Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Sierra Nevada Bighorn Sheep (Ovis canadensis californiana) and Proposed Taxonomic Revision, 6684-6689 [E8-1805]
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Federal Register / Vol. 73, No. 24 / Tuesday, February 5, 2008 / Proposed Rules
species with a lower priority if they
overlap geographically or have the same
threats as the species with the high
priority.
ACTIONS ANTICIPATED TO BE FUNDED IN FY 2008 THAT HAVE YET TO BE COMPLETED
Species
Action
Actions Subject to Court Order/Settlement Agreement
Bonneville cutthroat trout ................................................................................................................
12-month petition finding (remand).
Actions With Statutory Deadlines
Polar bear ........................................................................................................................................
3 Southeastern aquatic species ......................................................................................................
Phyllostegia hispida ........................................................................................................................
Yellow-billed loon ............................................................................................................................
Black-footed albatross .....................................................................................................................
Mount Charleston blue butterfly ......................................................................................................
Goose Creek milk-vetch ..................................................................................................................
White-tailed prairie dog ...................................................................................................................
Mono Basin sage grouse (vol. remand) .........................................................................................
Ashy storm petrel ............................................................................................................................
Longfin smelt—San Fran. Bay population ......................................................................................
Black-tailed prairie dog ...................................................................................................................
Lynx (include New Mexico in listing) ..............................................................................................
Wyoming pocket gopher .................................................................................................................
Llanero coqui ...................................................................................................................................
Least chub .......................................................................................................................................
American pika .................................................................................................................................
Dusky tree vole ...............................................................................................................................
Sacramento Mts. checkerspot butterfly ..........................................................................................
Kokanee—Lake Sammamish population ........................................................................................
206 species .....................................................................................................................................
475 Southwestern species ..............................................................................................................
Final listing determination.
Final listing.
Final listing.
12-month petition finding.
12-month petition finding.
12-month petition finding.
12-month petition finding.
12-month petition finding.
90-day petition finding.
90-day petition finding.
90-day petition finding.
90-day petition finding.
90-day petition finding.
90-day petition finding.
90-day petition finding.
90-day petition finding.
90-day petition finding.
90-day petition finding.
90-day petition finding.
90-day petition finding.
90-day petition finding.
90-day petition finding.
High Priority Listing Actions
31 Kauai species 1 ..........................................................................................................................
8 packages of high-priority candidate species ...............................................................................
1 Funds
used for this listing action were also provided in FY 2007.
We have endeavored to make our
listing actions as efficient and timely as
possible, given the requirements of the
relevant law and regulations, and
constraints relating to workload and
personnel. We are continually
considering ways to streamline
processes or achieve economies of scale,
such as by batching related actions
together. Given our limited budget for
implementing section 4 of the Act, these
actions described above collectively
constitute expeditious progress.
Conclusion
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Proposed listing.
Proposed listing.
We will add the montane portion of
the Gunnison’s prairie dog to the list of
candidate species. We intend any listing
action for the species to be as accurate
as possible by reflecting the best
available information. Therefore, we
will continue to accept additional
information and comments on the status
of and threats to this species from all
concerned governmental agencies, the
scientific community, industry, or any
other interested party concerning this
finding. If an emergency situation
develops that warrants an emergency
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listing of this species, we will act
immediately to provide additional
protection.
DEPARTMENT OF THE INTERIOR
References
50 CFR Part 17
A complete list of all references cited
herein is available upon request from
the Western Colorado Field Office (see
ADDRESSES).
[FWS–R8–ES–2008–0014; 92210–1117–
0000–B4]
Author
The primary authors of this document
are staff located at the Colorado Field
Office (see ADDRESSES).
The authority for this action is the
Endangered Species Act of 1973, as amended
(16 U.S.C. 1531 et seq.).
Dated: January 29, 2008.
H. Dale Hall,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 08–493 Filed 2–4–08; 8:45 am]
BILLING CODE 4310–55–P
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RIN 1018–AV05
Endangered and Threatened Wildlife
and Plants; Designation of Critical
Habitat for the Sierra Nevada Bighorn
Sheep (Ovis canadensis californiana)
and Proposed Taxonomic Revision
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; reopening of
comment period, notice of availability
of draft economic analysis, and
amended required determinations.
AGENCY:
Authority
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Fish and Wildlife Service
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SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), announce the
reopening of the public comment period
on the proposed designation of critical
habitat for the Sierra Nevada bighorn
sheep (Ovis canadensis californiana)
and proposed taxonomic revision under
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the Endangered Species Act of 1973, as
amended (Act). We also announce the
availability of the draft economic
analysis (DEA) of the proposed critical
habitat designation, and an amended
required determinations section of the
proposal. The DEA provides
information about the pre-designation
costs and forecasts post-designation
costs associated with conservation
efforts for Sierra Nevada bighorn sheep.
The DEA estimates potential future
costs due to conservation efforts
(baseline costs) to be approximately
$26.7 million and costs associated
solely with the designation of critical
habitat (incremental costs) to be
approximately $135,000 in
undiscounted dollars over a 20-year
period in areas proposed as critical
habitat. The amended required
determinations section provides our
determination concerning compliance
with applicable statutes and Executive
Orders that we have deferred until the
information from the DEA of the
proposal was available. We are
reopening the comment period to allow
all interested parties an opportunity to
comment simultaneously on the
proposed rule, the associated DEA, and
the amended required determinations
section. Comments submitted during the
initial comment period from July 25 to
September 24, 2007, on the proposed
rule (72 FR 40956), or from October 9
to November 23, 2007, during the
reopened comment period on the
proposed rule (72 FR 57276) have been
incorporated into the supporting for this
rulemaking and need not be
resubmitted. We will incorporate all
comments into the supporting record as
part of this comment period, and we
will fully consider them when preparing
our final determination.
DATES: We will accept public comments
until March 6, 2008.
ADDRESSES: You may submit comments
by one of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• U.S. mail or hand-delivery: Public
Comments Processing, Attn: FWS–R8–
ES–2008–0014, Division of Policy and
Directives Management, U.S. Fish and
Wildlife Service, 4401 N. Fairfax Drive,
Suite 222, Arlington, VA 22203.
We will not accept e-mail or faxes. We
will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see the
Public Comments section below for
more information).
FOR FURTHER INFORMATION CONTACT:
Robert D. Williams, Field Supervisor,
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U.S. Fish and Wildlife Service, Nevada
Fish and Wildlife Office, 1340 Financial
Blvd., Suite 234, Reno, NV 89502–7147;
telephone 775–861–6300; or facsimile
775–861–6301. Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written comments and
information during this reopened
comment period on our proposed
critical habitat designation for the Sierra
Nevada bighorn sheep and proposed
taxonomic revision published in the
Federal Register on July 25, 2007 (72 FR
40956), our draft economic analysis
(DEA) of the proposed designation, and
the amended required determinations
provided in this document. We will
consider information and
recommendations from all interested
parties. We are particularly interested in
comments concerning:
(1) The reasons why we should or
should not designate habitat as critical
habitat under section 4 of the Act (16
U.S.C. 1531 et seq.), including whether
the benefits of designation would
outweigh threats to the species caused
by the designation, such that the
designation of critical habitat is
prudent.
(2) Specific information on:
• The amount and distribution of
Sierra Nevada bighorn sheep habitat,
• What areas occupied at the time of
listing that contain features essential to
the conservation of the species we
should include in the designation and
why, and
• What areas not occupied at the time
of listing are essential for 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) Information on the extent to which
any State and local environmental
protection measures we reference in the
DEA may have been adopted largely as
a result of the listing of the Sierra
Nevada bighorn sheep.
(5) Information on whether the DEA
identifies all State and local costs and
benefits attributable to the proposed
critical habitat designation, and
information on any costs or benefits that
we have overlooked.
(6) Information on whether the DEA
makes appropriate assumptions
regarding current practices and any
regulatory changes likely if we designate
critical habitat.
(7) Information on whether the DEA
identifies all costs that could result from
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the designation and whether you agree
with the analysis.
(8) Information on whether the DEA
correctly assesses the effect on regional
costs associated with any land use
controls that may result from the critical
habitat designation.
(9) Information on areas that the
critical habitat designation could
potentially impact to a disproportionate
degree.
(10) Economic data on the
incremental costs of designating any
particular area as critical habitat.
(11) Information on any quantifiable
economic benefits of the designation of
critical habitat.
(12) Any foreseeable economic,
national security, or other potential
impacts resulting from the proposed
designation and, in particular, any
impacts on small entities, and the
benefits of including or excluding areas
that exhibit these impacts.
(13) Whether the benefit of excluding
any particular area outweigh the
benefits of including that area under
section 4(b)(2) of the Act.
(14) Whether we could improve or
modify our approach to designating
critical habitat in any way to provide for
greater public participation and
understanding, or to better
accommodate public concerns and
comments.
Comments submitted during the
initial comment period from July 25 to
September 24, 2007, on the proposed
rule (72 FR 40956), or from October 9
to November 23, 2007, during the
reopened comment period on the
proposed rule (72 FR 57276) have been
incorporated into the supporting for this
rulemaking and need not be
resubmitted. We will incorporate them
into the supporting record as part of this
comment period, and we will fully
consider them in preparation of our
final determination. If you wish to
comment, you may send your comments
and materials concerning our proposed
rule, DEA, or amended required
determinations by one of the methods
listed in the ADDRESSES section. Our
final determination concerning critical
habitat will take into consideration all
written comments and any additional
information we receive during the
comment periods. On the basis of public
comments, we may, during the
development of our final 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.
You may submit your comments and
materials concerning this proposed rule
by one of the methods listed in the
ADDRESSES section. We will no longer
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accept comments you send by e-mail or
fax. Please note that we will consider
comments we receive after the date
specified in the DATES section in our
final determination.
Before including your address, phone
number, e-mail address, or other
personal identifying information in your
comment, you should be aware that we
will post your entire comment—
including your personal identifying
information—on https://
www.regulations.gov. While you can ask
us in your comment to withhold your
personal identifying information from
public review, we cannot guarantee that
we will be able to do so.
Comments and materials we receive,
as well as supporting documentation we
used in preparation of the proposal to
designate critical habitat, will be
available for public inspection on
https://www.regulations.gov, or by
appointment during normal business
hours, at the Nevada Fish and Wildlife
Office, 1340 Financial Boulevard, Suite
234, Reno, NV 89502–7147; telephone
775–861–6300. You may obtain copies
of the proposed critical habitat rule and
the DEA by mail from the Nevada Fish
and Wildlife Office or by visiting our
Web site at https://www.fws.gov/nevada.
physical or biological features essential
to the conservation of the species and
that may require special management
considerations or protection, and
specific areas outside the geographical
area occupied by a species at the time
it is listed, upon a determination that
such areas are essential for the
conservation of the species. If the
proposed rule is made final, section 7 of
the Act will prohibit destruction or
adverse modification of critical habitat
by any activity funded, authorized, or
carried out by any Federal agency.
Federal agencies proposing actions
affecting areas designated as critical
habitat must consult with us on the
effects of their proposed actions, in
accordance with section 7(a)(2) of the
Act.
Under section 4(b)(2) of the Act, we
may exclude an area from critical
habitat if we determine that the benefits
of such exclusion outweigh the benefits
of including that particular area as
critical habitat, unless failure to
designate that specific area as critical
habitat will result in the extinction of
the species. We may exclude an area
from designated critical habitat based on
economic impacts, national security, or
any other relevant impact.
Background
On December 8, 2005, the Center for
Biological Diversity filed a complaint
based on the Service’s failure to
designate critical habitat for this
subspecies within the time mandated
under the Act (Center for Biological
Diversity v. U.S. Fish and Wildlife
Service, et al. Case No. 2:05–CB–02492–
DFL–KJM). On June 6, 2006, the Service
entered into a settlement agreement
with the Center for Biological Diversity
to submit a proposed critical habitat
designation for this subspecies for
publication in the Federal Register by
July 17, 2007, and to submit a final
determination on the proposed critical
habitat designation for publication by
July 17, 2008. On July 25, 2007, we
published a proposed rule to designate
critical habitat for the Sierra Nevada
bighorn sheep (72 FR 40956),
identifying a total of approximately
417,577 acres (168,992 hectares) of land
in Tuolumne, Mono, Fresno, Inyo, and
Tulare counties, California. In that
proposal, we also proposed a taxonomic
revision of the listed entity from a
distinct population segment to a
subspecies (Ovis Canadensis sierrae)
based on recent published information.
Section 3 of the Act defines critical
habitat as the specific areas within the
geographical area occupied by a species,
at the time it is listed in accordance
with the Act, on which are found those
Draft Economic Analysis
Section 4(b)(2) of the Act requires that
we designate or revise critical habitat
based upon the best scientific and
commercial data available, after taking
into consideration the economic impact,
impact on national security, or any
other relevant impact of specifying any
particular area as critical habitat. Based
on the July 25, 2007, proposed rule to
designate critical habitat for the Sierra
Nevada bighorn sheep (72 FR 40956),
we have prepared a DEA of the
proposed critical habitat designation.
The intent of the DEA is to quantify
the economic impacts of all potential
conservation efforts for the Sierra
Nevada bighorn sheep; some of these
costs will likely be incurred regardless
of whether we designate critical habitat.
The DEA provides estimated costs of the
foreseeable potential economic impacts
of the proposed critical habitat
designation (incremental impacts) and
other conservation-related actions
(baseline impacts) for this species over
the next 20 years. It also considers past
costs associated with conservation of
the species from the time it was listed
in 2000 (65 FR 20, January 3, 2000),
until the year the proposed critical
habitat rule was published (72 FR
40956, July 25, 2007).
Activities associated with the
conservation of the Sierra Nevada
bighorn sheep are likely to primarily
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impact future domestic sheep grazing,
recreation management, and habitat
management. Pre-designation (2000 to
2007) impacts associated with species
conservation activities in areas
proposed for designation are estimated
at $11.1 million in 2007 dollars. The
DEA forecasts baseline economic
impacts in the areas proposed for
designation to be approximately $26.7
million (undiscounted dollars) over the
next 20 years. The present value of these
impacts, applying a 3 percent discount
rate, is $20.4 million ($1,370,000
annualized), or $15.1 million
($1,430,000 annualized) using a 7
percent discount rate. The DEA
forecasts incremental economic impacts
to be approximately $135,000
(undiscounted) over the next 20 years.
The present value of these impacts,
applying a 3 percent discount rate, is
$106,000 ($7,090 annualized), or
$80,300 ($7,580 annualized) using a 7
percent discount rate. The cost
estimates are based on the proposed
designation of critical habitat published
in the Federal Register on July 25, 2007
(72 FR 40956).
The DEA considers the potential
economic effects of actions relating to
the conservation of the Sierra Nevada
bighorn sheep, including costs
associated with sections 4, 7, and 10 of
the Act, as well as costs attributable to
the designation of critical habitat. It
further considers the economic effects of
protective measures taken as a result of
other Federal, State, and local laws that
aid habitat conservation for the Sierra
Nevada bighorn sheep in areas
containing features essential to the
conservation of the species. The DEA
considers both economic efficiency and
distributional effects. In the case of
habitat conservation, efficiency effects
generally reflect the ‘‘opportunity costs’’
associated with the commitment of
resources to comply with habitat
protection measures (such as lost
economic opportunities associated with
restrictions on land use).
The DEA 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 government
agencies, private business, and
individuals. The DEA measures lost
economic efficiency associated with
residential and commercial
development and public projects and
activities, such as economic impacts on
water management and transportation
projects, Federal lands, small entities,
and the energy industry. Decisionmakers can use this information to
assess whether the effects of the
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designation might unduly burden a
particular group or economic sector.
Finally, the DEA looks retrospectively at
costs that have been incurred since the
date Sierra Nevada bighorn sheep was
listed as endangered (65 FR 20, January
3, 2000) and considers those costs that
may occur in the 20 years following the
designation of critical habitat. Forecasts
of economic conditions and other
factors beyond this point would be
speculative.
As stated earlier, we solicit data and
comments from the public on the DEA,
as well as on all aspects of the proposed
rule and our amended required
determinations. We may revise the
proposed rule or its supporting
documents to incorporate or address
new information we receive during this
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 the exclusion will not result in
the extinction of the species.
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Required Determinations—Amended
In our July 25, 2007, proposed rule
(72 FR 40956), we indicated that we
would defer our determination of
compliance with several statutes and
Executive Orders until the information
concerning potential economic impacts
of the designation and potential effects
on landowners and stakeholders was
available in the DEA. We have now
made use of the DEA to make these
determinations. In this document we
affirm the information in our proposed
rule concerning Executive Order (E.O.)
13132; E.O. 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). However,
based on the DEA data, we revise our
required determinations concerning
E.O. 12866; the Regulatory Flexibility
Act, including the Small Business
Regulatory Enforcement Fairness Act;
E.O. 13211 (Energy, Supply,
Distribution, and Use); E.O. 12630
(Takings); and the Unfunded Mandates
Reform Act.
Regulatory Planning and Review
In accordance with Executive Order
12866 (E.O. 12866), we evaluate four
parameters in determining whether a
rule is significant. The four parameters
that would result in a designation of
significant under E.O. 12866 are:
(a) The rule would have an annual
economic effect of $100 million or more
or adversely affect an economic sector,
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productivity, jobs, the environment, or
other units of the government.
(b) The rule would create
inconsistencies with other Federal
agencies’ actions.
(c) The rule would materially affect
entitlements, grants, user fees, loan
programs, or the rights and obligations
of their recipients.
(d) The rule would raise novel legal
or policy issues.
If OMB requests to informally review a
rule designating critical habitat for a
species, we consider that rule to raise
novel legal and policy issues. Because
no other Federal agencies designate
critical habitat, the designation of
critical habitat will not create
inconsistencies with other agencies’
actions. We use the economic analysis
of the critical habitat designation to
evaluate the potential effects related to
the other parameters of E.O. 12866 and
to make a determination as to whether
the regulation may be significant under
parameter (a) or (c) listed above.
Based on the economic analysis of the
critical habitat designation, we have
determined that the designation of
critical habitat for the Sierra Nevada
bighorn sheep will not result in an
annual effect on the economy of $100
million or more or affect the economy
in a material way. Based on previous
critical habitat designations and the
economic analysis, we believe this rule
will not materially affect entitlements,
grants, user fees, loan programs, or the
rights and obligations of their recipients.
OMB has requested to informally review
this rule, and thus this action may raise
novel legal or policy issues. In
accordance with the provisions of E.O.
12866, this rule is considered
significant.
Further, E.O. 12866 directs Federal
agencies issuing regulations to evaluate
regulatory alternatives (OMB Circular
A–4, September 17, 2003). Under
Circular A–4, once an agency
determines that a regulatory action is
appropriate, the agency needs to
consider alternative regulatory
approaches. Since the designation of
critical habitat is a statutory
requirement under the Act, we must
then evaluate alternative regulatory
approaches, where feasible, when
promulgating a designation of critical
habitat.
In developing our critical habitat
designations, we consider economic
impacts, impacts to national security,
and other relevant impacts under
section 4(b)(2) of the Act. Based on the
discretion section 4(b)(2) allows, we
may exclude any particular area from
the critical habitat designation as long
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as the benefits of such exclusion
outweigh the benefits of specifying the
area as critical habitat, and as long as
the exclusion will not result in the
species’ extinction. As such, we believe
that the evaluation of the inclusion or
exclusion of particular areas, or a
combination, in a critical habitat
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 (SBREFA) (5
U.S.C. 802(2)), 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 the
agency certifies the rule will not have a
significant economic impact on a
substantial number of small entities.
Based on our DEA of the proposed
designation, we provide our analysis for
determining whether the proposed rule
would result in a significant economic
impact on a substantial number of small
entities. Based on comments we receive,
we may revise this determination as part
of our final rulemaking.
According to the Small Business
Administration (SBA), small entities
include small organizations, such as
independent nonprofit organizations;
small governmental jurisdictions,
including school boards and city and
town governments that serve fewer than
50,000 residents; and small businesses
(13 CFR 121.201). Small businesses
include manufacturing and mining
concerns with fewer than 500
employees, wholesale trade entities
with fewer than 100 employees, retail
and service businesses with less than $5
million in annual sales, general and
heavy construction businesses with less
than $27.5 million in annual business,
special trade contractors doing less than
$11.5 million in annual business, and
agricultural businesses with annual
sales less than $750,000. To determine
if potential economic impacts to these
small entities are significant, we
considered the types of activities that
might trigger regulatory impacts under
this designation as well as types of
project modifications that may result. In
general, the term significant economic
impact is meant to apply to a typical
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small business firm’s business
operations.
To determine if the proposed
designation of critical habitat for the
Sierra Nevada bighorn sheep would
affect a substantial number of small
entities, we considered the number of
small entities affected within particular
types of economic activities, such as
residential and commercial
development. In order to determine
whether it is appropriate for our agency
to certify that this rule would not have
a significant economic impact on a
substantial number of small entities, we
considered each industry or category
individually. In estimating the numbers
of small entities potentially affected, we
also considered whether their activities
have any Federal involvement. Critical
habitat designation will not affect
activities that do not have any Federal
involvement; designation of critical
habitat affects activities conducted,
funded, or authorized by Federal
agencies.
If we finalize the proposed critical
habitat designation, Federal agencies
must consult with us under section 7 of
the Act if their activities may affect
designated critical habitat.
Consultations to avoid the destruction
or adverse modification of critical
habitat would be incorporated into the
existing consultation process.
In our DEA of the proposed critical
habitat designation, we evaluated the
potential economic effects on small
business entities resulting from
conservation actions related to the
listing of the Sierra Nevada bighorn
sheep and the proposed designation of
critical habitat. The analysis is based on
the estimated impacts associated with
the proposed rulemaking as described in
Chapters 2 through 4 and Appendix A
of the DEA and evaluates the potential
for economic impacts related to three
categories: Grazing, recreation
management, and habitat management.
The DEA identified one domestic
sheep grazing permittee operating in the
Humboldt-Toiyabe National Forest, and
two resorts and unidentified outdoor
pack companies operating in the
Humboldt-Toiyabe and the Inyo
National Forests that qualify as small
businesses that could be impacted due
to their activities within areas proposed
as critical habitat.
For the one grazing permittee, the
DEA estimates a cost of $13,000
associated with conservation activities
for the Sierra Nevada bighorn sheep
over the next 20 years at a 3 percent
discounted rate ($875 annualized). For
the two resorts and unidentified outdoor
pack companies, the DEA estimates a
cost of $2,730 associated with
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conservation activities for the Sierra
Nevada bighorn sheep over the next 20
years at a 3 percent discounted rate
($183 annualized). Incremental impacts
are expected only to occur in proposed
critical habitat Units 1 and 2. This
number of small business entities is not
considered a substantial number.
The U.S. Forest Service (USFS) is
expected to incur incremental costs as a
result of this designation, but it is not
considered a small entity by the SBA.
In summary, we have considered
whether the proposed rule would result
in a significant economic impact on a
substantial number of small entities. For
the above reasons and based on
currently available information, we
certify that, if made final, the proposed
rule will not have a significant
economic impact on a substantial
number of small business entities.
Therefore, an initial regulatory
flexibility analysis is not required.
Executive Order 13211—Energy Supply,
Distribution, and Use
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. OMB’s guidance for
implementing this Executive Order
outlines nine outcomes that may
constitute ‘‘a significant adverse effect’’
when compared to no regulatory action.
The DEA finds none of these criteria
relevant to this analysis. Thus, based on
the information in the DEA, we do not
expect Sierra Nevada bighorn sheep
conservation activities within proposed
critical habitat to lead to energy-related
impacts. As such, we do not expect the
proposed designation of critical habitat
to significantly affect energy supplies,
distribution, or use, and a Statement of
Energy Effects is not required.
Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (UMRA) (2 U.S.C.
1501 et seq.), we make the following
findings:
(a) This rule will not produce a
Federal mandate. In general, a Federal
mandate is a provision in legislation,
statute, or regulation that would impose
an enforceable duty upon State, local, or
Tribal governments, or the private
sector, and includes both ‘‘Federal
intergovernmental mandates’’ and
‘‘Federal private sector mandates.’’
These terms are defined in 2 U.S.C.
658(5)–(7). ‘‘Federal intergovernmental
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
PO 00000
Frm 00071
Fmt 4702
Sfmt 4702
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. ‘‘Federal private sector
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon the private sector, except as (i) a
condition of Federal assistance; or (ii) a
duty arising from participation in a
voluntary Federal program.’’
Critical habitat designation does not
impose a legally binding duty on nonFederal 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. Designation of
critical habitat may indirectly impact
non-Federal entities that receive Federal
funding, assistance, or permits, or that
otherwise require approval or
authorization from a Federal agency for
an action. However, the legally binding
duty to avoid destruction or adverse
modification of critical habitat rests
squarely on the Federal agency.
Furthermore, to the extent that 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) We do not believe that this rule
would significantly or uniquely affect
small governments. As discussed in the
DEA, approximately 99 percent of the
lands proposed as critical habitat are
comprised of lands managed by the
Federal government (e.g., USFS,
National Park Service (NPS), and
Bureau of Land Management (BLM)),
which does not qualify as a small
government. The Federal government is
not considered a small governmental
jurisdiction or entity by the Small
Business Administration because it
services a population exceeding the
criteria for a ‘‘small entity.’’
Consequently, we do not believe that
critical habitat designation would
significantly or uniquely affect small
E:\FR\FM\05FEP1.SGM
05FEP1
Federal Register / Vol. 73, No. 24 / Tuesday, February 5, 2008 / Proposed Rules
implications assessment concludes that
this proposed designation of critical
habitat for the Sierra Nevada bighorn
sheep does not pose significant takings
implications.
government entities. As such, a Small
Government Agency Plan is not
required.
Executive Order 12630—Takings
rmajette on PROD1PC64 with PROPOSALS
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 Sierra
Nevada bighorn sheep in a takings
implications assessment. Our takings
VerDate Aug<31>2005
15:29 Feb 04, 2008
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References Cited
A complete list of all references cited
in the proposed rule is available on
https://www.regulations.gov.
Author
The primary author of this notice is
the staff of the Nevada Fish and Wildlife
PO 00000
Frm 00072
Fmt 4702
Sfmt 4702
6689
Office (see FOR FURTHER INFORMATION
CONTACT).
Authority
The authority for this action is the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Dated: January 24, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. E8–1805 Filed 2–4–08; 8:45 am]
BILLING CODE 4310–55–P
E:\FR\FM\05FEP1.SGM
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]]>Agencies
[Federal Register Volume 73, Number 24 (Tuesday, February 5, 2008)]
[Proposed Rules]
[Pages 6684-6689]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-1805]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R8-ES-2008-0014; 92210-1117-0000-B4]
RIN 1018-AV05
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Sierra Nevada Bighorn Sheep (Ovis canadensis
californiana) and Proposed Taxonomic Revision
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period, notice of
availability of draft economic analysis, and amended required
determinations.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on the proposed designation of
critical habitat for the Sierra Nevada bighorn sheep (Ovis canadensis
californiana) and proposed taxonomic revision under
[[Page 6685]]
the Endangered Species Act of 1973, as amended (Act). We also announce
the availability of the draft economic analysis (DEA) of the proposed
critical habitat designation, and an amended required determinations
section of the proposal. The DEA provides information about the pre-
designation costs and forecasts post-designation costs associated with
conservation efforts for Sierra Nevada bighorn sheep. The DEA estimates
potential future costs due to conservation efforts (baseline costs) to
be approximately $26.7 million and costs associated solely with the
designation of critical habitat (incremental costs) to be approximately
$135,000 in undiscounted dollars over a 20-year period in areas
proposed as critical habitat. The amended required determinations
section provides our determination concerning compliance with
applicable statutes and Executive Orders that we have deferred until
the information from the DEA of the proposal was available. We are
reopening the comment period to allow all interested parties an
opportunity to comment simultaneously on the proposed rule, the
associated DEA, and the amended required determinations section.
Comments submitted during the initial comment period from July 25 to
September 24, 2007, on the proposed rule (72 FR 40956), or from October
9 to November 23, 2007, during the reopened comment period on the
proposed rule (72 FR 57276) have been incorporated into the supporting
for this rulemaking and need not be resubmitted. We will incorporate
all comments into the supporting record as part of this comment period,
and we will fully consider them when preparing our final determination.
DATES: We will accept public comments until March 6, 2008.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R8-ES-2008-0014, Division of Policy and Directives
Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive,
Suite 222, Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all comments on
https://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section
below for more information).
FOR FURTHER INFORMATION CONTACT: Robert D. Williams, Field Supervisor,
U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office, 1340
Financial Blvd., Suite 234, Reno, NV 89502-7147; telephone 775-861-
6300; or facsimile 775-861-6301. Persons who use a telecommunications
device for the deaf (TDD) may call the Federal Information Relay
Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written comments and information during this
reopened comment period on our proposed critical habitat designation
for the Sierra Nevada bighorn sheep and proposed taxonomic revision
published in the Federal Register on July 25, 2007 (72 FR 40956), our
draft economic analysis (DEA) of the proposed designation, and the
amended required determinations provided in this document. We will
consider information and recommendations from all interested parties.
We are particularly interested in comments concerning:
(1) The reasons why we should or should not designate habitat as
critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq.),
including whether the benefits of designation would outweigh threats to
the species caused by the designation, such that the designation of
critical habitat is prudent.
(2) Specific information on:
The amount and distribution of Sierra Nevada bighorn sheep
habitat,
What areas occupied at the time of listing that contain
features essential to the conservation of the species we should include
in the designation and why, and
What areas not occupied at the time of listing are
essential for 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) Information on the extent to which any State and local
environmental protection measures we reference in the DEA may have been
adopted largely as a result of the listing of the Sierra Nevada bighorn
sheep.
(5) Information on whether the DEA identifies all State and local
costs and benefits attributable to the proposed critical habitat
designation, and information on any costs or benefits that we have
overlooked.
(6) Information on whether the DEA makes appropriate assumptions
regarding current practices and any regulatory changes likely if we
designate critical habitat.
(7) Information on whether the DEA identifies all costs that could
result from the designation and whether you agree with the analysis.
(8) Information on whether the DEA correctly assesses the effect on
regional costs associated with any land use controls that may result
from the critical habitat designation.
(9) Information on areas that the critical habitat designation
could potentially impact to a disproportionate degree.
(10) Economic data on the incremental costs of designating any
particular area as critical habitat.
(11) Information on any quantifiable economic benefits of the
designation of critical habitat.
(12) Any foreseeable economic, national security, or other
potential impacts resulting from the proposed designation and, in
particular, any impacts on small entities, and the benefits of
including or excluding areas that exhibit these impacts.
(13) Whether the benefit of excluding any particular area outweigh
the benefits of including that area under section 4(b)(2) of the Act.
(14) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Comments submitted during the initial comment period from July 25
to September 24, 2007, on the proposed rule (72 FR 40956), or from
October 9 to November 23, 2007, during the reopened comment period on
the proposed rule (72 FR 57276) have been incorporated into the
supporting for this rulemaking and need not be resubmitted. We will
incorporate them into the supporting record as part of this comment
period, and we will fully consider them in preparation of our final
determination. If you wish to comment, you may send your comments and
materials concerning our proposed rule, DEA, or amended required
determinations by one of the methods listed in the ADDRESSES section.
Our final determination concerning critical habitat will take into
consideration all written comments and any additional information we
receive during the comment periods. On the basis of public comments, we
may, during the development of our final 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.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will no
longer
[[Page 6686]]
accept comments you send by e-mail or fax. Please note that we will
consider comments we receive after the date specified in the DATES
section in our final determination.
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that we will post your entire comment--including your personal
identifying information--on https://www.regulations.gov. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparation of the proposal to designate
critical habitat, will be available for public inspection on https://
www.regulations.gov, or by appointment during normal business hours, at
the Nevada Fish and Wildlife Office, 1340 Financial Boulevard, Suite
234, Reno, NV 89502-7147; telephone 775-861-6300. You may obtain copies
of the proposed critical habitat rule and the DEA by mail from the
Nevada Fish and Wildlife Office or by visiting our Web site at https://
www.fws.gov/nevada.
Background
On December 8, 2005, the Center for Biological Diversity filed a
complaint based on the Service's failure to designate critical habitat
for this subspecies within the time mandated under the Act (Center for
Biological Diversity v. U.S. Fish and Wildlife Service, et al. Case No.
2:05-CB-02492-DFL-KJM). On June 6, 2006, the Service entered into a
settlement agreement with the Center for Biological Diversity to submit
a proposed critical habitat designation for this subspecies for
publication in the Federal Register by July 17, 2007, and to submit a
final determination on the proposed critical habitat designation for
publication by July 17, 2008. On July 25, 2007, we published a proposed
rule to designate critical habitat for the Sierra Nevada bighorn sheep
(72 FR 40956), identifying a total of approximately 417,577 acres
(168,992 hectares) of land in Tuolumne, Mono, Fresno, Inyo, and Tulare
counties, California. In that proposal, we also proposed a taxonomic
revision of the listed entity from a distinct population segment to a
subspecies (Ovis Canadensis sierrae) based on recent published
information.
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed rule is
made final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting areas designated as critical habitat must consult with us on
the effects of their proposed actions, in accordance with section
7(a)(2) of the Act.
Under section 4(b)(2) of the Act, we may exclude an area from
critical habitat if we determine that the benefits of such exclusion
outweigh the benefits of including that particular area as critical
habitat, unless failure to designate that specific area as critical
habitat will result in the extinction of the species. We may exclude an
area from designated critical habitat based on economic impacts,
national security, or any other relevant impact.
Draft Economic Analysis
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific and commercial data
available, after taking into consideration the economic impact, impact
on national security, or any other relevant impact of specifying any
particular area as critical habitat. Based on the July 25, 2007,
proposed rule to designate critical habitat for the Sierra Nevada
bighorn sheep (72 FR 40956), we have prepared a DEA of the proposed
critical habitat designation.
The intent of the DEA is to quantify the economic impacts of all
potential conservation efforts for the Sierra Nevada bighorn sheep;
some of these costs will likely be incurred regardless of whether we
designate critical habitat. The DEA provides estimated costs of the
foreseeable potential economic impacts of the proposed critical habitat
designation (incremental impacts) and other conservation-related
actions (baseline impacts) for this species over the next 20 years. It
also considers past costs associated with conservation of the species
from the time it was listed in 2000 (65 FR 20, January 3, 2000), until
the year the proposed critical habitat rule was published (72 FR 40956,
July 25, 2007).
Activities associated with the conservation of the Sierra Nevada
bighorn sheep are likely to primarily impact future domestic sheep
grazing, recreation management, and habitat management. Pre-designation
(2000 to 2007) impacts associated with species conservation activities
in areas proposed for designation are estimated at $11.1 million in
2007 dollars. The DEA forecasts baseline economic impacts in the areas
proposed for designation to be approximately $26.7 million
(undiscounted dollars) over the next 20 years. The present value of
these impacts, applying a 3 percent discount rate, is $20.4 million
($1,370,000 annualized), or $15.1 million ($1,430,000 annualized) using
a 7 percent discount rate. The DEA forecasts incremental economic
impacts to be approximately $135,000 (undiscounted) over the next 20
years. The present value of these impacts, applying a 3 percent
discount rate, is $106,000 ($7,090 annualized), or $80,300 ($7,580
annualized) using a 7 percent discount rate. The cost estimates are
based on the proposed designation of critical habitat published in the
Federal Register on July 25, 2007 (72 FR 40956).
The DEA considers the potential economic effects of actions
relating to the conservation of the Sierra Nevada bighorn sheep,
including costs associated with sections 4, 7, and 10 of the Act, as
well as costs attributable to the designation of critical habitat. It
further considers the economic effects of protective measures taken as
a result of other Federal, State, and local laws that aid habitat
conservation for the Sierra Nevada bighorn sheep in areas containing
features essential to the conservation of the species. The DEA
considers both economic efficiency and distributional effects. In the
case of habitat conservation, efficiency effects generally reflect the
``opportunity costs'' associated with the commitment of resources to
comply with habitat protection measures (such as lost economic
opportunities associated with restrictions on land use).
The DEA 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 government agencies, private business, and
individuals. The DEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the
[[Page 6687]]
designation might unduly burden a particular group or economic sector.
Finally, the DEA looks retrospectively at costs that have been incurred
since the date Sierra Nevada bighorn sheep was listed as endangered (65
FR 20, January 3, 2000) and considers those costs that may occur in the
20 years following the designation of critical habitat. Forecasts of
economic conditions and other factors beyond this point would be
speculative.
As stated earlier, we solicit data and comments from the public on
the DEA, as well as on all aspects of the proposed rule and our amended
required determinations. We may revise the proposed rule or its
supporting documents to incorporate or address new information we
receive during this 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 the exclusion will not result in the
extinction of the species.
Required Determinations--Amended
In our July 25, 2007, proposed rule (72 FR 40956), we indicated
that we would defer our determination of compliance with several
statutes and Executive Orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders was available in the DEA. We have now made
use of the DEA to make these determinations. In this document we affirm
the information in our proposed rule concerning Executive Order (E.O.)
13132; E.O. 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). However, based on the DEA data, we revise
our required determinations concerning E.O. 12866; the Regulatory
Flexibility Act, including the Small Business Regulatory Enforcement
Fairness Act; E.O. 13211 (Energy, Supply, Distribution, and Use); E.O.
12630 (Takings); and the Unfunded Mandates Reform Act.
Regulatory Planning and Review
In accordance with Executive Order 12866 (E.O. 12866), we evaluate
four parameters in determining whether a rule is significant. The four
parameters that would result in a designation of significant under E.O.
12866 are:
(a) The rule would have an annual economic effect of $100 million
or more or adversely affect an economic sector, productivity, jobs, the
environment, or other units of the government.
(b) The rule would create inconsistencies with other Federal
agencies' actions.
(c) The rule would materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
(d) The rule would raise novel legal or policy issues.
If OMB requests to informally review a rule designating critical
habitat for a species, we consider that rule to raise novel legal and
policy issues. Because no other Federal agencies designate critical
habitat, the designation of critical habitat will not create
inconsistencies with other agencies' actions. We use the economic
analysis of the critical habitat designation to evaluate the potential
effects related to the other parameters of E.O. 12866 and to make a
determination as to whether the regulation may be significant under
parameter (a) or (c) listed above.
Based on the economic analysis of the critical habitat designation,
we have determined that the designation of critical habitat for the
Sierra Nevada bighorn sheep will not result in an annual effect on the
economy of $100 million or more or affect the economy in a material
way. Based on previous critical habitat designations and the economic
analysis, we believe this rule will not materially affect entitlements,
grants, user fees, loan programs, or the rights and obligations of
their recipients. OMB has requested to informally review this rule, and
thus this action may raise novel legal or policy issues. In accordance
with the provisions of E.O. 12866, this rule is considered significant.
Further, E.O. 12866 directs Federal agencies issuing regulations to
evaluate regulatory alternatives (OMB Circular A-4, September 17,
2003). Under Circular A-4, once an agency determines that a regulatory
action is appropriate, the agency needs to consider alternative
regulatory approaches. Since the designation of critical habitat is a
statutory requirement under the Act, we must then evaluate alternative
regulatory approaches, where feasible, when promulgating a designation
of critical habitat.
In developing our critical habitat designations, we consider
economic impacts, impacts to national security, and other relevant
impacts under section 4(b)(2) of the Act. Based on the discretion
section 4(b)(2) allows, we may exclude any particular area from the
critical habitat designation as long as the benefits of such exclusion
outweigh the benefits of specifying the area as critical habitat, and
as long as the exclusion will not result in the species' extinction. As
such, we believe that the evaluation of the inclusion or exclusion of
particular areas, or a combination, in a critical habitat 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
(SBREFA) (5 U.S.C. 802(2)), 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
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. Based on our DEA of
the proposed designation, we provide our analysis for determining
whether the proposed rule would result in a significant economic impact
on a substantial number of small entities. Based on comments we
receive, we may revise this determination as part of our final
rulemaking.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical
[[Page 6688]]
small business firm's business operations.
To determine if the proposed designation of critical habitat for
the Sierra Nevada bighorn sheep would affect a substantial number of
small entities, we considered the number of small entities affected
within particular types of economic activities, such as residential and
commercial development. In order to determine whether it is appropriate
for our agency to certify that this rule would not have a significant
economic impact on a substantial number of small entities, we
considered each industry or category individually. In estimating the
numbers of small entities potentially affected, we also considered
whether their activities have any Federal involvement. Critical habitat
designation will not affect activities that do not have any Federal
involvement; designation of critical habitat affects activities
conducted, funded, or authorized by Federal agencies.
If we finalize the proposed critical habitat designation, Federal
agencies must consult with us under section 7 of the Act if their
activities may affect designated critical habitat. Consultations to
avoid the destruction or adverse modification of critical habitat would
be incorporated into the existing consultation process.
In our DEA of the proposed critical habitat designation, we
evaluated the potential economic effects on small business entities
resulting from conservation actions related to the listing of the
Sierra Nevada bighorn sheep and the proposed designation of critical
habitat. The analysis is based on the estimated impacts associated with
the proposed rulemaking as described in Chapters 2 through 4 and
Appendix A of the DEA and evaluates the potential for economic impacts
related to three categories: Grazing, recreation management, and
habitat management.
The DEA identified one domestic sheep grazing permittee operating
in the Humboldt-Toiyabe National Forest, and two resorts and
unidentified outdoor pack companies operating in the Humboldt-Toiyabe
and the Inyo National Forests that qualify as small businesses that
could be impacted due to their activities within areas proposed as
critical habitat.
For the one grazing permittee, the DEA estimates a cost of $13,000
associated with conservation activities for the Sierra Nevada bighorn
sheep over the next 20 years at a 3 percent discounted rate ($875
annualized). For the two resorts and unidentified outdoor pack
companies, the DEA estimates a cost of $2,730 associated with
conservation activities for the Sierra Nevada bighorn sheep over the
next 20 years at a 3 percent discounted rate ($183 annualized).
Incremental impacts are expected only to occur in proposed critical
habitat Units 1 and 2. This number of small business entities is not
considered a substantial number.
The U.S. Forest Service (USFS) is expected to incur incremental
costs as a result of this designation, but it is not considered a small
entity by the SBA.
In summary, we have considered whether the proposed rule would
result in a significant economic impact on a substantial number of
small entities. For the above reasons and based on currently available
information, we certify that, if made final, the proposed rule will not
have a significant economic impact on a substantial number of small
business entities. Therefore, an initial regulatory flexibility
analysis is not required.
Executive Order 13211--Energy Supply, Distribution, and Use
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. OMB's guidance for implementing this
Executive Order outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to no regulatory action. The
DEA finds none of these criteria relevant to this analysis. Thus, based
on the information in the DEA, we do not expect Sierra Nevada bighorn
sheep conservation activities within proposed critical habitat to lead
to energy-related impacts. As such, we do not expect the proposed
designation of critical habitat to significantly affect energy
supplies, distribution, or use, and a Statement of Energy Effects is
not required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (UMRA) (2
U.S.C. 1501 et seq.), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments,'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and Tribal governments under entitlement authority,''
if the provision would ``increase the stringency of conditions of
assistance'' or ``place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding'' and the State, local,
or Tribal governments ``lack authority'' to adjust accordingly.
``Federal private sector mandate'' includes a regulation that ``would
impose an enforceable duty upon the private sector, except as (i) a
condition of Federal assistance; or (ii) a duty arising from
participation in a voluntary Federal program.''
Critical habitat designation does not impose a legally binding duty
on non-Federal government entities or private parties. Under the Act,
the only regulatory effect is that Federal agencies must ensure that
their actions do not destroy or adversely modify critical habitat under
section 7. Designation of critical habitat may indirectly impact non-
Federal entities that receive Federal funding, assistance, or permits,
or that otherwise require approval or authorization from a Federal
agency for an action. However, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency. Furthermore, to the extent that non-Federal
entities are indirectly impacted because they receive Federal
assistance or participate in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would not apply, nor would critical
habitat shift the costs of the large entitlement programs listed above
on to State governments.
(b) We do not believe that this rule would significantly or
uniquely affect small governments. As discussed in the DEA,
approximately 99 percent of the lands proposed as critical habitat are
comprised of lands managed by the Federal government (e.g., USFS,
National Park Service (NPS), and Bureau of Land Management (BLM)),
which does not qualify as a small government. The Federal government is
not considered a small governmental jurisdiction or entity by the Small
Business Administration because it services a population exceeding the
criteria for a ``small entity.'' Consequently, we do not believe that
critical habitat designation would significantly or uniquely affect
small
[[Page 6689]]
government entities. As such, a Small Government Agency Plan is not
required.
Executive Order 12630--Takings
In accordance with E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing critical habitat for the Sierra Nevada bighorn sheep in a
takings implications assessment. Our takings implications assessment
concludes that this proposed designation of critical habitat for the
Sierra Nevada bighorn sheep does not pose significant takings
implications.
References Cited
A complete list of all references cited in the proposed rule is
available on https://www.regulations.gov.
Author
The primary author of this notice is the staff of the Nevada Fish
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: January 24, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-1805 Filed 2-4-08; 8:45 am]
BILLING CODE 4310-55-P
