Federal Register / Vol. 74, No. 182 / Tuesday, September 22, 2009 / Proposed Rules 48211 

[FR Doc. E9–22737 Filed 9–17–09; 11:15 am] 

BILLING CODE P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R1–ES–2009–0010] 

[92210–1117–000–B4] 

RIN 1018–AV87 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Oregon Chub 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period, availability of draft 

economic analysis, amendment of 

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 the Oregon chub (Oregonichthys 

crameri) 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 

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 the Oregon chub, 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 them 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 October 22, 

2009. 

Public Hearing: We will hold a public 

hearing on Monday, October 5, 2009, 

from 6:30 p.m. to 8:00 p.m. Pacific 

Time. 

ADDRESSES: Written Comments: You 

may submit comments by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments to 

Docket No. FWS-R1-ES-2009-0010. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS-R1- 

ES-2009-0010; 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 Benton Plaza, Plaza 

Meeting Room, 408 SW Monroe Ave., 

Corvallis OR 97330. 

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 the 

Oregon chub that was published in the 

Federal Register on March 10, 2009 (74 


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48212 Federal Register / Vol. 74, No. 182 / Tuesday, September 22, 2009 / Proposed Rules 

FR 10412), the DEA of the proposed 

designation of critical habitat for the 

Oregon chub, and the amended required 

determinations provided in this 

document. 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 certain habitat as 

critical habitat under section 4 of the 

Act (16 U.S.C. 1531 et seq.), including 

whether there are threats to the Oregon 

chub from human activity, the type of 

human activity causing these threats, 

and whether the benefit of designation 

would outweigh the threats to the 

species due to the designation, such that 

the designation is prudent. 

(2) Specific information on: 

•The current amount and distribution 

of Oregon chub habitat. 

•What physical and biological factors 

are essential to the conservation of the 

Oregon chub and why. Please include 

information as to the distribution of 

these essential factors and what special 

management considerations or 

protections may be required to maintain 

or enhance them. 

•What areas occupied at the time of 

listing contain features essential for the 

conservation of the species which we 

should include in the designation and 

why. 

•What areas not occupied at the time 

of listing are essential to the 

conservation of the species and why. 

(3) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on the 

species and the proposed critical 

habitat. 

(4) Any foreseeable economic, 

national security, or other relevant 

impacts that may result from the 

proposed designation and, in particular, 

any impacts to small entities, and the 

benefits of including or excluding areas 

from the proposed designation that 

exhibit these impacts. 

(5) Special management 

considerations or protections that the 

essential physical and biological 

features identified in the proposed 

critical habitat may require. 

(6) Information on the extent to which 

the description of potential economic 

impacts in the DEA is complete and 

accurate. 

(7) The likelihood of adverse social 

reactions to the designation of critical 

habitat, and how the consequences of 

such reactions, if they occur, would 

relate to the conservation of the species 

and regulatory benefits of the proposed 

critical habitat designation. 

(8) Whether our approach to 

designating critical habitat could be 

improved or modified in any way to 

provide an opportunity 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 hard copy that 

includes personal identifying 

information, you may request at the top 

of your document that we withhold this 

information from public review. 

However, we cannot guarantee that we 

will be able to do so. We will post all 

hard copy comments on http:// 

www.regulations.gov. 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 the FOR FURTHER INFORMATION

CONTACT section). You may obtain 

copies of the proposed rule and DEA on 

the Internet at http:// 

www.regulations.gov at Docket Number 

FWS–R1–ES–2009–0010, from our Web 

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

Species/Data/OregonChub/, or by mail 

from the Oregon Fish and Wildlife 

Office (see the 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 precede the 

hearing from 4:30 p.m. to 5:30 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. 

Information regarding this notice is 

available in alternative formats upon 

request. 

Background 

It is our intent to discuss only those 

topics directly relevant to the proposed 

designation of critical habitat for the 

Oregon chub in this notice. For more 

information on previous Federal actions 

concerning the Oregon chub, refer to the 

proposed designation of critical habitat 

published in the Federal Register on 

March 10, 2009 (74 FR 10412). For more 

information on the Oregon chub or its 

habitat, refer to the final listing rule 

published in the Federal Register on 

October 18, 1993 (58 FR 53800), or 

contact the Oregon Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). 

On March 9, 2007, the Institute for 

Wildlife Protection filed suit against the 

Service for failure to designate critical 

habitat for the Oregon chub within the 

statutory timeframe, and for failure to 

conduct a 5–year status review (Institute 

for Wildlife Protection v. U.S. Fish and 

Wildlife Service). In a settlement 

agreement with the Plaintiff, we agreed 

to complete a status review by March 1, 

2008, submit a proposed critical habitat 

rule for the Oregon chub to the Federal 

Register by March 1, 2009, and to 

submit a final critical habitat 

determination to the Federal Register by 

March 1, 2010. 

On March 8, 2007, we published a 

notice that we would begin a status 

review of the Oregon chub (72 FR 

10547). We completed the Oregon 

chub’s 5–year review on February 11, 

2008. We published the proposed 

designation of critical habitat in the 

Federal Register on March 10, 2009 (74 

FR 10412). 

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 Act, ‘‘on which 

are found those physical or biological 

features (I) essential to the conservation 

of the species and (II) that may require 


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Federal Register / Vol. 74, No. 182 / Tuesday, September 22, 2009 / Proposed Rules 48213 

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 by the Secretary that such 

areas are essential for the conservation 

of the species’’ (16 USC 1532(5)(A)(i and 

ii)). 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. 

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 the 

Oregon chub that we published in the 

Federal Register on March 10, 2009 (74 

FR 10412). The DEA quantifies the 

economic impacts of all potential 

conservation efforts for the Oregon 

chub; 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 the Oregon chub over 

the next 20 years, which was 

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 the Oregon chub 

associated with the following categories 

of activity: (1) Transportation; (2) 

habitat management; (3) agriculture; (4) 

water management; and (5) forestry. 

Total future (2010-2029) baseline 

impacts are estimated to be $3.74 

million to $12.9 million using a 3 

percent discount rate, and $2.74 million 

to $11.1 million using a 7 percent 

discount rate. Impacts to mitigation 

banking for anticipated transportation 

projects in Unit 2B(1) (Ankeny Willow 

Marsh) are expected to bear the majority 

of the total future baseline impacts 

($4.59 million), using a 7 percent 

discount rate. Under the low-end 

scenario (3 percent discount rate), Unit 

3H (Hospital Pond) has the highest 

levels of impacts ($525,000), stemming 

primarily from habitat management 

activities. 

The DEA estimates that total potential 

incremental economic impacts in areas 

proposed as critical habitat over the 

next 20 years will be $146,000 using a 

3 percent discount rate, and $108,000 

using a 7 percent discount rate. 

Approximately 67 percent of the 

incremental impacts attributed to the 

proposed designation of critical habitat 

are expected to be related to section 7 

consultations with Federal agencies for 

habitat management activities, followed 

by water management consultations 

(20.5 percent), transportation 

consultations (8.3 percent), and forestry 

consultations (4.5 percent). We do not 

anticipate section 7 consultations 

related to agricultural activities during 

the DEA timeframe. 

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 March 10, 2009, proposed rule 

(74 FR 10412), 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) and the 

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

et seq.), E.O. 13211 (Energy Supply, 

Distribution, or 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. 


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(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 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term significant economic 

impact is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the proposed 

designation of critical habitat for the 

Oregon chub 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. 

Consultations to avoid the destruction 

or adverse modification of critical 

habitat would be incorporated into the 

existing consultation process due to the 

chub’s current status under the Act as 

an endangered species. 

In the DEA, we evaluated the 

potential economic effects on small 

business entities resulting from 

implementation of conservation actions 

related to the proposed designation of 

critical habitat for the Oregon chub. The 

DEA identified the estimated 

incremental impacts associated with the 

proposed designation of critical habitat 

as described in sections 3 through 7, 

and evaluated the potential for 

economic impacts related to activity 

categories including water management, 

agriculture, forestry, transportation, and 

habitat management. 

As discussed in Appendix A of the 

DEA, of the activities addressed in the 

analysis, only forestry activities are 

expected to experience incremental, 

administrative consultation costs that 

may be borne by small businesses. 

These costs may arise when the U.S. 

Forest Service consults on Federal 

timber sales, with small logging and 

timber tract companies as third parties. 

In Lane and Benton Counties, there are 

178 logging operations and 98 timber 

tract operations that are considered 

small, representing between 98 and 100 

percent of all businesses in the affected 

industry sector within these two 

counties. These small businesses may 

bear a total of $1,440 in incremental 

impacts related to these consultations 

through 2029. Please refer to our Draft 

Economic Analysis of the proposed 

critical habitat designation for a more 

detailed discussion of potential 

economic impacts. 

In summary, we have considered 

whether the proposed designation 

would result in a significant economic 

impact on a substantial number of small 

entities. For the above reasons and 

based on currently available 

information, we certify that, if 

promulgated, the proposed designation 

of critical habitat for the Oregon chub 

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 

On May 18, 2001, the President issued 

E.O. 13211 on regulations that 

significantly affect energy supply, 

distribution, and use. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. 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, the DEA finds that none of 

these criteria are relevant to this 

analysis. The DEA concludes that no 

incremental impacts are forecast 

associated specifically with this 

rulemaking on the production, 

distribution, or use of energy. All 

forecast impacts are expected to occur 

associated with the listing of the Oregon 

chub, 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), and a 

Statement of Energy Effects is not 

required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act, the Service 

makes the following findings: 

(a) This rulemaking 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 


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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 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 nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply, nor would 

critical habitat shift the costs of the large 

entitlement programs listed above on to 

State governments. 

(b) As discussed in the DEA of the 

proposed designation of critical habitat 

for the Oregon chub, we do not believe 

that this rule would significantly or 

uniquely affect small governments 

because it would not produce a Federal 

mandate of $100 million or greater in 

any year; that is, it is not a ‘‘significant 

regulatory action’’ under the Unfunded 

Mandates Reform Act. The DEA 

concludes that incremental impacts may 

occur due to project modifications that 

may need to be made for agricultural 

and development activities; however, 

these are not expected to affect small 

governments. Consequently, we do not 

believe that the critical habitat 

designation would 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 

proposing critical habitat for the Oregon 

chub in a takings implications 

assessment. Critical habitat designation 

does not affect landowner actions that 

do not require Federal funding or 

permits, nor does it preclude 

development of habitat conservation 

programs or issuance of incidental take 

permits to permit actions that do require 

Federal funding or permits. The 

proposed critical habitat for the Oregon 

chub does not pose significant takings 

implications for the above reasons. 

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 the 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: August 24, 2009 

Will Shafroth 

Acting Assistant Secretary for Fish and 

Wildlife and Parks 

[FR Doc. E9–22801 Filed 9–21–09; 8:45 am] 

BILLING CODE 4310–55–S 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R6–ES–2009–0027; 

92220–1113–0000; ABC Code: C3] 

RIN 1018–AW27 

Endangered and Threatened Wildlife 

and Plants; Proposed Rule To List the 

Shovelnose Sturgeon as Threatened 

Due to Similarity of Appearance 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service or USFWS), 

propose to treat the shovelnose sturgeon 

(Scaphirhynchus platorynchus) as 

threatened under the ‘‘Similarity of 

Appearance’’ provisions of the 

Endangered Species Act of 1973, as 

amended (Act). The shovelnose 

sturgeon (Scaphirhynchus 

platorynchus) and the endangered 

pallid sturgeon (Scaphirhynchus albus) 

are difficult to differentiate in the wild 

and inhabit overlapping portions of the 

Missouri and Mississippi River basins. 

Four States where the two species 

commonly coexist allow for commercial 

fishing of shovelnose sturgeon which is 

in demand for its roe (eggs sold as 

caviar). The close resemblance in 

appearance between the two species 

creates substantial difficulty for 

fishermen, State regulators, and law 

enforcement personnel in differentiating 

between shovelnose and pallid 

sturgeon, both whole specimens and 

parts (including flesh and roe). This 

similarity of appearance has resulted in 

the documented take of pallid sturgeon 

and is a threat to the species. The 

determination that the shovelnose 

sturgeon should be treated as threatened 

due to similarity of appearance will 

substantially facilitate law enforcement 

actions to protect and conserve pallid 

sturgeon. We also propose a special rule 

to define activities that would and 

would not constitute take of shovelnose 

sturgeon under section 9 of the Act. 

DATES: We will accept comments 

received or postmarked on or before 

November 23, 2009. We must receive 

requests for public hearings, in writing, 

at the address shown in FOR FURTHER

INFORMATION CONTACT by November 6, 

2009. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow instruction 

for submitting comments to Docket No. 

FWS–R6–ES–2009–0027. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R6– 

ES–2009–0027; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will not accept e-mail or faxes. We 

will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: 

Pallid Sturgeon Recovery Coordinator, 

Billings Field Office, 2900 4th Avenue 

North, Room 301, Billings, Montana 

59101 (telephone 406/247–7365; 

facsimile 406/247–7364). Persons who 


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