[Federal Register Volume 72, Number 122 (Tuesday, June 26, 2007)]
[Proposed Rules]
[Pages 35025-35028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3134]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU91
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Marbled Murrelet (Brachyramphus marmoratus)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period, notice of
availability of draft economic analysis, and amended required
determinations.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the comment period on the proposed designation of critical
habitat for the marbled murrelet (Brachyramphus marmoratus) under the
Endangered Species Act of 1973, as amended (Act). We also announce the
availability of the draft economic analysis for the proposed critical
habitat designation and amended required determinations for the
proposal. The draft economic analysis estimates the post-designation
impacts associated with marbled murrelet conservation efforts in areas
proposed for final critical habitat designation to range from $69.4
million to $1.42 billion at present value over a 20-year period in
undiscounted dollars, $38.1 million to $535 million ($2.22 million to
$16.8 million annualized) assuming a 3 percent discount rate, or $24.2
million to $251 million ($2.18 million to $12 million annualized)
assuming a 7 percent discount rate. We are reopening the comment period
to allow all interested parties the 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 are already part of the public record and will
be fully considered in preparation of the final rule.
DATES: We will accept public comments until July 26, 2007.
ADDRESSES: If you wish to comment, you may submit your comments and
materials by any one of several methods:
1. Submit written comments and information by mail or hand deliver
to Ken Berg, Field Supervisor, U.S. Fish and Wildlife Service, Western
Washington Fish and Wildlife Office, 510 Desmond Drive, SE., Suite 101,
Lacey, WA 98503-1273.
2. Send comments by electronic mail (e-mail) to [email protected].
Please see the Public Comments Solicited section below for information
about electronic filing.
3. Fax your comments to 360-753-9405.
4. Go to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
FOR FURTHER INFORMATION CONTACT: Ken Berg, Field Supervisor, Western
Washington Fish and Wildlife Office, at the address listed in the
ADDRESSES section (telephone 360-753-9440; facsimile 360-753-9405).
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
September 12, 2006 (71 FR 53838), and on our draft economic analysis of
the proposed designation. We will consider information and
recommendations from all interested parties. We are particularly
interested in comments concerning:
(1) The reasons why habitat should or should not be designated 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 designation such that the designation of critical
habitat is prudent;
(2) Specific information on the amount and distribution of marbled
murrelet habitat, what areas should be
[[Page 35026]]
included in the designations that were occupied at the time of listing
that contain features essential to the conservation of the species and
why, and what areas that were not occupied at the time of listing that
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, and the benefits of including or excluding
areas that exhibit these impacts;
(5) 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;
(6) The extent to which the description of economic impacts in the
draft economic analysis is complete and accurate;
(7) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the draft economic analysis, and
how the consequences of such reactions, if likely to occur, would
relate to the conservation and regulatory benefits of the proposed
critical habitat designation;
(8) Whether the benefits of exclusion in any particular area
outweigh the benefits of inclusion under section 4(b)(2) of the Act;
and
(9) Economic data on the incremental effects that would result from
designating any particular area as critical habitat.
If you wish to submit comments electronically, please include
``Attn: RIN 1018-AU91'' in the e-mail subject header and your name and
return address in the body of your message. If you do not receive a
confirmation from the system that we have received your message,
contact us directly by calling our Western Washington Fish and Wildlife
Office at 360-753-9440. Please note that the e-mail address
[email protected] will be closed at the termination of the public
comment period.
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Comments and materials received, as well as supporting
documentation used in preparation of the proposal to designate critical
habitat, will be available for inspection, by appointment, during
normal business hours at the Western Washington Fish and Wildlife
Office (see ADDRESSES section). Copies of the proposed critical habitat
rule for the marbled murrelet and the draft economic analysis are
available on the Internet at http://www.fws.gov/westwafwo/ or by
request to the Field Supervisor (see FOR FURTHER INFORMATION CONTACT
section).
Background
On September 12, 2006, we published a proposed rule to revise
critical habitat for the marbled murrelet in Washington, Oregon, and
California (71 FR 53838). For a description of Federal actions
concerning the marbled murrelet that occurred prior to our September
12, 2006, proposed rule, please refer to that proposed rule and the
original final critical habitat rule for the marbled murrelet (61 FR
26256; May 24, 1996).
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 and commercial data
available, after taking into consideration the economic impact, impact
on national security, or any other relevant impact of specifying any
particular area as critical habitat. Based on the September 12, 2006,
proposed rule to revise critical habitat for the marbled murrelet (71
FR 53838), we have prepared a draft economic analysis of the proposed
critical habitat designation.
The draft economic analysis is intended to quantify the economic
impacts of all potential conservation efforts for the marbled murrelet;
some of these costs will likely be inrurred regardless of whether
critical habitat is designated. The analysis quantifies economic
impacts of murrelet conservation efforts associated with the following
land uses: (1) Timber management, (2) development, (3) recreation, (4)
other land use activities including transportation and mining, and (5)
administrative costs associated with Endangered Species Act section 7
consultations.
The draft economic analysis estimates the post-designation impacts
associated with murrelet conservation efforts in areas proposed for
final critical habitat designation to range from $69.4 million to $1.42
billion at present value over a 20-year period in undiscounted dollars,
$38.1 million to $535 million ($2.22 million to $16.8 million
annualized) assuming a 3 percent discount rate, or $24.2 million to
$251 million ($2.18 million to $12 million annualized) assuming a 7
percent discount rate.
The draft economic analysis considers the potential economic
effects of actions relating to the conservation of the marbled
murrelet, including costs associated with sections 4, 7, and 10 of the
Act, and including those attributable to the designation of critical
habitat. It further considers the economic effects of protective
measures taken as a result of other Federal, State, and local laws that
aid habitat conservation for the marbled murrelet in areas containing
features essential to the conservation of the species. 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 (such as 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 draft analysis looks retrospectively at
costs that have been
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incurred since the date the marbled murrelet was listed as threatened
(57 FR 45328; October 1, 1992), and considers those costs that may
occur in the 20 years following a designation of critical habitat.
As stated earlier, we solicit data and comments from the public on
this draft economic analysis, as well as on all aspects of the
proposal. We may revise the proposal or its supporting documents to
incorporate or address new information received during the comment
period. 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.
Required Determinations--Amended
In our September 12, 2006, proposed rule (71 FR 53838), we
indicated that we would be deferring our determination of compliance
with several statutes and Executive Orders until 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 (E.O.) 13132;
E.O. 12988; the Paperwork Reduction 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 E.O. 12866
and the Regulatory Flexibility Act, E.O. 13211, E.O. 12630, and the
Unfunded Mandates Reform Act.
Regulatory Planning and Review
In accordance with E.O. 12866, this document is a significant rule
because it may raise novel legal and policy issues. However, on the
basis of our draft economic analysis, we do not anticipate that the
designation of critical habitat for the marbled murrelet would have an
annual effect on the economy of $100 million or more or affect the
economy in a material way. Due to the timeline for publication in the
Federal Register, the Office of Management and Budget (OMB) has not
formally reviewed the proposed rule or accompanying draft economic
analysis.
Further, E.O. 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, and then 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 our
designation constitutes our regulatory alternative analysis.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996, whenever an agency is required to publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (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. 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 marbled murrelet 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 management
activities). 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 under section 7 of the Act
if their activities may affect designated critical habitat.
In our draft economic analysis of the proposed critical habitat
designation, we evaluated the potential economic effects on small
entities resulting from the protection of the marbled murrelet and its
habitat related to the listing of the species and the proposed
designation of its critical habitat. Small timber management interests
were identified as entities that could be affected by the proposed
rule. Impacts described in Section 4 and Appendix B of the draft
economic analysis are predominantly decreased land values associated
with precluding timber harvest in areas proposed for final critical
habitat for the marbled murrelet. These impacts would be expected to be
born by the current landowners at the time of final critical habitat
designation. The potentially affected timber acres are
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few relative to the total timberland area in the counties containing
areas proposed for critical habitat. As a result, regional businesses
that support or are supported by the timber companies (e.g., sawmills
and logging operations) are not expected to be measurably affected by
murrelet conservation. Please refer to our draft economic analysis of
the proposed critical habitat designation for a more detailed
discussion of potential economic impacts.
Executive Order 13211--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. This proposed designation of critical
habitat for the marbled murrelet is considered a significant regulatory
action under E.O. 12866 due to its potential raising of 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. Thus, based on the
information in the draft economic analysis, energy-related impacts
associated with the marbled murrelet 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), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments,'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and Tribal governments under entitlement authority,''
if the provision would ``increase the stringency of conditions of
assistance'' or ``place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding'' and the State, local,
or Tribal governments ``lack authority'' to adjust accordingly. At the
time of enactment, these entitlement programs were: Medicaid; Aid to
Families with Dependent Children work programs; Child Nutrition; Food
Stamps; Social Services Block Grants; Vocational Rehabilitation State
Grants; Foster Care, Adoption Assistance, and Independent Living;
Family Support Welfare Services; and Child Support Enforcement.
``Federal private sector mandate'' includes a regulation that ``would
impose an enforceable duty upon the private sector, except (i) a
condition of Federal assistance; or (ii) a duty arising from
participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7 of the Act. 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 large Federal entitlement
programs on to State governments.
(b) We do not believe that the proposed designation will
significantly or uniquely affect small governments, because it will not
produce a Federal mandate of $100 million or greater in any year; that
is, it is not a ``significant regulatory action'' under the Unfunded
Mandates Reform Act. The proposed designation of critical habitat
imposes no obligations on State or local governments. As such, a Small
Government Agency Plan is not required.
Executive Order 12630--Takings
In accordance with E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing critical habitat for the marbled murrelet. 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 require Federal funding or permits to go forward. In
conclusion, the designation of critical habitat for the marbled
murrelet does not pose significant takings implications.
Authors
The authors of this notice are the staff of the Division of
Endangered Species, Pacific Region, U.S. Fish and Wildlife Service.
Authority
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: June 12, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-3134 Filed 6-21-07; 4:37 pm]
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