[Federal Register Volume 71, Number 175 (Monday, September 11, 2006)]
[Proposed Rules]
[Pages 53355-53361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7579]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU52
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Contiguous United States Distinct Population
Segment of the Canada Lynx
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of public comment period, notice of
availability of draft economic analysis and draft environmental
assessment, and amended Required Determinations.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on the proposal to designate
critical habitat for the Contiguous United States Distinct Population
Segment of the Canada lynx (Lynx canadensis), the availability of the
draft economic analysis and draft environmental assessment of the
proposed designation of critical habitat, and an amended Required
Determinations section of the proposal. The draft economic analysis
estimates the potential total future costs to range from $175 million
to $889 million in undiscounted dollars over the next 20 years.
Discounted future costs are estimated to be from $125 million to $411
million over 20 years ($8.38 million to $27.6 million annually) using a
3 percent discount rate, or $99.9 million to $259 million over 20 years
($9.43 million to $24.4 million annually) using a 7 percent discount
rate. The amended Required Determinations section provides our
determination concerning compliance with applicable statues and
Executive Orders that we have deferred until the information from the
draft economic analysis of this proposal was available. We are
reopening the comment period to allow all interested parties to comment
simultaneously on the proposed rule, the associated draft economic
analysis and draft environmental assessment, and the amended Required
Determinations section.
DATES: We will accept public comments until October 11, 2006.
ADDRESSES: Written comments and materials may be submitted to us by any
one of the following methods:
(1) E-mail: You may send comments by electronic mail (e-mail) to
[email protected]. For directions on how to submit e-mail comments, see
the ``Public Comments Solicited'' section.
(2) Mail or hand delivery/courier: You may submit written comments
and information to Field Supervisor, Montana Ecological Services Field
Office, 585 Shepard Way, Helena, MT, 59601.
(3) Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
FOR FURTHER INFORMATION CONTACT: Lori Nordstrom, Montana Ecological
Services Field Office, at the address listed in ADDRESSES (telephone,
406-449-5225 extension 208).
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 for the Canada lynx (lynx), published in
the Federal Register on November 9, 2005 (70 FR 68294), the
clarification of the proposed critical habitat, published in the
Federal Register on February 16, 2006 (71 FR 8258), on our draft
economic analysis of the proposed designation, and on our draft
environmental assessment of the proposed designation. 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 Act, including
whether it is prudent to designate critical habitat;
(2) Specific information on the amount and distribution of lynx
habitat in the contiguous United States, and what occupied habitat has
features that are essential to the conservation of the species and why
and what unoccupied habitat is essential to the conservation of the
species and why;
(3) Comments or information that may assist us with identifying or
clarifying the Primary Constituent Elements (PCEs);
(4) Land use designations and current or planned activities in
areas proposed as critical habitat and their possible impacts on
proposed critical habitat;
(5) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation and, in particular, any
impacts on small entities in timber activities, residential and
commercial development, recreation, and mining;
(6) As discussed in this proposed rule, we are considering whether
some of the lands we have identified as having features essential for
the conservation of the lynx should not be included in the final
designation of critical habitat if,
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prior to the final critical habitat designation, they are covered by
final management plans that incorporate the conservation measures for
the lynx (i.e., the Lynx Conservation Assessment and Strategy (LCAS)
(Ruediger et al. 2000), or comparable). In particular, seven National
Forests and one Bureau of Land Management (BLM) district are in the
process of revising or amending their Land and Resource Management
Plans (LRMP) to provide measures for lynx conservation. It is
anticipated that all of these plans will be complete prior to
promulgation of the final critical habitat designation. As a result,
all National Forest and BLM plans would have measures that provide for
conservation of lynx, and consequently will not be in need of special
management or protection.
Currently, National Forests that have not revised or amended their
LRMPs operate under a Conservation Agreement with the Service in which
the parties agree to take measures to reduce or eliminate adverse
effects or risks to lynx and its occupied habitat pending amendments to
LRMPs. The LCAS is a basis for implementing this Agreement.
In addition, we will be evaluating the adequacy of existing
management plans to conserve lynx on lands that are designated
wilderness areas or National Parks, as discussed in this proposed rule.
We specifically solicit comment on whether such areas meet the
definition of critical habitat based on:
(A) Whether these areas contain features essential to the
conservation of the lynx;
(B) The adequacy of these management plans or the Conservation
Agreement to provide special management and protection to lynx habitat;
Any of these lands identified above may, if appropriate, be
included in the final critical habitat designation, even if not
proposed for designation in this notice.
(7) Our proposal to not include tribal lands in the Maine and
Minnesota units under the Secretarial Order Number 3206. The size of
the individual reservation lands in the Maine and Minnesota units is
relatively small. As a result, we believe conservation of the lynx can
be achieved by limiting the designation to the other lands in the
proposed units.
(8) Whether lands in three areas are essential for the conservation
of the species and the basis for why they might be essential. These
areas are: (a) The Greater Yellowstone Ecosystem (Wyoming, Montana, and
Idaho); (b) the ``Kettle Range'' in Ferry County, Washington; and (c)
the Southern Rocky Mountains,
(9) How the proposed boundaries of critical habitat units could be
refined to more closely conform to the boreal forest types occupied by
lynx. Maps that accurately depict the specific vegetation types on all
land ownerships were not readily available. Additionally, even if
accurate, detailed vegetation maps were available, we were unsure how
to delineate and describe critical habitat boundaries that solely
encompassed lands containing the features essential to the conservation
of the lynx.
(10) 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.
(11) Any foreseeable environmental impacts directly or indirectly
resulting from the proposed designation of critical habitat;
(12) Whether the economic analysis identifies all State and local
costs attributable to the proposed critical habitat, and information on
costs that have been inadvertently overlooked;
(13) Whether the economic analysis makes appropriate assumptions
regarding current practices and likely regulatory changes imposed as a
result of the designation of critical habitat;
(14) Whether the economic analysis correctly assesses the effect on
regional costs associated with land- and water-use controls that derive
from the designation;
(15) Whether the critical habitat designation will result in
disproportionate economic impacts to specific areas that should be
evaluated for possible exclusion from the final designation per our
discretion under section 4(b)(2) of the Act. We are specifically
seeking comment along with additional information on the estimated
costs, how these estimated costs are distributed within such location,
and whether we should exclude all or a portion of a unit;
(16) Whether the economic analysis appropriately identifies all
costs that could result from the designation;
(17) As noted in the draft economic analysis, we did not estimate
the potential economic impacts for several specific land-use categories
for two reasons, first because we are unsure of how certain
conservation guidelines for the lynx may be applied and second, because
we are uncertain as to how we should assume development will occur. We
believe that we have three options:
a. Apply potential economic impacts equally across all land-uses
assuming all zoned development will occur. For example, the Lynx
Conservation Assessment and Strategy allows no more than 10 percent of
habitat be lost to the lynx, in which case, we would assume that 90
percent of the lands zoned for development would not be available for
anything other than lynx habitat and identify any economic losses
identified with those activities;
b. Assume that the 10 percent limitation on habitat loss will be
calculated across the entire range of the lynx and that habitat losses
will be concentrated in the highest economic value areas and that lower
economic value areas will be preserved as habitat; or
c. Focus potential economic impacts in areas where major economic
development is projected in order to maximize the amount of habitat
protected for lynx. This approach results in the highest economic cost
as most areas zoned for development would be unable to be developed.
Please provide comment on which approach is the most appropriate.
Please reference page 3-12 of the draft economic analysis for further
clarification of conservation guidelines.
(18) The Lynx Conservation Assessment and Strategy (LCAS) was
developed for conservation of lynx and lynx habitat on Federal lands
particularly for the U.S. Forest Service and Bureau of Land Management.
Although developed for public lands, it represents the best available
scientific information. Should the Service assume that the requirements
of the LCAS management guidelines will be applied to private lands, and
base the economic cost on that approach? If not, what standard should
be used to measure the potential economic impacts of this designation
on affected private landowners?
(19) Private timber companies may also be subject to consultation
on critical habitat or face impacts from consultation or mitigation
based on their interaction with Federal agencies. For these reasons, we
are requesting comments from any potentially affected small businesses
involved in timber activities about the impacts resulting from the
proposed designation of critical habitat. How will your small business
be affected by this critical habitat designation? What are the
estimated cost impacts of this proposed designation to your small
business? and
(20) Whether the benefits of exclusion in any particular area
outweigh the benefits of inclusion under Section 4(b)(2) of the Act.
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All previous comments and information submitted during the initial
comment periods on the proposed rule need not be resubmitted. If you
wish to comment, you may submit your comments and materials concerning
this proposal by any one of several methods (see ADDRESSES section).
Our final designation of critical habitat for the lynx will take into
consideration all comments and any additional information received
during all comment periods. On the basis of public comment on the draft
economic analysis, the critical habitat proposal, and the final
economic analysis, 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 not
appropriate for exclusion.
Please submit electronic comments in an ASCII file format and avoid
the use of special characters and encryption. Please also include
``Attn: RIN 1018-AU52'' 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.
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 information used
in preparation of the proposed critical habitat designation, will be
available for public inspection, by appointment, during normal business
hours at the Montana Ecological Services Field Office at the address
listed under ADDRESSES.
You may obtain copies of the proposed rule, draft economic
analysis, and draft environmental assessment by mail or by visiting our
Web site at http://mountain-prairie.fws.gov/species/mammals/lynx/criticalhabitat.htm. In the event that our Internet connection is not
functional, please obtain copies of documents directly from the Montana
Ecological Services Field Office.
Background
The lynx generally inhabits cold, moist boreal forests in the
contiguous United States. On November 9, 2005, we published a proposed
rule in the Federal Register (70 FR 68294) to designate approximately
18,031 square miles (mi\2\) (46,699 square kilometers (km\2\)) as
critical habitat for the lynx. The proposed critical habitat includes
four units in the States of Idaho, Maine, Minnesota, Montana, and
Washington. The original comment period on the proposed critical
habitat rule closed on February 7, 2006. On February 16, 2006, we
published a notice in the Federal Register (71 FR 8258) to reopen the
public comment period and clarify the proposed designation; this second
comment period closed on April 30, 2006.
Critical habitat is defined in section 3 of the Act 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.
Draft Economic Analysis
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific 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 draft economic analysis of
the November 9, 2005 (70 FR 68294), proposed designation of critical
habitat for the lynx.
The draft economic analysis 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, and including
those attributable to designating critical habitat. The draft 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).
The draft 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, the draft analysis looks retrospectively at
costs that have been incurred since the date the lynx was listed as
threatened in 2000, and considers those costs that may occur in the 20
years following a designation of critical habitat.
Costs related to conservation activities for the proposed
designation of critical habitat for lynx pursuant to sections 4, 7, and
10 of the Act are estimated to be approximately $175 to $889 million
over 20 years in undiscounted 2006 dollars. Discounted future costs are
estimated to be from $125 million to $411 million over 20 years ($8.38
million to $27.6 million annually) using a 3 percent discount rate, or
$99.9 million to $259 million over 20 years ($9.43 million to $24.4
million annually) using a 7 percent discount rate.
We solicit data and comments from the public on the draft economic
analysis, as well as on all aspects of the proposal to designate
critical habitat. We may revise the proposal, or its supporting
documents, to incorporate or address new information received during
the comment period. In particular, we may exclude an area from critical
habitat if we determine that the benefits of excluding the area
outweigh the benefits of including the area as critical habitat,
provided such exclusion will not result in the extinction of the
species.
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 (NEPA) as implemented by the
Council on Environmental Quality regulations (40 CFR 1500 et seq.) and
according to the Department of Interior NEPA procedures. The scope of
the EA includes issues and resources within the contiguous United
States range of the lynx in portions of Maine, Minnesota, Montana,
Idaho, and Washington as well as areas with lynx habitat in Colorado
and Wyoming not included in the proposed designation of critical
habitat for the lynx.
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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 further analyses are needed through
preparation of an environmental impact statement (EIS). If the Proposed
Action is selected as described, or with minimal changes, 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.
Required Determinations--Amended
In our November 9, 2005, proposed rule (70 FR 68294), we indicated
that we would be deferring our determination of compliance with several
statutes and Executive Orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders was available in the draft economic
analysis. Those data are now available for our use in making these
determinations. In this notice we are affirming the information
contained in the proposed rule concerning Executive Order 13132 and
Executive Order 12988; the Paperwork Reduction Act; the National
Environmental Policy Act; and the President's memorandum of April 29,
1994, ``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951). Based on the information made available to
us in the draft economic analysis, we are amending our Required
Determinations, as provided below, concerning Executive Order 12866 and
the Regulatory Flexibility Act, Executive Order 13211, Executive Order
12630, and the Unfunded Mandates Reform Act.
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule because it may raise novel legal and policy issues.
Based on our draft economic analysis of the proposed designation of
critical habitat for the lynx, costs related to conservation activities
for lynx pursuant to sections 4, 7, and 10 of the Act are estimated to
be approximately $175 to $889 million over 20 years in undiscounted
2006 dollars. Discounted future costs are estimated to be from $125
million to $411 million over 20 years ($8.38 million to $27.6 million
annually) using a 3 percent discount rate, or $99.9 million to $259
million over 20 years ($9.43 million to $24.4 million annually) using a
7 percent discount rate. Therefore, based on our draft economic
analysis, it is not anticipated that the proposed designation of
critical habitat for the lynx would result in an annual effect on the
economy of $100 million or more or affect the economy in a material
way. Due to the timeline for publication in the Federal Register, the
Office of Management and Budget (OMB) has not formally reviewed the
proposed rule or accompanying economic analysis.
Further, Executive Order 12866 directs Federal Agencies
promulgating regulations to evaluate regulatory alternatives (OMB,
Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it
has been determined that the Federal regulatory action is appropriate,
the agency will need to consider alternative regulatory approaches.
Since the determination of critical habitat is a statutory requirement
pursuant to the Act, we must then evaluate alternative regulatory
approaches, where feasible, when promulgating a designation of critical
habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts under section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat, provided that the benefits of such
exclusion outweigh the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or combination thereof, in a
designation constitutes our regulatory alternative analysis.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act (5
U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a
notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant economic
impact on a substantial number of small entities.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
To determine if this proposed designation of critical habitat for
lynx would affect a substantial number of small entities, we considered
the number of small entities affected within particular types of
economic activities (e.g., timber, recreation, public and conservation
land management, transportation, and mining). 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. 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; other 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. Private companies may also be subject to
consultation or mitigation impacts.
Several of the activities potentially affected by lynx conservation
efforts within the study area (timber, recreation, grazing) involve
small businesses. Given the rural nature of the proposed designation,
most of the potentially affected businesses in the affected regions are
small.
Our draft economic analysis of this proposed designation evaluated
the
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potential economic effects on small business entities and small
governments resulting from conservation actions related to the listing
of this species and proposed designation of its critical habitat. We
evaluated small business entities in the following categories: Timber
activities; residential and commercial development; recreation; public
lands management and conservation planning; transportation, utilities,
and municipal activities; and mining operations. Based on our analysis,
impacts associated with small entities are anticipated to occur to
timber activities, recreation, public lands management, conservation
planning, transportation, and mining. Because no information was
available regarding how residential and commercial development may be
affected by lynx conservation, the analysis does not quantify specific
impacts to residential and commercial development but rather provides
the full option value for development within the study area. Thus,
residential and commercial development impacts to small entities are
not addressed in the SBREFA screening analysis. We are seeking comments
from potentially affected small entities involved in timber activities,
residential and commercial development, recreation, and mining. The
following is a summary of the information contained in the draft
economic analysis:
(a) Timber Activities
According to the draft economic analysis, impacts on timberlands
have historically resulted from implementation of lynx management plans
and project modifications. The majority of forecast impacts on timber
relate to potential restrictions on pre-commercial thinning, with
nearly half of these impacts occurring on private timberland in Maine.
The economic analysis applied two scenarios to bound the impacts
resulting from potential changes to timber activities. Under Scenario
2, the upper bound, timber impacts range from $15.6 million (discounted
at 7 percent) to $33.3 million (discounted at 3 percent) over 20 years.
When compared to forestry-related earning across counties in the study
area ($454 million in 2003), these potential losses are approximately 3
to 7 percent of total forestry-related earnings. Total forecast impacts
to timber activities range from $117 million to $808 million over 20
years. Exhibits C-1 through C-4 of the economic analysis quantify the
small timber companies that may be affected by the proposed rule.
However, the draft economic analysis states that it is uncertain
whether private timber companies will be affected by the designation of
critical habitat. Government agencies, such as the U.S. Forest Service,
are subject to critical habitat consultations.
(b) Residential and Commercial Development
Because specific information on how residential and commercial
development projects would mitigate for impacts to lynx and its habitat
is unknown, the draft economic analysis does not attempt to quantify
the economic impacts of mitigating development activities. Instead, it
presents the full value that may be derived from potential future
development within the potential critical habitat. The total projected
future development value of areas proposed for designation as critical
habitat for the lynx is approximately $2.26 billion. Approximately 69.1
percent ($1.56 billion) of this is the value of future development in
Minnesota (Unit 2); 25.7 percent ($579 million) of this is the value of
future development in Maine (Unit 1), of which $1.57 million is
proposed for exclusion; and 5.2 percent ($117 million) of this is the
value of future development in Montana. Lands proposed for critical
habitat in Washington are characterized by public lands managed for
timber and recreation. As such, residential and commercial development
is not considered to be a future land use, and the value of these lands
for future development is considered to be negligible. Recognizing that
approximately 80 percent of the projected value of potential future
residential and commercial development within the area proposed as
critical habitat consist of lands within Minnesota and recognizing the
potential effects on landowners and development companies, we will
consider this information pursuant to section 4(b)(2) during the
development of the final designation.
No North American Industry Classification System (NAICS) code
exists for landowners, and the Small Business Administration does not
provide a definition of a small landowner. However, recognizing that it
is possible that some of the landowners may be small businesses, this
analysis provides information concerning the number of landowners
potentially affected: An upward estimate of 38 in Maine, 53 in
Minnesota, and 110 in Montana. It is possible that a portion of these
affected landowners could be small businesses in the residential or
commercial land development industry or could be associated businesses,
such as builders and developers. Actual conservation requirements
undertaken by an individual landowner will depend on how much of a
parcel lies within or affects proposed critical habitat. Individual
single-family home development has not historically been subject to
consultation or habitat conservation requirements for lynx, although
consultation could be required if Federal permits from the Army Corps
of Engineers, Environmental Protection Agency, or Federal Emergency
Management Agency are required.
For these reasons, we are requesting comments from any potentially
affected small businesses involved in residential and commercial
development activities, about the impacts resulting from the proposed
designation of critical habitat. How will small businesses, such as
landowners, builders or developers be affected by this critical habitat
designation? The economic analysis presents the full potential
development value of impacted lands within the potential critical
habitat as a baseline, but does not provide a cost estimate. How could
this estimate be refined to demonstrate how small businesses in the
residential and commercial development field will be affected by this
critical habitat designation? What would you suggest as another measure
of these costs?
(c) Recreation
Recreational activities that have the potential to affect the lynx
and its habitat include over-the-snow trails for snowmobiling and
cross-country skiing, accidental trapping or shooting, and recreation
area expansions such as ski resorts, campgrounds, or snowmobile areas.
Total forecast costs to all recreation activities in areas proposed for
designation are $1.05 to $3.46 million, or an annualized estimate of
$57,600 to $178,000 (applying a 7 percent discount rate) or $54,500 to
$175,000 (applying a 3 percent discount rate). Impacts to recreation
activity forecast in the draft analysis include welfare impacts to
individual snowmobilers; however, the level of participation is not
expected to change. As no decrease in the level of snowmobiling
activity is forecast, impacts to small businesses that support the
recreation sector are not anticipated.
We are requesting comments from any potentially affected small
businesses involved in recreation activities, about the impacts
resulting from the proposed designation of critical habitat. What are
the estimated cost impacts of this
[[Page 53360]]
proposed designation to your small business?
(d) Public lands management and conservation planning
The draft economic analysis estimates that total post-designation
costs of lynx conservation efforts associated with public and
conservation lands management in areas proposed for designation to be
approximately $12.8 million over the next 20 years, or an annualized
cost of $940,000 (present value applying a 7 percent discount rate) or
$767,000 (applying a 3 percent discount rate). The majority of public
lands are managed by Federal and State entities that do not qualify as
small businesses. As such, designation of critical habitat for lynx is
not anticipated to have a significant impact on a substantial number of
small businesses involved in public lands management or conservation
planning.
(e) Transportation, Utilities, and Municipal Activities
The draft economic analysis estimates that total post-designation
costs resulting from lynx conservation efforts associated with
transportation, utilities, and municipal activities for areas proposed
for designation will range from $34.9 million to $55.1 million over the
next 20 years, or an annualized value of $1.9 to 2.9 million (present
value applying a 7 percent discount rate) or $1.8 to $2.8 million
(present value applying a 3 percent discount rate). Of the total post-
designation costs, approximately 71 percent are attributed to
transportation activities, and 29 percent are attributed to utility and
municipal activities. Impacts to transportation and municipal projects
are expected to be borne by the Federal and State agencies undertaking
lynx-related modifications to these types of projects, including the
Federal Highway Administration, the Federal Emergency Management
Agency, the U.S. Army Corps of Engineers, and State transportation
departments. Since Federal and State entities do not qualify as small
businesses, the designation of critical habitat for the lynx is not
anticipated to have a significant impact on a substantial number of
small businesses associated with transportation, utilities, and
municipal activities.
Impacts to dam projects, including costs of remote monitoring for
lynx that could be required for relicensing of dams, could be borne by
the companies that own the dams. In particular, 14 dams in Minnesota
and two in Maine are expected to consider lynx conservation at the time
of relicensing. The economic analysis estimated costs of $13,000 to
$18,000 to each of these 16 dam projects in 2025. Based on these small
costs, we do not anticipate that this would be a significant impact to
dam operators.
(f) Mining Operations
The draft economic analysis estimates total post-designation costs
resulting from lynx conservation efforts associated with mining
projects of approximately $430,000, or an annualized rate of $38,000
(present value applying a 7 percent discount rate) or $28,100 (present
value applying a 3 percent discount rate). Unit 2 (Minnesota) is the
only area of potential critical habitat for which future surface mining
expansion and development projects have been identified; specifically,
three new or expanded mining projects are forecast to occur on leased
lands of Superior National Forest. The greatest impact estimated is
$375,000 or an annualized impact of $33,100 for the East Reserve Mine,
which has a total value of $819 million, which equates to less than a 1
percent annual impact to the mine relative to its total value. There is
an uncertainty for realized impacts on the mining industry from lynx
conservation activities.
We are requesting comments from any potentially affected small
businesses involved in the mining industry, about the impacts resulting
from the proposed designation of critical habitat. What are the
estimated cost impacts of this proposed designation to your small
business?
We evaluated small business entities relative to the proposed
designation of critical habitat for the lynx to determine potential
effects to these business entities and the scale of any potential
impact. Based on our analysis, there are potential projected impacts
associated with small entities in the areas of timber activities,
recreation, public lands management, conservation planning,
transportation, and mining. There is also a possibility of potential
projected impacts to development activities. Due to the lack of
information, the economic analysis for this critical habitat does not
attempt to assign development impacts to specific small entities,
rather leaving open the question of whether any small entities will be
affected. We have outlined above potential projected future impacts to
these entities resulting from conservation-related activities for the
lynx, and asked potential affected small entities for input as to what
the likely impacts will be for their industry sectors. We do, however,
recognize that there may be disproportionate impact to certain sectors
and geographic areas within lands proposed for designation. As such, we
will more fully evaluate these potential impacts during the development
of the final designation, and may, if appropriate, consider such lands
for exclusion pursuant to section 4(b)(2) of the Act.
Executive Order 13211--Energy Supply, Distribution, and Use
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This proposed
designation of critical habitat for the Canada lynx is considered a
significant regulatory action under Executive Order 12866 due to it
potentially raising novel legal and policy issues. OMB has provided
guidance for implementing this Executive Order that outlines nine
outcomes that may constitute ``a significant adverse effect'' when
compared without the regulatory action under consideration. The draft
economic analysis finds that none of these criteria are relevant to
this analysis (refer to Appendix C of the draft economic analysis).
Thus, based on the information in the draft economic analysis, energy-
related impacts associated with lynx conservation activities within
proposed critical habitat are not expected. 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), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local,
or tribal governments, or the private sector, and includes both
``Federal intergovernmental mandates'' and ``Federal private sector
mandates.'' These terms are defined in 2 U.S.C. 658(5)-(7).
``Federal intergovernmental mandate'' includes a regulation that
``would impose an enforceable duty upon State, local, or tribal
governments,'' with the following two exceptions: It excludes ``a
condition of federal assistance'' and ``a duty arising from
participation in a voluntary Federal program,'' unless the
regulation ``relates to a then-existing Federal program under which
$500,000,000 or more is provided annually to State, local, and
tribal governments under
[[Page 53361]]
entitlement authority,'' if the provision would ``increase the
stringency of conditions of assistance'' or ``place caps upon, or
otherwise decrease, the Federal Government's responsibility to
provide funding'' and the State, local, or tribal governments ``lack
authority'' to adjust accordingly. At the time of enactment, these
entitlement programs were: Medicaid; AFDC work programs; Child
Nutrition; Food Stamps; Social Services Block Grants; Vocational
Rehabilitation State Grants; Foster Care, Adoption Assistance, and
Independent Living; Family Support Welfare Services; and Child
Support Enforcement. ``Federal private sector mandate'' includes a
regulation that ``would impose an enforceable duty upon the private
sector, except (i) a condition of Federal assistance; or (ii) a duty
arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies
must ensure that their actions do not destroy or adversely modify
critical habitat under section 7. Non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may
be indirectly impacted by the designation of critical habitat.
However, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal
agency. Furthermore, to the extent that non-Federal entities are
indirectly impacted because they receive Federal assistance or
participate in a voluntary Federal aid program, the Unfunded
Mandates Reform Act would not apply; nor would critical habitat
shift the costs of the large entitlement programs listed above on to
State governments.
(b) The draft economic analysis discusses potential impacts of
critical habitat designation for lynx on timber activities,
development, recreation, public lands management and conservation
planning, transportation, utilities, and municipal activities, and
mining operations. The analysis estimates that annual costs of the
rule could range from $175 million to $889 million in constant
dollars over 20 years. Impacts are largely anticipated to affect
timber management, with some effects on residential and commercial
development, recreation, and transportation. Impacts on small
governments are either not anticipated, or they are anticipated to
be passed through to consumers. Consequently, for the reasons
discussed above, we do not believe that the designation of critical
habitat for 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 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 lynx in a takings implications
assessment. The takings implications assessment concludes that this
proposed designation of critical habitat for the lynx does not pose
significant takings implications.
Author
The primary authors of this notice are the staff of the Montana
Ecological Services Field Office (see ADDRESSES section).
Authority: The authority for this action is the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq).
Dated: August 29, 2006.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-7579 Filed 9-6-06; 2:32 pm]
BILLING CODE 4310-55-P