57250 Federal Register / Vol. 69, No. 185 / Friday, September 24, 2004 / Proposed Rules 

In consideration of the foregoing, we 

propose to amend 49 CFR, subtitle B, 

chapter I as follows:

PART 171—GENERAL INFORMATION, 

REGULATIONS AND DEFINITIONS 

1. The authority citation for part 171 

continues to read as follows:

Authority: 49 U.S.C. 5101–5127, 44701, 49 

CFR 1.45 and 1.53; Pub. L. 101–410 section 

4 (28 U.S.C. 2461 note); Pub. L. 104–134 

section 31001.

2. In § 171.2, revise paragraphs (a) and 

(b), to read as follows:

§ 171.2 General requirements. 

(a) No person may offer or accept a 

hazardous material for transportation in 

commerce unless that person is 

registered in conformance with subpart 

G of part 107 of this subchapter, if 

applicable, and the hazardous material 

is properly classed, described, 

packaged, marked, labeled, and in 

condition for shipment as required or 

authorized by applicable requirements 

of this subchapter, or an exemption, 

approval, or registration issued under 

this subchapter or under subchapter A 

of this chapter. There may be more than 

one offeror of a shipment of hazardous 

materials. Each offeror is responsible for 

complying with the requirements of this 

subchapter, or an exemption, approval, 

or registration issued under this 

subchapter or subchapter A of this 

chapter, with respect to any pretransportation function that it performs 

or is required to perform; however, each 

offeror is responsible only for the 

specific pre-transportation functions 

that it performs or is required to 

perform, and each offeror may rely on 

information provided by another offeror, 

unless an offeror knows or, in the 

exercise of reasonable care, should 

know that the information provided by 

the other offeror is incorrect. 

(b) No person may transport a 

hazardous material in commerce unless 

that person is registered in conformance 

with subpart G of part 107 of this 

subchapter, if applicable, and the 

hazardous material is handled and 

transported in accordance with 

applicable requirements of this 

subchapter, or an exemption, approval, 

or registration issued under this 

subchapter or subchapter A of this 

chapter. Each carrier who transports a 

hazardous material in commerce may 

rely on information provided by the 

offeror of the hazardous material or a 

prior carrier, unless the carrier knows 

or, in the exercise of reasonable care, 

should know that the information 

provided by the offeror or prior carrier 

is incorrect.

* * * * *

3. In § 171.8, add a definition for 

‘‘person who offers or offeror’’ in 

appropriate alphabetical order, to read 

as follows:

§ 171.8 Definitions and abbreviations.

* * * * *

Person who offers or offeror means:

(1) Any person who does either or both 

of the following: 

(i) Performs, or is responsible for 

performing, any pre-transportation 

function required under this subchapter 

for transportation of the hazardous 

material. 

(ii) Tenders or makes the hazardous 

material available to a carrier for 

transportation in commerce. 

(2) A carrier that transfers, interlines, 

or interchanges hazardous material to 

another carrier for continued 

transportation is not an offeror when it 

does not perform any pre-transportation 

function.

* * * * *

Issued in Washington, DC on September 

21, 2004, under the authority delegated in 49 

CFR part 106. 

Robert A. McGuire, 

Associate Administrator for Hazardous 

Material Safety.

[FR Doc. 04–21535 Filed 9–23–04; 8:45 am] 

BILLING CODE 4910–60–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AJ07 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Gaura neomexicana ssp. 

coloradensis (Colorado Butterfly Plant)

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Proposed rule; extension of 

comment period and notice of 

availability of draft economic analysis 

and draft environmental assessment. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service) announce the 

availability of a draft economic analysis 

and draft environmental assessment for 

the proposed designation of critical 

habitat for Gaura neomexicana ssp. 

coloradensis (hereafter referred to as 

‘‘Colorado butterfly plant’’) under the 

Endangered Species Act of 1973, as 

amended (Act). In addition, we 

announce the extension of the comment 

period on the proposed rule to designate 

critical habitat for the Colorado butterfly 

plant.

DATES: We will accept all comments 

received on or before October 25, 2004. 

Any comments that we receive after the 

closing date may not be considered in 

the final decision on this proposal.

ADDRESSES: If you wish to comment, 

you may submit your comments and 

materials concerning this proposed rule, 

the draft economic analysis, and the 

draft environmental assessment by any 

one of several methods: 

(1) You may submit written comments 

and information to the Field Supervisor, 

U.S. Fish and Wildlife Service, 

Wyoming Field Office, 4000 Airport 

Parkway, Cheyenne, Wyoming 82001, or 

by facsimile (307) 772–2358. 

(2) You may hand-deliver written 

comments to our office, at the address 

given above. 

(3) You may send comments by 

electronic mail (e-mail) to 

fw6_cobutterflyplant@fws.gov. Please 

see the Public Comments Solicited 

section below for file format and other 

information about electronic filing. In 

the event that our Internet connection is 

not functional, please submit your 

comments by the alternate methods 

mentioned above. 

Comments and materials received, as 

well as supporting documentation used 

in preparation of the proposed critical 

habitat rule, will be available for public 

inspection, by appointment, during 

normal business hours at the above 

address. You may obtain copies of the 

draft economic analysis and draft 

environmental assessment for the 

Colorado butterfly plant by contacting 

the Wyoming Field Office at the above 

address. The draft economic analysis, 

draft environmental assessment, and the 

proposed rule for critical habitat 

designation also are available on the 

Internet at http://www.r6.fws.gov/

species/plants/cobutterfly/. In the event 

that our Internet connection is not 

functional, please obtain copies of 

documents directly from the Wyoming 

Fish and Wildlife Office.

FOR FURTHER INFORMATION CONTACT:

Brian T. Kelly, Field Supervisor 

(telephone (307) 772–2374; facsimile 

(307) 772–2358), Wyoming Field Office, 

at the address listed above.

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We intend any final action resulting 

from the proposed rule to be as accurate 

and as effective as possible. Therefore, 

we solicit comments or suggestions from 

the public, other concerned 

governmental agencies, the scientific 

Federal Register / Vol. 69, No. 185 / Friday, September 24, 2004 / Proposed Rules 57251

community, industry, or any other 

interested party concerning the 

economic analysis, the environmental 

analysis, or the proposed rule. We 

particularly seek comments concerning: 

(1) The reasons why any habitat 

should or should not be determined to 

be critical habitat as provided by section 

4 of the Act, including whether the 

benefits of excluding outweigh benefits 

of including any area as critical habitat;

(2) Specific information on the 

amount and distribution of Colorado 

butterfly plant habitat and what habitat 

is essential to the conservation of this 

species and why; 

(3) Land use designations and current 

or planned activities in the subject area 

and their possible impacts on proposed 

critical habitat; 

(4) Any foreseeable economic or other 

impacts resulting from the proposed 

designation of critical habitat, in 

particular, any impacts on small entities 

or families; 

(5) Whether the economic analysis 

identifies all State and local costs. If not, 

what costs are overlooked; 

(6) Whether the economic analysis 

makes appropriate assumptions 

regarding current practices and likely 

regulatory changes imposed as a result 

of the designation of critical habitat; 

(7) Whether the economic analysis 

correctly assesses the effect on regional 

costs associated with land use controls 

that derive from the designation; 

(8) Whether the designation will 

result in disproportionate economic 

impacts to specific areas that should be 

evaluated for possible exclusion from 

the final designation; 

(9) Whether the economic analysis 

appropriately identifies all costs that 

could result from the designation; 

(10) Whether the environmental 

analysis accurately reports the 

environmental impact of designating 

critical habitat; and 

(11) Whether our approach to critical 

habitat designation could be improved 

or modified in any way to provide for 

greater public participation and 

understanding, or to assist us in 

accommodating public concern and 

comments. 

All comments and information 

submitted during the previous comment 

period on the proposed rule need not be 

resubmitted. If you wish to comment, 

you may submit your comments and 

materials concerning this rule by any 

one of several methods (see ADDRESSES

section). Please submit Internet 

comments to 

fw6_cobutterflyplant@fws.gov and 

include ‘‘Attn: Colorado Butterfly Plant 

Critical Habitat’’ in your 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 

Internet message, contact us directly by 

calling our Wyoming Field Office (see 

FOR FURTHER INFORMATION CONTACT

section). 

Our practice is to make comments, 

including names and home addresses of 

respondents, available to the public. 

Individual respondents may request that 

we withhold their home addresses from 

the administrative record, which we 

will honor to the extent allowable by 

law. There also may be circumstances in 

which we would withhold from the 

administrative record a respondent’s 

identity, as allowable by law. If you 

wish us to withhold your name and/or 

address, you must state this 

prominently at the beginning of your 

comment. However, we will not 

consider anonymous comments. We 

will make all submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

Comments and materials received will 

be available for public inspection, by 

appointment, during normal business 

hours at the above address. 

Background 

Colorado butterfly plant is a member 

of the evening primrose family and is a 

short-lived perennial herb with one to 

several reddish, pubescent stems. It is a 

regional endemic restricted to Laramie 

and Platte Counties in Wyoming, 

western Kimball County in Nebraska, 

and Weld County in Colorado. Of the 

known populations of the Colorado 

butterfly plant, the vast majority occur 

on private lands managed primarily for 

agriculture and livestock. Haying and 

mowing at certain times of the year, 

water development, land conversion for 

cultivation, competition with exotic 

plants, non-selective use of herbicides, 

and loss of habitat to urban 

development are the main threats to 

these populations (Mountain West 

Environmental Services 1985, Marriott 

1987, Fertig 1994). 

On October 18, 2000, the Colorado 

butterfly plant was designated as 

threatened throughout its entire range 

under the Act (65 FR 62302). On 

October 4, 2000, the Center for 

Biological Diversity and the Biodiversity 

Legal Foundation filed a complaint in 

the Federal District Court for the District 

of Colorado concerning our failure to 

designate critical habitat for the 

Colorado butterfly plant (Center for 

Biological Diversity, et al. v. Norton, et 

al. (Civ. Action No. 00–D–1980)). On 

March 19, 2001, the Court approved a 

settlement agreement requiring us to 

submit a final critical habitat 

designation for the Colorado butterfly 

plant to the Federal Register on or 

before December 31, 2004. For more 

information on previous Federal actions 

concerning the Colorado butterfly plant, 

refer to the final listing rule (65 FR 

62302). On August 6, 2004 (69 FR 

47834), we published a proposed 

critical habitat designation for the 

Colorado butterfly plant.

Critical habitat identifies specific 

areas, both occupied and unoccupied, 

that are essential to the conservation of 

a listed species and that may require 

special management considerations or 

protection. If the proposed rule is made 

final, section 7 of the Act will prohibit 

destruction or adverse modification of 

critical habitat by any activity funded, 

authorized, or carried out by any 

Federal agency. Federal agencies 

proposing actions affecting areas 

designated as critical habitat must 

consult with us on the effects of their 

proposed actions, pursuant to section 

7(a)(2) of the Act. 

Section 4 of the Act requires that we 

consider economic impacts, impacts to 

National security, and other relevant 

impacts prior to making a final decision 

on what areas to designate as critical 

habitat. We have prepared a draft 

economic analysis for the proposal to 

designate certain areas as critical habitat 

for the Colorado butterfly plant. This 

analysis considers the potential 

economic effects of our proposed 

designation. It also considers the 

economic effects of protective measures 

taken as a result of listing the species 

under the Act, and other Federal, State, 

and local laws that aid habitat 

conservation in areas proposed for 

designation. 

The majority of these areas occur on 

privately owned land. We know of no 

Federal, tribal, or military lands within 

proposed critical habitat. A small 

portion of land within Unit 7 is owned 

by the City of Cheyenne, Wyoming, and 

Unit 8 is owned by the City of Fort 

Collins, Colorado. The economic 

analysis and environmental assessment 

address the impacts of Colorado 

butterfly plant conservation efforts on 

activities occurring on lands proposed 

for designation. The economic analysis 

measures lost economic efficiency 

associated with conservation 

agreements, oil and gas development, 

real estate development, agriculture, 

road and bridge construction and 

maintenance projects, as well as other 

State law requirements, uncertainty, and 

project delay. 

57252 Federal Register / Vol. 69, No. 185 / Friday, September 24, 2004 / Proposed Rules 

There is a great deal of uncertainty in 

estimating the impact of Colorado 

butterfly plant conservation activities in 

the future. For some activities the 

analysis estimates an upper-bound cost 

estimate, for others a conservative 

approach is taken to reach a best 

estimate. The implicit lower-bound cost 

estimate predicts very low impact. 

Total efficiency costs (e.g., lost 

economic opportunities associated with 

restrictions on land use) for the upperbound scenario of the preferred 

alternative are estimated to be $286,700 

from 2005 to 2024. The efficiency costs 

for the lower-bound scenario of the 

preferred alternative are estimated to be 

$7,000 from 2005 to 2024. In both cases, 

the Service is estimated to experience 

the highest cost overall, followed by 

agriculture and natural gas pipeline 

construction projects. 

The environmental analysis discusses 

four alternatives, including the ‘‘no 

action’’ alternative, and analyzes the 

following ‘‘impact areas’’—physical 

environment; fish, wildlife, and plants; 

human environment; archaeological and 

cultural resources; environmental 

justice, and cumulative effects. The 

environmental analysis refers to and 

incorporates the economic analysis.

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. However, it is not 

anticipated to have an annual effect on 

the economy of $100 million or more or 

affect the economy in a material way. 

Due to the tight timeline for publication 

in the Federal Register, the Office of 

Management and Budget (OMB) has not 

formally reviewed this rule. 

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 (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. However, no 

regulatory flexibility analysis is required 

if the head of an agency certifies that 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 proposed rule 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 rule 

would affect a substantial number of 

small entities, we considered the 

number of small entities affected within 

particular types of economic activities 

(e.g., housing development, oil and gas 

production, timber harvesting). We 

considered each industry 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 

affects only activities conducted, 

funded, permitted or authorized by 

Federal agencies; non-Federal activities 

are not affected by the designation. 

If this 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. In areas 

where occupancy by Colorado butterfly 

plant is unknown, the designation of 

critical habitat could trigger additional 

review of Federal agencies pursuant to 

section 7 of the Act and may result in 

additional requirements on Federal 

activities to avoid destruction or adverse 

modification of critical habitat. 

In reviewing past formal consultations 

under section 7 of the Act and the 

activities they involved in the context of 

the proposed critical habitat, we do not 

believe the outcomes would have been 

different in areas designated as critical 

habitat. 

An analysis of the effects of the 

voluntary conservation agreements for 

Colorado butterfly plant on small 

entities is conducted pursuant to the 

RFA as amended by the SBREFA in 

1996, while the energy analysis is 

required by Executive Order No. 13211. 

The draft economic analysis considers 

the extent to which the analytic results 

reflect impacts to small businesses. The 

small business analysis presented in 

this section is based on information 

gathered from the SBA, U.S. Census 

Bureau, U.S. Department of Agriculture, 

and Dun and Bradstreet, and 

comparisons with the results of the 

economic analysis. The following 

summarizes the sources of potential 

future impacts on small businesses 

attributable specifically to the 

rulemaking. 

Based on the draft economic analysis 

results, activities undertaken by small 

businesses that are potentially affected 

by the rulemaking include agricultural 

production. The SBA small business 

size standard for farming and ranching 

is annual sales of $750,000. Recent 

county-level farm sales data from the 

National Agricultural Statistics Service 

2002 Agriculture Census was used to 

determine the number of small agribusinesses operating within the 

proposed critical habitat designation. 

The 2002 Agriculture Census data 

indicate that 95 percent of the farmers 

operating within the five counties 

encompassed by the proposed 

designation have annual sales less than 

$500,000. In Laramie County, Wyoming, 

where more than 85 percent of the 

critical habitat is located, 736 of 755 

farmers reported annual farm sales less 

than $500,000. These data indicate that 

ranching operations in the area 

surrounding the proposed designation 

tend to be small. For the purpose of this 

small business analysis, because of the 

high percentage of farming operations 

with annual sales below $500,000, all 

agriculture operations forecast to be 

impacted by the proposed designation 

of critical habitat for the Colorado 

butterfly plant are considered small. 

Assuming all landowners within the 

proposed designation participate in the 

voluntary conservation agreement 

program with the Service, up to 37 

agriculture operations could be 

impacted by conservation measures for 

the Colorado butterfly plant. Assuming 

an operation is required to implement 

all of the activities recommended to 

protect the species and its habitat, the 

annualized cost of the conservation 

measures to the operator ($263) 

represents 0.1 of a percent of the average 

Federal Register / Vol. 69, No. 185 / Friday, September 24, 2004 / Proposed Rules 57253

annual farm’s sales in the five counties 

surrounding the proposed designation. 

The annualized impact ranges between 

0.1 of a percent of an average farm’s 

sales in Weld County in Colorado, to 0.4 

of a percent in Larimer County in 

Colorado, and Kimball County in 

Nebraska. In Laramie County, Wyoming, 

the annualized impact represents 0.3 of 

a percent of the average farmer’s annual 

sales. Note that, we do not know the 

finances of the individual people that 

may be affected. Thus, the draft 

economic analysis used averaged 

industry data (see Exhibit 4–10) to 

estimate costs of ranching operations, 

and this table reflects the variability of 

this data. It is important to note that 

these costs will only be incurred by 

ranching operations to the extent that 

they agree to participate in the 

voluntary conservation agreement 

program with the Service. 

In summary, we have considered 

whether this proposed rule would result 

in a significant economic impact on a 

substantial number of small entities, 

and we have concluded that it would 

not. We have no indication that the 

types of activities we review under 

section 7 of the Act will change 

significantly in the future. Therefore, we 

are certifying that this proposed 

designation of critical habitat for the 

Colorado butterfly plant is not expected 

to have a significant adverse impact on 

a substantial number of small entities, 

and an initial regulatory flexibility 

analysis is not required. 

The preceding discussion is based on 

information regarding potential 

economic impacts that is currently 

available to us. This assessment of 

economic effect may be modified prior 

to publication of a final rule due to 

public comments received during the 

public comment period. This analysis is 

for the purposes of compliance with the 

Regulatory Flexibility Act and does not 

reflect our position on the type of 

economic analysis required by New 

Mexico Cattle Growers Assn. v. U.S. 

Fish & Wildlife Service 248 F. 3d 1277 

(10th Cir. 2001). 

Author 

The primary author of this notice is 

the Tyler Abbott, Wyoming Fish and 

Wildlife Office staff (see ADDRESSES

section). 

The authority for this action is the 

Endangered Species Act of 1973 (16 

U.S.C. 1531 et seq.).

Dated: September 17, 2004. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks.

[FR Doc. 04–21480 Filed 9–23–04; 8:45 am] 

BILLING CODE 4310–55–P