Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Endangered Alabama Beach Mouse, 44976-44980 [E6-12317]
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Federal Register / Vol. 71, No. 152 / Tuesday, August 8, 2006 / Proposed Rules
interested parties to continue to gather
data that will assist with the
conservation of the species. Information
regarding the Hermes copper butterfly
may be submitted to the Field
Supervisor, Carlsbad Fish and Wildlife
Office (see ADDRESSES section above) at
any time.
References Cited
A complete list of all references cited
herein is available, upon request, from
the Carlsbad Fish and Wildlife Office
(see ADDRESSES section above).
Author
The primary authors of this notice are
staff of the Carlsbad Fish and Wildlife
Office (see ADDRESSES section above).
Authority
The authority for this action is the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Dated: August 1, 2006.
H. Dale Hall,
Director, U.S. Fish and Wildlife Service.
[FR Doc. E6–12744 Filed 8–7–06; 8:45 am]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018–AU46
Endangered and Threatened Wildlife
and Plants; Revised Designation of
Critical Habitat for the Endangered
Alabama Beach Mouse
Fish and Wildlife Service,
Interior.
ACTION: Revised proposed rule;
reopening of comment period, notice of
availability of draft economic analysis,
acreage corrections, and notice of public
hearing.
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AGENCY:
SUMMARY: We, the U.S. Fish and
Wildlife Service, announce the
reopening of the public comment
period, a public hearing on the
proposed revision of critical habitat for
the Alabama beach mouse (Peromyscus
polionotus ammobates) (ABM), and the
availability of the draft economic
analysis of the proposed designation of
critical habitat under the Endangered
Species Act of 1973, as amended (Act).
We are also using this comment period
to correct minor acreage calculation
errors in the February 1, 2006, proposed
rule (71 FR 5516), announce the
inclusion of an additional 6 acres
(distributed among proposed critical
habitat units 1, 2, and 3), and solicit
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We will accept public comments
until September 7, 2006. See Public
Hearings, under SUPPLEMENTARY
INFORMATION, for further details.
ADDRESSES: If you wish to comment,
you may submit your comments and
information concerning this proposal,
identified by ‘‘Attn: Alabama Beach
Mouse Critical Habitat,’’ by any one of
several methods:
(1) Mail or hand-deliver to: Field
Supervisor, U.S. Fish and Wildlife
Service, Daphne Fish and Wildlife
Office, 1208–B Main Street, Daphne,
Alabama 36526.
(2) Send by electronic mail (e-mail) to
abmcriticalhabitat@fws.gov. Please see
the Public Comments Solicited section
below for file format and other
information about electronic filing.
(3) Provide oral or written comments
at the public hearing.
(4) Fax your comments to: 251–441–
6222.
5. Submit comments on Federal
eRulemaking portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
DATES:
BILLING CODE 4310–55–P
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further comments on the proposed rule.
The draft economic analysis forecasts
that costs associated with conservation
activities for the ABM would range from
$18.3 million to $51.8 million in
undiscounted dollars over the next 20
years. Adjusted for possible inflation,
the costs would range from $16.1
million to $46.8 million over 20 years,
or $1.1 million to $3.1 million annually
using a 3 percent discount; or $14.2
million to $41.7 million over 20 years,
or $1.3 million to $3.9 million annually
using a 7 percent discount. We are
reopening the public comment period to
allow all interested parties an
opportunity to comment simultaneously
on the proposed rule and the associated
draft economic analysis. Comments
previously submitted need not be
resubmitted as they will be incorporated
into the public record and fully
considered in preparation of the final
rule.
Public Hearings
We have scheduled a public hearing
on the proposed critical habitat revision
and the draft economic analysis. The
hearing will take place from 7 to 9 p.m.
on August 24, 2006, at the Adult
Activity Center located at 260
Clubhouse Drive, Gulf Shores, Alabama
36542. This will be preceded by a
public information session from 6 to 7
p.m. at the same location. Maps of the
proposal and other materials will be
available for public review.
Comments and materials received, as
well as supporting documentation used
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in the preparation of this proposed rule,
will be available for public inspection
by appointment during normal business
hours at the Daphne Fish and Wildlife
Field Office at the above address.
FOR FURTHER INFORMATION CONTACT:
Field Supervisor, U.S. Fish and Wildlife
Service, Daphne, Alabama (telephone
251–441–5181; facsimile 251–441–
6222).
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, comments or suggestions
from the public, other concerned
governmental agencies, the scientific
community, industry, or any other
interested party concerning this
proposed rule are hereby solicited.
Comments particularly are sought
concerning:
(1) The reasons any habitat should or
should not be determined to be critical
habitat as provided by section 4 of the
Act, including whether the benefit of
designation will outweigh any adverse
impacts to the species due to
designation;
(2) Specific information on the
presence of Alabama beach mouse
habitat, particularly what areas should
be included in the designations that
were occupied at the time of listing that
contain features that are essential for the
conservation of the species and why;
and what areas that were not occupied
at listing are essential to the
conservation of the species and why;
(3) Land use designations and current
or planned activities in the subject areas
and their possible impacts on proposed
critical habitat;
(4) Any foreseeable economic,
national security, or other potential
impacts resulting from the proposed
designation and, in particular, any
impacts on small entities;
(5) Whether the draft economic
analysis identifies all State and local
costs attributable to the proposed
critical habitat designation, and
information on any costs that have been
inadvertently overlooked;
(6) Whether the draft economic
analysis makes appropriate assumptions
regarding current practices and likely
regulatory changes imposed as a result
of the designation of critical habitat;
(7) Whether the draft economic
analysis correctly assesses the effect on
regional costs associated with any land
use controls that may derive from the
designation of critical habitat;
(8) Whether the draft economic
analysis appropriately identifies all
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costs and benefits that could result from
the designation; and
(9) Whether our approach to critical
habitat designation could be improved
or modified in any way to provide for
greater public participation and
understanding, or to assist us in
accommodating public concern and
comments.
If you wish to comment, you may
submit your comments and materials
concerning this proposal by any one of
several methods (see ADDRESSES
section). Please note that comments
merely stating support or opposition to
the actions under consideration without
providing supporting information,
although noted, will not be considered
in making a determination, as section
4(b)(1)(A) directs that determinations to
be made ‘‘solely on the basis of the best
scientific and commercial data
available.’’ Please submit comments
electronically to
abmcriticalhabitat@fws.gov in ASCII file
format and avoid the use of special
characters or any form of encryption.
Please also include ‘‘Attn: Alabama
Beach Mouse Critical Habitat’’ in your email subject header and your name and
return address in the body of your
message. If you do not receive a
confirmation from the system that we
have received your electronic message,
contact us directly by calling the
Daphne Fish and Wildlife Office at
phone number 251–441–5181. Please
note that the e-mail address
abmcriticalhabitat@fws.gov will be
closed out at the termination of the
public comment period.
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 U.S. Fish and Wildlife
Service Office at the above address.
Copies of the draft economic analysis
and the proposed rule for critical habitat
designation are available on the Internet
at https://www.fws.gov/daphne or from
the Daphne Fish and Wildlife Office at
the address and contact numbers above.
Our final designation of critical
habitat will take into consideration all
comments and any additional
information we received during both
comment periods. Previous comments
and information submitted during the
initial comment period on the February
1, 2006, proposed rule (71 FR 5516)
need not be resubmitted. On the basis of
information received during the public
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comment period, we may during the
development of our final critical habitat
determination find that areas proposed
are not essential, are appropriate for
exclusion under section 4(b)(2) of the
Act, or are not appropriate for
exclusion. An area may be excluded
from critical habitat if it is determined
that the benefits of such exclusion
outweigh the benefits of including a
particular area as critical habitat, unless
the failure to designate such area as
critical habitat will result in the
extinction of the species. We may
exclude an area from designated critical
habitat based on economic impacts,
national security, or any other relevant
impact.
the species and that may require special
management considerations or
protection, and specific areas outside
the geographic area occupied by a
species at the time it is listed, upon a
determination that such areas are
essential for the conservation of the
species. If the proposed rule is made
final, section 7 of the Act will prohibit
destruction or adverse modification of
critical habitat by any activity funded,
authorized, or carried out by any
Federal agency. Federal agencies
proposing actions affecting areas
designated as critical habitat must
consult with us on the effects of their
proposed actions, pursuant to section
7(a)(2) of the Act.
Background
On February 1, 2006, we published a
proposed rule to designate critical
habitat for the ABM (71 FR 5516),
revising the original designation for the
subspecies (50 FR 23872; June 6, 1985).
The proposed revision outlined five
coastal dune areas (units), totaling
approximately 1,298 total acres (ac) (525
hectares (ha)) in southern Baldwin
County, Alabama, as critical habitat for
the ABM. These five units consist of a
mix of primary, secondary, and scrub
sand dunes and interdunal swales and
generally include an inland expansion
of 1985 designated units to include
more scrub dune habitat. Also in our
February 2006 rule, we proposed
exclusion of approximately 1,229 ac
(497 ha) that, following our analysis
under sections 4(b)(2) and 3(5)(A) of the
Act, did not warrant designation of
critical habitat because they are either
protected by existing habitat
conservation plans or do not require
special management considerations or
protection. The five proposed revised
units, combined with these areas
proposed for exclusion, constitute our
best assessment of those areas essential
to the conservation of the subspecies. As
a result of revisions and corrections
outlined in this revised proposed rule,
these five units now total 1,326 ac (537
ha). We are also proposing inclusion of
six residential lots to critical habitat (see
Acreage Corrections). Other than the
changes just described, the proposed
rule of February 1, 2006, remains intact.
We will submit for publication in the
Federal Register a final revised critical
habitat designation for ABM on or
before January 15, 2007.
Critical habitat is defined in section 3
of the Act as the specific areas within
the geographic area occupied by a
species, at the time it is listed in
accordance with the Act, on which are
found those physical or biological
features essential to the conservation of
Economic Analysis
Section 4(b)(2) of the Act requires that
we designate or revise critical habitat
based upon the best scientific and
commercial data available, after taking
into consideration the economic or any
other relevant impact of specifying any
particular area as critical habitat. We
have prepared a draft economic analysis
based on the February 1, 2006, proposed
rule (71 FR 5516) that revises the
currently designated critical habitat for
the ABM; subsequent corrections are
included.
The draft economic analysis estimates
the foreseeable economic impacts of
ABM conservation measures within the
proposed critical habitat designation on
government agencies and private
businesses and individuals. The
analysis measures lost economic
efficiency associated with residential
and commercial development, and
public projects and activities, such as
economic impacts on transportation
projects, the energy industry, and State
and Federal lands. It is difficult to
separate costs attributed to the listing of
a species from costs associated solely
with a critical habitat designation.
Therefore, the draft economic analysis
considers the potential economic effects
of all actions relating to the
conservation of the ABM, including
costs associated with sections 4, 7, and
10 of the Act, and those attributable to
designating critical habitat. This may
result in an overestimate of the potential
economic impacts of the designation.
The draft economic analysis forecasts
that costs associated with conservation
activities for the ABM would range from
$18.3 million to $51.8 million in
undiscounted dollars over the next 20
years. Adjusted for possible inflation,
the costs would range from $16.1
million to $46.8 million over 20 years,
or $1.1 million to $3.1 million annually
using a 3 percent discount; or $14.2
million to $41.7 million over 20 years,
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or $1.3 million to $3.9 million annually,
using a 7 percent discount. Overall, the
residential and commercial
development industry is calculated to
experience the highest estimated costs
(99 percent).
The draft economic analysis considers
the potential economic effects of all
actions relating to the conservation of
the ABM, including costs coextensive
with listing. It further considers the
economic effects of protective measures
taken as a result of other Federal, State,
and local laws that aid habitat
conservation for the ABM in proposed
critical habitat areas. The draft analysis
considers both economic efficiency and
distributional effects. In the case of
habitat conservation, efficiency effects
generally reflect lost economic
opportunities associated with
restrictions on land use (opportunity
costs). This analysis also addresses how
potential economic impacts are likely to
be distributed, including an assessment
of any local or regional impacts of
habitat conservation and the potential
effects of conservation activities on
small entities and the energy industry.
This information can be used by
decision makers to assess whether the
effects of the designation might unduly
burden a particular group or economic
sector. Finally, this draft analysis looks
retrospectively at costs that have been
incurred since the date the subspecies
was listed as endangered and considers
those costs that may occur in the 20
years following revision of critical
habitat.
As stated earlier, we solicit data and
comments from the public on this draft
economic analysis, as well as on all
aspects of the proposal. We may revise
the proposal, or its supporting
documents, to incorporate or address
new information received during the
comment period.
Acreage Corrections
By this notice, we are also advising
the public of two changes to the
February 1, 2006, proposed rule (71 FR
5516). First, we regret that an error was
inadvertently made in the proposed rule
concerning the 49 single-family homes
proposed for exclusion under section
4(b)(2) of the Act based upon habitat
conservation plans (HCPs). Owners of
six lots that were proposed for exclusion
do not have approved HCPs.
Undeveloped portions of these lots,
totaling approximately 6 ac (2 ha) and
distributed between Units 1 (3.3 ac), 2
(2.3 ac), and 3 (0.5 ac), contain both the
habitat known to be occupied at the
time of listing and the physical and
biological characteristics essential to the
conservation of the subspecies.
Therefore, they are now proposed for
inclusion in the revised designation.
Second, there were also slight acreage
discrepancies in the proposed rule due
to an inadvertent calculation error. An
18-acre discrepancy in Unit 1 was
identified and accounted for in the draft
economic analysis. Table 1 contains the
corrected acreage values, including the
six additional acres proposed for
inclusion discussed above. These
acreage differences do not change the
legal description published in the
February 1, 2006, proposed rule, which
are a true representation of the updated
acreage identified in Table 1 below.
TABLE 1.—AREAS PROPOSED AS CRITICAL HABITAT FOR THE ALABAMA BEACH MOUSE
[Totals may not sum due to rounding]
Federal
acres
(hectares)
State
acres
(hectares)
Local and
private
acres
(hectares)
Fort Morgan .........................................................................................................................
Little Point Clear ..................................................................................................................
Gulf Highlands .....................................................................................................................
Pine Beach ..........................................................................................................................
Gulf State Park ....................................................................................................................
44 (18)
16 (6)
11 (4)
11 (4)
0
337 (136)
82 (33)
48 (19)
0
190 (77)
66 (27)
170 (69)
331 (134)
20 (8)
0
Total ..................................................................................................................................
82 (32)
657 (265)
587 (238)
Critical Habitat Units—Alabama beach mouse
1.
2.
3.
4.
5.
Required Determinations—Amended
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Regulatory Planning and Review
In accordance with Executive Order
12866, this document is a significant
rule because it may raise novel legal and
policy issues. However, it is not
anticipated to have an annual effect on
the economy of $100 million or more or
affect the economy in a material way.
Due to the timeline for publication in
the Federal Register, the Office of
Management and Budget (OMB) did not
formally review the proposed rule.
Further, Executive Order 12866
directs Federal Agencies promulgating
regulations to evaluate regulatory
alternatives (Office of Management and
Budget, Circular A–4, September 17,
2003). Pursuant to Circular A–4, once it
has been determined that the Federal
regulatory action is appropriate, the
agency will need to consider alternative
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regulatory approaches. Since the
determination of critical habitat is a
statutory requirement pursuant to the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.), we
must then evaluate alternative
regulatory approaches, where feasible,
when promulgating a designation of
critical habitat.
In developing our designations of
critical habitat, we consider economic
impacts, impacts to national security,
and other relevant impacts pursuant to
section 4(b)(2) of the Act. Based on the
discretion allowable under this
provision, we may exclude any
particular area from the designation of
critical habitat providing that the
benefits of such exclusion outweighs the
benefits of specifying the area as critical
habitat and that such exclusion would
not result in the extinction of the
species. We believe that the evaluation
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Total acres
(hectares)
446
268
390
31
190
(180)
(108)
(158)
(13)
(77)
1326 (537)
of the inclusion or exclusion of
particular areas, or combination thereof,
in a designation constitutes our
regulatory alternative analysis.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq., as amended by the
Small Business Regulatory Enforcement
Fairness Act (SBREFA) of 1996),
whenever an agency is required to
publish a notice of rulemaking for any
proposed or final rule, it must prepare
and make available for public comment
a regulatory flexibility analysis that
describes the effect of the rule on small
entities (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
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on a substantial number of small
entities. In our proposed rule, we
withheld our determination of whether
this designation would result in a
significant effect as defined under
SBREFA until we completed our draft
economic analysis of the proposed
designation so that we would have the
factual basis for our determination.
According to the Small Business
Administration, small entities include
small organizations, such as
independent nonprofit organizations,
and small governmental jurisdictions,
including school boards and city and
town governments that serve fewer than
50,000 residents, as well as small
businesses (13 CFR 121.201). Small
businesses include manufacturing and
mining concerns with fewer than 500
employees, wholesale trade entities
with fewer than 100 employees, retail
and service businesses with less than $5
million in annual sales, general and
heavy construction businesses with less
than $27.5 million in annual business,
special trade contractors doing less than
$11.5 million in annual business, and
agricultural businesses with annual
sales less than $750,000. To determine
if potential economic impacts to these
small entities are significant, we
considered the types of activities that
might trigger regulatory impacts under
this designation as well as types of
project modifications that may result. In
general, the term significant economic
impact is meant to apply to a typical
small business firm’s business
operations.
To determine if the proposed ABM
critical habitat designation would affect
a substantial number of small entities,
we considered the number of small
entities affected within particular types
of economic activities (such as
residential and commercial
development). 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.
In our draft economic analysis, we
evaluated the potential economic effects
on small business entities resulting from
conservation actions related to the
listing of ABM and proposed
designation of their critical habitat. This
analysis estimated prospective
economic impacts due to the
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implementation of beach mouse
conservation efforts in five categories:
Private development activities;
recreation; tropical storms and
hurricanes; species management and
habitat protection activities; and road
construction. We determined from our
analysis that in four of these five
categories, impacts of ABM
conservation efforts are not anticipated
to impact small business. The only
category of small business entities that
may be affected is private development
firms. Costs associated with residentialcommercial development comprise 99
percent of the total quantified future
impacts. Total costs of conservation
efforts related to development activities
are estimated to be $18.1 million to
$51.2 million in undiscounted dollars
over the next 20 years, on
approximately 587 acres of developable
private lands. Adjusted for possible
inflation, the costs would range from
$16.1 million to $46.8 million over 20
years, or $1.1 million to $3.1 million
annually using a 3 percent discount; or
$14.2 million to $41.7 million over 20
years, or $1.3 million to $3.9 million
annually, using a 7 percent discount.
Conservation effort costs include land
preservation (set asides), monitoring,
and predator control that may be
required of new development activity
on private land. Assuming each parcel
of land is owned by a unique
landowner, approximately 137
landowners could be impacted by the
ABM conservation efforts. This analysis
assumes that, in general, landowners are
private citizens and not developers.
Thus, although 137 landowners may be
affected by this designation, few are
anticipated to be small entities.
Therefore, we do not believe that the
designation of critical habitat for the
ABM will result in a disproportionate
effect to small business entities.
Please refer to our draft economic
analysis of the proposed critical habitat
designation for a more detailed
discussion of potential economic
impacts.
Executive Order 13211
On May 18, 2001, the President issued
Executive Order (E.O.) 13211 on
regulations that significantly affect
energy supply, distribution, and use.
E.O. 13211 requires agencies to prepare
Statements of Energy Effects when
undertaking certain actions. This
proposed rule is considered a significant
regulatory action under E.O. 12866
because it raises novel legal and policy
issues, but it is not expected to
significantly affect energy supplies,
distribution, or use. Therefore, this
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action is not a significant action, and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501),
the Service makes the following
findings:
(a) This rule will not produce a
Federal mandate. In general, a Federal
mandate is a provision in legislation,
statute, or regulation that would impose
an enforceable duty upon State, local, or
tribal governments, or the private sector,
and includes both ‘‘Federal
intergovernmental mandates’’ and
‘‘Federal private sector mandates.’’
These terms are defined in 2 U.S.C.
658(5)–(7). ‘‘Federal intergovernmental
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon State, local, or tribal
governments,’’ with two exceptions. It
excludes ‘‘a condition of Federal
assistance.’’ It also excludes ‘‘a duty
arising from participation in a voluntary
Federal program,’’ unless the regulation
‘‘relates to a then-existing Federal
program under which $500,000,000 or
more is provided annually to State,
local, and tribal governments under
entitlement authority,’’ if the provision
would ‘‘increase the stringency of
conditions of assistance’’ or ‘‘place caps
upon, or otherwise decrease, the Federal
Government’s responsibility to provide
funding’’ and the State, local, or tribal
governments ‘‘lack authority’’ to adjust
accordingly. At the time of enactment,
these entitlement programs were:
Medicaid; Aid to Families with
Dependent Children work programs;
Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational
Rehabilitation State Grants; Foster Care,
Adoption Assistance, and Independent
Living; Family Support Welfare
Services; and Child Support
Enforcement. ‘‘Federal private sector
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon the private sector, except (i) a
condition of Federal assistance; or (ii) a
duty arising from participation in a
voluntary Federal program.’’
The designation of critical habitat
does not impose a legally binding duty
on non-Federal government entities or
private parties. Under the Act, the only
regulatory effect is that Federal agencies
must ensure that their actions do not
destroy or adversely modify critical
habitat under section 7. Non-Federal
entities that receive Federal funding,
assistance, permits, or otherwise require
approval or authorization from a Federal
agency for an action may be indirectly
impacted by the designation of critical
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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) As discussed in the draft economic
analysis of the proposed designation of
critical habitat for the ABM, the impacts
on nonprofits and small governments
are expected to be negligible. It is likely
that small governments involved with
developments and infrastructure
projects will be interested parties or
involved with projects involving section
7 consultations for the ABM within
their jurisdictional areas. Any costs
associated with this activity are likely to
represent a small portion of a local
government’s budget. Consequently, we
do not believe that the designation of
critical habitat for this subspecies will
significantly or uniquely affect these
small governmental 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 ABM.
Critical habitat designation does not
affect landowner actions that do not
require Federal funding or permits, nor
does it preclude development of habitat
conservation programs or issuance of
incidental take permits to permit actions
that do require Federal funding or
permits to go forward. In conclusion,
the designation of critical habitat for
this subspecies does not pose significant
takings implications.
Author
sroberts on PROD1PC70 with PROPOSALS
The primary author of this notice is
Rob Tawes of the Daphne Fish and
Wildlife Office (see ADDRESSES section).
The authority for this action is the
Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.).
Dated: July 17, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. E6–12317 Filed 8–7–06; 8:45 am]
BILLING CODE 4310–55–P
VerDate Aug<31>2005
18:27 Aug 07, 2006
Jkt 208001
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
Endangered and Threatened Wildlife
and Plants; 90-Day Finding on a
Petition To List the Thorne’s Hairstreak
Butterfly as Threatened or Endangered
Fish and Wildlife Service,
Interior.
ACTION: Notice of 90-day petition
finding.
AGENCY:
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), announce a
90-day finding on a petition to list the
Thorne’s hairstreak butterfly
(Callophrys [Mitoura] grynea thornei or
Callophrys [Mitoura] thornei) as an
endangered species under the
Endangered Species Act of 1973, as
amended. We find the petition does not
provide substantial scientific or
commercial information indicating the
requested action is warranted.
Therefore, we will not initiate a further
status review in response to this
petition. We ask the public to submit to
us any new information that becomes
available concerning the status of the
Thorne’s hairstreak butterfly or threats
to it.
DATES: The finding announced in this
document was made on August 8, 2006.
ADDRESSES: The complete file for this
finding is available for public
inspection, by appointment, during
normal business hours at the Carlsbad
Fish and Wildlife Office, U.S. Fish and
Wildlife Service, 6010 Hidden Valley
Road, Carlsbad, CA 92011. New
information, materials, comments, or
questions concerning the Thorne’s
hairstreak butterfly may be submitted to
us at any time at the above address.
FOR FURTHER INFORMATION CONTACT: Jim
Bartel, Field Supervisor, Carlsbad Fish
and Wildlife Office (see ADDRESSES
section above), by telephone at 760–
431–9440, or by facsimile to 760–431–
9624. Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at 800–877–8339,
24 hours a day, 7 days a week.
SUPPLEMENTARY INFORMATION:
Background
Section 4(b)(3)(A) of the Endangered
Species Act (Act) (16 U.S.C. 1531 et
seq.) requires that we make a finding on
whether a petition to list, delist, or
reclassify a species presents substantial
information to indicate that the
petitioned action may be warranted. To
the maximum extent practicable, this
PO 00000
Frm 00048
Fmt 4702
Sfmt 4702
finding is to be made within 90 days of
receipt of the petition, and the finding
is to be published in the Federal
Register.
This finding summarizes information
included in the petition and information
available to us at the time of the petition
review. A 90-day finding under section
4(b)(3)(A) of the Act and § 424.14(b) of
our regulations is limited to a
determination of whether the
information in the petition meets the
‘‘substantial information’’ threshold.
Substantial information is ‘‘that amount
of information that would lead a
reasonable person to believe that the
measure proposed in the petition may
be warranted’’ (50 CFR 424.14(b)).
Previous Federal Action
The Thorne’s hairstreak butterfly was
included as a Category 2 candidate
species in our November 21, 1991 (56
FR 58804), and November 15, 1994 (59
FR 58982), Candidate Notices of Review
(CNOR). Category 2 included taxa for
which information in the Service’s
possession indicated that a proposed
listing rule was possibly appropriate,
but for which sufficient data on
biological vulnerability and threats were
not available to support a proposed rule.
In the CNOR published on February 28,
1996, the Service announced a revised
list of plant and animal taxa that were
regarded as candidates for possible
addition to the List of Threatened and
Endangered Species (61 FR 7595). The
revised candidate list included only
former Category 1 species. All former
Category 2 species were dropped from
the list in order to reduce confusion
about the conservation status of these
species, and to clarify that the Service
no longer regarded these species as
candidates for listing. Since the
Thorne’s hairstreak butterfly was a
Category 2 species, it was no longer
recognized as a candidate species as of
the February 28, 1996, CNOR.
On June 4, 1991, the Service received
a petition dated May 27, 1991, from
David Hogan of the San Diego
Biodiversity Project to list the Thorne’s
hairstreak butterfly, Hermes copper
butterfly (Hermelycaena [Lycaena]
hermes), Laguna Mountains skipper
(Pyrgus ruralis lagunae), and Harbison’s
dun skipper (Euphyes vestries
harbinsoni) as endangered under the
Act. In a Federal Register notice dated
July 19, 1993 (58 FR 38549), the Service
announced its finding on the petition.
We found that the petition presented
substantial information for the Laguna
Mountains skipper, but not for the other
three butterflies. However, the finding
also concluded that other substantial
information existed to support a
E:\FR\FM\08AUP1.SGM
08AUP1
]]>Agencies
[Federal Register Volume 71, Number 152 (Tuesday, August 8, 2006)]
[Proposed Rules]
[Pages 44976-44980]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-12317]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU46
Endangered and Threatened Wildlife and Plants; Revised
Designation of Critical Habitat for the Endangered Alabama Beach Mouse
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Revised proposed rule; reopening of comment period, notice of
availability of draft economic analysis, acreage corrections, and
notice of public hearing.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening
of the public comment period, a public hearing on the proposed revision
of critical habitat for the Alabama beach mouse (Peromyscus polionotus
ammobates) (ABM), and the availability of the draft economic analysis
of the proposed designation of critical habitat under the Endangered
Species Act of 1973, as amended (Act). We are also using this comment
period to correct minor acreage calculation errors in the February 1,
2006, proposed rule (71 FR 5516), announce the inclusion of an
additional 6 acres (distributed among proposed critical habitat units
1, 2, and 3), and solicit further comments on the proposed rule. The
draft economic analysis forecasts that costs associated with
conservation activities for the ABM would range from $18.3 million to
$51.8 million in undiscounted dollars over the next 20 years. Adjusted
for possible inflation, the costs would range from $16.1 million to
$46.8 million over 20 years, or $1.1 million to $3.1 million annually
using a 3 percent discount; or $14.2 million to $41.7 million over 20
years, or $1.3 million to $3.9 million annually using a 7 percent
discount. We are reopening the public comment period to allow all
interested parties an opportunity to comment simultaneously on the
proposed rule and the associated draft economic analysis. Comments
previously submitted need not be resubmitted as they will be
incorporated into the public record and fully considered in preparation
of the final rule.
DATES: We will accept public comments until September 7, 2006. See
Public Hearings, under SUPPLEMENTARY INFORMATION, for further details.
ADDRESSES: If you wish to comment, you may submit your comments and
information concerning this proposal, identified by ``Attn: Alabama
Beach Mouse Critical Habitat,'' by any one of several methods:
(1) Mail or hand-deliver to: Field Supervisor, U.S. Fish and
Wildlife Service, Daphne Fish and Wildlife Office, 1208-B Main Street,
Daphne, Alabama 36526.
(2) Send by electronic mail (e-mail) to abmcriticalhabitat@fws.gov.
Please see the Public Comments Solicited section below for file format
and other information about electronic filing.
(3) Provide oral or written comments at the public hearing.
(4) Fax your comments to: 251-441-6222.
5. Submit comments on Federal eRulemaking portal: https://
www.regulations.gov. Follow the instructions for submitting comments.
Public Hearings
We have scheduled a public hearing on the proposed critical habitat
revision and the draft economic analysis. The hearing will take place
from 7 to 9 p.m. on August 24, 2006, at the Adult Activity Center
located at 260 Clubhouse Drive, Gulf Shores, Alabama 36542. This will
be preceded by a public information session from 6 to 7 p.m. at the
same location. Maps of the proposal and other materials will be
available for public review.
Comments and materials received, as well as supporting
documentation used in the preparation of this proposed rule, will be
available for public inspection by appointment during normal business
hours at the Daphne Fish and Wildlife Field Office at the above
address.
FOR FURTHER INFORMATION CONTACT: Field Supervisor, U.S. Fish and
Wildlife Service, Daphne, Alabama (telephone 251-441-5181; facsimile
251-441-6222).
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, comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule are hereby solicited. Comments
particularly are sought concerning:
(1) The reasons any habitat should or should not be determined to
be critical habitat as provided by section 4 of the Act, including
whether the benefit of designation will outweigh any adverse impacts to
the species due to designation;
(2) Specific information on the presence of Alabama beach mouse
habitat, particularly what areas should be included in the designations
that were occupied at the time of listing that contain features that
are essential for the conservation of the species and why; and what
areas that were not occupied at listing are essential to the
conservation of the species and why;
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation and, in particular, any
impacts on small entities;
(5) Whether the draft economic analysis identifies all State and
local costs attributable to the proposed critical habitat designation,
and information on any costs that have been inadvertently overlooked;
(6) Whether the draft economic analysis makes appropriate
assumptions regarding current practices and likely regulatory changes
imposed as a result of the designation of critical habitat;
(7) Whether the draft economic analysis correctly assesses the
effect on regional costs associated with any land use controls that may
derive from the designation of critical habitat;
(8) Whether the draft economic analysis appropriately identifies
all
[[Page 44977]]
costs and benefits that could result from the designation; and
(9) Whether our approach to critical habitat designation could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concern and comments.
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods (see ADDRESSES
section). Please note that comments merely stating support or
opposition to the actions under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) directs that
determinations to be made ``solely on the basis of the best scientific
and commercial data available.'' Please submit comments electronically
to abmcriticalhabitat@fws.gov in ASCII file format and avoid the use of
special characters or any form of encryption. Please also include
``Attn: Alabama Beach Mouse Critical Habitat'' in your e-mail subject
header and your name and return address in the body of your message. If
you do not receive a confirmation from the system that we have received
your electronic message, contact us directly by calling the Daphne Fish
and Wildlife Office at phone number 251-441-5181. Please note that the
e-mail address abmcriticalhabitat@fws.gov will be closed out at the
termination of the public comment period.
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 U.S.
Fish and Wildlife Service Office at the above address.
Copies of the draft economic analysis and the proposed rule for
critical habitat designation are available on the Internet at https://
www.fws.gov/daphne or from the Daphne Fish and Wildlife Office at the
address and contact numbers above.
Our final designation of critical habitat will take into
consideration all comments and any additional information we received
during both comment periods. Previous comments and information
submitted during the initial comment period on the February 1, 2006,
proposed rule (71 FR 5516) need not be resubmitted. On the basis of
information received during the public comment period, we may during
the development of our final critical habitat determination find that
areas proposed are not essential, are appropriate for exclusion under
section 4(b)(2) of the Act, or are not appropriate for exclusion. An
area may be excluded from critical habitat if it is determined that the
benefits of such exclusion outweigh the benefits of including a
particular area as critical habitat, unless the failure to designate
such area as critical habitat will result in the extinction of the
species. We may exclude an area from designated critical habitat based
on economic impacts, national security, or any other relevant impact.
Background
On February 1, 2006, we published a proposed rule to designate
critical habitat for the ABM (71 FR 5516), revising the original
designation for the subspecies (50 FR 23872; June 6, 1985). The
proposed revision outlined five coastal dune areas (units), totaling
approximately 1,298 total acres (ac) (525 hectares (ha)) in southern
Baldwin County, Alabama, as critical habitat for the ABM. These five
units consist of a mix of primary, secondary, and scrub sand dunes and
interdunal swales and generally include an inland expansion of 1985
designated units to include more scrub dune habitat. Also in our
February 2006 rule, we proposed exclusion of approximately 1,229 ac
(497 ha) that, following our analysis under sections 4(b)(2) and
3(5)(A) of the Act, did not warrant designation of critical habitat
because they are either protected by existing habitat conservation
plans or do not require special management considerations or
protection. The five proposed revised units, combined with these areas
proposed for exclusion, constitute our best assessment of those areas
essential to the conservation of the subspecies. As a result of
revisions and corrections outlined in this revised proposed rule, these
five units now total 1,326 ac (537 ha). We are also proposing inclusion
of six residential lots to critical habitat (see Acreage Corrections).
Other than the changes just described, the proposed rule of February 1,
2006, remains intact. We will submit for publication in the Federal
Register a final revised critical habitat designation for ABM on or
before January 15, 2007.
Critical habitat is defined in section 3 of the Act as the specific
areas within the geographic area occupied by a species, at the time it
is listed in accordance with the Act, on which are found those physical
or biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographic area occupied by a species at the
time it is listed, upon a determination that such areas are essential
for the conservation of the species. If the proposed rule is made
final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting areas designated as critical habitat must consult with us on
the effects of their proposed actions, pursuant to section 7(a)(2) of
the Act.
Economic Analysis
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific and commercial data
available, after taking into consideration the economic or any other
relevant impact of specifying any particular area as critical habitat.
We have prepared a draft economic analysis based on the February 1,
2006, proposed rule (71 FR 5516) that revises the currently designated
critical habitat for the ABM; subsequent corrections are included.
The draft economic analysis estimates the foreseeable economic
impacts of ABM conservation measures within the proposed critical
habitat designation on government agencies and private businesses and
individuals. The analysis measures lost economic efficiency associated
with residential and commercial development, and public projects and
activities, such as economic impacts on transportation projects, the
energy industry, and State and Federal lands. It is difficult to
separate costs attributed to the listing of a species from costs
associated solely with a critical habitat designation. Therefore, the
draft economic analysis considers the potential economic effects of all
actions relating to the conservation of the ABM, including costs
associated with sections 4, 7, and 10 of the Act, and those
attributable to designating critical habitat. This may result in an
overestimate of the potential economic impacts of the designation.
The draft economic analysis forecasts that costs associated with
conservation activities for the ABM would range from $18.3 million to
$51.8 million in undiscounted dollars over the next 20 years. Adjusted
for possible inflation, the costs would range from $16.1 million to
$46.8 million over 20 years, or $1.1 million to $3.1 million annually
using a 3 percent discount; or $14.2 million to $41.7 million over 20
years,
[[Page 44978]]
or $1.3 million to $3.9 million annually, using a 7 percent discount.
Overall, the residential and commercial development industry is
calculated to experience the highest estimated costs (99 percent).
The draft economic analysis considers the potential economic
effects of all actions relating to the conservation of the ABM,
including costs coextensive with listing. It further considers the
economic effects of protective measures taken as a result of other
Federal, State, and local laws that aid habitat conservation for the
ABM in proposed critical habitat areas. The draft analysis considers
both economic efficiency and distributional effects. In the case of
habitat conservation, efficiency effects generally reflect lost
economic opportunities associated with restrictions on land use
(opportunity costs). This analysis also addresses how potential
economic impacts are likely to be distributed, including an assessment
of any local or regional impacts of habitat conservation and the
potential effects of conservation activities on small entities and the
energy industry. This information can be used by decision makers to
assess whether the effects of the designation might unduly burden a
particular group or economic sector. Finally, this draft analysis looks
retrospectively at costs that have been incurred since the date the
subspecies was listed as endangered and considers those costs that may
occur in the 20 years following revision of critical habitat.
As stated earlier, we solicit data and comments from the public on
this draft economic analysis, as well as on all aspects of the
proposal. We may revise the proposal, or its supporting documents, to
incorporate or address new information received during the comment
period.
Acreage Corrections
By this notice, we are also advising the public of two changes to
the February 1, 2006, proposed rule (71 FR 5516). First, we regret that
an error was inadvertently made in the proposed rule concerning the 49
single-family homes proposed for exclusion under section 4(b)(2) of the
Act based upon habitat conservation plans (HCPs). Owners of six lots
that were proposed for exclusion do not have approved HCPs. Undeveloped
portions of these lots, totaling approximately 6 ac (2 ha) and
distributed between Units 1 (3.3 ac), 2 (2.3 ac), and 3 (0.5 ac),
contain both the habitat known to be occupied at the time of listing
and the physical and biological characteristics essential to the
conservation of the subspecies. Therefore, they are now proposed for
inclusion in the revised designation.
Second, there were also slight acreage discrepancies in the
proposed rule due to an inadvertent calculation error. An 18-acre
discrepancy in Unit 1 was identified and accounted for in the draft
economic analysis. Table 1 contains the corrected acreage values,
including the six additional acres proposed for inclusion discussed
above. These acreage differences do not change the legal description
published in the February 1, 2006, proposed rule, which are a true
representation of the updated acreage identified in Table 1 below.
TABLE 1.--Areas Proposed as Critical Habitat for the Alabama Beach Mouse
[Totals may not sum due to rounding]
----------------------------------------------------------------------------------------------------------------
Local and
Federal State private Total
Critical Habitat Units--Alabama beach mouse acres acres acres acres
(hectares) (hectares) (hectares) (hectares)
----------------------------------------------------------------------------------------------------------------
1. Fort Morgan.................................................. 44 (18) 337 (136) 66 (27) 446 (180)
2. Little Point Clear........................................... 16 (6) 82 (33) 170 (69) 268 (108)
3. Gulf Highlands............................................... 11 (4) 48 (19) 331 (134) 390 (158)
4. Pine Beach................................................... 11 (4) 0 20 (8) 31 (13)
5. Gulf State Park.............................................. 0 190 (77) 0 190 (77)
-----------------------------------------------
Total....................................................... 82 (32) 657 (265) 587 (238) 1326 (537)
----------------------------------------------------------------------------------------------------------------
Required Determinations--Amended
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule because it may raise novel legal and policy issues.
However, it is not anticipated to have an annual effect on the economy
of $100 million or more or affect the economy in a material way. Due to
the timeline for publication in the Federal Register, the Office of
Management and Budget (OMB) did not formally review the proposed rule.
Further, Executive Order 12866 directs Federal Agencies
promulgating regulations to evaluate regulatory alternatives (Office of
Management and Budget, Circular A-4, September 17, 2003). Pursuant to
Circular A-4, once it has been determined that the Federal regulatory
action is appropriate, the agency will need to consider alternative
regulatory approaches. Since the determination of critical habitat is a
statutory requirement pursuant to the Endangered Species Act of 1973,
as amended (16 U.S.C. 1531 et seq.), we must then evaluate alternative
regulatory approaches, where feasible, when promulgating a designation
of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweighs the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. We believe that the evaluation of the inclusion or
exclusion of particular areas, or combination thereof, in a designation
constitutes our regulatory alternative analysis.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (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
[[Page 44979]]
on a substantial number of small entities. In our proposed rule, we
withheld our determination of whether this designation would result in
a significant effect as defined under SBREFA until we completed our
draft economic analysis of the proposed designation so that we would
have the factual basis for our determination.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
To determine if the proposed ABM critical habitat designation would
affect a substantial number of small entities, we considered the number
of small entities affected within particular types of economic
activities (such as residential and commercial development). 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.
In our draft economic analysis, we evaluated the potential economic
effects on small business entities resulting from conservation actions
related to the listing of ABM and proposed designation of their
critical habitat. This analysis estimated prospective economic impacts
due to the implementation of beach mouse conservation efforts in five
categories: Private development activities; recreation; tropical storms
and hurricanes; species management and habitat protection activities;
and road construction. We determined from our analysis that in four of
these five categories, impacts of ABM conservation efforts are not
anticipated to impact small business. The only category of small
business entities that may be affected is private development firms.
Costs associated with residential-commercial development comprise 99
percent of the total quantified future impacts. Total costs of
conservation efforts related to development activities are estimated to
be $18.1 million to $51.2 million in undiscounted dollars over the next
20 years, on approximately 587 acres of developable private lands.
Adjusted for possible inflation, the costs would range from $16.1
million to $46.8 million over 20 years, or $1.1 million to $3.1 million
annually using a 3 percent discount; or $14.2 million to $41.7 million
over 20 years, or $1.3 million to $3.9 million annually, using a 7
percent discount. Conservation effort costs include land preservation
(set asides), monitoring, and predator control that may be required of
new development activity on private land. Assuming each parcel of land
is owned by a unique landowner, approximately 137 landowners could be
impacted by the ABM conservation efforts. This analysis assumes that,
in general, landowners are private citizens and not developers. Thus,
although 137 landowners may be affected by this designation, few are
anticipated to be small entities. Therefore, we do not believe that the
designation of critical habitat for the ABM will result in a
disproportionate effect to small business entities.
Please refer to our draft economic analysis of the proposed
critical habitat designation for a more detailed discussion of
potential economic impacts.
Executive Order 13211
On May 18, 2001, the President issued Executive Order (E.O.) 13211
on regulations that significantly affect energy supply, distribution,
and use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This proposed rule is
considered a significant regulatory action under E.O. 12866 because it
raises novel legal and policy issues, but it is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant action, and no Statement of Energy
Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments,'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and tribal governments under entitlement authority,''
if the provision would ``increase the stringency of conditions of
assistance'' or ``place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding'' and the State, local,
or tribal governments ``lack authority'' to adjust accordingly. At the
time of enactment, these entitlement programs were: Medicaid; Aid to
Families with Dependent Children work programs; Child Nutrition; Food
Stamps; Social Services Block Grants; Vocational Rehabilitation State
Grants; Foster Care, Adoption Assistance, and Independent Living;
Family Support Welfare Services; and Child Support Enforcement.
``Federal private sector mandate'' includes a regulation that ``would
impose an enforceable duty upon the private sector, except (i) a
condition of Federal assistance; or (ii) a duty arising from
participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. Non-Federal entities that receive Federal
funding, assistance, permits, or otherwise require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical
[[Page 44980]]
habitat. However, the legally binding duty to avoid destruction or
adverse modification of critical habitat rests squarely on the Federal
agency. Furthermore, to the extent that non-Federal entities are
indirectly impacted because they receive Federal assistance or
participate in a voluntary Federal aid program, the Unfunded Mandates
Reform Act would not apply; nor would critical habitat shift the costs
of the large entitlement programs listed above on to State governments.
(b) As discussed in the draft economic analysis of the proposed
designation of critical habitat for the ABM, the impacts on nonprofits
and small governments are expected to be negligible. It is likely that
small governments involved with developments and infrastructure
projects will be interested parties or involved with projects involving
section 7 consultations for the ABM within their jurisdictional areas.
Any costs associated with this activity are likely to represent a small
portion of a local government's budget. Consequently, we do not believe
that the designation of critical habitat for this subspecies will
significantly or uniquely affect these small governmental 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 ABM. Critical habitat designation
does not affect landowner actions that do not require Federal funding
or permits, nor does it preclude development of habitat conservation
programs or issuance of incidental take permits to permit actions that
do require Federal funding or permits to go forward. In conclusion, the
designation of critical habitat for this subspecies does not pose
significant takings implications.
Author
The primary author of this notice is Rob Tawes of the Daphne Fish
and Wildlife Office (see ADDRESSES section).
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: July 17, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-12317 Filed 8-7-06; 8:45 am]
BILLING CODE 4310-55-P
