1568 Federal Register / Vol. 75, No. 7 / Tuesday, January 12, 2010 / Proposed Rules 

will accept information submitted after 

that date, that information should be 

submitted directly to the Field Office 

(see FOR FURTHER INFORMATION CONTACT). 

Please note that while we will make 

every effort to address or incorporate 

information in our status review that we 

receive after March 15, 2010, in order 

for us to make a timely finding we 

request submittal of information and 

comments as soon as possible. 

ADDRESSES: You may submit 

information by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS-R4- 

ES-2009-0029; 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 information we 

receive on http://www.regulations.gov. 

This generally means that we will post 

any personal information you provide 

us If your hardcopy submission 

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. 

Information and materials we receive, 

as well as supporting documentation we 

used in preparing this finding, will be 

available for public inspection on http:// 

www.regulations.gov, or by appointment 

during normal business hours, at the 

Jacksonville Ecological Services Field 

Office (see FOR FURTHER INFORMATION

CONTACT section). 

FOR FURTHER INFORMATION CONTACT: 

Micheal Jennings, U.S. Fish and 

Wildlife Service, Attn: Gopher Tortoise 

Review, 7915 Baymeadows Way, Suite 

200, Jacksonville, Florida 32256; by 

telephone (904 731-3336); by facsimile 

(904 731-3045); or by e-mail: 

northflorida@fws.gov. Persons who use 

a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 800- 

877-8339. 

SUPPLEMENTARY INFORMATION: 

Request for Information 

We, the U.S. Fish and Wildlife 

Service, published a 90–day finding on 

a petition to list the eastern population 

of the gopher tortoise (Gopherus 

polyphemus) as threatened in the 

Federal Register on September 9, 2009 

(74 FR 46401). In that finding, we found 

that the petition presented substantial 

scientific or commercial information 

indicating that listing the eastern 

population of the gopher tortoise may be 

warranted. We also initiated a status 

review to determine if listing the species 

is warranted, and asked the public to 

submit information to assist us in our 

status review. We asked the public to 

submit information by November 9, 

2009, in order for us sufficient time to 

consider the information in the status 

review. 

Since that time, several interested 

parties have notified us that they wish 

to submit additional information 

relevant to the listing of the eastern 

population of the gopher tortoise. They 

have indicated that the information 

could not be submitted before 

November 9, 2009, but could be 

submitted prior to the anticipated 

completion of the status review in 2010. 

We have advised these parties 

individually that we would continue to 

accept such information after November 

9, 2009. However, to ensure that all 

interested parties have the same 

opportunity to provide relevant data, 

this notice clarifies that information to 

assist us in our review of the status of 

the gopher tortoise may be submitted to 

the Federal eRulemaking Portal through 

the date specified in DATES, and directly 

to the Field Office thereafter (see DATES

and ADDRESSES above). This notice also 

corrects errors in contact information in 

the September 9, 2009, notice. 

We are continuing to request 

information on the status of the gopher 

tortoise throughout its range. We request 

information from the public, other 

concerned governmental agencies, 

Native American Tribes, the scientific 

community, industry, or any other 

interested parties concerning the status 

of the eastern portion of the gopher 

tortoise’s range. We are seeking 

information regarding: 

(1) The species’ historical and current 

status and distribution, its biology and 

ecology, and ongoing conservation 

measures for the species and its habitat; 

(2) Information relevant to the factors 

that are the basis for making a listing 

determination for a species under 

section 4(a) of the Act, which are: 

a) The present or threatened 

destruction, modification, or 

curtailment of the species’ habitat or 

range; 

b) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

c) Disease or predation; 

d) The inadequacy of existing 

regulatory mechanisms; or 

e) Other natural or manmade factors 

affecting its continued existence and 

threats to the species or its habitat; and 

(3) Information related to the genetics, 

status, distribution, and threats to the 

gopher tortoise in the eastern portion of 

its range. 

Please note that submissions merely 

stating support for or opposition to the 

action under consideration without 

providing supporting information, 

although noted, will not be considered 

in making a determination, as section 

4(b)(1)(A) of the Act (16 U.S.C. 1531 et 

seq.) directs that determinations as to 

whether any species is a threatened or 

endangered species must be made 

‘‘solely on the basis of the best scientific 

and commercial data available.’’ Based 

on our status review, we will issue a 12– 

month finding on the petition as 

provided in section 4(b)(3)(B) of the Act. 

Authority 

The authority for this action is section 

4 of the Endangered Species Act of 

1973, as amended (16 U.S.C. 1531 et 

seq.). 

Dated: December 28, 2009. 

Robyn Thorson, 

Acting Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. 2010–311 Filed 1–11–10; 8:45 am] 

BILLING CODE 4310–55–S 

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 (LargeFlowered 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. 

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 

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Federal Register / Vol. 75, No. 7 / Tuesday, January 12, 2010 / Proposed Rules 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: 

• 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. 

• 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: 

•The amount and distribution of L.f. 

ssp. grandiflora and Lomatium cookii 

habitat; 

•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; 

• 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 

•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 

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1570 Federal Register / Vol. 75, No. 7 / Tuesday, January 12, 2010 / Proposed Rules 

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-CV2378 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 

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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 lowforecast 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 

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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. 

• 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. 

•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. 

• 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 

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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 highimpact 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 highimpact 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 nonFederal 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 

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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 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS-R4-ES-2009-0066] 

[MO 92210-0-0009-B4] 

Endangered and Threatened Wildlife 

and Plants; 12–month Finding on a 

Petition To Revise Critical Habitat for 

the Florida Manatee (Trichechus 

manatus latirostris) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 12–month petition 

finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce our 

12–month finding on a petition to revise 

critical habitat for the Florida manatee 

(Trichechus manatus latirostris) under 

the Endangered Species Act of 1973, as 

amended. After a thorough review of all 

available scientific and commercial 

information, we find that revisions to 

critical habitat for the Florida manatee 

are warranted. However, sufficient 

funds are not available due to higher 

priority actions such as court-ordered 

listing-related actions and judicially 

approved settlement agreements. We 

intend to initiate rulemaking when we 

complete the higher priorities and have 

the necessary resources to do so. 

DATES: The finding announced in this 

document was made on January 12, 

2010. 

ADDRESSES: This finding is available on 

the Internet at http:// 

www.regulations.gov at Docket Number 

FWS-R4-ES-2009-0066. Supporting 

documentation we used to prepare this 

finding is available for public 

inspection, by appointment during 

normal business hours at the U.S. Fish 

and Wildlife Service, Jacksonville 

Ecological Services Field Office, 7915 

Baymeadows Way, Suite 200, 

Jacksonville, FL 32256-7517. Please 

submit any new information, materials, 

comments, or questions concerning this 

finding to the above address. 

FOR FURTHER INFORMATION CONTACT: U.S. 

Fish and Wildlife Service, Attn: 

Manatee CH Review, at the above 

address, by telephone at 904-731-3336, 

by facsimile at 904-731-3045, or by email: northflorida@fws.gov. Persons 

who use a telecommunications device 

for the deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 800- 

877-8339. Please include ‘‘Florida 

manatee scientific information’’ in the 

subject line for faxes and emails. 

SUPPLEMENTARY INFORMATION: Section 

4(b)(3)(D)(ii) of the Endangered Species 

Act of 1973, as amended (Act) (16 

U.S.C. 1531 et seq.), requires that, for 

any petition that is found to present 

substantial scientific and commercial 

information indicating that the 

requested revisions to critical habitat 

may be warranted, we make a finding 

within 12 months of the date of receipt 

of the petition and publish a notice in 

the Federal Register indicating how we 

intend to proceed with the requested 

revision. 

Background 

Previous Federal Actions 

We originally listed the Florida 

manatee (Trichechus manatus 

latirostris), a subspecies of the West 

Indian manatee (Trichechus manatus), 

as endangered in 1967 (32 FR 4001) 

under the Endangered Species 

Preservation Act of 1966 (Pub. L. 89- 

669; 80 Stat. 926). In 1970, Appendix A 

to 50 CFR Part 17 was amended to 

include additional names to the list of 

foreign endangered species (35 FR 

18319). This listing incorporated West 

Indian manatees into the list under the 

Endangered Species Conservation Act of 

1969 (Pub. L. 91-135; 83 Stat. 275) and 

encompassed the species’ range in the 

Caribbean and northern South America, 

thus including both Antillean (T. m. 

manatus) and Florida manatees in the 

listing. The West Indian manatee is 

currently listed as an endangered 

species under the Act and the 

population is further protected as a 

depleted stock under the Marine 

Mammal Protection Act (16 U.S.C. 1361- 

1407). 

Critical habitat was designated for the 

Florida manatee on September 24, 1976 

(41 FR 41914). This designation 

delineated specific waterways in Florida 

that were known to be important 

concentration areas for manatees at that 

time. 

On December 19, 2008, we received a 

petition from Wildlife Advocacy Project, 

Save the Manatee Club, Center for 

Biological Diversity, and Defenders of 

Wildlife, requesting that critical habitat 

be revised for the Florida manatee 

(Trichechus manatus latirostris) under 

the Act and the Administrative 

Procedure Act. The petition clearly 

identified itself as a petition and 

included the requisite identification 

information for the petitioners, as 

required in 50 CFR 424.14(a). 

In a January 17, 2009, letter to the 

petitioners, we responded that we had 

received the petition and would make a 

finding, to the maximum extent 

practicable within 90 days, as to 

whether or not the petition presents 

substantial information. We also stated 

that, if the initial finding concludes that 

the petition presents substantial 

information indicating that the 

requested action may be warranted, then 

we have 1 year from the date we 

received the petition to determine how 

we intend to proceed with the requested 

revision, and that we would promptly 

publish a notice of our intentions in the 

Federal Register at the end of this 

period. 

We published our 90–day finding 

regarding the petition to revise critical 

habitat for the Florida manatee on 

September 29, 2009 (74 FR 49842). We 

determined that the petition presented 

substantial information indicating that 

revising critical habitat for the Florida 

manatee under the Act may be 

warranted, thus initiating this 12–month 

finding. Accordingly, we asked the 

public to submit information relevant to 

the finding by October 29, 2009. We 

have fully considered all information 

available and received in response to 

information requested in our 90–day 

finding. 

This 12–month finding discusses only 

those topics directly relevant to the 

revision of existing critical habitat for 

the Florida manatee. 

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