[Federal Register Volume 75, Number 7 (Tuesday, January 12, 2010)]
[Proposed Rules]
[Pages 1568-1574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-323]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[RIN 1018-AW21]
[Docket No. FWS-R1-ES-2009-0046]
[MO 92210-0-0009-B4]


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for Limnanthes floccosa ssp. 
grandiflora (Large-Flowered Woolly Meadowfoam) and Lomatium cookii 
(Cook's Lomatium)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, availability of 
draft economic analysis, amended required determinations, and 
announcement of public hearing.

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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 two plants, Limnanthes floccosa ssp. grandiflora (large-
flowered woolly meadowfoam) and Lomatium cookii (Cook's lomatium, also 
known as Cook's desert parsley), under the Endangered Species Act of 
1973, as amended (Act). We also announce the availability of a draft 
economic analysis (DEA) and an amended required determinations

[[Page 1569]]

section of the proposal. We are reopening the comment period for an 
additional 30 days to allow all interested parties an opportunity to 
comment simultaneously on the proposed designation of critical habitat 
for L.f. ssp. grandiflora and Lomatium cookii, the associated DEA, and 
the amended required determinations section. If you submitted comments 
previously, you do not need to resubmit them because we have already 
incorporated previously submitted comments into the public record and 
will fully consider them in preparation of the final rule. We also 
announce a public hearing; the public is invited to review and comment 
on any of the above actions associated with the proposed critical 
habitat designation at the public hearing or in writing.

DATES: Written Comments: We will consider public comments received or 
postmarked on or before February 11, 2010. Please note that if you are 
using the Federal eRulemaking Portal (see ``ADDRESSES'' section, 
below), the deadline for submitting an electronic comment is Eastern 
Standard Time on this date.
    Public Hearing: We will hold a public hearing on February 2, 2010, 
from 5:30 p.m. to 7:30 p.m. Pacific Time in Medford, Oregon. An 
informational meeting will be held earlier that day from 3:30 p.m. to 
5:00 p.m.

ADDRESSES: Written Comments: You may submit comments by one of the 
following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. In 
the box that reads ``Enter Keyword or ID,'' enter the docket number for 
this proposed rule, which is FWS-R1-ES-2009-0046. Check the box that 
reads ``Open for Comment/Submission,'' and then click the Search 
button. You should then see an icon that reads ``Submit a Comment.'' 
Please ensure that you have found the correct rulemaking before 
submitting your comment.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R1-ES-2009-0046; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    Public Hearing: We will hold the public hearing at the Jackson 
County Library Services Medford Library Branch Conference Room, 205 
South Central Avenue, Medford, OR 97501.
    Availability of Comments: We will post all comments and the public 
hearing transcript 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 Henson, State Supervisor, U.S. 
Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 
98th Avenue, Suite 100, Portland, OR 97266; by telephone (503-231-
6179); or by facsimile (503-231-6195). 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 will accept written comments and information during this 
reopened comment period on the proposed designation of critical habitat 
for Limnanthes floccosa ssp. grandiflora and Lomatium cookii that was 
published in the Federal Register on July 28, 2009 (74 FR 37314), the 
DEA of the proposed designation of critical habitat for Limnanthes 
floccosa ssp. grandiflora and Lomatium cookii, and the amended required 
determinations provided in this rule. Verbal testimony or written 
comments may also be presented during the public hearing (see the 
Public Hearing section below for more information). 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 areas as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to Limnanthes floccosa ssp. 
grandiflora and Lomatium cookii from human activity, the degree of 
which could be expected to increase due to a designation, and whether 
the benefit of designation would outweigh threats to the species caused 
by a designation, such that the designation of critical habitat would 
be prudent.
    2) Specific information on:
    <bullet> The amount and distribution of L.f. ssp. grandiflora and 
Lomatium cookii habitat;
    <bullet> What areas occupied at the time of listing that contain 
features essential to the conservation of the species should be 
included in the designation and why;
    <bullet> Special management considerations or protections that the 
features essential to L.f. ssp. grandiflora and Lomatium cookii 
conservation that have been identified in the proposed rule, including 
managing for the potential effects of climate change; and
    <bullet> What areas not occupied at the time of listing are 
essential to the conservation of the species and why.
    3) Specific information on L.f. ssp. grandiflora and Lomatium 
cookii and the habitat components (physical and biological features) 
essential to the conservation of these species, such as soil moisture 
gradient, microsite preferences, and light requirements.
     4) Any information on the biological or ecological requirements of 
these species.
     5) Land-use designations and current or planned activities in 
areas occupied by the species, and their impacts on the species and the 
proposed critical habitat.
     6) 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 are subject to these impacts.
     7) Whether the benefits of excluding any particular area from 
critical habitat would outweigh the benefits of including that area as 
critical habitat under section 4(b)(2) of the Act.
     8) 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.
    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.
    If you submit a comment via http://www.regulations.gov, your entire 
submission? including any personal identifying information?will be 
posted on the website. If your submission is made via a hardcopy that 
includes personal identifying information, you may request at the top 
of your document that we withhold this personal identifying information 
from public review. However, we cannot guarantee that we will be able 
to do so. We will post all hardcopy submissions on http://www.regulations.gov. Please include sufficient information with your 
comments to allow us to verify any scientific or commercial information 
you include.
    Comments and materials we receive, as well as supporting 
documentation used to prepare this notice, will be available for public 
inspection at http://www.regulations.gov, or by appointment, during 
normal business hours, at the U.S. Fish and Wildlife Service, Oregon 
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section). 
You may obtain copies of the proposed rule and DEA on the Internet

[[Page 1570]]

at http://www.regulations.gov at Docket Number FWS-R1-ES-2009-0046, 
from our Web site at http://www.fws.gov/oregonfwo/, or by mail from the 
Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT 
section).

Public Hearing

    We are holding a public hearing on the date listed in the DATES 
section at the address listed in the ADDRESSES section. We are holding 
this public hearing to provide interested parties an opportunity to 
provide verbal testimony (formal, oral comments) or written comments 
regarding the proposed critical habitat designation, the associated 
DEA, and the amended required determinations section. An informational 
session will be held on the day of the hearing from 3:30 p.m. to 5:00 
p.m. Pacific Time. During this session, Service biologists will be 
available to provide information and address questions on the proposed 
rule in advance of the formal hearing.
    People needing reasonable accommodations in order to attend and 
participate in the public hearings should contact Paul Henson, Oregon 
Fish and Wildlife Office, at 503-231-6179, as soon as possible (see FOR 
FURTHER INFORMATION CONTACT section). In order to allow sufficient time 
to process requests, please call no later than one week before the 
hearing date.

Background

    It is our intent to discuss only those topics directly relevant to 
the proposed designation of critical habitat for Limnanthes floccosa 
ssp. grandiflora and Lomatium cookii in this notice. For more 
information on previous Federal actions concerning L.f. ssp. 
grandiflora and Lomatium cookii, refer to the proposed designation of 
critical habitat published in the Federal Register on July 28, 2009 (74 
FR 37314). For more information on L.f. ssp. grandiflora and Lomatium 
cookii or their habitat, please refer to the final listing rule 
published in the Federal Register on November 7, 2002 (67 FR 68004), or 
contact the Oregon Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT section).
    On December 19, 2007, the Center for Biological Diversity filed a 
complaint against the Service (Center for Biological Diversity v. 
Kempthorne, et al., 07-CV-2378 IEG, (S.D. CA)) for failure to designate 
critical habitat for four plant species, including Limnanthes floccosa 
ssp. grandiflora and Lomatium cookii. In a settlement agreement reached 
on April 11, 2008, we agreed to complete a critical habitat 
determination for L.f. ssp. grandiflora and Lomatium cookii in a single 
rulemaking because they share similar habitats. We also addressed the 
other two species in this settlement agreement; however, further work 
on these species will be completed in separate rules. We agreed to 
submit a proposed critical habitat rule for both L.f. ssp. grandiflora 
and Lomatium cookii to the Federal Register by July 15, 2009, and a 
final rule by July 15, 2010. The proposed rule for these two species 
was signed on July 13, 2009, and subsequently published in the Federal 
Register on July 28, 2009 (74 FR 37314).
    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by the species, at the time it is 
listed in accordance with the provisions of section 4 of the Act, on 
which are found those physical or biological features essential to the 
conservation of the species and which may require special management 
considerations or protection, and specific areas outside the 
geographical area occupied by the 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 that affect critical 
habitat must consult with us on the effects of their proposed actions, 
under section 7(a)(2) of the Act.
    Under section 4(b)(2) of the Act, we may exclude an area from 
critical habitat if we determine that the benefits of such exclusion 
outweigh the benefits of including that particular area as critical 
habitat, unless failure to designate that specific area as critical 
habitat will result in the extinction of the species. In making a 
decision to exclude areas, we consider the economic impact, impact on 
national security, or any other relevant impact of the designation.

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 (DEA), which identifies 
and analyzes the potential economic impacts associated with the 
proposed designation of critical habitat for Limnanthes floccosa ssp. 
grandiflora and Lomatium cookii that we published in the Federal 
Register on July 28, 2009 (74 FR 37314). The DEA quantifies the 
economic impacts of all potential conservation efforts for L.f. ssp. 
grandiflora and Lomatium cookii; some of these costs will likely be 
incurred regardless of whether or not we designate critical habitat. 
The economic impact of the proposed critical habitat designation 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 (e.g., 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. 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 the 
species was listed, and forecasts both baseline and incremental impacts 
likely to occur if we finalize the proposed critical habitat 
designation.
    The DEA estimates impacts based on activities that are reasonably 
foreseeable, including, but not limited to, activities that are 
currently authorized, permitted, or funded, or for which proposed plans 
are currently available to the public. The DEA provides estimated costs 
of the foreseeable potential economic impacts of the proposed critical 
habitat designation for Limnanthes floccosa ssp. grandiflora and 
Lomatium cookii over the next 20 years, which we determined to be the 
appropriate period for analysis because limited planning information 
was available for most activities to reasonably forecast activity 
levels for projects beyond a 20-year timeframe. The DEA identifies 
potential incremental costs as a result of the proposed critical 
habitat designation; these are those costs attributed to critical 
habitat over and above those baseline costs attributed to listing. The 
DEA quantifies economic impacts of conservation efforts for L.f. ssp. 
grandiflora and Lomatium cookii associated with the following 
categories

[[Page 1571]]

of activity: (1) residential, urban, and commercial development; (2) 
transportation; and (3) species conservation and management activities. 
A number of economic activities considered in the economic analysis are 
not forecast to incur baseline or incremental impacts. Therefore, the 
DEA considers potential impacts to agriculture, grazing, timber 
harvest, fire management, recreation, and mining activities, but does 
not quantify potential costs because these activities are either not 
forecast to occur within the proposed critical habitat, or are not 
subject to a Federal nexus requiring consultation with the Service.
    Total forecast baseline impacts over the 20 years following the 
designation of critical habitat (2010-2029) are estimated to be $7.83 
million to $157 million using a 7 percent discount rate. Baseline 
impacts are those anticipated regardless of a critical habitat 
designation. The majority of the total future baseline impacts are 
associated with development projects ($6.4 million to $156 million). 
The broad range in baseline impacts is due to the range of impacts 
estimated for future development activities. Under the low-forecast 
development scenario, the analysis assumes that future development will 
occur only in units where it has occurred in the past, at its past 
rate. Under the high-forecast development scenario, this analysis 
assumes full build-out over the next 20 years of developable areas 
within units where development has occurred in the past, or within 
units where the proposed rule identifies development as a potential 
threat to the two plant species and their habitat. Baseline impacts to 
transportation and species management activities are the same under 
both the low-and high-impact scenarios. Under the low-impact scenario, 
subunit RV9B (Medford Airport) has the highest levels of impacts ($2.2 
million), stemming primarily from conservation actions applied to 
comply with section 404 of the Clean Water Act as part of a future 
airport runway expansion project. Under the high-impact scenario, 
subunit RV6A (White City) has the highest levels of impacts ($32.8 
million), stemming primarily from conservation actions applied to 
comply with section 404 of the Clean Water Act during future 
development projects.
    The DEA estimates that total potential incremental economic impacts 
in areas proposed as critical habitat over the next 20 years will be 
$95,200 to $403,000 applying a 7 percent discount rate. Development 
activities would be the primary economic sector affected; 
transportation activities and species habitat and conservation 
management activities would see some minor incremental impacts. All 
incremental impacts attributed to the designation of critical habitat 
are administrative costs associated with addressing adverse 
modification in future section 7 consultations. . As described above 
for baseline impacts, the range in total incremental impacts is due to 
the range in development forecasts.
    The lack of incremental impacts stemming from sources other than 
administrative costs is due to the fact that critical habitat 
designation for Limnanthes floccosa ssp. grandiflora and Lomatium 
cookii is not expected to change the level, design, or regulation of 
forecast economic activities. That is, the designation of critical 
habitat is not expected to result in a decrease in economic activities 
or additional project modification above and beyond those that would be 
undertaken as part of the baseline (e.g., to comply with Clean Water 
Act requirements or to avoid jeopardy to the species).
    As stated earlier, we are seeking data and comments from the public 
on the DEA, as well as all aspects of the proposed rule and our amended 
required determinations. We may revise the proposed rule or supporting 
documents to incorporate or address information we receive during the 
public comment period, including information received during or in 
response to the public hearing. 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, provided the 
exclusion will not result in the extinction of the species.

Required Determinations--Amended

    In our July 28, 2009, proposed rule (74 FR 37314), 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 data in making these determinations. In this 
document, we affirm the information in our proposed rule concerning: 
Executive Order (E.O.) 13132 (Federalism), E.O. 12988 (Civil Justice 
Reform), 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). However, based on the DEA data, we are amending our required 
determinations concerning E.O. 12866 (Regulatory Planning and Review), 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211 
(Energy Supply, Distribution, and Use), E.O. 12630 (Takings), and the 
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.).

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
proposed rule is not significant and has not reviewed this proposed 
rule under E.O. 12866. The OMB based its determination upon the 
following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

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), 
as described below. 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

[[Page 1572]]

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 
Limnanthes floccosa ssp. grandiflora and Lomatium cookii 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.
    If we finalize this proposed critical habitat designation, Federal 
agencies must consult with us under section 7 of the Act if their 
activities may affect designated critical habitat. In areas where 
Limnanthes floccosa ssp. grandiflora and Lomatium cookii are present, 
Federal agencies are already required to consult with us under section 
7 of the Act, due to the current endangered status of the species. 
Consultations to avoid the destruction or adverse modification of 
critical habitat would be incorporated into the existing consultation 
process.
    Appendix A.1 of the DEA evaluates the potential economic effects of 
the proposed designation on small entities, based on the estimated 
incremental impacts associated with the critical habitat. Based on the 
quantification of incremental impacts of the proposed designation of 
critical habitat for Limnanthes floccosa ssp. grandiflora and Lomatium 
cookii as detailed in Chapters 3, 4, and 5 of the DEA, we considered 
whether any small entities may bear the incremental impacts of this 
proposed rulemaking. The DEA does not forecast any incremental impacts 
beyond additional administrative costs associated with considering 
adverse modification during future Federal section 7 consultations. 
Small entities may participate in consultation under section 7 of the 
Act regarding L.f. ssp. grandiflora and Lomatium cookii as a third 
party applicant (the primary consulting parties being the Service and 
the Federal action agency) and may spend additional time and effort 
considering potential critical habitat issues. These incremental 
administrative costs of consultation borne by third parties were the 
subject of the analysis for potential impacts of the proposed 
rulemaking on small entities.
    The DEA forecasts section 7 consultations associated with Federal 
involvement in development, transportation, and species conservation 
and management activities. The potential incremental costs associated 
with these activities are analyzed in Chapters 3, 4, and 5 of the DEA, 
and are summarized as follows.
    <bullet> Development. Chapter 3 of the DEA anticipates that any 
future consultations on development will be triggered by the need for a 
section 404 permit pursuant to the Clean Water Act, which requires 
section 7 consultation if a project may affect a listed species. The 
U.S. Army Corps of Engineers (USACE) is the consulting Federal agency 
on consultations for section 404 permits. Future consultations for 404 
permits would also include third parties, such as private developers or 
county agencies. Private developers may be considered small entities if 
their annual income is less than $7.0 million. The DEA assumes that 
consultation costs will be borne by developers as an additional project 
expense, rather than by landowners who would experience consultation 
costs as an effect on land values.
    <bullet> Transportation. As described in Chapter 4 of the DEA, all 
incremental impacts are forecast to be incurred by the Service and the 
Oregon Department of Transportation, which, as a State agency, is not 
considered small.
    <bullet> Species management conservation. Chapter 5 describes that 
all incremental impacts are forecast to be borne by the U.S. Bureau of 
Land Management, a Federal agency, and the Service. As a result, no 
incremental impacts are expected to be borne by small entities.
    As incremental impacts to development activities are the only 
incremental impacts that may be borne by small entities, the remainder 
of this analysis focuses on development. Based on the forecast low 
scenario for future development activity (as described in Chapter 3 of 
the DEA), approximately 1.13 development projects are expected to occur 
annually within the study area. Based on the forecast high scenario for 
future development activity, approximately 6.55 development projects 
are expected to occur annually within the study area. This analysis 
assumes that all future development projects within the study area will 
require formal section 7 consultation triggered by the need for a 
section 404 permit pursuant to the Clean Water Act. Thus, 1.13 formal 
consultations are forecast to occur annually under the low scenario, 
while 6.55 formal consultations are forecast to occur annually under 
the high scenario. Applying the third party costs of addressing adverse 
modification during formal section 7 consultation (estimated at $875) 
to the number of forecast consultations annually, the DEA estimates 
that the present value of incremental third party costs is equal to 
$11,200 for all small entities combined under the low-impact scenario 
and $65,000 under the high-impact scenario over 20 years. In terms of 
annualized impacts, these present values translate to $1,050 for all 
small entities under the low-impact scenario and $6,140 under the high-
impact scenario (applying a 7 percent discount rate).
    Third parties involved in past development consultations include 
Jackson County and private developers. The population of Jackson County 
was approximately 201,000 in 2008; thus, Jackson County exceeds the 
small governmental jurisdiction population threshold of 50,000 people. 
Forecast consultations on development projects are expected to include 
Jackson County agencies, local private developers, and relatively large 
commercial entities as contained in the consultation history. To the 
extent that forecast consultations include Jackson County agencies or 
large commercial entities, incremental administrative costs will not be 
borne by small entities.
    However, a large portion of forecast consultations for development 
activities are expected to include local private developers, which may 
be small entities depending on their annual revenues. In the past, 
development projects within the study area have included site

[[Page 1573]]

preparation such as leveling of land, filling of wetlands, and 
excavation, in addition to building construction. Therefore, land 
subdivision, which includes excavating land and preparing it for future 
residential, commercial, and industrial construction, is identified as 
the most-applicable industry to capture local private developers that 
may bear incremental administrative costs due to the designation of 
critical habitat.
    Absent information on the specific third parties that may be 
involved in future development consultations, the DEA conservatively 
assumes that all of the entities involved in future consultation 
efforts are small land subdivision companies. Expected annual impacts 
to the land subdivision industry ($1,050 under the low-impact scenario 
and $6,140 under the high-impact scenario) are significantly less than 
the maximum annual revenues that could be generated by a single small 
land subdivision entity ($7.0 million). Annual revenues of small 
development companies within the study area are expected to be roughly 
$910,000. While 95 land subdivision companies operate within the 
counties containing proposed critical habitat, the number of these that 
may be involved in development projects subject to consultation for 
Limnanthes floccosa ssp. grandiflora and Lomatium cookii is unknown. 
The estimated annualized impact may be borne by one company or 
distributed across many. If all impacts were borne by a single small 
development company, the estimated annualized impact would represent 
less than 1 percent of total annual revenues under both the low-and 
high-impact scenarios (assuming average annual revenues for a small 
development company of $910,000).
    In summary, we have considered whether the proposed critical 
habitat designation would result in a significant economic impact on a 
substantial number of small entities. As the only anticipated 
incremental cost of the designation are administrative costs associated 
with section 7 consultations, the vast majority of incremental costs 
associated with the proposed designation will be borne by Federal 
agencies. The only incremental costs identified for small entities are 
potential costs associated with development activities. Based on the 
DEA, even if all incremental costs associated with development 
activities were to be borne by a single development company, which we 
consider unlikely, the estimated annualized impact would be less than 1 
percent of total annual revenues under both the low-and high-impact 
scenarios considered in the DEA. For these reasons, we certify that, if 
promulgated, the proposed designation of critical habitat for 
Limnanthes floccosa ssp. grandiflora and Lomatium cookii would not have 
a significant economic impact on a substantial number of small business 
entities. Therefore, an initial regulatory flexibility analysis is not 
required.

Executive Order 13211--Energy Supply, Distribution, and Use

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions that may affect the 
supply, distribution, and use of energy. The OMB's guidance for 
implementing this Executive Order outlines nine outcomes that may 
constitute ``a significant adverse effect'' when compared to no 
regulatory action. As discussed in Appendix A.2, the DEA finds none of 
these criteria are relevant to this analysis. The DEA concludes that 
energy-related impacts associated with conservation actions within the 
potential critical habitat are not expected. All forecast impacts are 
expected to occur associated with the listing of Limnanthes floccosa 
ssp. grandiflora and Lomatium cookii, regardless of the designation of 
critical habitat. Therefore, designation of critical habitat is not 
expected to lead to any adverse outcomes (such as a reduction in 
electricity production or an increase in the cost of energy production 
or distribution). 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. First, it excludes ``a condition of federal 
assistance.'' Second, it 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) 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 non-Federal government entities or private parties. Under the Act, 
the only regulatory effect is that Federal agencies must consult with 
the Service to 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. 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) As discussed in the DEA section of the proposed designation of 
critical habitat for Limnanthes floccosa ssp. grandiflora and Lomatium 
cookii, 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 any incremental impacts are limited 
to the administrative costs of section 7 consultations; however, these 
are not expected to affect small governments. Consequently, a critical 
habitat designation would not significantly or uniquely affect small 
government entities. 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

[[Page 1574]]

proposing critical habitat for Limnanthes floccosa ssp. grandiflora and 
Lomatium cookii in a takings implications assessment. Our taking 
implications assessment concludes that critical habitat for L.f. 
grandiflora and Lomatium cookii would not pose significant takings 
implications.

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 or by contacting the Oregon Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT section).

Authors

    The primary authors of this rulemaking are the staff members of the 
Oregon Fish and Wildlife Office.

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, 2009.
Eileen Sobeck,
Acting Assistant Secretary of Fish Wildlife and Parks.
[FR Doc. 2010-323 Filed 1-11- 10; 8:45 am]
BILLING CODE 4310-55-S