Federal Register / Vol. 74, No. 194 / Thursday, October 8, 2009 / Proposed Rules 51825 

We do not plan to open a second 

comment period, so anyone interested 

in commenting should do so at this 

time. If we do not receive adverse 

comments, no further activity is 

planned. For further information, please 

see the direct final action. 

Dated: September 15, 2009. 

Laura Yoshii, 

Acting Regional Administrator, Region IX. 

[FR Doc. E9–24192 Filed 10–7–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2008–0089; 

81420–1117–8B10 B4] 

RIN 1018–AV90 

Endangered and Threatened Wildlife 

and Plants; Revised Designation of 

Critical Habitat for the California RedLegged Frog (Rana aurora draytonii) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period, availability of revised 

draft economic analysis, and amended 

required determinations. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

reopening of the comment period on our 

September 16, 2008, and April 28, 2009, 

proposal to revise the designation of 

critical habitat for the California redlegged frog under the Endangered 

Species Act of 1973, as amended (Act). 

We also announce the availability of a 

revised draft economic analysis (DEA). 

We are reopening the comment period 

to allow all interested parties an 

opportunity to comment simultaneously 

on the proposed revision of critical 

habitat and the associated revised DEA. 

Comments previously submitted on this 

rulemaking do not need to be 

resubmitted. These comments have 

already been incorporated into the 

public record and will be fully 

considered in preparation of the final 

rule. 

DATES: We will accept comments 

received on or before November 9, 2009. 

ADDRESSES: 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–R8–ES–2008–0089. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R8– 

ES–2008–0089; 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: 

Susan Moore, Field Supervisor, U.S. 

Fish and Wildlife Service, Sacramento 

Fish and Wildlife Office, 2800 Cottage 

Way, Room W–2605, Sacramento, CA 

95825; telephone 916–414–6600; 

facsimile 916–414–6712. If you use a 

telecommunications device for the deaf 

(TDD), 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 our proposed 

revision to critical habitat for the 

California red-legged frog published in 

the Federal Register on September 16, 

2008 (73 FR 53492), and revised in the 

Federal Register on April 28, 2009 (74 

FR 19184), and the current revised DEA 

(IEc 2009b) of the proposed revised 

designation. We will consider 

information and recommendations from 

all interested parties. We are 

particularly interested in comments 

concerning: 

(1) The reasons why we should or 

should not designate habitat as critical 

habitat under section 4 of the Act (16 

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

there are threats to the subspecies from 

human activity, the degree of which can 

be expected to increase due to the 

designation, and whether that increase 

in threat outweighs the benefit of 

designation such that the designation of 

critical habitat is not prudent. 

(2) Specific information on: 

• The amount and distribution of 

California red-legged frog habitat, 

• Locations within the geographical 

area occupied at the time of listing that 

contain features essential to the 

conservation of the subspecies that we 

should include in the designation and 

why, and 

• Locations not within the 

geographical area occupied at the time 

of listing that are essential to the 

conservation of the subspecies and why. 

(3) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

revised critical habitat. 

(4) Probable economic, national 

security, or other relevant impacts of 

designating particular areas as critical 

habitat. We are particularly interested in 

any impacts on small entities, and the 

benefits of including or excluding areas 

that exhibit these impacts. 

(5) The potential exclusion from final 

revised critical habitat, and whether 

such exclusion is appropriate and why, 

of non-Federal lands: 

• Covered by the East Contra Costa 

County Habitat Conservation Plan 

(ECCHCP), 

• Owned and managed by the East 

Bay Regional Park District within the 

boundaries of the ECCHCP, 

• Covered by the Western Riverside 

County Multiple Species Habitat 

Conservation Plan (MSHCP), and 

• Covered by the Bonny Doon 

Settlement Ponds Habitat Conservation 

Plan. 

(6) Whether the lands proposed as 

critical habitat on Department of 

Defense land at Vandenberg Air Force 

Base in Santa Barbara County and Camp 

San Luis Obispo in San Luis Obispo 

County should be exempted under 

section 4(a)(3) of the Act or excluded 

under section 4(b)(2) of the Act and 

why. 

(7) Whether the U.S. Forest Service 

lands managed under the Sierra Nevada 

Forest Plan Amendment within the 

units being proposed as critical habitat 

should be excluded under section 

4(b)(2) of the Act and why. 

(8) Whether Unit CAL–1 (Young’s 

Creek) in Calaveras County should be 

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

Act and why. 

(9) Whether changes made to the 

proposed critical habitat Unit MEN–1 in 

Mendocino County appropriately reflect 

the current knowledge of the subspecies 

distribution and occurrence within the 

area and whether that area should be 

designated as critical habitat. 

(10) Information on the extent to 

which any Federal, State, and local 

environmental protection measures we 

reference in the revised DEA were 

adopted largely as a result of the 

subspecies’ listing. 

(11) Information on whether the 

revised DEA identifies all Federal, State, 

and local costs and benefits attributable 

to the proposed revision of critical 

habitat, and information on any costs or 

benefits that we may have overlooked. 

(12) Information on whether the 

revised DEA makes appropriate 

assumptions regarding current practices 

and any regulatory changes that likely 

may occur if we designate revised 

critical habitat. 

(13) Information on whether the 

revised DEA correctly assesses the effect 

on regional costs associated with any 

land use controls that may result from 


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51826 Federal Register / Vol. 74, No. 194 / Thursday, October 8, 2009 / Proposed Rules 

the revised designation of critical 

habitat. 

(14) Information on areas that the 

revised critical habitat designation 

could potentially impact to a 

disproportionate degree. 

(15) Information on whether the 

revised DEA identifies all costs that 

could result from the proposed revised 

designation. 

(16) Information on any quantifiable 

economic benefits of the revised 

designation. 

(17) Whether the benefits of excluding 

any particular area outweigh the 

benefits of including that area under 

section 4(b)(2) of the Act. 

(18) Economic data on the 

incremental costs of designating a 

particular area as revised critical 

habitat. 

(19) Whether we could improve or 

modify our approach to designating 

critical habitat to provide for greater 

public participation and understanding, 

or assist us in accommodating public 

concerns and comments. 

(20) Any foreseeable impacts on 

energy supplies, distribution, and use 

resulting from the proposed designation 

and, in particular, any impacts on 

electricity production, and the benefits 

of including or excluding areas that 

exhibit these impacts. 

If you submitted comments or 

information on the proposed revised 

rule (73 FR 53492) during the initial 

comment period from September 16, 

2008, to November 17, 2008, or the 

comment period on the revised proposal 

(74 FR 19184) from April 28, 2009, to 

May 28, 2009, please do not resubmit 

them. These comments are included in 

the public record for this rulemaking, 

and we will fully consider them in the 

preparation of our final determination. 

Our final determination concerning 

revised critical habitat will take into 

consideration all written comments and 

any additional information we receive 

during both comment periods. On the 

basis of public comments, we may, 

during the development of our final 

determination, find that areas within 

those proposed do not meet the 

definition of critical habitat, that some 

modifications to the described 

boundaries are appropriate, or that areas 

are appropriate for exclusion under 

section 4(b)(2) of the Act. 

You may submit your comments and 

materials concerning the proposed 

revised rule or DEA by one of the 

methods listed in the ADDRESSES

section. 

If you submit a comment via http:// 

www.regulations.gov, your entire 

comment—including any personal 

identifying information—will be posted 

on the Web site. If you submit a 

hardcopy comment that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy comments on 

http://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed revised 

rule, will be available for public 

inspection on http:// 

www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Sacramento Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). 

You may obtain copies of the original 

proposed revision of critical habitat 

and associated DEA on the Internet at 

http://www.regulations.gov, on the 

Sacramento Fish and Wildlife Office 

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

sacramento, or by contacting the 

Sacramento Fish and Wildlife Office 

(see FOR FURTHER INFORMATION CONTACT). 

Background 

Critical habitat for the California redlegged frog was first designated on 

March 13, 2001 (66 FR 14625), and has 

been revised several times since then. 

For more information on previous 

Federal actions concerning the 

California red-legged frog, refer to the 

proposals to revise the designation of 

critical habitat published in the Federal 

Register on September 16, 2008 (73 FR 

53492), and on April 28, 2009 (74 FR 

19184). Comments received on our 

previous Draft Economic Analysis 

(DEA) (IEc 20009a) during the second 

public comment period led to this 

revised DEA. 

On December 12, 2007, the Center for 

Biological Diversity filed a complaint in 

the U.S. District Court for the Northern 

District of California challenging our 

designation of critical habitat for the 

California red-legged frog (Center for 

Biological Diversity v. Kempthorne, et 

al., Case No. C–07–6404–WHA). On 

April 2, 2008, the court entered a 

consent decree requiring a proposed 

revised critical habitat rule to be 

submitted to the Federal Register by 

August 29, 2008, and a final revised 

critical habitat designation to be 

submitted to the Federal Register by 

August 31, 2009. The consent decree 

was modified on August 31, 2009, and 

now requires that we submit a final 

revised critical habitat designation to 

the Federal Register by March 1, 2010. 

Section 3 of the Act defines critical 

habitat as the specific areas within the 

geographical area occupied by a species, 

at the time it is listed in accordance 

with the Act, on which are found those 

physical or biological features essential 

to the conservation of the species which 

may require special management 

considerations or protection, and 

specific areas outside the geographical 

area occupied by a species at the time 

it is listed, upon a determination that 

such areas are essential for the 

conservation of the species. If the 

proposed rule is made final, section 7 of 

the Act will prohibit destruction or 

adverse modification of critical habitat 

by any activity funded, authorized, or 

carried out by any Federal agency. 

Federal agencies proposing actions 

affecting areas designated as critical 

habitat must consult with us on the 

effects of their proposed actions, under 

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

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 and 

commercial 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 revised DEA of our 

April 28, 2009 (74 FR 19184), proposed 

rule to revise designated critical habitat 

for the California red-legged frog. 

The intent of the revised DEA (IEc 

2009b) is to identify and analyze the 

potential economic impacts associated 

with the proposed revised critical 

habitat designation for the California 

red-legged frog. Additionally, the 

economic analysis looks retrospectively 

at costs incurred since the May 23, 1996 

(61 FR 25813), listing of the California 

red-legged frog as threatened. The 

revised DEA quantifies the economic 

impacts of all potential conservation 

efforts for the California red-legged frog; 

some of these costs will likely be 

incurred regardless of whether we 

designate revised critical habitat. The 

economic impact of the proposed 

revised critical habitat designation is 

analyzed by comparing scenarios both 

‘‘with critical habitat’’ and ‘‘without 


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critical habitat.’’ The ‘‘without critical 

habitat’’ scenario represents the baseline 

for the analysis, considering protections 

already in place for the subspecies (for 

example, under the Federal listing and 

other Federal, State, and local 

regulations). The baseline, therefore, 

represents the costs incurred regardless 

of whether critical habitat is designated. 

The ‘‘with critical habitat’’ scenario 

describes the incremental impacts 

associated specifically with the 

designation of critical habitat for the 

subspecies. The incremental 

conservation efforts and associated 

impacts are those not expected to occur 

absent the designation of critical habitat 

for the subspecies. 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 subspecies was 

listed, and forecasts both baseline and 

incremental impacts likely to occur if 

we finalize the proposed revised critical 

habitat. 

The revised DEA estimates the 

reasonably foreseeable economic 

impacts of the proposed revised critical 

habitat designation. The economic 

analysis identifies potential incremental 

costs as a result of the proposed revised 

critical habitat designation; these are 

those costs attributed to critical habitat 

over and above those baseline costs 

attributed to the subspecies being listed 

within the Act. The revised DEA 

describes economic impacts of 

California red-legged frog conservation 

efforts associated with the following 

categories of activity: (1) Residential and 

Commercial Development; (2) Water 

Management; (3) Agriculture; (4) 

Ranching and Grazing; (5) Timber 

Harvest; (6) Transportation; (7) Fire 

Management; (8) Utility and Oil and Gas 

Pipeline Construction and Maintenance; 

and (9) Habitat and Vegetation 

Management. 

The baseline economic impacts are 

those impacts that result from listing 

and other conservation efforts for the 

California red-legged frog. Conservation 

efforts related to development activities 

constitute the majority of total baseline 

costs (approximately 77 to 82 percent) 

in areas of proposed revised critical 

habitat. Impacts to agriculture make up 

the majority of the remainder of the 

costs associated with the proposed 

revised designation. The total future 

baseline impacts (potential costs related 

to the subspecies being listed and other 

conservation-related activities) are 

estimated to be $510 million to $1.34 

billion ($46.1 million to $121 million on 

an annualized basis), assuming a 7 

percent discount rate, through the year 

2030. 

The majority of incremental impacts 

attributed to the proposed revised 

critical habitat designation are expected 

to be related to development 

(approximately 90 percent) followed by 

agricultural impacts (approximately 10 

percent). Impacts to all other activities 

represent less than one percent of the 

total incremental impacts. The DEA 

estimates total potential incremental 

economic impacts in areas proposed as 

revised critical habitat over the next 22 

years (2009 to 2030) to be $183 million 

to $566 million ($16.5 to $51.2 million 

annualized) in present value terms 

using a 7 percent discount rate. For 

development, the estimated incremental 

impacts range from $124 million to $507 

million, assuming a 7 percent discount 

rate; for agriculture, the estimated 

incremental impacts range from $58.3 

million to $80.9 million, assuming a 7 

percent discount rate. 

The revised DEA considers both 

economic efficiency and distributional 

effects. In the case of habitat 

conservation, efficiency effects generally 

reflect the ‘‘opportunity costs’’ 

associated with the commitment of 

resources to comply with habitat 

protection measures (e.g., lost economic 

opportunities associated with 

restrictions on land use). The revised 

DEA also addresses how potential 

economic impacts are likely to be 

distributed, including an assessment of 

any local or regional impacts of habitat 

conservation and the potential effects of 

conservation activities on government 

agencies, private businesses, and 

individuals. The revised DEA measures 

lost economic efficiency associated with 

residential and commercial 

development and public projects and 

activities, such as economic impacts on 

water management and transportation 

projects, Federal lands, small entities, 

and the energy industry. Decisionmakers can use this information to 

assess whether the effects of the revised 

designation might unduly burden a 

particular group or economic sector. 

As we stated earlier, we are soliciting 

data and comments from the public on 

the revised DEA, as well as on all 

aspects of the proposed revised critical 

habitat rule. The final revised critical 

habitat rule may differ from the 

proposed revised rule based on new 

information we receive during the 

public comment periods. In particular, 

we may exclude an area from critical 

habitat if we determine that the benefits 

of excluding the area outweigh the 

benefits of including the area as critical 

habitat, provided the exclusion will not 

result in the extinction of the 

subspecies. 

Required Determinations—Amended 

In our proposed rule dated September 

16, 2008 (73 FR 53492), 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 revised designation and potential 

effects on landowners and stakeholders 

became available in the DEA. We have 

now made use of the revised DEA to 

make these determinations. In this 

document, we affirm the information in 

our proposed rule concerning Executive 

Order (E.O.) 13132, E.O. 12988, 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 revised our 

required determinations concerning 

E.O. 12866 and the Regulatory 

Flexibility Act, E.O. 13211 (Energy, 

Supply, Distribution, and Use), the 

Unfunded Mandates Reform Act, and 

E.O. 12630 (Takings). 

Regulatory Planning and Review (E.O. 

12866) 

The Office of Management and Budget 

(OMB) has determined that this 

proposed revised designation is not 

significant and has not reviewed this 

proposed rule under Executive Order 

12866 (E.O. 12866). OMB bases 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 (5 U.S.C. 802(2)), whenever 

an agency is required to publish a notice 

of rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 


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51828 Federal Register / Vol. 74, No. 194 / Thursday, October 8, 2009 / Proposed Rules 

flexibility analysis that describes the 

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

small businesses, small organizations, 

and small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Based on our revised DEA of the 

proposed revised designation, we 

provide our analysis for determining 

whether the proposed revised 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 revised 

designation of critical habitat for the 

California red-legged frog would affect a 

substantial number of small entities, we 

consider the number of small entities 

affected within particular types of 

economic activities, such as residential 

and commercial development. In order 

to determine whether it is appropriate 

for our agency to certify that this rule 

would not have a significant economic 

impact on a substantial number of small 

entities, we considered each industry or 

category individually. In estimating the 

numbers of small entities potentially 

affected, we also considered whether 

their activities have any Federal 

involvement. Critical habitat 

designation will not affect activities that 

do not have any Federal involvement. 

Designation of critical habitat only 

affects activities conducted, funded, 

permitted, or authorized by Federal 

agencies. Some kinds of activities are 

unlikely to have any Federal 

involvement and so will not be affected 

by critical habitat designation. In areas 

where the subspecies is present, Federal 

agencies already are required to consult 

with us under section 7 of the Act on 

activities they fund, permit, or 

implement that may affect the California 

red-legged frog. Federal agencies also 

must consult with us if their activities 

may affect revised designated critical 

habitat. 

In the revised DEA of the proposed 

revision to critical habitat, we evaluate 

the potential economic effects on small 

business entities resulting from 

implementation of conservation actions 

related to the proposed revision to 

critical habitat for the California redlegged frog. The revised DEA identifies 

the estimated incremental impacts 

associated with the proposed 

rulemaking as described in Chapters 4 

through 13 of the revised DEA, and 

evaluates the potential for economic 

impacts related to activity categories 

including urban development, water 

management, agriculture, grazing and 

ranching, timber harvest activities, 

transportation, utility pipeline 

construction and maintenance, fire 

management activities, and habitat 

management. The revised DEA 

concludes that the incremental impacts 

resulting from this rulemaking that may 

be borne by small businesses will be 

associated with urban development and 

agriculture. Incremental impacts are 

either not expected for the other types 

of activities considered or, if expected, 

will not be borne by small entities. 

As discussed in Appendix A of the 

revised DEA, the largest impacts of the 

proposed rule result from section 7 

consultations with the Service on 

development projects not subject to an 

existing habitat conservation plan, and 

to a lesser degree, similar types of costs 

resulting from the California 

Environmental Quality Act (CEQA) 

review of development projects lacking 

a Federal nexus. The analysis assumes 

full build-out of all areas identified as 

likely to be developed (as defined in 

Chapter 4 of the DEA; IEC 2009b) within 

the next 22 years. The DEA (Exhibit 4– 

5) identifies approximately 2,226 ac 

(860 ha) of projected development in 

areas likely to experience impacts as a 

result of the designation of critical 

habitat (incremental impact). 

This analysis assumes incremental 

development-related costs will be borne 

either by developers or current 

landowners, depending on the 

developers’ ability to offset critical 

habitat costs by paying lower prices for 

developable acres at the outset of 

projects. Current landowners may be 

individuals or families that are not 

legally considered to be businesses. As 

shown in Exhibit A–2, nearly all 

developers in the counties overlapping 

proposed critical habitat are, by 

definition, small entities. To understand 

the potential impact developmentrelated costs on small entities, the IRFA 

assigns all costs to small development 

firms. This assumption is likely to 

overstate the actual impacts to such 

entities. 

Assuming a 100-acre (40-hectare) 

average development size yields 

approximately 22 affected development 

projects over the next 22 years, or 

approximately 1 project annually. The 

incremental impact due to critical 

habitat is estimated to range from $11.2 

to $45.9 million on an annualized basis, 

assuming a 7 percent discount rate. 

The incremental costs attributed to 

agriculture are explained in Chapter 6 of 

the DEA. As described in Chapter 6, a 

stipulated injunction issued by the U.S. 

District Court for the Northern District 

of California restricts pesticide 

application in designated critical 

habitat. This analysis assumes these 

restrictions will continue through 2030 

as a result of future section 7 

consultation between the Service and 

U.S. Environmental Protection Agency. 

The analysis assumes that the lands 

affected by this prohibition will be 

taken out of production; to the extent 

that there are alternative beneficial uses 

of agricultural land (such as organic 

farming or grazing), or the section 7 

consultation process results in less 

prohibitive use of pesticides, this 

analysis may overstate future economic 

impacts. 

To estimate the potential incremental 

impact on small farmers, we began by 

estimating the probability that affected 

areas are likely to be found on small 

farms based on the percentage of total 

cropland in each county cultivated by 

small entities. We divided the resulting 

areas by the median farm size per 

county to estimate that a minimum of 

217 small farms are likely to be affected. 

If less than 100 percent of these farms 

overlaps affected areas, then the number 

of farms affected could be higher. Total 

annualized impacts associated with 

these areas are anticipated to be as high 

as $2.7 million (see Exhibit A–6), 

assuming a 7 percent discount rate, or 

$500 to $168,000 per farm, depending 

on the type of crops affected. Note that, 

if the number of small farms affected is 

greater than 217, the per farm impacts 

will be lower. 


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In summary, we have considered 

whether the revised proposed rule 

would result in a significant economic 

impact on a substantial number of small 

entities. As a result of the uncertainty 

that exists regarding both the numbers 

of entities that may be impacted by the 

revised proposed rule and the degree of 

impact on individual entities, we have 

developed an Initial Regulatory 

Flexibility Analysis (IRFA) (DEA 2009b, 

Appendix A). However, due to the 

number of uncertainties identified in 

the DEA, we have prepared this IRFA 

without first making the threshold 

determination of whether the revised 

proposed critical habitat designation 

could be certified as not having a 

significant economic impact on a 

substantial number of small entities. 

This IRFA is intended to improve the 

Service’s understanding of the effects of 

the proposed rule on small entities and 

to identify opportunities to minimize 

these impacts in the final rulemaking. 

Executive Order 13211—Energy Supply, 

Distribution, and Use 

E.O. 13211 requires agencies to 

prepare Statements of Energy Effects 

when undertaking certain actions that 

may affect the supply, distribution, and 

use of energy. This proposed revision to 

critical habitat for the California redlegged frog is not considered a 

significant regulatory action under E.O. 

12866. 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 highlighted in Chapter 10 (Exhibits 

10–2 and 10–3), a number of oil and gas 

companies own and operate pipelines 

that pass through the proposed revised 

critical habitat, and Waste Management 

and the Linde Group plan to build the 

world’s largest landfill gas plant in Unit 

ALA–2. However, the incremental 

impact to these entities over the next 22 

years is solely attributable to the costs 

of section 7 consultation and no 

measurable impacts to the quantity or 

cost of energy production and 

distribution are likely to result from the 

revised designation of critical habitat 

(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 (2 U.S.C. 1501), 

the Service makes the following 

findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

tribal governments, or the private sector, 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal 

governments,’’ with two exceptions. It 

excludes ‘‘a condition of federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

government’s responsibility to provide 

funding’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance; or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

Critical habitat designation does not 

impose a legally binding duty on nonFederal Government entities or private 

parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. Designation of 

critical habitat may indirectly impact 

non-Federal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action that may destroy or adversely 

modify critical habitat. However, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that 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 to State 

governments. 

(b) 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 revised DEA concludes 

incremental impacts may occur due to 

project modifications that may need to 

be made for development and tribal 

activities; however, these are not 

expected to affect small governments as 

the costs attributed to development is 

limited to private lands and not those 

owned by local governments. 

Consequently, we do not believe that 

the revised 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 revised critical habitat for the 

California red-legged frog in a takings 

implications assessment. Our takings 

implications assessment concludes that 

the proposed revision to critical habitat 

for the California red-legged frog does 

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 Sacramento Fish and 

Wildlife Office (see FOR FURTHER

INFORMATION CONTACT section). 

Authors 

The primary authors of this 

rulemaking are the staff members of the 

Sacramento Fish and Wildlife Office. 

Dated: September 29, 2009. 

Thomas L. Strickland, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. E9–24327 Filed 10–7–09; 8:45 am] 

BILLING CODE 4310–55–P 


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