2076 Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules 

part of its review of the Virginia 

submittal, EPA performed a line-by-line 

review of Virginia’s proposed revision 

and has preliminarily determined that 

they are consistent with the Tailoring 

Rule. These changes to Virginia’s 

regulations are also consistent with 

section 110 of the CAA because they are 

incorporating GHGs for regulation in the 

Virginia SIP. 

V. Proposed Action 

Pursuant to section 110 of the CAA, 

EPA is proposing to approve Virginia’s 

October 27, 2010, SIP revision, relating 

to PSD requirements for GHG-emitting 

sources. Specifically, Virginia’s October 

27, 2010, proposed SIP revision 

establishes appropriate emissions 

thresholds for determining PSD 

applicability to new and modified GHGemitting sources in accordance with 

EPA’s Tailoring Rule. EPA has made the 

preliminary determination that this SIP 

revision is approvable because it is in 

accordance with the CAA and EPA 

regulations regarding PSD permitting for 

GHGs. EPA is soliciting public 

comments on the issues discussed in 

this document. These comments will be 

considered before taking final action. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves the State’s law 

as meeting federal requirements and 

does not impose additional 

requirements beyond those imposed by 

the State’s law. For that reason, this 

proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed SIP 

revision pertaining to greenhouse gas 

permitting does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because the SIP is not approved 

to apply in Indian country located in the 

State, and EPA notes that it will not 

impose substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, and Reporting and 

recordkeeping requirements. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: January 3, 2011. 

W.C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2011–495 Filed 1–11–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R3–ES–2010–0042; MO 

92210–0–0009–B4] 

RIN 1018–AW90 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Tumbling Creek Cavesnail 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

reopening of the comment period on 

June 23, 2010, proposed designation of 

critical habitat for the Tumbling Creek 

cavesnail (Antrobia culveri) under the 

Endangered Species Act of 1973, as 

amended (Act). We also announce the 

availability of a draft economic analysis 

(DEA) of the proposed designation of 

critical habitat for the Tumbling Creek 

cavesnail and an amended required 

determinations section of the proposal. 

We are reopening the comment period 

for an additional 30 days to allow all 

interested parties an opportunity to 

comment on the items listed above. 

Comments previously submitted need 

not be resubmitted and will be fully 

considered in preparation of the final 

rule. 

DATES: We will consider public 

comments we receive on or before 

February 11, 2011. Comments must be 

received by 11:59 p.m. Eastern Time on 

the closing date. Any comments that we 

receive after the closing date may not be 

considered in the final decision on this 

action. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

on Docket No. FWS–R3–ES–2010–0042. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R3– 

ES–2010–0042; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service, 4401 N. Fairfax Drive, 

Suite 222, Arlington, VA 22203. 

We will post all comments on http://

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: Paul 

McKenzie, Endangered Species 

Coordinator, Columbia Missouri 

Ecological Services Field Office, 101 

Park DeVille Dr.; Suite A, Columbia, 

MO 65203; telephone (573) 234–2132; 

facsimile (573) 234–2181. Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

(800) 877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We intend that any final action 

resulting from the proposed rule will be 

based on the best scientific data 

available and will be as accurate and 

effective as possible. Therefore, we 

request comments or information from 

other concerned government agencies, 

the scientific community, industry, or 

any other interested party during this 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules 2077 

reopened comment period on the 

proposed designation of critical habitat 

for the Tumbling Creek cavesnail 

published in the Federal Register on 

June 23, 2010 (75 FR 35751), including 

the draft economic analysis of the 

proposed designation of critical habitat 

for the Tumbling Creek cavesnail and 

the amended required determinations 

provided in this document. We will 

consider information and 

recommendations from all interested 

parties. We are particularly interested in 

comments concerning: 

(1) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the Act (16 

U.S.C. 1531 et seq.), including whether 

there are threats to the species from 

human activity, the degree of which can 

be expected to increase due to the 

designation, and whether that increase 

in threat outweighs the benefit of 

designation such that the designation of 

critical habitat is not prudent. 

(2) Specific information on: 

• The amount and distribution of 

Tumbling Creek cavesnail habitat, 

• What areas within the geographical 

area occupied by the species at the time 

of listing that contain features essential 

to the conservation of the species we 

should include in the designation and 

why, and 

• What areas outside the geographical 

area 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 effects on the 

proposed critical habitat for the 

Tumbling Creek cavesnail. 

(4) Any foreseeable economic, 

national security, or other relevant 

impacts of designating any area that 

may be included in the final 

designation. We are particularly 

interested in any impacts on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions), and the benefits of 

including or excluding areas from the 

proposed designation that exhibit these 

impacts. 

(5) The likelihood of adverse social 

reactions to the designation of critical 

habitat, as discussed in the DEA, 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. 

(6) Comments or information that may 

assist us in identifying or clarifying the 

primary constituent elements and the 

resulting physical and biological 

features essential to the conservation of 

the Tumbling Creek cavesnail. 

(7) How the proposed critical habitat 

boundaries could be refined to more 

closely circumscribe the landscapes 

identified as essential. 

(8) Information on the potential 

effects of climate change on the 

Tumbling Creek cavesnail and its 

habitat. 

(9) Any foreseeable impacts on energy 

supplies, distribution, and use resulting 

from the proposed designation and, in 

particular, any impacts on electricity 

production, and the benefits of 

including or excluding any particular 

areas that exhibit these impacts. 

(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 better 

accommodate public concerns and 

comments. 

(11) Information on whether the DEA 

makes appropriate assumptions 

regarding current practices and any 

regulatory changes that likely may occur 

if we designate proposed critical habitat 

for the Tumbling Creek cavesnail. 

(12) Information on the accuracy of 

our methodology in the DEA for 

distinguishing baseline and incremental 

costs, and the assumptions underlying 

the methodology. 

(13) Information on whether the DEA 

correctly assesses the effect on regional 

costs associated with any land use 

controls that may result from the 

proposed designation of critical habitat 

for the Tumbling Creek cavesnail. 

(14) Information on whether the 

proposed designation of critical habitat 

will result in disproportionate economic 

impacts to specific areas or small 

businesses, including small businesses 

in the land development sector in Taney 

County. 

(15) Information on whether the DEA 

identifies all costs that could result from 

the proposed designation of critical 

habitat for the Tumbling Creek 

cavesnail. 

(16) Economic data on the 

incremental costs of designating a 

particular area as critical habitat. 

If you submitted comments or 

information on the proposed rule (75 FR 

35751) during the initial comment 

period from June 23, 2010, to August 23, 

2010, please do not resubmit them. We 

will incorporate them into the public 

record as part of this comment period, 

and we will fully consider them in the 

preparation of our final determination. 

Our final determination concerning 

critical habitat will take into 

consideration all written comments and 

any additional information we receive 

during both comment periods. On the 

basis of public comments, we may, 

during the development of our final 

determination, find that areas proposed 

are not essential, are appropriate for 

exclusion under section 4(b)(2) of the 

Act, or are not appropriate for 

exclusion. 

You may submit your comments and 

materials concerning our proposed rule, 

the associated DEA, and our amended 

required determinations by one of the 

methods listed in the ADDRESSES

section. We will not consider comments 

sent by e-mail or fax or to an address not 

listed in the ADDRESSES section. 

If you submit a comment via http://

www.regulations.gov, your entire 

comment—including any personal 

identifying information—will be posted 

on the Web site. If you submit a hard 

copy comment that includes personal 

identifying information, you may 

request at the top of your document that 

we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hard copy comments on 

http://www.regulations.gov. 

Comments and materials we receive 

(and have received), as well as 

supporting documentation we used in 

preparing the proposed rule and DEA, 

will be available for public inspection 

on http://www.regulations.gov (Docket 

Number FWS–R3–ES–2010–0042), or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Columbia, Missouri Ecological 

Services Field Office (see FOR FURTHER

INFORMATION CONTACT). 

You may obtain copies of the 

proposed rule and DEA by mail from the 

Columbia, Missouri Ecological Services 

Field Office (see FOR FURTHER

INFORMATION CONTACT), by visiting the 

Federal eRulemaking Portal at http://

www.regulations.gov (Docket Number 

FWS–R3–ES–2010–0042), or on our 

Web site at http://www.fws.gov/

midwest/Endangered. 

Background 

It is our intent to discuss only those 

topics directly relevant to the proposed 

designation of critical habitat for the 

Tumbling Creek cavesnail in this 

document. For more information on 

previous Federal actions concerning the 

Tumbling Creek cavesnail, refer to the 

proposed designation of critical habitat 

published in the Federal Register on 

June 23, 2010 (75 FR 35751). Additional 

information on the Tumbling Creek 

cavesnail may also be found in the final 

listing rule published in the Federal 

Register on August 14, 2002 (67 FR 

52879). These documents are available 

on our Web site at http://www.fws.gov/ 

midwest/Endangered. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

2078 Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules 

On December 27, 2001 (66 FR 66803), 

we published an emergency rule to list 

the Tumbling Creek cavesnail, due to 

water degradation and a precipitous 

decline in the cavesnail populations. 

The species was subsequently listed as 

endangered on August 14, 2002 (67 FR 

52879). At the time, critical habitat was 

not designated in order to allow the 

Service to concentrate its resources on 

immediate protections needed for the 

conservation of the species. On August 

11, 2008, the Institute for Wildlife 

Protection and Crystal Grace Rutherford 

filed a lawsuit against the Secretary of 

the Interior for our failure to timely 

designate critical habitat for the 

Tumbling Creek cavesnail (Institute for 

Wildlife Protection et al. v. Kempthorne, 

(Case No. CV–07–01202–CMP)). In a 

court-approved settlement agreement, 

we agreed to submit to the Federal 

Register a prudency determination, and 

if the designation was found to be 

prudent, a proposed designation of 

critical habitat, by June 30, 2010, and a 

final designation by June 30, 2011. On 

June 23, 2010, we proposed to designate 

25 acres of Tumbling Creek and 

associated springs as critical habitat. 

The Tumbling Creek cavesnail is a 

small, white, blind, aquatic snail, 

restricted to a single cave stream in 

Tumbling Creek Cave in Taney County, 

southwestern Missouri. Significant 

declines in the snail’s population have 

been documented since 1996. The 

Tumbling Creek cavesnail is likely 

threatened by habitat degradation 

through diminished water quality from 

upstream locations within the 

unprotected or improperly managed 

areas within the cave’s delineated 

recharge zone. The species may also be 

threatened with competition from 

limpets or from changes in the cave’s 

normal hydrological cycles due to 

recent droughts. 

Section 3 of the Act defines critical 

habitat as the specific areas within the 

geographical area occupied by a species, 

at the time it is listed in accordance 

with the Act, on which are found those 

physical or biological features essential 

to the conservation of the species and 

that may require special management 

considerations or protection, and 

specific areas outside the geographical 

area occupied by a species at the time 

it is listed, upon a determination that 

such areas are essential for the 

conservation of the species. If the 

proposed rule is made final, section 7 of 

the Act will prohibit destruction or 

adverse modification of critical habitat 

by any activity funded, authorized, or 

carried out by any Federal agency. 

Federal agencies proposing actions 

affecting areas designated as critical 

habitat must consult with us on the 

effects of their proposed actions, under 

section 7(a)(2) of the Act. 

Possible Exclusions From Critical 

Habitat and Draft Economic Analysis 

Section 4(b)(2) of the Act requires that 

we designate 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 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. We have not proposed to 

exclude any areas from critical habitat. 

However, the final decision on whether 

to exclude any areas will be based on 

the best scientific data available at the 

time of the final designation, including 

information obtained during the 

comment period and information about 

the economic impact of designation. 

Accordingly, we have prepared a draft 

economic analysis concerning the 

proposed critical habitat designation 

(DEA), which is available for review and 

comment (see ADDRESSES section). 

The intent of the DEA is to identify 

and analyze the potential economic 

impacts associated with the proposed 

designation of critical habitat for the 

Tumbling Creek cavesnail. The DEA 

quantifies the economic impacts of all 

potential conservation efforts for the 

Tumbling Creek cavesnail; some of 

these costs will likely be incurred 

regardless of whether we designate 

critical habitat. The economic impact of 

the proposed designation of critical 

habitat for the Tumbling Creek cavesnail 

is analyzed by comparing scenarios both 

‘‘with critical habitat’’ and ‘‘without 

critical habitat.’’ The ‘‘without critical 

habitat’’ scenario represents the baseline 

for the analysis, considering protections 

already in place for the species (for 

example, under the Federal listing and 

other Federal, State, and local 

regulations). The baseline, therefore, 

represents the costs incurred regardless 

of whether critical habitat is designated 

and may include costs incurred in the 

future. The ‘‘with critical habitat’’ 

scenario describes the incremental 

impacts associated specifically with the 

designation of critical habitat for the 

species. The incremental conservation 

efforts and associated impacts are those 

not expected to occur absent the 

designation of critical habitat for the 

species. In other words, the incremental 

costs are those attributable solely to the 

designation of critical habitat above and 

beyond the baseline costs; these are the 

costs we may consider in the final 

designation of critical habitat. The 

analysis looks retrospectively at 

baseline impacts incurred since we 

listed the species, and forecasts both 

baseline and incremental impacts likely 

to occur if we finalize the proposed 

designation of critical habitat for the 

Tumbling Creek cavesnail. For a further 

description of the methodology of the 

analysis, see Chapter 2, ‘‘Framework for 

the Analysis,’’ of the DEA. 

The current DEA estimates the 

foreseeable economic impacts of the 

proposed designation of critical habitat 

for the Tumbling Creek cavesnail by 

identifying the potential resulting 

incremental costs. The DEA analyzed 

economic impacts of Tumbling Creek 

cavesnail conservation efforts on the 

following activities: Water management 

and other activities that may affect 

water quality such as road construction 

and maintenance; oil, gas, and utility 

easements; forest and pasture 

management; alteration of septic 

systems; and effluent discharges. It also 

assessed possible indirect impacts to 

economic activities as the result of 

possible applications of other State and 

local laws and regulatory uncertainty or 

delay. The DEA considers future 

baseline and incremental impacts over 

the next 20 years (2011 to 2030). 

The DEA estimates that minimal 

economic impacts are likely to result 

from the designation of critical habitat. 

The main reason for this conclusion is 

that the private landowners of all 

surface critical habitat areas and the 

Tumbling Creek Cave Foundation, 

which owns lands within much of the 

cave’s recharge area, have been 

undertaking extensive restoration and 

conservation efforts for the benefit of the 

cavesnail. Those lands have recently 

been enrolled in a voluntary 

conservation program that encourages 

the landowners to undertake and 

continue additional conservation 

activities. These efforts are expected to 

continue after critical habitat 

designation. 

An additional reason that minimal 

economic impacts are likely to result 

from critical habitat designation is that, 

while cavesnails may not always be 

detected through surveys within critical 

habitat every year, the Service assumes 

the species is present within the entire 

area proposed for designation. Thus, we 

anticipate that Action agencies will 

initiate consultation regarding the 

cavesnail regardless of whether critical 

habitat is designated. Activities taking 

place outside of the proposed 

designation but within the recharge area 

for the cave may affect the cavesnail. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules 2079 

These projects may include road 

construction projects, U.S. Forest 

Service activities, or management 

changes at Bull Shoals reservoir. These 

types of projects are already subject to 

section 7 consultation under the 

jeopardy standard; therefore, the only 

incremental costs are those resulting 

from the additional administrative costs 

by the Service and action agency to 

include an adverse modification finding 

within the Biological Opinion and 

Biological Assessment as part of a 

formal consultation. As a result, the 

total incremental costs associated with 

this rule are estimated to be $4,420 

annually over the next 20 years, 

assuming a 7 percent discount rate. 

The DEA also discusses the potential 

benefits associated with the designation 

of critical habitat. The primary intended 

benefit of critical habitat is to support 

the conservation of endangered and 

threatened species, such as the 

Tumbling Creek cavesnail. However, 

economic benefits are not quantified or 

monetized in the DEA. As described in 

the DEA, designation of critical habitat 

is not anticipated to result in additional 

conservation efforts for the cavesnail. As 

a result, no changes in economic 

activity or land management are 

expected to result from critical habitat 

designation. 

The DEA considered 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 DEA 

also addresses how potential economic 

impacts are likely to be distributed, 

including an assessment of any local or 

regional impacts of habitat conservation 

and the potential effects of conservation 

activities on government agencies, small 

entities, and the energy industry. We 

can use this information to assess 

whether the effects of the proposed 

designation might unduly burden a 

particular group or economic sector. 

As we stated earlier, we are soliciting 

data and comments from the public on 

the DEA, as well as on all aspects of the 

proposed designation of critical habitat, 

and our amended required 

determinations. We may revise the 

proposed rule or the economic analysis 

to incorporate or address information 

we receive during this public comment 

period. In particular, we may exclude an 

area from critical habitat if we 

determine that the benefits of excluding 

the area outweigh the benefits of 

including the area as critical habitat, 

provided the exclusion will not result in 

the extinction of the species. 

Required Determinations—Amended 

In our proposed rule dated June 23, 

2010 (75 FR 35751), we indicated that 

we would defer our determination of 

compliance with several statutes and 

executive orders until the information 

concerning potential economic impacts 

of the designation and potential effects 

on landowners and stakeholders became 

available in the DEA. We have now 

made use of the DEA to make these 

determinations. In this document, we 

affirm the information in our proposed 

rule concerning Executive Order (E.O.) 

12866 (Regulatory Planning and 

Review), E.O. 12630 (Takings), E.O. 

13132 (Federalism), E.O. 12988 (Civil 

Justice Reform), the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.), the National Environmental 

Policy Act (42 U.S.C. 4321 et seq.), and 

the President’s memorandum of April 

29, 1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951). Based on 

the DEA data, we are also affirming our 

required determinations made in the 

proposed rule concerning the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.), Unfunded Mandates Reform Act 

(2 U.S.C. 1501 et seq.), and E.O. 13211 

(Energy, Supply, Distribution, and Use). 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act, 

as amended by the Small Business 

Regulatory Enforcement Fairness Act (5 

U.S.C. 802(2)), whenever an agency is 

required to publish a notice of 

rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 

flexibility analysis that describes the 

effect of the rule on small entities (i.e., 

small businesses, small organizations, 

and small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Based on our DEA of the proposed 

designation, we provide our analysis for 

determining whether the proposed rule 

would result in a significant economic 

impact on a substantial number of small 

entities. Based on comments we receive, 

we may revise this determination as part 

of a final rulemaking. 

According to the Small Business 

Administration, small entities include 

small organizations, such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the proposed 

designation of critical habitat for the 

Tumbling Creek cavesnail would affect 

a substantial number of small entities, 

we considered the number of small 

entities affected within particular types 

of economic activities, such as 

residential and commercial 

development. In order to determine 

whether it is appropriate for our agency 

to certify that this rule would not have 

a significant economic impact on a 

substantial number of small entities, we 

considered each industry or category 

individually. In estimating the numbers 

of small entities potentially affected, we 

also considered whether their activities 

have any Federal involvement. Critical 

habitat designation will not affect 

activities that do not have any Federal 

involvement; designation of critical 

habitat only affects activities conducted, 

funded, permitted, or authorized by 

Federal agencies. Some kinds of 

activities are unlikely to have any 

Federal involvement and so will not be 

affected by critical habitat designation. 

In areas where the species is present, 

Federal agencies already are required to 

consult with us under section 7 of the 

Act on activities they fund, permit, or 

implement that may affect the Tumbling 

Creek cavesnail. If the proposed critical 

habitat designation is finalized, 

consultations to avoid the destruction or 

adverse modification of critical habitat 

would be incorporated into the existing 

consultation process. 

In the DEA of the proposed 

designation of critical habitat, we 

evaluated the potential economic effects 

resulting from implementation of 

conservation actions related to the 

proposed designation of critical habitat. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

2080 Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules 

Although the DEA forecasts 

approximately $50,100 in incremental 

impacts over the next 20 years, these 

impacts are expected to be borne by 

Federal and State agencies, including 

the U.S. Forest Service, U.S. Army 

Corps of Engineers, the Natural 

Resource Conservation Service, and the 

Missouri Department of Transportation. 

Such agencies are not considered small 

entities. 

In summary, we have considered 

whether the proposed designation 

would result in a significant economic 

impact on a substantial number of small 

entities. Information for this analysis 

was gathered from the Small Business 

Administration, stakeholders, and the 

Service. For the reasons discussed 

above, and based on currently available 

information, we certify that if 

promulgated, the proposed designation 

would not have a significant economic 

impact on a substantial number of small 

entities. Therefore, an initial regulatory 

flexibility analysis is not required. 

Executive Order 13211—Energy Supply, 

Distribution, and Use 

Executive Order 13211 requires an 

agency to prepare a Statement of Energy 

Effects when undertaking certain 

actions. We implement this executive 

order using the Office of Management 

and Budget’s guidance which outlines 

nine outcomes that may constitute ‘‘a 

significant adverse effect’’ when 

compared to no regulatory action. As 

discussed in chapter 3, the DEA finds 

that this proposed critical habitat 

designation is not expected to have any 

impacts on the energy industry. As a 

result, 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, 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 two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, local 

and Tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) as a 

condition of Federal assistance; or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

Critical habitat designation does not 

impose a legally binding duty on nonFederal government entities or private 

parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. Designation of 

critical habitat may indirectly impact 

non-Federal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action that may affect designated 

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 nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply, nor would 

critical habitat shift the costs of the large 

entitlement programs listed above on to 

State governments. 

(b) As discussed in the DEA of the 

proposed designation of critical habitat 

for the Tumbling Creek cavesnail, we do 

not believe that this rule would 

significantly or uniquely affect small 

governments because it would 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 DEA concludes that 

incremental impacts expected to result 

from the designation of critical habitat 

are limited to additional administrative 

effort to consider adverse modification 

in section 7 consultation. In total, these 

impacts are estimated at $50,100 in 

present value terms over the next 20 

years, or $4,420 on an annualized basis 

(discounted at seven percent). 

Consequently, we do not believe critical 

habitat designation would significantly 

or uniquely affect small government 

entities. As such, a Small Government 

Agency Plan is not required. 

References Cited 

A complete list of all references we 

cited in the proposed rule and in this 

document is available on the Internet at 

http://www.regulations.gov at Docket 

No. FWS–R3–ES–2010–0042 or from the 

Columbia, Missouri Ecological Services 

Field Office (see FOR FURTHER

INFORMATION CONTACT section). 

Authors 

The primary authors of this notice are 

staff members of the Columbia, Missouri 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: December 30, 2010. 

Will Shafroth, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 2011–468 Filed 1–11–11; 8:45 am] 

BILLING CODE 4310–55–P 

mstockstill on DSKH9S0YB1PROD with PROPOSALS