Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Contiguous United States Distinct Population Segment of the Canada Lynx (Lynx canadensis), 62450-62459 [E8-24827]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 204 (Tuesday, October 21, 2008)]
[Proposed Rules]
[Pages 62450-62459]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-24827]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R6-ES-2008-0026; 92210-1117-0000-B4]
RIN 1018-AV78


Endangered and Threatened Wildlife and Plants; Revised Critical 
Habitat for the Contiguous United States Distinct Population Segment of 
the Canada Lynx (Lynx canadensis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Revised proposed rule; reopening of comment period and 
announcement of public hearings, notice of availability of draft 
economic analysis, amended required determinations, and draft 
environmental assessment.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period and the scheduling of public 
hearings on the proposed revised designation of critical habitat for 
the contiguous

[[Page 62451]]

United States distinct population segment of the Canada lynx (Lynx 
canadensis) (lynx) under the Endangered Species Act of 1973, as amended 
(Act). We also announce the availability for public comment of the 
draft economic analysis (DEA), an amended required determinations 
section of the proposal, and the draft environmental assessment for the 
proposed revised critical habitat designation. We also seek comment on 
draft conservation agreements that cover lands in Maine (Unit 1) and in 
the northern Rockies (Unit 3) that could result in exclusions from the 
final critical habitat designation under section 4(b)(2) of the Act. We 
also seek public comment on whether lands entered in to the Healthy 
Forest Reserve Program are appropriate for exclusion. In addition, we 
propose to refine boundary descriptions for two critical habitat units: 
Unit 3 (Northern Rockies) and Unit 5 (Greater Yellowstone Area) based 
upon more detailed information we have obtained about lynx habitat in 
these areas. If you submitted comments previously, then you do not need 
to resubmit them because we have already incorporated them into the 
public record and we will fully consider them in preparation of our 
final determination.

DATES: Written Comments: We will accept public comments received on or 
before November 20, 2008.
    Public Hearings: We announce two public hearings, to be held on 
November 7, 2008, at Red Lion Hotel, 20 N. Main Street, Kalispell, MT 
59901 and on November 13, 2008 at Cody Auditorium, 1240 Beck Avenue, 
Cody, WY 82414. Both hearings, open to all who wish to provide formal, 
oral comments regarding the proposed revised critical habitat, will be 
held from 6 to 8 p.m., mountain time, with an open house from 5 to 6 
p.m., mountain time.

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-R6-ES-2008-0026; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
     Public Hearings: Public hearings will be held (see DATES) 
at Red Lion Hotel, 20 N. Main Street, Kalispell, MT 59901, and at Cody 
Auditorium, 1240 Beck Avenue, Cody, WY 82414.
    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: Mark Wilson, Field Supervisor, U.S. 
Fish and Wildlife Service, Montana Ecological Services Office, 585 
Shepard Way, Helena, MT 59601; telephone 406-449-5225. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept comments and information during this reopened 
comment period on our proposed revision to critical habitat for the 
Canada lynx published in the Federal Register on February 28, 2008 (73 
FR 10860), the DEA of the proposed revised designation, the amended 
required determinations provided in this document, the draft 
environmental assessment, and information related to potential 
exclusions. 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 benefit 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 distribution of the Canada lynx,
     The amount and distribution of Canada lynx habitat, and
     Which habitat contains the necessary features (primary 
constituent elements) essential to the conservation of these species 
and why.
    (3) Land-use designations and current or planned activities in the 
subject areas and their possible impacts on this species or proposed 
revised critical habitat.
    (4) Whether we could improve or modify our approach to designating 
critical habitat to provide for greater public participation and 
understanding, or to assist us in accommodating public concerns and 
comments.
    (5) Any foreseeable environmental impacts directly or indirectly 
resulting from the proposed designation of critical habitat.
    (6) Any foreseeable economic, national security, or other potential 
impacts of designating areas that may be included in the final 
designation. We are particularly interested in any impacts on small 
entities or families, and the benefits of including or excluding areas 
that exhibit these impacts.
    (7) Information on whether the DEA identifies all Federal, State, 
and local costs and benefits attributable to the proposed revision of 
critical habitat, and information on any costs that have been 
inadvertently overlooked.
    (8) Information on whether the DEA makes appropriate assumptions 
regarding current practices and any regulatory changes that likely may 
occur if we designate revised critical habitat.
    (9) Information on the accuracy of our methodology in the DEA for 
distinguishing baseline and incremental costs, and the assumptions 
underlying the methodology.
    (10) Information on whether the DEA correctly assesses the effect 
on regional costs associated with land use controls that may result 
from the revised designation of critical habitat.
    (11) Information on whether the critical habitat designation will 
result in disproportionate economic impacts to specific areas or small 
businesses that should be evaluated under 4(b)(2) for possible 
exclusion from the final designation.
    (12) Information on whether the DEA identifies all costs that could 
result from the critical habitat designation.
    (13) Information on whether the benefit of an exclusion of any 
particular area outweighs the benefit of inclusion under section 
4(b)(2) of the Act, in particular for those draft conservation 
agreements covering specified lands in Maine and Montana submitted to 
the Service for further evaluation and consideration.
    (14) Information on any economic impacts associated with 
implementing the draft conservation agreements covering specified lands 
in Maine and Montana submitted to the Service for further evaluation 
and consideration.
    (15) Any foreseeable impacts on energy supplies, distribution, and 
use resulting from the proposed designation and, in particular, any 
impacts on mining and oil and gas projects, and the benefits of 
including or excluding areas that exhibit these impacts.
    (16) Information on the refined mapping techniques we are 
considering using to delineate critical habitat units based on public 
comments we received.
    Regarding the proposed revised critical habitat rule, we 
specifically request information on potential critical habitat 
exclusions. 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

[[Page 62452]]

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, including but not limited to 
the value and contribution of continued, expanded, or newly forged 
conservation partnerships.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus; the educational benefits of mapping 
essential habitat for recovery of the listed species; and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; and/or implementation of a management plan that provides 
equal to or more conservation than a critical habitat designation would 
provide. In the case of Canada lynx, the benefits of critical habitat 
include public awareness of lynx presence and the importance of habitat 
protection, and in cases where a Federal nexus exists, increased 
habitat protection for lynx due to the protection from adverse 
modification or destruction of critical habitat. In practice, a Federal 
nexus exists primarily on Federal lands or for projects undertaken by 
Federal agencies. Since lynx were listed in 2000, we have had few 
projects on privately owned lands that had a Federal nexus to trigger 
consultation under section 7. On Federal lands we have been consulting 
with Federal agencies on their effects to lynx since lynx were listed. 
These consultations have resulted in a series of comprehensive 
conservation plans for Federal lands over much of the range of the DPS. 
These plans provide for sufficient lynx habitat protection for recovery 
of the DPS.
    When we evaluate the existence of a conservation plan when 
considering the benefits of exclusion, we consider a variety of 
factors, including but not limited to, whether the plan is finalized; 
how it provides for the conservation of the essential physical and 
biological features; whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan will be implemented into the future; whether the 
conservation strategies in the plan are likely to be effective; and 
whether the plan contains a monitoring program or adaptive management 
to ensure that the conservation measures are effective and can be 
adapted in the future in response to new information.
    After evaluating the benefits of inclusion and the benefits of 
exclusion, we carefully weight the two sides to determine whether the 
benefits of exclusion outweigh those of inclusion. If we determine that 
they do, we then determine whether exclusion would result in 
extinction. If exclusion of an area from critical habitat will result 
in extinction, we will not exclude it from the designation.
    Based on the information provided by entities seeking exclusion, as 
well as any additional public comments received, we will be evaluating 
whether certain lands in proposed critical habitat Unit 1 (Maine) and 
private lands in unit 3 (Montana and Idaho) are appropriate for 
exclusion from the final revised designation. We received a Draft 
Conservation Agreement from the Maine Forest Products Council that 
proposes a continued lynx conservation partnership between the private 
forest products industry and State and Federal wildlife agencies. As 
will be described, this draft agreement focuses heavily on the 
continuation of land access, research, information sharing, and 
education. We also received a single Draft Conservation Agreement from 
three private timberlands owners in Montana, including Plum Creek 
Timber, F.H. Stoltze Land and Lumber, and Stimson Lumber, who wish to 
foster partnerships between industrial forestry landowners and the 
Service to promote lynx conservation through cooperative conservation 
and education. Additionally, we are evaluating whether lands enrolled 
in the Healthy Forest Reserve Program (HFRP) in Maine are appropriate 
for exclusion. We will assess the benefits of excluding Maine and 
Montana lands included in these agreements and the HFRP and consider 
these lands for exclusion from the revised critical habitat final rule 
under section 4(b)(2) of the Act. If our analysis results in a 
determination that the benefits of excluding lands from the final 
designation outweigh the benefits of designating those lands as 
critical habitat, then we will exclude the lands from the revised final 
designation.
    You may obtain a copy of draft conservation agreements for lands in 
Maine and Montana or the HFRP documents for lands in Maine by visiting 
the Federal eRulemaking Portal at https://www.regulations.gov, or our 
Web site https://mountain-prairie.fws.gov/species/mammals/lynx/
criticalhabitat/htm or by requesting copies of these documents by mail 
from the Montana Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).
    If you submitted comments or information on the proposed revised 
rule (73 FR 10860) during the initial comment period from February 28, 
2008, to April 28, 2008, please do not resubmit them. We will 
incorporate them into the public record as part of this comment period, 
and we will fully consider them in the preparation of our final 
determination. Our final determination concerning revised critical 
habitat will take into consideration all written comments and any 
additional information we receive during both 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 the proposed 
revised rule, DEA, or environmental assessment by one of the methods 
listed in the ADDRESSES section. We will not consider comments sent by 
e-mail or fax or to an address not listed in the ADDRESSES section.
    If you submit a comment via https://www.regulations.gov, your entire 
comment--including your personal identifying information--will be 
posted on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on https://www.regulations.gov.
    Comments and materials we receive, as well as selected supporting 
documentation we used in preparing this revised proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Montana Ecological Services Office (see FOR FURTHER 
INFORMATION CONTACT). Maps of the proposed revised critical habitat 
also are available on the Internet at https://mountain-prairie.fws.gov/
species/mammals/lynx/.
    You may obtain copies of the proposed revision of critical habitat, 
the associated DEA, and the environmental assessment on the Internet at 
https://www.regulations.gov (see Docket Number FWS-R6-ES-2008-0026), or 
by

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mail from the Montana Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    For more information on previous Federal actions concerning the 
Canada lynx, refer to the proposed revised designation of critical 
habitat published in the Federal Register on February 28, 2008 (73 FR 
10860). On January 15, 2008, the U.S. District Court for the District 
of Columbia issued an order stating the Service's deadlines for a 
proposed rule for revised critical habitat by February 15, 2008, and a 
final rule for revised critical habitat by February 15, 2009. On 
February 28, 2008, we published a proposed revised rule (73 FR 10860) 
designating approximately 42,753 square miles (110,727 square 
kilometers) of land in northern Maine, northeastern Minnesota, the 
Northern Rocky Mountains (northwestern Montana/northeastern Idaho), the 
North Cascades (north-central Washington), and the Greater Yellowstone 
Area (southwestern Montana, northwestern Wyoming) as critical habitat.
    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, pursuant to 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.
    Section 7 of the Act will prohibit destruction or adverse 
modification of any designated 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, under section 
7(a)(2) of the Act.

Public Hearings

    Section 4(b)(5)(E) of the Act requires a public hearing be held if 
any person requests it within 45 days of the publication of a proposed 
rule. In response to requests from the public, the Service will conduct 
two public hearings for this proposed revision to critical habitat on 
the dates and times and at the addresses identified in the DATES and 
ADDRESSES sections above.
    People wishing to make an oral statement for the record are 
encouraged to provide a written copy of their statement and present it 
to us at the hearing. In the event there is a large attendance, the 
time allotted for oral statements may be limited. Oral and written 
statements receive equal consideration. There are no limits on the 
length of written comments submitted to us. If you have any questions 
concerning the public hearing, please contact the Montana Ecological 
Services Office (see FOR FURTHER INFORMATION CONTACT).
    People needing reasonable accommodations in order to attend and 
participate in the public hearings should contact Shawn Sartorius, 
Montana Ecological Services Office, at (406) 449-5225, extension 208, 
as soon as possible. In order to allow sufficient time to process 
requests, please call no later than one week before the hearing date. 
Information regarding this notice is available in alternative formats 
upon request.

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. We have prepared a DEA of our 
February 28, 2008 (73 FR 10860), proposed revised rule to designate 
critical habitat for the contiguous United States distinct population 
segment of the Canada lynx.
    The intent of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed revised critical habitat 
designation for the Canada lynx. The DEA quantifies the economic 
impacts of all potential conservation efforts for the lynx; some of 
these costs will likely be incurred regardless of whether we designate 
critical habitat. The economic impact of the proposed revised critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.'' The ``without 
critical habitat'' scenario represents the baseline for the analysis, 
considering protections already in place for the species (for example, 
under the Federal listing and other Federal, State, and local 
regulations). The baseline, therefore, represents the costs incurred 
regardless of whether critical habitat is designated. The ``with 
critical habitat'' scenario describes the incremental impacts 
associated specifically with the designation of critical habitat for 
the species. The incremental conservation efforts and associated 
impacts are those not expected to occur absent the designation of 
critical habitat for the species. In other words, the incremental costs 
are those attributable solely to the designation of critical habitat 
above and beyond the baseline costs; these are the costs we may 
consider in the final designation of critical habitat. The analysis 
looks retrospectively at baseline impacts incurred since the species 
was listed, and forecasts both baseline and incremental impacts likely 
to occur if we finalize the proposed revised critical habitat.
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed revised critical habitat designation 
for the lynx over the next 20 years, which was determined to be the 
appropriate period for analysis because limited planning information 
was available for most activities to forecast activity levels for 
projects (e.g., development, mining, recreation projects) beyond a 20-
year timeframe. Where information was available to reliably forecast 
activities beyond the 20-year timeframe, we incorporated it into the 
analysis. For example, timber harvests are typically on a 40- to 80-
year rotation within the study area allowing us to address forest 
management impacts over a longer time period.
    The current DEA estimates the foreseeable economic impacts of the 
proposed revised critical habitat designation. The economic analysis 
identifies potential incremental costs as a result of the proposed 
revised critical habitat designation; these are those costs attributed 
to critical habitat over and above those baseline costs attributed to 
listing. The DEA quantifies economic impacts of lynx conservation 
efforts associated with the following activities: (1) Timber 
activities, (2) development, (3) recreation, (4) mining and oil and gas 
activities, (5) fire management, (6) wind energy developments, (7) 
transportation and utilities projects, (8) livestock

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grazing, and (9) species research and active management.
    The pre-designation impacts associated with species conservation 
activities for the lynx in areas proposed as critical habitat are 
approximately $25.7 million applying a 3 percent discount rate and 
$30.1 million applying a 7 percent discount rate. The post-designation 
impacts associated with species conservation were estimated over the 
period 2009 to 2028. The quantified post-designation baseline impacts 
(those estimated to occur regardless of the critical habitat 
designation) are $9.4 to $10.3 million on an annualized basis applying 
a 3 percent discount rate, or $11.6 to $12.8 million on an annualized 
basis applying a 7 percent discount rate. Because these costs are 
projected to occur whether critical habitat is designated or not, they 
are not considered in our determination of whether the benefits of 
including an area as critical habitat outweigh the benefits of 
excluding the area.
    The majority of the post-designation, baseline impacts are 
associated with proposed, single, large-scale development project in 
Maine (Unit 1), for which the proponent has sought state-approved 
rezoning. Subsequent development of the rezoned lands may require the 
implementation of avoidance, minimization, or mitigation measures to 
conserve lynx. Elsewhere, additional post-designation, baseline impacts 
are associated with adherence to existing lynx management plans, which 
direct lynx conservation efforts for activities such as timber 
management, recreation, and mining.
    The only incremental identified and quantified in the analysis are 
administrative costs of actions taken under section 7 of the Act 
associated with the geographic area proposed as revised critical 
habitat for the lynx. The DEA forecasts these incremental impacts 
associated with the proposed rulemaking to be $142,000 on an annualized 
basis using a 3 percent discount rate, and $141,000 on an annualized 
basis using a 7 percent discount rate.
    Only the incremental costs that may result from the designation of 
critical habitat, over and above the costs associated with species 
protection under the Act more generally, may be considered in 
designating critical habitat; therefore, the methodology for 
distinguishing these two categories of costs is important. In the 
absence of critical habitat, Federal agencies must ensure that any 
actions they authorize, fund, or carry out are not likely to jeopardize 
the continued existence of any endangered species or threatened 
species--costs associated with such actions are considered baseline 
costs. Once an area is designated as critical habitat, proposed actions 
that have a Federal nexus in this area also will require consultation 
and potential modification to ensure that the action does not result in 
the destruction or adverse modification of designated critical 
habitat--costs associated with these actions are considered incremental 
costs. Incremental consultation that takes place as a result of 
critical habitat designation may fall into one of three categories: (1) 
Additional effort to address adverse modification in a new 
consultation; (2) re-initiation of consultation to address effects to 
critical habitat; and (3) incremental consultation resulting entirely 
from critical habitat designation (i.e., where a proposed action may 
affect unoccupied critical habitat). However, because no unoccupied 
habitat is being proposed for designation, no consultations in category 
3 are projected.
    We request comment on the accuracy of our methodology for 
distinguishing baseline and incremental costs, and the assumptions 
underlying the methodology. The DEA considers the potential economic 
effects of actions relating to the conservation of the lynx, including 
costs associated with sections 4, 7, and 10 of the Act, as well as 
costs attributable to the designation of revised critical habitat.
    We are soliciting comments from the public on the DEA, and on the 
proposed revised rule and environmental assessment. We may revise the 
proposed rule or supporting documents to incorporate or address 
information we receive during this comment period. In particular, we 
may exclude areas from revised critical habitat if we determine that 
the benefits of excluding an area outweigh the benefits of including it 
as revised critical habitat, provided the exclusions will not result in 
the extinction of the species.

Areas Considered for Exclusion Under Section 4(b)(2) of the Act

Northern Maine Unit 1: Maine Forest Products Council

    We have received a draft Conservation Partnership Agreement for the 
Benefit of Canada Lynx in Maine from the Maine Forest Products Council 
(MFPC) and Maine Department of Inland Fisheries and Wildlife (Maine 
DIFW). As drafted, MFPC has identified the Service as a signatory to 
the agreement. The MFPC is a trade organization representing the Maine 
forest products community, whose members include landowners, loggers, 
truckers, paper mills, and lumber processors. Approximately 74 percent 
of the lands proposed for lynx critical habitat designation in Maine 
are private commercial forest lands owned by members of the MFPC.
    The MFPC and its landowner members have been contributing to lynx 
conservation since the 1990s by funding lynx and snowshoe hare research 
through the University of Maine's Cooperative Forestry Research Unit 
(UMaine CFRU). Additionally, MFPC landowners have supported lynx 
research and monitoring by allowing researchers from Maine DIFW, the 
Service, University of Maine and others access to their private 
property to conduct lynx surveys and research and by providing 
logistical assistance (lodging, field maps, etc.) to the lynx 
researchers.
    In summary, the draft conservation agreement proposes a framework 
for, among other things, funding of landscape-level habitat mapping 
using satellite imagery and state-of-the art lynx and snowshoe hare 
habitat models; assistance from MPFC landowners to supplement the 
mapping analyses with information and data owned by the companies; 
continued funding of lynx research and monitoring and logistical 
assistance; professional education, information dissemination, and 
training of landowners, forest managers, loggers, and others on lynx 
habitat requirements; development of multi-species landscape-scale 
planning guidelines to balance the needs of lynx with other species in 
the northern forest; lynx workshops to discuss lynx research, 
management challenges, opportunities, land management tools, and forest 
practices trends; and annual reporting. This agreement does not 
prescribe specific land management actions to be taken by landowners. 
We are currently reviewing the context of this draft agreement, 
including MFPC's explanations of the above proposed commitments and its 
treatment of our roles and responsibilities as a signatory.

Northern Maine Unit 1: Lands Subject to the Healthy Forest Restoration 
Act

    In 2003, Congress passed the Healthy Forest Restoration Act. Title 
V of the Act designates an HFRP with objectives to (1) promote the 
recovery of threatened and endangered species, (2) improve 
biodiversity, and (3) enhance carbon sequestration. In 2006, Congress 
provided the first funding for the HFRP, and three States, Maine, 
Arkansas, and Mississippi, were chosen as pilots to receive funding 
through their respective Natural Resources Conservation Service (NRCS) 
State offices. The NRCS and the

[[Page 62455]]

Service determined that the most efficient way to complete 
consultations under section 7 of the Act and to deliver the Safe 
Harbor-like assurances that the Healthy Forest Restoration Act both 
defines and requires was by developing programmatic biological opinions 
for each of the participating States. The program underwent formal 
consultation under section 7 of the Act. The resulting programmatic 
biological opinion provides a framework for determining incidental 
take, baseline conditions, and terms and conditions when reviewing 
projects selected for future funding. The Service completed the 
biological opinion for Maine in 2006; this document is available on 
www.regulations.gov with the other documents announced in this 
reopening notice.
    The NRCS and the Service offered the HFRP to landowners in the 
proposed Canada lynx critical habitat unit to promote development of 
lynx forest management plans to achieve important objectives for lynx 
recovery. Five landowners were enrolled in the HFRP--the Passamaquoddy 
Tribe, The Nature Conservancy, the Forest Society of Maine (as a 
conservation easement holder for the Merriweather LLC-West Branch 
Project), Katahdin Forest Products, and Elliotsville Plantation 
Company. Lynx forest management plans will be developed for about 
680,000 acres (275,186 hectares) within the 6.8 million-acre (2.75 
million-hectare) proposed revised critical habitat. Tiered section 7 
consultations will occur under the programmatic opinion for each of the 
five projects. The tiered consultations will document the environmental 
baseline and incidental take for each project. If additional HFRP 
funding is made available to Maine in the future, this programmatic 
biological opinion will guide the consultation between NRCS and the 
Service. New projects will be tiered under this programmatic opinion. 
The programmatic opinion will be revised as new information is obtained 
or if new rare, threatened, or endangered species are considered for 
Healthy Forest Reserve funding.
    Landowner forest management plans will be based on the Service's 
Canada Lynx Habitat Management Guidelines for Maine (McCollough 2007). 
These guidelines were based on the best available science on lynx 
management and have been revised as new research results become 
available. The guidelines are:
    1. Avoid upgrading or paving dirt or gravel roads traversing lynx 
habitat. Avoid construction of new high-speed/high-traffic volume roads 
in lynx habitat. Desired outcome: Avoid fragmenting potential lynx 
habitat with high-traffic/high-speed roads.
    2. Maintain through time at least one lynx habitat unit of 35,000 
acres (14,164 hectares) (~1.5 townships) or more for every 200,000 
acres (80,937 hectares) (~9 townships) of ownership. At any time, about 
20 percent of the area in a lynx habitat unit should be in the optimal 
mid-regeneration conditions (see Guideline 3). Desired outcome: Create 
a landscape that will maintain a continuous presence of a mosaic of 
successional stages, especially mid-regeneration patches that will 
support resident lynx.
    3. Employ silvicultural methods that will create regenerating 
conifer-dominated stands 12-35 feet (3.7-10.7 meters) in height with 
high stem density (7,000-15,000 stems/acre) (17,290-37,050 stems/
hectare) and horizontal cover above the average snow depth that will 
support (0.44 hares/acre) >1.1 hares/hectare. Desired outcome: Employ 
silvicultural techniques that create, maintain, or prolong use of 
stands by high populations of snowshoe hares.
    4. Maintain land in forest management. Development and associated 
activities should be consolidated to minimize direct and indirect 
impacts. Avoid development projects that occur across large areas, 
increase lynx mortality, fragment habitat, or result in barriers that 
affect lynx movements and dispersal. Desired outcome: Maintain the 
current amount and distribution of commercial forest land in northern 
Maine. Prevent forest fragmentation and barriers to movements. Avoid 
development that introduces new sources of lynx mortality.
    5. Encourage coarse woody debris for den sites by maintaining 
standing dead trees after harvest and leaving patches (at least 0.75 
acre (0.30 hectare)) of windthrow or insect damage. Desired outcome: 
Retain coarse woody debris for denning sites.
    The HFRP forest management plans must provide a net conservation 
benefit for lynx, employ the lynx guidelines, identify baseline habitat 
conditions and meet NRCS standards for forest plans. Plans must be 
developed for an entire forest rotation (70 years) and include a 
decade-by-decade assessment of where lynx habitat will be located on 
the ownership. Some landowners are developing plans exclusively for 
Canada lynx, whereas others are combining lynx management with pine 
marten (Martes americana) (an umbrella species for mature forest) or 
biodiversity objectives. Most landowners are writing their own plans, 
however, The Nature Conservancy contracted with the University of Maine 
Department of Wildlife Ecology to develop a lynx-pine marten umbrella 
species model that will serve as a model that will be made available to 
other northern Maine landowners.
    Landowners have two years from enrollment to complete their lynx 
forest management plans. Plans must be reviewed and approved by NRCS 
with assistance from the Service. The first plans will be completed in 
fall, 2009. By year seven, there must be demonstrated harvest schedule 
and on-the-ground implementation of the plan. Safe Harbor Agreements or 
similar assurances, as defined by the Healthy Forest Restoration Act, 
will be made available to landowners enrolled in the program at the 
conclusion of the 10-year cost-share agreement.

Northern Rocky Mountains Unit 3: Private Timber Lands

    We have also received a draft conservation agreement from three 
timber products companies in Montana: Plum Creek Timber, F.H. Stoltze 
Land and Lumber, and Stimson Lumber (forest products companies). These 
three companies are the largest individual private timberland-owners in 
Unit 3 of the proposed critical habitat designation. This agreement 
proposes to form a conservation partnership to preserve habitat and 
protect the Canada lynx by implementing the following actions:
    1. Landowners and forest products companies would distribute lynx 
habitat management information developed collaboratively with the USFWS 
and supporting agencies and organizations to a variety of forest 
landowners and contractors in the geographic area currently contained 
in proposed critical habitat not currently engaged with the USFWS or 
informed about Canada lynx habitat management measures.
    2. The forest products companies would contact forest products 
mills within the geographic area currently contained in proposed 
critical habitat to enlist their support of the Agreement. Supporting 
mills would distribute habitat management and other lynx information to 
landowners and log sellers as part of their fiber procurement programs. 
This action, combined with the actions of the Agreement signatories, 
would inform the vast majority of private landowners in Unit 3 who 
undertake forest management activities and sell their products on lynx 
habitat management to guide their on-the-ground activities for the 
benefit of lynx.
    3. The Parties would collaborate to encourage private landowners 
and forest

[[Page 62456]]

product companies to pursue funding for conservation efforts, e.g., 
cost-share, incentive programs, or grants for the purpose of Canada 
lynx habitat conservation.
    4. Landowners and forest product companies would develop new Canada 
lynx habitat management training for private field-level forest 
managers and contractors.
    5. Landowners and forest product companies would host annual 
workshops that include the USFWS to discuss recent research outcomes 
and management recommendations, identify collaborative adaptive 
management opportunities, and/or identify further research 
opportunities for lynx conservation.
    6. Landowners and forest product companies would develop, in 
collaboration with the Service, voluntary landscape-level management 
priorities and guidelines for private lands in Montana. These 
guidelines will be incorporated into the education and outreach efforts 
in 1, 3, and 4 above.
    7. Landowners and forest product companies would support Canada 
lynx research and monitoring through encouraging participating 
landowners and forest product companies to voluntarily provide 
reasonable access to their lands to conduct research, logistical and 
material support, financial support, and/or dissemination and 
implementation of the research results.
    The agreement is designed to strengthen partnerships among the 
three industrial timberland owners and State and Federal agencies. This 
agreement does not prescribe specific land management actions to be 
taken by landowners.

Draft Environmental Assessment; National Environmental Policy Act

    The draft environmental assessment (EA) presents the purpose of and 
need for critical habitat designation, the Proposed Action and 
alternatives, and an evaluation of the direct, indirect, and cumulative 
effects of the alternatives pursuant to the requirements of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 
(NEPA) as implemented by the Council on Environmental Quality 
regulations (40 CFR 1500, et seq.) and according to the Department of 
the Interior's NEPA procedures.
    The EA will be used by the Service to decide whether or not 
critical habitat will be designated as proposed, if the Proposed Action 
requires refinement or if another alternative is appropriate, or if 
further analyses are needed through preparation of an environmental 
impact statement (EIS). If the Proposed Action is selected as described 
(or is changed minimally) and no further environmental analyses are 
needed, then a Finding of No Significant Impact (FONSI) would be the 
appropriate conclusion of this process. A FONSI would then be prepared 
for the EA.

Proposed Changes to Boundaries of Canada Lynx Revised Critical Habitat 
Units 3 and 5

    Following publication of our proposed critical habitat rule on 
February 28, 2008 (73 FR 10860), we received comments from the U.S. 
Forest Service, Montana Department of Natural Resources and 
Conservation (Montana DNRC), Plum Creek Timber Company, and others 
providing information that large areas of the proposed revised critical 
habitat designation did not contain the essential physical and 
biological feature described in the rule and should not be included in 
the final designation. In response to those comments, we solicited 
updated lynx habitat mapping data from the U.S. Forest Service, 
National Park Service, Montana DNRC, U.S. Bureau of Land Management, 
and Plum Creek Timber Company to confirm the proposed boundaries or 
make corrections to those boundaries where they either include 
significant areas of non-lynx habitat or leave out significant areas of 
lynx habitat that may contribute to lynx conservation. As a result of 
this inquiry, we identified several areas on the periphery of Units 3 
and 5 that contain features essential to the conservation of lynx and 
may warrant inclusion inside the final critical habitat boundary, and 
areas that do not contain essential feature and may have been 
inappropriately included inside the boundary of the proposed revision. 
In general, where mapped lynx habitat corresponds to U.S. Forest 
Service lynx analysis units (LAU), we are considering the use of LAU 
boundaries to define the final designation. Where LAUs do not include 
significant lynx habitat or where they include large areas that are not 
mapped lynx habitat, we may use other landscape features such as roads, 
watershed boundaries, or contour lines to incorporate mapped lynx 
habitat into the final rule. LAUs are areas identified by the U.S. 
Forest Service that have significant lynx habitat and are delineated at 
the scale of the area required for a female home range. Because LAU 
boundaries are based on mapped lynx habitat as well as landscape 
features, we believe that the most important lynx habitat is generally 
found within LAUs. The following is a summary of specific changes to 
the proposal that we are considering that result in significant changes 
to the aerial extent of the proposed designation. The numbers reported 
below do not sum to the final size of the unit due to small changes to 
the boundary when fitting the boundary line to LAU boundaries.
    Significant mapped lynx habitat exists on Montana DNRC lands 
between subunits 11 and 12. Including these lands in the designation 
would link the subunits into one and increase the area of the two 
subunits by approximately 60 square miles (155 square kilometers). 
Also, outside the eastern boundary of subunit 12 along the North Fork 
of the Flathead River, mapped lynx habitat extends east of the line 
identified in the February 2008 proposed revision, and we are 
considering changing the boundary to correspond to the Forest Service 
Lynx Analysis Unit (LAU) boundary there, incorporating an estimated 70 
square miles (181 square kilometers) of additional area to subunit 12.
    For subunit 16 we are considering, based on the comments received, 
to change the subunit's boundaries such that the subunit's eastern 
boundary follow the eastern boundary of Glacier National Park south (as 
it does in the February 2008 proposed revision) and then follow the 
eastern boundaries of U.S. Forest Service LAUs to the south to U.S. 
Highway 12. This would result in a reduction of approximately 124 
square miles (321 square kilometers). The valley bottom areas of the 
southeastern portion of Unit 3 contains very little mapped lynx habitat 
and we are considering removing approximately 865 square miles (2,240 
square kilometers) from the area north of Highway 12. This area is a 
mix of Helena National Forest, BLM, private, and Montana DNRC land. 
Based on the new information received, we would leave the mapped lynx 
habitat on BLM and private lands in the Garnet Mountain Range as 
separate critical habitat subunits.
    Also in Unit 3, in the Swan/Clearwater River Valleys along the U.S. 
Highway 83 corridor, there is mapped lynx habitat both east and west of 
the Highway that occurs outside of the February 28, 2008, proposal. We 
are considering extending the boundary of critical habitat on both 
sides of the highway to incorporate mapped lynx habitat in this area, a 
change that would result in an increase of 104 square miles (269 square 
kilometers).
    The changes being considered, based on information received, would 
result in a net decrease in the size of Unit 3 of approximately 833 
square miles (2,157 square kilometers) leaving

[[Page 62457]]

approximately 10,471 square miles (27,120 square kilometers) in Unit 3.
    In Unit 5, mapped lynx habitat indicates a lack of lynx habitat on 
much of the Custer National Forest that was included in the February 
28, 2008, proposal. We are considering amending the northeastern 
boundary to more closely reflect the lack of mapped lynx habitat by 
using the northeastern LAU boundaries on the Custer National Forest as 
the critical habitat boundary there. This change would result in a net 
reduction of critical habitat area of approximately 705 square miles 
(1,826 square kilometers). In addition, on the east side of Unit 5, we 
are considering the use of Forest Service LAU boundaries to define the 
critical habitat boundary in this area, however, information submitted 
by the Forest Service indicates that much of the mapped lynx habitat in 
this area is insufficient to support snowshoe hares in the numbers 
required for lynx survival and reproduction. For this reason, we would 
not incorporate all mapped lynx habitat in this unit, but instead 
include only those LAUs that include the most important lynx habitat 
and also recent lynx records. This change would result in a net 
decrease in the area of the designation of 130 square miles (337 square 
kilometers). We also are considering amending the boundaries of 
critical habitat within Yellowstone National Park in the Area of the 
Lamar Valley and the Northern Range south of Gardiner to reflect the 
lack of mapped lynx habitat in this area. We would potentially use 
Yellowstone National Park LAU boundaries to describe the critical 
habitat boundary in this area for a net reduction of 546 square miles 
(1,414 square kilometers) in the designation. The above changes would 
result in a net decrease of 1,867 square miles (4,836 square 
kilometers) from Unit 5, leaving 8,723 square miles (22,592 square 
kilometers) in Unit 5.
    We request comments and additional information on the mapping 
techniques that we are considering using to delineate critical habitat 
units.

Required Determinations--Amended

    In our February 28, 2008, proposed revised rule (73 FR 10860), we 
indicated that we would defer our determination of compliance with 
several statutes and Executive Orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders became available in the DEA. We have now 
made use of the DEA data to make these determinations. In this document 
we affirm the information in our proposed rule concerning Executive 
Orders (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 and 
the Regulatory Flexibility Act, E.O. 13211 (Energy, Supply, 
Distribution, and Use), the Unfunded Mandates Reform Act, and E.O. 
12630 (Takings).

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
proposed rule is significant and has reviewed the proposed revised rule 
under Executive Order 12866 (E.O. 12866). OMB bases its determination 
upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues. OMB has 
determined that this rule is significant because it raises novel legal 
or policy issues.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
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. This determination is 
subject to revision based on comments received from the public.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the proposed revised designation of critical 
habitat for the Canada lynx would affect a substantial number of small 
entities, we considered the number of affected small entities within 
particular types of economic activities (e.g., timber harvesting, 
livestock grazing, residential and related development, recreation 
activities, mining, and transportation). 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, permitted, or 
authorized by Federal agencies.
    In our DEA of the proposed revised critical habitat designation, we 
evaluated the potential economic effects on small business entities 
from conservation actions related to the listing of the Canada lynx and 
proposed revised designation of the species' critical habitat. The 
activities affected by Canada lynx conservation efforts may include 
land development, transportation and utility operations, and 
conservation on public and tribal lands. The following is a summary of 
the information contained in the draft economic analysis:

[[Page 62458]]

(a) Development
    According to the draft economic analysis, Canada lynx development-
related costs account for less than 1 percent of forecast incremental 
costs, and is estimated at $8,130 (in 2008 dollars) over 20 years. The 
costs consist of administrative costs of conducting consultations under 
section 7 of the Act on development projects. As a result of this 
information, we have determined that the proposed designation is not 
anticipated to have a significant economic impact on a substantial 
number of small businesses with respect to development activities.
(b) Forest Management
    Potential costs to forest management in habitat proposed for 
designation account for another 16 percent of forecast costs. 
Undiscounted costs are estimated at $233,000 (in 2008 dollars) over 20 
years. The costs consist of administrative costs of conducting 
consultations under section 7 of the Act on forest management. These 
costs are expected to be borne by Federal and State governments, 
private timber landowners, tribal landowners, and other private 
landowners across the units of the designation. The administrative 
costs would be divided among many entities and projects over a 20-year 
period. As a result of this information, we have determined that the 
proposed designation is not anticipated to have a significant economic 
impact on small forest management businesses.
(c) Recreation
    Future costs associated with managing recreation account for an 
additional 19 percent of forecast costs. Costs are estimated to be 
$285,000 (in 2008 dollars) over 20 years. The costs consist of 
administrative costs of conducting consultations under section 7 of the 
Act associated with managing recreation (i.e., reductions of snowmobile 
opportunities) in Unit 4 (North Cascades). Incremental costs would be 
incurred by State and Federal agencies. As a result of this 
information, we have determined that the proposed designation is not 
anticipated to have a significant economic impact on a substantial 
number of small recreation businesses.
(d) Lynx Management Plans
    Future costs associated with development of lynx management plans 
account for approximately one percent of forecast costs. Costs are 
estimated to be $12,300 (in 2008 dollars) over 20 years. The costs 
consist of administrative costs of conducting consultations under 
section 7 of the Act on lynx management plans by Federal agencies. As a 
result of this information, we have determined that the proposed 
designation is not anticipated to have a significant economic impact on 
a substantial number of small businesses.
(e) Mining/Oil and Gas
    Future costs associated with mining and oil and gas exploration and 
development activities account for an additional 8 percent of forecast 
costs. Costs are estimated at $115,000 (in 2008 dollars) over 20 years. 
The costs consist of administrative costs of conducting consultations 
under section 7 of the Act on mining and oil and gas projects by 
Federal agencies in Units 2, 4, and 5. As a result of this information, 
we have determined that the proposed designation is not anticipated to 
have a significant economic impact on a substantial number of small 
mining or oil and gas businesses.
    In summary, we have considered whether the proposed revised 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 promulgated, this proposed 
revised rule would not have a significant impact on a substantial 
number of small 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. As described above, this proposed rule is 
considered a significant regulatory action under E.O. 12866 due to 
potential novel legal and policy issues. OMB's guidance in M-01-27 for 
implementing this Executive Order outlines nine outcomes that may 
constitute ``a significant adverse effect'' when compared to no 
regulatory action. The DEA finds that none of these outcomes will 
result from the critical habitat designation for lynx (refer to 
Appendix B of the draft economic analysis). Thus, based on the 
information in the draft economic analysis, no energy-related 
incremental impacts associated with Canada lynx proposed revised 
critical habitat are expected other than administrative costs. Costs 
are estimated at $115,000 (in 2008 dollars) over 20 years. The costs 
consist of administrative costs of conducting consultations under 
section 7 of the Act on mining and oil and gas projects by Federal 
agencies in Units 2, 4, and 5. As such, the proposed designation of 
critical habitat is not expected 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 (2 U.S.C. 
1501), 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 
the following 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 
(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.

[[Page 62459]]

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. The draft economic analysis 
discusses potential impacts of critical habitat designation for the 
Canada lynx on timber management, recreation, land development, mining, 
oil and gas development, and the development of management plans. The 
analysis estimates costs of the rule to be $2.11 million at present 
value over a 20-year period ($142,000 annualized) assuming a 3 percent 
discount rate, and $1.49 million ($141,000 annualized) assuming a 7 
percent discount rate. Most of the impacts are expected to affect 
Federal agencies through administrative costs associated with 
consultations under section 7 of the Act. Impacts on small governments 
are not anticipated, or they are anticipated to be passed through to 
consumers. The SBA does not consider the Federal Government to be a 
small governmental jurisdiction or entity. Consequently, we do not 
believe that the designation of critical habitat for the Canada lynx 
will significantly or uniquely affect small government entities. As 
such, a Small Government Agency Plan is not required.

Executive Order 12630: Takings

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing revised critical habitat for the Canada lynx in a takings 
implications assessment. The takings implications assessment concludes 
that this proposed designation of critical habitat for lynx does not 
pose significant takings implications.

Authors

    The primary authors of this notice are the staff members of the 
Division of Endangered Species, Mountain-Prairie Region, U.S. Fish and 
Wildlife Service.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: October 9, 2008.
Mitchell Butler,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E8-24827 Filed 10-20-08; 8:45 am]
BILLING CODE 4310-55-P