[Federal Register Volume 71, Number 130 (Friday, July 7, 2006)]
[Proposed Rules]
[Pages 38593-38597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10577]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU50
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for the Laguna Mountains Skipper
(Pyrgus ruralis lagunae)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of public comment period and notice of
availability of draft economic analysis.
-----------------------------------------------------------------------
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 Laguna Mountains skipper (Pyrgus ruralis
lagunae) and the availability of a draft economic analysis of the
proposed designation of critical habitat. The draft economic analysis
estimates the potential total future impacts to range from $6.5 million
to $8.9 million (undiscounted) over 20 years. Discounted future costs
are estimated to be $3.7 million to $5.1 million over this same time
period ($351,000 to $480,000 annually) using a real rate of 7 percent,
or $5.0 million to $6.9 million ($337,000 to $461,000 annually) using a
real rate of 3 percent. We are reopening the comment period to allow
all interested parties an opportunity to comment simultaneously on the
proposed rule and the associated draft economic analysis. Comments
previously submitted on the proposed rule need not be resubmitted as
they have already been incorporated into the public record and will be
fully considered in our final determination.
DATES: We will accept public comments and information until August 7,
2006.
ADDRESSES: Written comments and materials may be submitted to us by any
one of the following methods:
1. You may submit written comments and information to Jim Bartel,
Field Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley
Road, Carlsbad, CA 92011;
2. You may hand-deliver written comments and information to our
Carlsbad Fish and Wildlife Office at the above address;
3. You may fax your comments to 760/431-9624.
4. You may send your comments by electronic mail (e-mail) to
[email protected]. For directions on how to submit e-mail comments,
see the ``Public Comments Solicited'' section.
5. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad
Fish and Wildlife Office, at the address listed in ADDRESSES
(telephone, 760/431-9440; facsimile, 760/431-9624.)
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We will accept written comments and information during this
reopened comment period. We solicit comments on the original proposed
critical habitat designation, published in the Federal Register on
December 13, 2005 (70 FR 73699), and on our draft economic analysis of
the proposed designation. We will consider information and
recommendations from all interested parties. We particularly seek
comments concerning:
(1) The reasons any habitat should or should not be determined to
be critical habitat, as provided by section 4 of the Endangered Species
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), including
whether it is prudent to designate critical habitat and whether the
benefit of designation will outweigh any threats to the species due to
designation;
(2) Specific information on: the amount and distribution of Laguna
Mountains skipper habitat; which areas should be included in the
designation that were occupied at the time of listing and contain the
physical and biological features that are essential to the conservation
of the species and why; and which areas not occupied at the time of
listing are essential to the conservation of the species and why;
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation and, in particular, any
impacts on small entities;
(5) Whether the draft economic analysis identifies all State and
local costs, and, if not, what other costs should be included;
(6) Whether the draft economic analysis makes appropriate
assumptions regarding current practices and likely regulatory changes
imposed as a result of the listing of the species or the designation of
critical habitat;
(7) Whether the economic analysis correctly assesses the effect on
regional costs associated with land- and water
[[Page 38594]]
use controls that derive from the designation;
(8) Whether the designation will result in disproportionate
economic impacts to specific areas that should be evaluated for
possible exclusion from any final designation;
(9) Whether the economic analysis appropriately identifies all
costs and benefits that could result from the critical habitat
designation;
(10) Whether there is information about areas that could be used as
substitutes for the economic activities planned in critical habitat
areas that would offset the costs and allow for the conservation of
critical habitat areas; and
(11) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
All previous comments and information submitted during the initial
comment period on the proposed rule need not be resubmitted. If you
wish to comment, you may submit your comments and materials concerning
the draft economic analysis and the proposed rule by any one of several
methods (see ADDRESSES section). Our final determination concerning
designation of critical habitat for the Laguna Mountains skipper will
take into consideration all comments and any additional information
received during both comment periods. On the basis of public comment on
the critical habitat proposal, the draft economic analysis, and the
final economic analysis, we may during the development of our final
determination find that areas proposed are not essential or are
appropriate for exclusion under section 4(b)(2) of the Act, or are not
appropriate for exclusion.
If you wish to submit comments electronically, please submit them
in an ASCII file and avoid the use of any special characters or any
form of encryption. Also, please include ``Attn: Laguna Mountains
skipper'' and your name and return address in your e-mail message. If
you do not receive a confirmation from the system that we have received
your e-mail message, please contact the person listed under FOR FURTHER
INFORMATION CONTACT or submit your comments in writing using one of the
alternate methods listed in the ADDRESSES section. Please note that the
Internet address [email protected] will be closed at the
termination of the public comment period.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. We will not consider anonymous comments and we will
make all comments available for public inspection in their entirety.
Comments and materials received, as well as supporting
documentation used in preparation of the proposal to designate critical
habitat, will be available for public inspection, by appointment,
during normal business hours at the Carlsbad Fish and Wildlife Office
at the address listed under ADDRESSES. Copies of the proposed critical
habitat rule for the Laguna Mountains skipper and the draft economic
analysis are also available on the Internet at http://www.fws.gov/carlsbad. In the event that our Internet connection is not functional,
please obtain copies of documents directly from the Carlsbad Fish and
Wildlife Office.
Background
On December 13, 2005, we published a proposed rule in the Federal
Register (70 FR 73699) to designate critical habitat for the Laguna
Mountains skipper. We proposed to designate approximately 6,662 acres
(ac) (2,696 hectares (ha)) of critical habitat in two units on Laguna
and Palomar Mountains in San Diego County, California. For more
information on the Laguna Mountains skipper, refer to the final rule
listing the species as endangered, published in the Federal Register on
January 16, 1997 (62 FR 2313).
Critical habitat is defined in section 3 of the Act as the specific
areas within the geographic area occupied by a species, at the time it
is listed in accordance with the Act, on which are found those physical
or biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographic area occupied by a species at the
time it is listed, upon a determination that such areas are essential
for the conservation of the species. If the proposed rule is made
final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting areas designated as critical habitat must consult with us on
the effects of their proposed actions, pursuant to section 7(a)(2) of
the Act.
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat on the basis of the best scientific data available,
after taking into consideration the economic impact, impact to national
security, and any other relevant impacts of specifying any particular
area as critical habitat. We have prepared a draft economic analysis of
the December 13, 2005 (70 FR 73699), proposed designation of critical
habitat for the Laguna Mountains skipper.
The draft economic analysis considers the potential economic
effects of actions relating to the conservation of the Laguna Mountains
skipper, including costs associated with sections 4, 7, and 10 of the
Act, and including those attributable to designating critical habitat.
It further considers the economic effects of protective measures taken
as a result of other Federal, State, and local laws that aid habitat
conservation for the Laguna Mountains skipper in areas containing
features essential to the conservation of this species. The analysis
considers both economic efficiency and distributional effects. In the
case of habitat conservation, efficiency effects generally reflect the
``opportunity costs'' associated with the commitment of resources to
comply with habitat protection measures (e.g., lost economic
opportunities associated with restrictions on land use).
This analysis also addresses how potential economic impacts are
likely to be distributed, including an assessment of any local or
regional impacts of habitat conservation and the potential effects of
conservation activities on small entities and the energy industry. This
information can be used by decision-makers to assess whether the
effects of the designation might unduly burden a particular group or
economic sector. Finally, this analysis looks retrospectively at costs
that have been incurred since the date the species was listed as an
endangered species and considers those costs that may occur in the 20
years following the designation of critical habitat.
Laguna Mountains skipper conservation activities are likely to
primarily impact recreational camping and utility maintenance
activities. The draft economic analysis estimates the potential total
future impacts to range from $6.5 million to $8.9 million
(undiscounted) over 20 years. Discounted future costs are estimated to
be $3.7 million to $5.1 million over this same time period ($351,000 to
$480,000 annually) using a real rate of 7 percent, or $5.0 million to
$6.9 million ($337,000 to $461,000 annually) using a real rate of 3
percent. Differences in the low and high impact estimates result
primarily from uncertainty regarding the potential impacts to utility
companies conducting
[[Page 38595]]
maintenance activities and making repairs in proposed critical habitat.
The low-end estimate of costs assumes grazing on private lands is not
affected and biologists' time on site during utility repairs and
maintenance is limited to one day per project. Costs under this
estimate are dominated (88 percent) by welfare losses to campers in
Subunits 1A and 1C. The high-end estimate of costs assumes grazing
activities on private lands in proposed critical habitat will be
restricted and that utility projects will last longer than a single
day. Costs under this estimate are dominated by lost camping
opportunities (64 percent) and to a lesser extent costs to utilities
(22 percent). In the low-end estimate, 95 percent of the costs are
associated with Subunits 1A and 1C. In the high-end estimate, Subunits
1A and 1C again dominate total costs, accounting for 83 percent of
total estimated impacts.
Required Determinations--Amended
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues.
However, because the draft economic analysis indicates the potential
economic impact associated with a designation of all habitat with
features essential to the conservation of this species would total no
more than $480,000 annually, applying a 7 percent discount rate, we do
not anticipate that this final rule will have an annual effect on the
economy of $100 million or more or affect the economy in a material
way. Due to the time line for publication in the Federal Register, the
Office of Management and Budget (OMB) did not formally review the
proposed rule.
Further, Executive Order 12866 directs Federal Agencies
promulgating regulations to evaluate regulatory alternatives (Office of
Management and Budget, Circular A-4, September 17, 2003). Pursuant to
Circular A-4, once it has been determined that the Federal regulatory
action is appropriate, the agency will need to consider alternative
regulatory approaches. Since the determination of critical habitat is a
statutory requirement pursuant to the Act, we must then evaluate
alternative regulatory approaches, where feasible, when promulgating a
designation of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweigh the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or combination thereof, in a
designation constitutes our regulatory alternative analysis.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (e.g., 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. In our proposed rule,
we withheld our determination of whether this designation would result
in a significant effect as defined under SBREFA until we completed our
draft economic analysis of the proposed designation so that we would
have the factual basis for our determination.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
To determine if the proposed designation of critical habitat for
the Laguna Mountains skipper would affect a substantial number of small
entities, we considered the number of small entities affected within
particular types of economic activities (e.g., hiking, residential
development). We considered each industry or category individually to
determine if certification is appropriate. In estimating the numbers of
small entities potentially affected, we also considered whether their
activities have any Federal involvement; some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
the designation of critical habitat. Designation of critical habitat
only affects activities conducted, funded, permitted, or authorized by
Federal agencies; non-Federal activities are not affected by the
designation.
If this proposed critical habitat designation is made final,
Federal agencies must consult with us if their activities may affect
designated critical habitat. Consultations to avoid the destruction or
adverse modification of critical habitat would be incorporated into the
existing consultation process.
Our draft economic analysis determined that costs involving
conservation measures for the Laguna Mountains skipper would be
incurred for activities involving (1) Grazing activities, (2)
recreational camping activities, (3) recreational hiking activities,
(4) utility activities, (5) rural development, (6) other activities on
Federal lands, and (7) Laguna Mountains skipper management activities
on State lands. Of these seven categories, impacts of skipper
conservation are not anticipated to affect small entities in five of
these categories: hiking, utilities, rural development, other
activities on Federal lands, and management activities on State lands.
Residential development is unlikely to be impacted by skipper
conservation activities (see Chapter 6 of draft economic analysis).
Since neither Federal nor State governments are defined as small
entities by the Small Business Administration (SBA), the economic
impacts borne by the United States Forest Service (USFS) and the
California Department of Fish and Game (CDFG) resulting from
implementation of skipper conservation activities or modifications to
activities on Federal lands are not relevant to this analysis (for
further discussion see Chapters 5, 6, 7, and 8 of draft economic
analysis). Likewise, neither of the major utility companies involved
(SDG&E and AT&T)
[[Page 38596]]
would fit the SBA definition of small entities. Accordingly, the small
business analysis focuses on economic impacts to grazing and
recreational camping activities.
The proposed designation includes areas of USFS and private lands
that are used for livestock grazing. On some Federal allotments that
contain Laguna Mountains skipper habitat, meadow areas have been
excluded from grazing, thus reducing the carrying capacity, or
permitted Animal Unit Months (AUMs), on those allotments. Historically,
returns to cattle operations have been low throughout the West. In
recent years, these returns have been lower due to the recent wildfires
and droughts in California. As a result, any reductions in grazing
effort for the Laguna Mountains skipper may affect the sustainability
of ranching operations in these areas. The analysis assumes that in the
future, grazing efforts on proposed critical habitat areas will be
reduced, or in the high-end estimate, eliminated on private land due to
skipper concerns. Private ranchers could be affected either by
reductions in federally-permitted AUMs that they hold permits to, or by
reductions on grazing efforts on private property to avoid adverse
impacts on Laguna Mountains skipper habitat. The expected reduction in
AUMs is based on an examination of historic grazing levels, section 7
consultations, and discussions with range managers, wildlife
biologists, and permittees. Based on this analysis, the high-end impact
on grazing activities is estimated at an annual reduction of 1,980
AUMs, of which 1,363 are Federally permitted and 617 are private. The
majority of these AUM reductions fall on two ranchers: one operating in
Subunit 1A and another operating in Subunit 2A. Therefore, cumulatively
over 20 years, two ranchers could be affected by total reductions in
AUMs due to Laguna Mountains skipper conservation activities. These
impacts doe not represent a substantial number of small entities and
the potential impact is not considered significant.
This analysis considers lower and upper bounds of potential
economic impact on recreational camping activities. The lower bound
equals no economic impact. In the upper bound, economic impacts are
estimated for recreational campers whose activities may be interrupted
by Laguna Mountains skipper conservation activities resulting in a
decrease in the number of camping trips. This scenario concludes that
camping trips may decrease by as many as 5,352 trips per year. If fewer
camping trips were to occur within proposed critical habitat areas,
local establishments providing services to campers may be indirectly
affected by Laguna Mountains skipper conservation activities. Decreased
visitation may reduce the amount of money spent in the region across a
variety of industries, including food and beverage stores, food service
and drinking places, accommodations, transportation and rental
services.
The draft economic analysis uses regional economic modeling--in
particular a software package called IMPLAN--to estimate the total
economic effects of the reduction in economic activity in camping-
related industries in the one county (San Diego County) associated with
Laguna Mountains skipper conservation activities. Commonly used by
State and Federal agencies for policy planning and evaluation purposes,
IMPLAN translates estimates of initial trip expenditures (e.g., food,
lodging, and gas) into changes in demand for inputs to affected
industries. Changes in output and employment are calculated for all
industries and then aggregated to determine the regional economic
impact of reduced recreational camping-related expenditures potentially
associated with Laguna Mountains skipper conservation activities.
This analysis uses the average expenditures reported by the 2001
National Survey of Fishing, Hunting, and Wildlife-Associated Recreation
for California for fishing, hunting and wildlife-associated recreation,
or approximately $26.23 per trip. This per-trip estimate of
expenditures is then combined with the number of camping trips
potentially lost due to Laguna Mountains skipper conservation
activities (a 1-year loss of 5,352 trips per year) to estimate the
regional economic impacts. When compared to the $192 billion dollar
regional economy of San Diego County, the potential loss generated by a
decrease in camping trips is a relatively small impact (i.e., less than
0.01 percent). Therefore based on these results, this analysis
determines no significant effect on camping-related industries due to
Laguna Mountains skipper conservation activities in San Diego County.
We may also exclude areas from the final designation if it is
determined that designation of critical habitat in localized areas
would have an impact to a substantial number of businesses and a
significant proportion of their annual revenues. Based on the above
data, we have determined that this proposed designation would not
result in a significant economic impact on a substantial number of
small entities. As such, we are certifying that this proposed
designation of critical habitat would not result in a significant
economic impact on a substantial number of small entities. Please refer
to Appendix A of our draft economic analysis of the proposed
designation for a more detailed discussion of potential economic
impacts to small business entities.
Executive Order 13211
On May 18, 2001, the President issued Executive Order (E.O.) 13211
on regulations that significantly affect energy supply, distribution,
and use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This proposed rule is
considered a significant regulatory action under E.O. 12866 because it
raises novel legal and policy issues. On the basis of our draft
economic analysis, the proposed critical habitat designation is not
expected to significantly affect energy supplies, distribution, or use.
Therefore, this action is not a significant action, and no Statement of
Energy Effects is required. Please refer to Appendix A of our draft
economic analysis of the proposed designation for a more detailed
discussion of potential effects on energy supply.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, 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
[[Page 38597]]
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. Non-Federal entities that receive Federal
funding, assistance, permits, or otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat. However, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply; nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
(b) The draft economic analysis did not identify or examine small
governments that fall within proposed critical habitat areas because
there were no estimates of impacts to small governments. Consequently,
we do not believe that this rule will significantly or uniquely affect
small governments. As such, a Small Government Agency Plan is not
required.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing critical habitat for the Laguna Mountains skipper. Critical
habitat designation does not affect landowner actions that do not
require Federal funding or permits, nor does it preclude development of
habitat conservation programs or issuance of incidental take permits to
permit actions that do require Federal funding or permits to go
forward. In conclusion, the designation of critical habitat for the
Laguna Mountains skipper does not pose significant takings
implications.
Author
The primary authors of this notice are the staff of the Carlsbad
Fish and Wildlife Office (see ADDRESSES).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: June 27, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-10577 Filed 7-6-06; 8:45 am]
BILLING CODE 4310-55-P