
with catchable native fish stocking (e.g.
Apache trout). Thus, the analysis in the
economic analysis estimates the value of
angler days at risk if sportfish stocking
were discontinued on these reaches as
part of the high-end estimates. Angling
trips are valued at approximately $8.6
million over 20 years (or $816,000
annually), assuming a discount rate of 7
percent. It should be noted that because
State fish managers typically identify
alternative sites for stocked fish when
areas are closed to stocking, these angler
days are likely to be redistributed to
other areas rather than lost altogether.
Thus, the high-end estimate does not
consider the possibility that rather than
not fishing at all, recreators will visit
alternative, less desirable fishing sites.
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Existing models of angler behavior in
these areas were not available to refine
this estimate.
The two stream reaches where
impacts on recreation are anticipated
are located in Yavapai County, Arizona,
and Catron County, New Mexico. If, as
in the low-end estimate of impacts,
angler trips are not lost, but instead are
redistributed to other streams, then
regional impacts on small businesses are
likely to be minimal. If, as in the highend estimate of impacts, angler trips to
the two stream reaches that currently
stock nonnative fish are not undertaken,
localized impacts on anglers and, in
turn, small businesses that rely on
fishing activities could occur. These
impacts would be spread across a
variety of industries, including food and
beverage stores, food service and
drinking places, accommodations,
transportation, and sporting goods.
These industries generate approximately
$829 million in total annual sales for
these two counties. The high-end
estimate of annual loss of $485,000 in
trip expenditures would therefore
represent a loss of approximately 0.06
percent of annual revenues for these
businesses.
We have determined that this
proposed designation will not have an
effect on a substantial number of small
businesses that may be impacted from
lost recreation because these angler days
are likely to be redistributed to other
areas rather than lost altogether. From
this analysis, we also have determined
that this proposed designation would
not result in a significant effect to the
annual sales of these small businesses
impacted by this proposed designation
because any potential impact to small
businesses from lost anglers not fishing
in an area is likely to be redistributed to
other areas and, if they are not
redistributed, then they would represent
a loss of approximately 0.06 percent of
annual revenues for these businesses.
E.O. 13211
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 rule is
considered a significant regulatory
action under E.O. 12866 due to its
potentially raising novel legal and
policy issues, but it is not expected to
significantly affect energy supplies,
distribution, or use. Appendix B of the
draft economic analysis provides a
discussion and analysis of this
determination. The OMB has provided
guidance for implementing this
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32501
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, energy-related impacts
associated with spikedace and loach
minnow conservation activities within
proposed critical habitat are not
expected.
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 the following two
exceptions: It excludes ‘‘a condition of
federal assistance’’ and ‘‘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; AFDC work programs; Child
Nutrition; Food Stamps; Social Services
Block Grants; Vocational Rehabilitation
State Grants; Foster Care, Adoption
Assistance, and Independent Living;
Family Support Welfare Services; and
Child Support Enforcement. ‘‘Federal
private sector mandate’’ includes a
regulation that ‘‘would impose an
enforceable duty upon the private
sector, except (i) a condition of Federal
assistance; or (ii) a duty arising from
participation in a voluntary Federal
program.’’
The designation of critical habitat
does not impose a legally binding duty
on non-Federal Government entities or
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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, 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 nonFederal entities are indirectly impacted
because they receive Federal assistance
or participate in a voluntary Federal aid
program, the Unfunded Mandates
Reform Act would not apply; nor would
critical habitat shift the costs of the large
entitlement programs listed above on to
State governments.
(b) The draft economic analysis
discusses potential impacts of critical
habitat designation for the spikedace
and loach minnow on water
management activities, livestock
grazing, Tribes, residential and
commercial development activities,
recreation activities, fire management
activities, mining, and transportation
activities. The analysis estimates that
annual costs of the rule could range
from $25.2 million to $100.3 million in
constant dollars over 20 years. Impacts
are largely anticipated to affect water
operators and Federal and State
agencies, with some effects on livestock
grazing operations, residential and
commercial development, and
transportation. Impacts on small
governments are not anticipated, or they
are anticipated to be passed through to
consumers. For example, costs to water
operations would be expected to be
passed on to consumers in the form of
price changes. Consequently, for the
reasons discussed above, we do not
believe that the designation of critical
habitat for the spikedace and loach
minnow will significantly or uniquely
affect small government entities. As
such, a Small Government Agency Plan
is not required.
rwilkins on PROD1PC63 with PROPOSAL
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
spikedace and loach minnow in a
takings implications assessment. The
takings implications assessment
concludes that this proposed
designation of critical habitat for the
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spikedace and loach minnow does not
pose significant takings implications.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Proposed Rule Promulgation
Accordingly, we propose to amend
part 17, subchapter B of chapter I, title
50 of the Code of Federal Regulations,
as set forth below:
PART 17—[AMENDED]
1. The authority citation for part 17
continues to read as follows:
Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
625, 100 Stat. 3500; unless otherwise noted.
2. Critical habitat for the loach
minnow (Tiaroga cobitis) and spikedace
(Meda fulgida) in § 17.95(e), which was
proposed on December 20, 2005, at 70
FR 75546, is proposed to be amended by
revising some of the critical habitat unit
descriptions as follows:
§ 17.95
Critical habitat—fish and wildlife.
*
*
*
(e) Fishes.
*
*
*
*
*
*
*
Loach minnow (Tiaroga cobitis)
1. Critical habitat for the loach
minnow in Arizona and New Mexico is
described in detail as follows.
*
*
*
*
*
(6) Complex 2—Black River, Apache
and Greenlee Counties, Arizona.
(i) East Fork Black River—12.2 miles
(19.7 km) of the river extending from the
confluence with the West Fork Black
River at Township 4 North, Range 28
East, section 11 upstream to the
confluence with an unnamed tributary
approximately 0.51 miles (0.82 km)
downstream of the Boneyard Creek
confluence at Township 5 North, Range
29 East, section 5. Land ownership: U.S.
Forest Service (Apache-Sitgreaves
National Forest).
(ii) North Fork East Fork Black
River—4.4 miles (7.1 km) of river
extending from the confluence with East
Fork Black River and an unnamed
drainage at Township 5, Range 29,
section 5 upstream to the confluence
with an unnamed tributary at Township
6 North, Range 29 East, section 30. Land
ownership: U.S. Forest Service (ApacheSitgreaves National Forest).
(iii) Boneyard Creek—no changes
from proposed rule at this time.
*
*
*
*
*
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(7) Complex 3—Middle Gila/Lower
San Pedro/Aravaipa Creek, Pinal and
Graham counties, Arizona.
(i) Aravaipa Creek—no changes from
the proposed rule at this time.
(ii) Turkey Creek—2.7 miles (4.3 km)
of creek extending from the confluence
with Aravaipa Creek at Township 6
South, Range 19 East, section 19
upstream to the confluence with Oak
Grove Canyon at Township 6 South,
Range 19 East, section 32. Land
ownership: Bureau of Land
Management.
(iii) Deer Creek—no changes from the
proposed rule at this time.
*
*
*
*
*
(8) Complex 4—San Francisco and
Blue Rivers, Pinal and Graham counties,
Arizona and Catron County, New
Mexico.
(i) Eagle Creek—44.7 miles (71.9 km)
of creek extending from the PhelpsDodge Diversion Dam at Township 4
South, Range 28 East, section 23
upstream to the confluence of Dry Prong
and East Eagle creeks at Township 2
North, Range 28 East, section 29. Land
ownership: U.S. Forest Service (ApacheSitgreaves National Forest), Tribal (San
Carlos) lands, and private.
(ii) San Francisco River—126.5 miles
(203.5 km) of river extending from the
confluence with the Gila River at
Township 5 South, Range 29 East,
section 21 upstream to the mouth of the
Box, a canyon above the town of
Reserve, at Township 6 South, Range 19
West, section 2. Land ownership:
Bureau of Land Management, U.S.
Forest Service (Apache-Sitgreaves
National Forest), State, and private in
Arizona, and U.S. Forest Service (Gila
National Forest) and private in New
Mexico.
(iii) Tularosa River—no changes from
the proposed rule at this time.
(iv) Negrito Creek—4.2 miles (6.8 km)
of creek extending from the confluence
with the Tularosa River at Township 7
South, Range 18 West, section 19
upstream to the confluence with Cerco
Canyon at Township 7 South, Range 18
West, section 21. Land ownership: U.S.
Forest Service (Gila National Forest),
and private lands.
(v) Whitewater Creek—no changes
from the proposed rule at this time.
(vi) Blue River—51.1 miles (82.2 km)
of river extending from the confluence
with the San Francisco River at
Township 2 South, Range 31 East,
section 31 upstream to the confluence of
Campbell Blue and Dry Blue Creeks at
Township 7 South, Range 21 West,
section 6. Land ownership: U.S. Forest
Service (Apache-Sitgreaves National
Forest) and private lands in Arizona;
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U.S. Forest Service (Gila National
Forest) in New Mexico.
(vii) Campbell Blue Creek—no
changes from the proposed rule at this
time.
(viii) Dry Blue Creek—3.0 miles (4.8
km) of creek extending from the
confluence with Campbell Blue Creek at
Township 7 South, Range 21 West,
section 6 upstream to the confluence
with Pace Creek at Township 6 South,
Range 21 West, section 28. Land
ownership: U.S. Forest Service (Gila
National Forest).
(ix) Pace Creek—no changes from the
proposed rule at this time.
(x) Frieborn Creek—1.1 miles (1.8 km)
of creek extending from the confluence
with Dry Blue Creek at Township 7
South, Range 21 West, section 6
upstream to an unnamed tributary at
Township 7 South, Range 21 West,
section 8. Land ownership: U.S. Forest
Service (Gila National Forest).
(xi) Little Blue Creek—no changes
from the proposed rule at this time.
*
*
*
*
*
(9) Complex 5—Upper Gila River
Complex, Catron, Grant, and Hidalgo
counties, New Mexico.
(i) Upper Gila River—no changes from
the proposed rule at this time.
(ii) East Fork Gila River—26.1 miles
(42.0 km) of river extending from the
confluence with the West Fork Gila
River at Township 13 South, Range 13
West, section 8 upstream to the
confluence of Beaver and Taylor Creeks
at Township 11 South, Range 12 West,
section 17. Land ownership: U.S. Forest
Service (Gila National Forest) and
private lands.
(iii) Middle Fork Gila River—no
changes from the proposed rule at this
time.
(iv) West Fork Gila River—no changes
from the proposed rule at this time.
*
*
*
*
*
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Spikedace (Meda fulgida)
1. Critical habitat for the spikedace in
Arizona and New Mexico is depicted on
the following overview map and
described in detail following the map.
*
*
*
*
*
(6) Complex 1—Verde River, Yavapai
County, Arizona.
(i) Verde River—106.5 miles (171.4
km) of river extending from the
confluence with Fossil Creek at
Township 11 North, Range 6 East,
section 25 upstream 106.5 (171.4 km)
miles to Sullivan Dam at Township 17
North, Range 2 West, section 15. Land
ownership: U.S. Forest Service
(Coconino, Prescott, and Tonto National
Forests), Tribal (Yavapai Apache
Nation), State, and private lands.
*
*
*
*
*
(7) Complex 3—Middle Gila/Lower
San Pedro/Aravaipa Creek, Pinal and
Graham counties, Arizona.
(i) Gila River—no changes from the
proposed rule at this time.
(ii) Lower San Pedro River—no
changes from the proposed rule at this
time.
(iii) Aravaipa Creek—28.1 miles (45.3
km) of creek extending from the
confluence with the San Pedro River at
Township 7 South, Range 16 East,
section 9 upstream to the confluence
with Stowe Gulch at Township 6 South,
Range 19 East, section 35. Land
ownership: Bureau of Land
Management, Tribal, State, and private
lands.
*
*
*
*
*
(8) Complex 4—San Francisco and
Blue Rivers, Pinal and Graham counties,
Arizona.
(i) Eagle Creek—44.7 miles (71.9 km)
of creek extending from the PhelpsDodge Diversion Dam at Township 4
South, Range 28 East, section 23
upstream to the confluence of Dry Prong
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32503
and East Eagle Creeks at Township 2
North, Range 28 East, section 29. Land
ownership: Bureau of Land
Management, U.S. Forest Service
(Apache-Sitgreaves National Forest),
Tribal (San Carlos), and private lands.
*
*
*
*
*
(9) Complex 5—Upper Gila River
Complex, Catron, Grant, and Hidalgo
counties, New Mexico.
(i) Upper Gila River—no changes from
the proposed rule at this time.
(ii) East Fork Gila River—26.1 miles
(42.0 km) of river extending from the
confluence with the West Fork Gila
River at Township 13 South, Range 13
West, section 8 upstream to the
confluence of Beaver and Taylor creeks
at Township 11 South, Range 12 West,
section 17. Land ownership: U.S. Forest
Service (Gila National Forest) and
private lands.
(iii) Middle Fork Gila River—7.7
miles (12.3 km) of river extending from
the confluence with the West Fork Gila
River at Township 12 South, Range 14
West, section 25 upstream to the
confluence with Big Bear Canyon at
Township 12 South, Range 14 West,
section 2. Land ownership: U.S. Forest
Service (Gila National Forest) and
private lands.
(iv) West Fork Gila River—no changes
from the proposed rule at this time.
*
*
*
*
*
Authority
The authority for this action is the
Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.).
Dated: May 25, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. E6–8645 Filed 6–5–06; 8:45 am]
BILLING CODE 4310–55–P
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Agencies
[Federal Register Volume 71, Number 108 (Tuesday, June 6, 2006)]
[Proposed Rules]
[Pages 32496-32503]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-8645]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU33
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for the Spikedace and Loach Minnow
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Revised proposed rule; reopening of public comment period,
notice of availability of draft economic analysis and draft
environmental assessment, notice of public hearings, and updated legal
descriptions for critical habitat units.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
availability of the draft economic analysis and draft environmental
assessment for the proposal to designate critical habitat for the
spikedace (Meda fulgida) and loach minnow (Tiaroga cobitis) under the
Endangered Species
[[Page 32497]]
Act of 1973, as amended (Act). The draft economic analysis finds that
costs associated with spikedace and loachminnow conservation activities
are forecast to range from $25.2 million to $100.3 million in constant
dollars over the next 20 years. Adjusted for possible inflation the
costs would range from $19.0 million to $83.6 million over 20 years, or
$1.3 million to $5.7 million annually, using a three percent discount;
or $13.9 million to $69.2 million over 20 years, or $1.4 million to
$6.7 million over 20 years annually, using a seven percent discount
rate.
We are also reopening the public comment period for the proposal to
designate critical habitat to allow all interested parties an
opportunity to comment on and request changes to the proposed critical
habitat designation, as well as the associated draft economic analysis
and draft environmental assessment. In addition, we are proposing
corrected legal descriptions for some of the critical habitat units.
Comments previously submitted on the December 20, 2005, proposed rule
need not be resubmitted as they have been incorporated into the public
record and will be fully considered in preparation of the final rule.
We will hold two public informational sessions and hearings (see DATES
and ADDRESSES sections).
DATES: Comments must be submitted directly to the Service (see
ADDRESSES) on or before July 6, 2006, or at the public hearings.
We will hold a public informational session from 3 p.m. to 4:30
p.m., followed by a public hearing from 6:30 p.m. to 8 p.m., on each of
the following dates:
1. June 13, 2006: Camp Verde, Arizona.
2. June 20, 2006: Silver City, New Mexico.
ADDRESSES:
Information Sessions/Hearings
The public informational sessions and hearings will be held at the
following locations:
1. Camp Verde, AZ: Cliff Castle Casino Hotel & Conference Center,
Tri-City Room, 555 Middle Verde Road.
2. Silver City, NM: Flame Convention Center, 2800 Pinos Altos Road.
For information on requesting reasonable accommodations to attend a
session, see ``Public Comments Solicited'' under SUPPLEMENTARY
INFORMATION.
Comments
If you wish to comment on the proposed rule, draft economic
analysis, or draft environmental assessment, you may submit your
comments and materials identified by RIN 1018-AU33, by any of the
following methods:
(1) E-mail: SD--LMComments@fws.gov. Include RIN 1018-AU33 in the
subject line. Please submit electronic comments in ASCII file format
and avoid the use of special characters or any form of encryption.
Please also include 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 Internet message, contact us directly by calling our
Arizona Ecological Services Field Office at (602) 242-0210.
(2) Fax: (602) 242-2513.
(3) Mail or hand delivery/courier: Steve Spangle, Field Supervisor,
Arizona Ecological Services Field Office, 2321 W. Royal Palm Road,
Suite 103, Phoenix, AZ 85021.
(4) Federal eRulemaking Portal: https://www.regulations.gov. Follow
the instructions for submitting comments.
You may obtain copies of the proposed rule, draft economic
analysis, and draft environmental assessment by mail or by visiting our
Web site at https://arizonaes.fws.gov/. You may review comments and
materials received and review supporting documentation used in
preparation of this proposed rule by appointment, during normal
business hours, at the Arizona Ecological Services Field Office (see
ADDRESSES).
FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor,
Arizona Ecological Services Field Office (telephone, 602-242-0210;
facsimile, 602-242-2513).
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we solicit
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning the proposed rule, the draft economic analysis, and
the draft environmental assessment. Based on public comment on the
proposed rule, the draft economic analysis, and the environmental
assessment, as well as on the conclusions of the final economic
analysis and environmental assessment, we may find during the
development of our final determination that some areas proposed do not
contain the features that are essential to the conservation of the
species, are appropriate for exclusion under section 4(b)(2) of the
Act, or are not appropriate for exclusion. We particularly seek
comments concerning:
(1) The reasons any habitat should or should not be determined to
be critical habitat as provided by section 4 of the Endangered Species
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), including
whether it is prudent to designate critical habitat;
(2) Specific information on the distribution of the spikedace and
loach minnow, the amount and distribution of the species' habitat, and
which habitat contains the necessary features (primary constituent
elements) essential to the conservation of these species and why;
(3) Land-use designations and current or planned activities in the
subject area and their possible impacts on these species or proposed
critical habitat;
(4) 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 concerns and comments;
(5) Any foreseeable environmental impacts directly or indirectly
resulting from the proposed designation of critical habitat;
(6) Any foreseeable economic or other impacts resulting from the
proposed designation of critical habitat, and in particular, any
impacts on small entities or families;
(7) Whether the economic analysis identifies all State and local
costs, and if not, what other costs should be included;
(8) Whether the economic analysis makes appropriate assumptions
regarding current practices and likely regulatory changes imposed as a
result of the designation of critical habitat;
(9) Whether the economic analysis correctly assesses the effect on
regional costs associated with land- and water-use controls that derive
from the designation;
(10) Whether the critical habitat designation will result in
disproportionate economic impacts to specific areas that should be
evaluated for possible exclusion from the final designation;
(11) Whether the economic analysis appropriately identifies all
costs that could result from the designation or coextensively from the
listing of these species in 1986;
(12) Based on the information in the draft economic analysis, we
are considering excluding the Verde River Unit based on
disproportionate costs from the final designation per our discretion
under section 4(b)(2) of the Act. We are specifically seeking
[[Page 32498]]
comment along with additional information on the estimated costs, how
these estimated costs are distributed within the Verde River Unit, and
whether we should exclude all or a portion of the Verde River Unit
based on disproportionate costs from the final designation per our
discretion under section 4(b)(2) of the Act; and
(13) Whether the benefit of exclusion in any particular area
outweigh the benefits of inclusion under Section 4(b)(2) of the Act.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. We will not consider anonymous comments and we will
make all comments available for public inspection in their entirety.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the Arizona
Ecological Services Field Office (see ADDRESSES).
All previous comments and information submitted during the initial
comment period on the proposed rule need not be resubmitted. If you
wish to comment, you may submit your comments and materials concerning
this proposal by any one of several methods (see ADDRESSES). Our final
designation of critical habitat for the spikedace and loach minnow will
take into consideration all comments and any additional information
received during both comment periods.
Persons needing reasonable accommodations in order to attend and
participate in a public hearing should contact the Field Supervisor,
Arizona Ecological Services Field Office, at the address or phone
number listed in the ADDRESSES and FOR FURTHER INFORMATION CONTACT
sections as soon as possible. In order to allow sufficient time to
process requests, please call no later than one week before the
hearing. Information regarding this proposal is available in
alternative formats upon request.
Background
On December 20, 2005, we proposed to designate critical habitat for
spikedace and loach minnow of approximately 633 stream miles (mi)
(1018.7 stream kilometers (km)) of critical habitat, which includes
various stream segments and their associated riparian areas, including
the stream at bankfull width and a 300-foot buffer on either side of
the stream banks (70 FR 75546). The proposed designation includes
Federal, State, Tribal, and private lands in Arizona and New Mexico.
Critical habitat identifies specific areas containing features
essential to the conservation of a listed species and that may require
special management considerations or protection. If the proposed
critical habitat designation is finalized, section 7(a)(2) of the Act
would require that Federal agencies ensure that actions they fund,
authorize, or carry out are not likely to result in the destruction or
adverse modification of critical habitat.
Section 4 of the Act requires that we consider economic and other
relevant impacts prior to making a final decision on what areas to
designate as critical habitat. 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.
The draft economic analysis considers and attempts to quantify the
potential economic effects of efforts to protect the spikedace and
loach minnow and their habitat, collectively referred to as ``spikedace
and loach minnow conservation activities,'' in the proposed critical
habitat designation, as well as the economic effects of protective
measures taken as a result of the listing or other Federal, State, and
local laws that aid habitat conservation in the areas proposed for
designation. In the case of habitat conservation, these costs would
reflect the costs associated with the commitment of resources to comply
with habitat protection measures. The analysis also addresses how
potential economic impacts are likely to be distributed.
We did not propose Bear Creek, a tributary of the Gila River in New
Mexico, as critical habitat because there had been no information to
indicate this area was occupied by either species. However, we have
since received information to indicate this area is occupied by loach
minnow. Due to our tight timeframe for completion of the final rule and
associated documents we are not able to consider inclusion of Bear
Creek at this time. However, if the critical habitat designation is
amended in the future we will consider inclusion of this area at that
time.
Corrected Coordinates for Proposed Units of Critical Habitat
Below we provide corrected legal descriptions for the spikedace and
loach minnow proposed critical habitat designation. Following the
publication of the proposed rule on December 20, 2005, and in part
through comments we received during the subsequent comment period, we
determined that some of the critical habitat units were incorrectly
described. In particular, in Table 2, the column headings for Arizona
and New Mexico were inadvertently switched. We have since corrected the
descriptions and tables to accurately reflect what we are proposing as
critical habitat, and we provide the corrected descriptions for all
critical habitat units below. Table 1 below provides a corrected
version of Table 2 from the December 20, 2005, proposed rule (70 FR
75546) with approximate distances by major landowner type. Corrected
Geographic Information System (GIS) layers are available at https://
criticalhabitat.fws.gov/.
Table 1.--Approximate Critical Habitat in Stream Kilometers and Miles
[7 River Units]
----------------------------------------------------------------------------------------------------------------
New Mexico km
Land owner (mi) Arizona km (mi) Total km (mi)
----------------------------------------------------------------------------------------------------------------
Federal.......................................... 167.71 (269.90) 197.99 (318.63) 365.7 (588.53)
Tribal........................................... 0.0 (0.0) 33.00 (53.11) 33.00 (53.11)
State............................................ 1.32 (2.12) 8.32 (13.39) 9.64 (15.51)
County........................................... 0.0 (0.0) 0.0 (0.0) 0.0 (0.0)
Private.......................................... 89.73 (144.40) 134.44 (216.36) 224.17 (360.76)
��������������������������������������������������
Total........................................ 258.75 (416.42) 373.75(601.49) 632.51 (1017.91)
----------------------------------------------------------------------------------------------------------------
[[Page 32499]]
No additional mileage was incorporated into the proposed
designation through the corrections provided in Table 1. Mileage was
reduced by approximately 0.51 mi (0.82 km) for Eagle Creek after
correcting for a mapping error in the original proposal. Mileage was
additionally modified for East Fork Black River and North Fork East
Fork Black River due to a change in our determination of the confluence
points of these two streams. Mileage that was previously attributed to
North Fork East Fork Black River is now encompassed in the mileage for
East Fork Black River. The overall mileage for these two streams
remained the same. The majority of the changes correct errors in the
Township, Range, and section descriptions provided for each proposed
critical habitat unit.
All legal descriptions for New Mexico and Arizona are based on the
Public Lands Survey System (PLSS). Within this system, all coordinates
reported for New Mexico are in the New Mexico Principal Meridian
(NMPM), while those in Arizona are in the Gila and Salt River Meridian
(GSRM). All mileage calculations were performed using GIS.
Required Determinations--Amended
This revised proposed rule affirms the information contained in the
December 20, 2005, proposed rule (70 FR 75546) concerning Executive
Orders (EO) 13132 and EO 12988; 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). Based on the draft
economic analysis, we are amending our required determinations, as
provided below, concerning EO 12866 and the Regulatory Flexibility Act;
EO 13211 and 12630; and the Unfunded Mandates Reform Act.
Regulatory Planning and Review
In accordance with EO 12866, this document is a significant rule
because it may raise novel legal and policy issues. However, based on
our draft economic analysis, it is not anticipated that the proposed
designation of critical habitat for the spikedace and loach minnow
would result in 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 economic analysis.
Further, EO 12866 directs Federal Agencies promulgating regulations
to evaluate regulatory alternatives (OMB, Circular A-4, September 17,
2003). Pursuant to Circular A-4, once it has been determined that the
Federal regulatory action is appropriate, the agency will need to
consider alternative regulatory approaches. Since the determination of
critical habitat is a statutory requirement pursuant to the Act, we
must then evaluate alternative regulatory approaches, where feasible,
when promulgating a designation of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts under 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, provided that the benefits of such
exclusion outweigh the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or combination thereof, in a
designation constitutes our regulatory alternative analysis.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act (5
U.S.C. 802(2)) (SBREFA), 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. Based upon our draft
economic analysis of the proposed designation, we provide our factual
basis for determining that this rule will not result in a significant
economic impact on a substantial number of small entities. This
determination is subject to revision based on comments received as part
of the final rulemaking.
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 spikedace and loach minnow would affect a substantial number of
small entities, we considered the number of small entities affected
within particular types of economic activities (e.g., water management
and use, livestock grazing, residential and related development,
spikedace- and loach minnow-specific management activities, recreation
activities, fire management activities, mining, and transportation). 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.
Our economic analysis of this proposed designation evaluated the
potential economic effects on small business entities and small
governments resulting from conservation actions related to the listing
of this species and proposed designation of its critical habitat. We
evaluated small business entities in nine categories: water management
and use, livestock grazing activities, mining operations, spikedace
[[Page 32500]]
and loach minnow-specific management activities, recreation,
residential and commercial development, Tribal activities,
transportation activities, and fire management activities. Based on our
analysis, impacts associated with small entities are anticipated to
occur to water management and use, livestock grazing, residential and
commercial development, Tribal businesses, transportation, and fire
management. It should be noted that the majority of Tribal lands are
under consideration for exclusion at this time. The following is a
summary of the information contained in the draft economic analysis:
(a) Water Management and Use Related to Agricultural Production
According to the draft economic analysis, spikedace and loach
minnow conservation activities have not impacted private crop
production since the listing of the species in 1986. However, because
agricultural water use comprises 98 percent of surface water use and 81
percent of groundwater use in counties that contain proposed critical
habitat, it appears most likely that any additional water supplies
needed for the species would potentially come from agriculture. The
economic analysis estimates that only 810 acres of cropland are
included within proposed critical habitat, and only 6,310 acres of
cropland are in the vicinity of critical habitat. The average small
farm includes 4,600 acres, and farms vary between 1,300 and 8,000
acres. Based on the fact that at most 9,000 acres of cropland are
involved, and small farms vary in size, we believe that there are not
many farms located along the streams proposed for the designation.
Additionally, under the assumption that all farms are small (1,884
small business farming operations across five affected counties), there
would be well less than one percent of small farm businesses impacted
by this proposed designation. As a result of this information, we have
determined that this proposed designation will not have an effect on a
substantial number of small business farming operations.
(b) Livestock Grazing Activities
Ranching operations that hold grazing allotment permits are
anticipated to be impacted by conservation activities for the spikedace
and loach minnow. The costs assumed to be incurred by livestock
operations are primarily due to anticipated installation and
maintenance of riparian fencing. The economic analysis concluded that
approximately 76 ranches--or 4.7 percent of ranches in affected
counties that contain proposed critical habitat, or 1 percent of
ranches in New Mexico and Arizona--could be impacted by conservation
activities. Annual costs to each of these 76 ranching operations may be
between $390 and $9,200 per ranch. Average revenues of a ranch in the
proposed critical habitat region are $133,000, or between 0.3 and 7
percent of a ranch's estimated average revenue. Approximately 94
percent of beef cattle ranching and farming operations in counties
containing spikedace and loach minnow critical habitat are small
businesses; thus approximately 72 small ranching operations may
experience a reduction in revenues. Because only 1 percent of ranches
in New Mexico and Arizona, or 4.7 percent of ranches, in affected
counties are estimated to be impacted by this proposal, we have
determined that this proposed designation will not have an effect on a
substantial number of small business ranching operations. From this
analysis, we also have determined that this proposed designation would
also not result in a significant effect to the annual sales of these
small businesses impacted by this proposed designation because the
above analysis has determined that annual costs may represent between
0.3 and 7 percent of a ranch's estimated average revenue.
(c) Residential and Commercial Development
The draft economic analysis concludes that the most likely location
for development activities within the proposed critical habitat
designation is within the Verde River Complex, which contains a large
amount of private land, has a large population, and is projected to
have substantial human population growth over the next 20 years. No
North American Industry Classification System (NAICS) code exists for
landowners, and the Small Business Administration does not provide a
definition of a small landowner. However, recognizing that it is
possible that some of the landowners may be small businesses, this
analysis provides information concerning the number of landowners
potentially affected and the size of the impact on those owners. The
draft economic analysis (section 7) estimates that 1,646 housing units
could be built on the approximately 2,880 privately owned acres within
proposed critical habitat over the next 20 years. Impacts to developers
are estimated to include fencing costs, scientific studies, surveying
and monitoring requirements, and possibly off-setting mitigation
(habitat set-aside). Costs are estimated to range from $3.1 million to
$4.8 million per large development, or $3,900 to $5,900 per housing
unit ($190 to $300 annually, if costs are distributed evenly over 20
years). Actual conservation requirements undertaken by an individual
landowner will depend on how much of a parcel crosses proposed critical
habitat. It is important to note that it is likely that some or all
housing subdivisions may be developed by large corporations which do
not qualify as small businesses under RFA/SBRFA. Furthermore, because
there is no loss in housing units estimated, there would likely not be
any impact to small businesses that are residential housing sub-
contractors. In addition, individual single-family home development has
not historically been subject to consultation or habitat conservation
requirements for the spikedace and loach minnow in Arizona or New
Mexico, although consultation could be required if Federal permits from
the Army Corps of Engineers, Environmental Protection Agency, or
Federal Emergency Management Agency are required.
Because individual single-family home development has not
historically been subject to consultation or habitat conservation
requirements as described above, the probability that single-family
home development will involve many larger businesses, as opposed to
small businesses, and because the impacts will not reduce the number of
housing units, we have determined that this proposed designation will
not have an effect on a substantial number of small businesses that are
part of residential and commercial development. From this analysis, we
also have determined that this proposed designation would also not
result in a significant effect to the annual sales of these small
businesses impacted by this proposed designation. This is because of
the above analysis which has determined that each housing unit would
bear at most a cost of $190 to $300 annually, if costs are distributed
evenly over 20 years.
(d) Tribal Businesses
The proposed critical habitat development includes lands of the
Yavapai-Apache Nation (1.6 km (1 mi) of tributary proposed as critical
habitat), San Carlos Apache Tribe (17.2 km (27.7 mi) of tributary
proposed as critical habitat), and White Mountain Apache Tribe (12.5 km
(20.1 mi) of tributary proposed as critical habitat). The Tribes have
expressed concerns that critical habitat on their lands will have a
disproportionate impact on their ability to use resources on their
sovereign lands and to successfully achieve economic self-sufficiency.
However, Tribal governments are not classified as small
[[Page 32501]]
businesses under RFA/SBRFA, whereas Tribal corporations may qualify as
small businesses under RFA/SBRFA. The draft economic analysis concluded
that future economic costs of implementing spikedace and loach minnow
conservation efforts on Tribal lands could include administrative costs
of consultation, surveys and monitoring, modifications to grazing, fire
management, and recreation activities, and potential project
modifications to grazing, fire management, and recreation activities,
and potential project modifications to restoration activities. Impacts
in each of these areas could affect the Tribes' revenues and employment
in the future; however, many of these impacts may not fall on Tribal
corporations, as opposed to the Tribal governments in question. It
should be noted that the lands of both the White Mountain Apache Tribe
and the San Carlos Apache Tribe are proposed for exclusion from the
critical habitat designation in the proposed rule. Because both White
Mountain Apache Tribe and the San Carlos Apache Tribe are proposed for
exclusion from the critical habitat designation in the proposed rule
and only 1.6 km (1 mi) of stream tributary is proposed as critical
habitat on Yavapai-Apache Nation, we have determined this proposed
designation will not have an effect on a substantial number of small
businesses on Tribal lands.
(e) Recreation
Areas currently stocked with non-native rainbow trout include the
Camp Verde area of the Verde River in Complex 1 and East Fork Gila
River in complex 5. The future impact of proposed critical habitat on
the stocking regimes in these reaches is unknown, as is the reduction
in fishing activity that would occur if stocking is curtailed. Further,
it is unknown whether nonnative fish stocking may be replaced with
catchable native fish stocking (e.g. Apache trout). Thus, the analysis
in the economic analysis estimates the value of angler days at risk if
sportfish stocking were discontinued on these reaches as part of the
high-end estimates. Angling trips are valued at approximately $8.6
million over 20 years (or $816,000 annually), assuming a discount rate
of 7 percent. It should be noted that because State fish managers
typically identify alternative sites for stocked fish when areas are
closed to stocking, these angler days are likely to be redistributed to
other areas rather than lost altogether. Thus, the high-end estimate
does not consider the possibility that rather than not fishing at all,
recreators will visit alternative, less desirable fishing sites.
Existing models of angler behavior in these areas were not available to
refine this estimate.
The two stream reaches where impacts on recreation are anticipated
are located in Yavapai County, Arizona, and Catron County, New Mexico.
If, as in the low-end estimate of impacts, angler trips are not lost,
but instead are redistributed to other streams, then regional impacts
on small businesses are likely to be minimal. If, as in the high-end
estimate of impacts, angler trips to the two stream reaches that
currently stock nonnative fish are not undertaken, localized impacts on
anglers and, in turn, small businesses that rely on fishing activities
could occur. These impacts would be spread across a variety of
industries, including food and beverage stores, food service and
drinking places, accommodations, transportation, and sporting goods.
These industries generate approximately $829 million in total annual
sales for these two counties. The high-end estimate of annual loss of
$485,000 in trip expenditures would therefore represent a loss of
approximately 0.06 percent of annual revenues for these businesses.
We have determined that this proposed designation will not have an
effect on a substantial number of small businesses that may be impacted
from lost recreation because these angler days are likely to be
redistributed to other areas rather than lost altogether. From this
analysis, we also have determined that this proposed designation would
not result in a significant effect to the annual sales of these small
businesses impacted by this proposed designation because any potential
impact to small businesses from lost anglers not fishing in an area is
likely to be redistributed to other areas and, if they are not
redistributed, then they would represent a loss of approximately 0.06
percent of annual revenues for these businesses.
E.O. 13211
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 rule is considered a
significant regulatory action under E.O. 12866 due to its potentially
raising novel legal and policy issues, but it is not expected to
significantly affect energy supplies, distribution, or use. Appendix B
of the draft economic analysis provides a discussion and analysis of
this determination. The 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, energy-related
impacts associated with spikedace and loach minnow conservation
activities within proposed critical habitat are not expected.
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
the following two exceptions: It excludes ``a condition of federal
assistance'' and ``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; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or
[[Page 32502]]
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, 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 the large
entitlement programs listed above on to State governments.
(b) The draft economic analysis discusses potential impacts of
critical habitat designation for the spikedace and loach minnow on
water management activities, livestock grazing, Tribes, residential and
commercial development activities, recreation activities, fire
management activities, mining, and transportation activities. The
analysis estimates that annual costs of the rule could range from $25.2
million to $100.3 million in constant dollars over 20 years. Impacts
are largely anticipated to affect water operators and Federal and State
agencies, with some effects on livestock grazing operations,
residential and commercial development, and transportation. Impacts on
small governments are not anticipated, or they are anticipated to be
passed through to consumers. For example, costs to water operations
would be expected to be passed on to consumers in the form of price
changes. Consequently, for the reasons discussed above, we do not
believe that the designation of critical habitat for the spikedace and
loach minnow will significantly or uniquely affect small government
entities. As such, a Small Government Agency Plan is not required.
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 spikedace and loach minnow in a
takings implications assessment. The takings implications assessment
concludes that this proposed designation of critical habitat for the
spikedace and loach minnow does not pose significant takings
implications.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Rule Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Critical habitat for the loach minnow (Tiaroga cobitis) and
spikedace (Meda fulgida) in Sec. 17.95(e), which was proposed on
December 20, 2005, at 70 FR 75546, is proposed to be amended by
revising some of the critical habitat unit descriptions as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Loach minnow (Tiaroga cobitis)
1. Critical habitat for the loach minnow in Arizona and New Mexico
is described in detail as follows.
* * * * *
(6) Complex 2--Black River, Apache and Greenlee Counties, Arizona.
(i) East Fork Black River--12.2 miles (19.7 km) of the river
extending from the confluence with the West Fork Black River at
Township 4 North, Range 28 East, section 11 upstream to the confluence
with an unnamed tributary approximately 0.51 miles (0.82 km) downstream
of the Boneyard Creek confluence at Township 5 North, Range 29 East,
section 5. Land ownership: U.S. Forest Service (Apache-Sitgreaves
National Forest).
(ii) North Fork East Fork Black River--4.4 miles (7.1 km) of river
extending from the confluence with East Fork Black River and an unnamed
drainage at Township 5, Range 29, section 5 upstream to the confluence
with an unnamed tributary at Township 6 North, Range 29 East, section
30. Land ownership: U.S. Forest Service (Apache-Sitgreaves National
Forest).
(iii) Boneyard Creek--no changes from proposed rule at this time.
* * * * *
(7) Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek, Pinal
and Graham counties, Arizona.
(i) Aravaipa Creek--no changes from the proposed rule at this time.
(ii) Turkey Creek--2.7 miles (4.3 km) of creek extending from the
confluence with Aravaipa Creek at Township 6 South, Range 19 East,
section 19 upstream to the confluence with Oak Grove Canyon at Township
6 South, Range 19 East, section 32. Land ownership: Bureau of Land
Management.
(iii) Deer Creek--no changes from the proposed rule at this time.
* * * * *
(8) Complex 4--San Francisco and Blue Rivers, Pinal and Graham
counties, Arizona and Catron County, New Mexico.
(i) Eagle Creek--44.7 miles (71.9 km) of creek extending from the
Phelps-Dodge Diversion Dam at Township 4 South, Range 28 East, section
23 upstream to the confluence of Dry Prong and East Eagle creeks at
Township 2 North, Range 28 East, section 29. Land ownership: U.S.
Forest Service (Apache-Sitgreaves National Forest), Tribal (San Carlos)
lands, and private.
(ii) San Francisco River--126.5 miles (203.5 km) of river extending
from the confluence with the Gila River at Township 5 South, Range 29
East, section 21 upstream to the mouth of the Box, a canyon above the
town of Reserve, at Township 6 South, Range 19 West, section 2. Land
ownership: Bureau of Land Management, U.S. Forest Service (Apache-
Sitgreaves National Forest), State, and private in Arizona, and U.S.
Forest Service (Gila National Forest) and private in New Mexico.
(iii) Tularosa River--no changes from the proposed rule at this
time.
(iv) Negrito Creek--4.2 miles (6.8 km) of creek extending from the
confluence with the Tularosa River at Township 7 South, Range 18 West,
section 19 upstream to the confluence with Cerco Canyon at Township 7
South, Range 18 West, section 21. Land ownership: U.S. Forest Service
(Gila National Forest), and private lands.
(v) Whitewater Creek--no changes from the proposed rule at this
time.
(vi) Blue River--51.1 miles (82.2 km) of river extending from the
confluence with the San Francisco River at Township 2 South, Range 31
East, section 31 upstream to the confluence of Campbell Blue and Dry
Blue Creeks at Township 7 South, Range 21 West, section 6. Land
ownership: U.S. Forest Service (Apache-Sitgreaves National Forest) and
private lands in Arizona;
[[Page 32503]]
U.S. Forest Service (Gila National Forest) in New Mexico.
(vii) Campbell Blue Creek--no changes from the proposed rule at
this time.
(viii) Dry Blue Creek--3.0 miles (4.8 km) of creek extending from
the confluence with Campbell Blue Creek at Township 7 South, Range 21
West, section 6 upstream to the confluence with Pace Creek at Township
6 South, Range 21 West, section 28. Land ownership: U.S. Forest Service
(Gila National Forest).
(ix) Pace Creek--no changes from the proposed rule at this time.
(x) Frieborn Creek--1.1 miles (1.8 km) of creek extending from the
confluence with Dry Blue Creek at Township 7 South, Range 21 West,
section 6 upstream to an unnamed tributary at Township 7 South, Range
21 West, section 8. Land ownership: U.S. Forest Service (Gila National
Forest).
(xi) Little Blue Creek--no changes from the proposed rule at this
time.
* * * * *
(9) Complex 5--Upper Gila River Complex, Catron, Grant, and Hidalgo
counties, New Mexico.
(i) Upper Gila River--no changes from the proposed rule at this
time.
(ii) East Fork Gila River--26.1 miles (42.0 km) of river extending
from the confluence with the West Fork Gila River at Township 13 South,
Range 13 West, section 8 upstream to the confluence of Beaver and
Taylor Creeks at Township 11 South, Range 12 West, section 17. Land
ownership: U.S. Forest Service (Gila National Forest) and private
lands.
(iii) Middle Fork Gila River--no changes from the proposed rule at
this time.
(iv) West Fork Gila River--no changes from the proposed rule at
this time.
* * * * *
Spikedace (Meda fulgida)
1. Critical habitat for the spikedace in Arizona and New Mexico is
depicted on the following overview map and described in detail
following the map.
* * * * *
(6) Complex 1--Verde River, Yavapai County, Arizona.
(i) Verde River--106.5 miles (171.4 km) of river extending from the
confluence with Fossil Creek at Township 11 North, Range 6 East,
section 25 upstream 106.5 (171.4 km) miles to Sullivan Dam at Township
17 North, Range 2 West, section 15. Land ownership: U.S. Forest Service
(Coconino, Prescott, and Tonto National Forests), Tribal (Yavapai
Apache Nation), State, and private lands.
* * * * *
(7) Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek, Pinal
and Graham counties, Arizona.
(i) Gila River--no changes from the proposed rule at this time.
(ii) Lower San Pedro River--no changes from the proposed rule at
this time.
(iii) Aravaipa Creek--28.1 miles (45.3 km) of creek extending from
the confluence with the San Pedro River at Township 7 South, Range 16
East, section 9 upstream to the confluence with Stowe Gulch at Township
6 South, Range 19 East, section 35. Land ownership: Bureau of Land
Management, Tribal, State, and private lands.
* * * * *
(8) Complex 4--San Francisco and Blue Rivers, Pinal and Graham
counties, Arizona.
(i) Eagle Creek--44.7 miles (71.9 km) of creek extending from the
Phelps-Dodge Diversion Dam at Township 4 South, Range 28 East, section
23 upstream to the confluence of Dry Prong and East Eagle Creeks at
Township 2 North, Range 28 East, section 29. Land ownership: Bureau of
Land Management, U.S. Forest Service (Apache-Sitgreaves National
Forest), Tribal (San Carlos), and private lands.
* * * * *
(9) Complex 5--Upper Gila River Complex, Catron, Grant, and Hidalgo
counties, New Mexico.
(i) Upper Gila River--no changes from the proposed rule at this
time.
(ii) East Fork Gila River--26.1 miles (42.0 km) of river extending
from the confluence with the West Fork Gila River at Township 13 South,
Range 13 West, section 8 upstream to the confluence of Beaver and
Taylor creeks at Township 11 South, Range 12 West, section 17. Land
ownership: U.S. Forest Service (Gila National Forest) and private
lands.
(iii) Middle Fork Gila River--7.7 miles (12.3 km) of river
extending from the confluence with the West Fork Gila River at Township
12 South, Range 14 West, section 25 upstream to the confluence with Big
Bear Canyon at Township 12 South, Range 14 West, section 2. Land
ownership: U.S. Forest Service (Gila National Forest) and private
lands.
(iv) West Fork Gila River--no changes from the proposed rule at
this time.
* * * * *
Authority
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: May 25, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-8645 Filed 6-5-06; 8:45 am]
BILLING CODE 4310-55-P