[Federal Register Volume 71, Number 175 (Monday, September 11, 2006)]
[Proposed Rules]
[Pages 53355-53361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7579]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU52


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Contiguous United States Distinct Population 
Segment of the Canada Lynx

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of public comment period, notice of 
availability of draft economic analysis and draft environmental 
assessment, and amended Required Determinations.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the proposal to designate 
critical habitat for the Contiguous United States Distinct Population 
Segment of the Canada lynx (Lynx canadensis), the availability of the 
draft economic analysis and draft environmental assessment of the 
proposed designation of critical habitat, and an amended Required 
Determinations section of the proposal. The draft economic analysis 
estimates the potential total future costs to range from $175 million 
to $889 million in undiscounted dollars over the next 20 years. 
Discounted future costs are estimated to be from $125 million to $411 
million over 20 years ($8.38 million to $27.6 million annually) using a 
3 percent discount rate, or $99.9 million to $259 million over 20 years 
($9.43 million to $24.4 million annually) using a 7 percent discount 
rate. The amended Required Determinations section provides our 
determination concerning compliance with applicable statues and 
Executive Orders that we have deferred until the information from the 
draft economic analysis of this proposal was available. We are 
reopening the comment period to allow all interested parties to comment 
simultaneously on the proposed rule, the associated draft economic 
analysis and draft environmental assessment, and the amended Required 
Determinations section.

DATES: We will accept public comments until October 11, 2006.

ADDRESSES: Written comments and materials may be submitted to us by any 
one of the following methods:
    (1) E-mail: You may send comments by electronic mail (e-mail) to 
<a href="/cdn-cgi/l/email-protection#27415011784b5e495f6741505409404851"><span class="__cf_email__" data-cfemail="593f2e6f0635203721193f2e2a773e362f">[email protected]</span></a>. For directions on how to submit e-mail comments, see 
the ``Public Comments Solicited'' section.
    (2) Mail or hand delivery/courier: You may submit written comments 
and information to Field Supervisor, Montana Ecological Services Field 
Office, 585 Shepard Way, Helena, MT, 59601.
    (3) Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT: Lori Nordstrom, Montana Ecological 
Services Field Office, at the address listed in ADDRESSES (telephone, 
406-449-5225 extension 208).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We will accept written comments and information during this 
reopened comment period. We solicit comments on the original proposed 
critical habitat designation for the Canada lynx (lynx), published in 
the Federal Register on November 9, 2005 (70 FR 68294), the 
clarification of the proposed critical habitat, published in the 
Federal Register on February 16, 2006 (71 FR 8258), on our draft 
economic analysis of the proposed designation, and on our draft 
environmental assessment of the proposed designation. We particularly 
seek comments concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act, including 
whether it is prudent to designate critical habitat;
    (2) Specific information on the amount and distribution of lynx 
habitat in the contiguous United States, and what occupied habitat has 
features that are essential to the conservation of the species and why 
and what unoccupied habitat is essential to the conservation of the 
species and why;
    (3) Comments or information that may assist us with identifying or 
clarifying the Primary Constituent Elements (PCEs);
    (4) Land use designations and current or planned activities in 
areas proposed as critical habitat and their possible impacts on 
proposed critical habitat;
    (5) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities in timber activities, residential and 
commercial development, recreation, and mining;
    (6) As discussed in this proposed rule, we are considering whether 
some of the lands we have identified as having features essential for 
the conservation of the lynx should not be included in the final 
designation of critical habitat if,

[[Page 53356]]

prior to the final critical habitat designation, they are covered by 
final management plans that incorporate the conservation measures for 
the lynx (i.e., the Lynx Conservation Assessment and Strategy (LCAS) 
(Ruediger et al. 2000), or comparable). In particular, seven National 
Forests and one Bureau of Land Management (BLM) district are in the 
process of revising or amending their Land and Resource Management 
Plans (LRMP) to provide measures for lynx conservation. It is 
anticipated that all of these plans will be complete prior to 
promulgation of the final critical habitat designation. As a result, 
all National Forest and BLM plans would have measures that provide for 
conservation of lynx, and consequently will not be in need of special 
management or protection.
    Currently, National Forests that have not revised or amended their 
LRMPs operate under a Conservation Agreement with the Service in which 
the parties agree to take measures to reduce or eliminate adverse 
effects or risks to lynx and its occupied habitat pending amendments to 
LRMPs. The LCAS is a basis for implementing this Agreement.
    In addition, we will be evaluating the adequacy of existing 
management plans to conserve lynx on lands that are designated 
wilderness areas or National Parks, as discussed in this proposed rule.
    We specifically solicit comment on whether such areas meet the 
definition of critical habitat based on:
    (A) Whether these areas contain features essential to the 
conservation of the lynx;
    (B) The adequacy of these management plans or the Conservation 
Agreement to provide special management and protection to lynx habitat;
    Any of these lands identified above may, if appropriate, be 
included in the final critical habitat designation, even if not 
proposed for designation in this notice.
    (7) Our proposal to not include tribal lands in the Maine and 
Minnesota units under the Secretarial Order Number 3206. The size of 
the individual reservation lands in the Maine and Minnesota units is 
relatively small. As a result, we believe conservation of the lynx can 
be achieved by limiting the designation to the other lands in the 
proposed units.
    (8) Whether lands in three areas are essential for the conservation 
of the species and the basis for why they might be essential. These 
areas are: (a) The Greater Yellowstone Ecosystem (Wyoming, Montana, and 
Idaho); (b) the ``Kettle Range'' in Ferry County, Washington; and (c) 
the Southern Rocky Mountains,
    (9) How the proposed boundaries of critical habitat units could be 
refined to more closely conform to the boreal forest types occupied by 
lynx. Maps that accurately depict the specific vegetation types on all 
land ownerships were not readily available. Additionally, even if 
accurate, detailed vegetation maps were available, we were unsure how 
to delineate and describe critical habitat boundaries that solely 
encompassed lands containing the features essential to the conservation 
of the lynx.
    (10) 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.
    (11) Any foreseeable environmental impacts directly or indirectly 
resulting from the proposed designation of critical habitat;
    (12) Whether the economic analysis identifies all State and local 
costs attributable to the proposed critical habitat, and information on 
costs that have been inadvertently overlooked;
    (13) Whether the economic analysis makes appropriate assumptions 
regarding current practices and likely regulatory changes imposed as a 
result of the designation of critical habitat;
    (14) Whether the economic analysis correctly assesses the effect on 
regional costs associated with land- and water-use controls that derive 
from the designation;
    (15) Whether the critical habitat designation will result in 
disproportionate economic impacts to specific areas that should be 
evaluated for possible exclusion from the final designation per our 
discretion under section 4(b)(2) of the Act. We are specifically 
seeking comment along with additional information on the estimated 
costs, how these estimated costs are distributed within such location, 
and whether we should exclude all or a portion of a unit;
    (16) Whether the economic analysis appropriately identifies all 
costs that could result from the designation;
    (17) As noted in the draft economic analysis, we did not estimate 
the potential economic impacts for several specific land-use categories 
for two reasons, first because we are unsure of how certain 
conservation guidelines for the lynx may be applied and second, because 
we are uncertain as to how we should assume development will occur. We 
believe that we have three options:
    a. Apply potential economic impacts equally across all land-uses 
assuming all zoned development will occur. For example, the Lynx 
Conservation Assessment and Strategy allows no more than 10 percent of 
habitat be lost to the lynx, in which case, we would assume that 90 
percent of the lands zoned for development would not be available for 
anything other than lynx habitat and identify any economic losses 
identified with those activities;
    b. Assume that the 10 percent limitation on habitat loss will be 
calculated across the entire range of the lynx and that habitat losses 
will be concentrated in the highest economic value areas and that lower 
economic value areas will be preserved as habitat; or
    c. Focus potential economic impacts in areas where major economic 
development is projected in order to maximize the amount of habitat 
protected for lynx. This approach results in the highest economic cost 
as most areas zoned for development would be unable to be developed.
    Please provide comment on which approach is the most appropriate. 
Please reference page 3-12 of the draft economic analysis for further 
clarification of conservation guidelines.
    (18) The Lynx Conservation Assessment and Strategy (LCAS) was 
developed for conservation of lynx and lynx habitat on Federal lands 
particularly for the U.S. Forest Service and Bureau of Land Management. 
Although developed for public lands, it represents the best available 
scientific information. Should the Service assume that the requirements 
of the LCAS management guidelines will be applied to private lands, and 
base the economic cost on that approach? If not, what standard should 
be used to measure the potential economic impacts of this designation 
on affected private landowners?
    (19) Private timber companies may also be subject to consultation 
on critical habitat or face impacts from consultation or mitigation 
based on their interaction with Federal agencies. For these reasons, we 
are requesting comments from any potentially affected small businesses 
involved in timber activities about the impacts resulting from the 
proposed designation of critical habitat. How will your small business 
be affected by this critical habitat designation? What are the 
estimated cost impacts of this proposed designation to your small 
business? and
    (20) Whether the benefits of exclusion in any particular area 
outweigh the benefits of inclusion under Section 4(b)(2) of the Act.

[[Page 53357]]

    All previous comments and information submitted during the initial 
comment periods on the proposed rule need not be resubmitted. If you 
wish to comment, you may submit your comments and materials concerning 
this proposal by any one of several methods (see ADDRESSES section). 
Our final designation of critical habitat for the lynx will take into 
consideration all comments and any additional information received 
during all comment periods. On the basis of public comment on the draft 
economic analysis, the critical habitat proposal, and the final 
economic analysis, we may during the development of our final 
determination find that areas proposed are not essential, are 
appropriate for exclusion under section 4(b)(2) of the Act, or not 
appropriate for exclusion.
    Please submit electronic comments in an ASCII file format and avoid 
the use of special characters and encryption. Please also include 
``Attn: RIN 1018-AU52'' and your name and return address in your e-mail 
message. If you do not receive a confirmation from the system that we 
have received your e-mail message, please contact the person listed 
under For Further Information Contact.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. We will not consider anonymous comments and we will 
make all comments available for public inspection in their entirety. 
Comments and materials received, as well as supporting information used 
in preparation of the proposed critical habitat designation, will be 
available for public inspection, by appointment, during normal business 
hours at the Montana Ecological Services Field Office at the address 
listed under ADDRESSES.
    You may obtain copies of the proposed rule, draft economic 
analysis, and draft environmental assessment by mail or by visiting our 
Web site at http://mountain-prairie.fws.gov/species/mammals/lynx/criticalhabitat.htm. In the event that our Internet connection is not 
functional, please obtain copies of documents directly from the Montana 
Ecological Services Field Office.

Background

    The lynx generally inhabits cold, moist boreal forests in the 
contiguous United States. On November 9, 2005, we published a proposed 
rule in the Federal Register (70 FR 68294) to designate approximately 
18,031 square miles (mi\2\) (46,699 square kilometers (km\2\)) as 
critical habitat for the lynx. The proposed critical habitat includes 
four units in the States of Idaho, Maine, Minnesota, Montana, and 
Washington. The original comment period on the proposed critical 
habitat rule closed on February 7, 2006. On February 16, 2006, we 
published a notice in the Federal Register (71 FR 8258) to reopen the 
public comment period and clarify the proposed designation; this second 
comment period closed on April 30, 2006.
    Critical habitat is defined in section 3 of the Act 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 and that 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, 
pursuant to 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 of 
the November 9, 2005 (70 FR 68294), proposed designation of critical 
habitat for the lynx.
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of the lynx including 
costs associated with sections 4, 7, and 10 of the Act, and including 
those attributable to designating critical habitat. The draft analysis 
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 draft analysis 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 small entities and the energy industry. This 
information can be used by decision-makers to assess whether the 
effects of the designation might unduly burden a particular group or 
economic sector. Finally, the draft analysis looks retrospectively at 
costs that have been incurred since the date the lynx was listed as 
threatened in 2000, and considers those costs that may occur in the 20 
years following a designation of critical habitat.
    Costs related to conservation activities for the proposed 
designation of critical habitat for lynx pursuant to sections 4, 7, and 
10 of the Act are estimated to be approximately $175 to $889 million 
over 20 years in undiscounted 2006 dollars. Discounted future costs are 
estimated to be from $125 million to $411 million over 20 years ($8.38 
million to $27.6 million annually) using a 3 percent discount rate, or 
$99.9 million to $259 million over 20 years ($9.43 million to $24.4 
million annually) using a 7 percent discount rate.
    We solicit data and comments from the public on the draft economic 
analysis, as well as on all aspects of the proposal to designate 
critical habitat. We may revise the proposal, or its supporting 
documents, to incorporate or address new information received during 
the comment period. 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 such exclusion will not result in the extinction of the 
species.

National Environmental Policy Act

    The draft environmental assessment (EA) presents the purpose of and 
need for critical habitat designation, the Proposed Action and 
alternatives, and an evaluation of the direct, indirect, and cumulative 
effects of the alternatives pursuant to the requirements of the 
National Environmental Policy Act of 1969 (NEPA) as implemented by the 
Council on Environmental Quality regulations (40 CFR 1500 et seq.) and 
according to the Department of Interior NEPA procedures. The scope of 
the EA includes issues and resources within the contiguous United 
States range of the lynx in portions of Maine, Minnesota, Montana, 
Idaho, and Washington as well as areas with lynx habitat in Colorado 
and Wyoming not included in the proposed designation of critical 
habitat for the lynx.

[[Page 53358]]

    The EA will be used by the Service to decide whether or not 
critical habitat will be designated as proposed, if the Proposed Action 
requires refinement, or if further analyses are needed through 
preparation of an environmental impact statement (EIS). If the Proposed 
Action is selected as described, or with minimal changes, and no 
further environmental analyses are needed, then a Finding of No 
Significant Impact (FONSI) would be the appropriate conclusion of this 
process. A FONSI would then be prepared for the EA.

Required Determinations--Amended

    In our November 9, 2005, proposed rule (70 FR 68294), we indicated 
that we would be deferring 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 was available in the draft economic 
analysis. Those data are now available for our use in making these 
determinations. In this notice we are affirming the information 
contained in the proposed rule concerning Executive Order 13132 and 
Executive Order 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). Based on the information made available to 
us in the draft economic analysis, we are amending our Required 
Determinations, as provided below, concerning Executive Order 12866 and 
the Regulatory Flexibility Act, Executive Order 13211, Executive Order 
12630, and the Unfunded Mandates Reform Act.

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise novel legal and policy issues. 
Based on our draft economic analysis of the proposed designation of 
critical habitat for the lynx, costs related to conservation activities 
for lynx pursuant to sections 4, 7, and 10 of the Act are estimated to 
be approximately $175 to $889 million over 20 years in undiscounted 
2006 dollars. Discounted future costs are estimated to be from $125 
million to $411 million over 20 years ($8.38 million to $27.6 million 
annually) using a 3 percent discount rate, or $99.9 million to $259 
million over 20 years ($9.43 million to $24.4 million annually) using a 
7 percent discount rate. Therefore, based on our draft economic 
analysis, it is not anticipated that the proposed designation of 
critical habitat for the lynx would result in an annual effect on the 
economy of $100 million or more or affect the economy in a material 
way. Due to the timeline for publication in the Federal Register, the 
Office of Management and Budget (OMB) has not formally reviewed the 
proposed rule or accompanying economic analysis.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (OMB, 
Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it 
has been determined that the Federal regulatory action is appropriate, 
the agency will need to consider alternative regulatory approaches. 
Since the determination of critical habitat is a statutory requirement 
pursuant to the Act, we must then evaluate alternative regulatory 
approaches, where feasible, when promulgating a designation of critical 
habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts under section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat, provided that the benefits of such 
exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 802(2)) (SBREFA), 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). 
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.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
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 this proposed designation of critical habitat for 
lynx would affect a substantial number of small entities, we considered 
the number of small entities affected within particular types of 
economic activities (e.g., timber, recreation, public and conservation 
land management, transportation, and mining). 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. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
the designation of critical habitat. Designation of critical habitat 
only affects activities conducted, funded, permitted, or authorized by 
Federal agencies; other activities are not affected by the designation.
    If this proposed critical habitat designation is made final, 
Federal agencies must consult with us if their activities may affect 
designated critical habitat. Consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
existing consultation process. Private companies may also be subject to 
consultation or mitigation impacts.
    Several of the activities potentially affected by lynx conservation 
efforts within the study area (timber, recreation, grazing) involve 
small businesses. Given the rural nature of the proposed designation, 
most of the potentially affected businesses in the affected regions are 
small.
    Our draft economic analysis of this proposed designation evaluated 
the

[[Page 53359]]

potential economic effects on small business entities and small 
governments resulting from conservation actions related to the listing 
of this species and proposed designation of its critical habitat. We 
evaluated small business entities in the following categories: Timber 
activities; residential and commercial development; recreation; public 
lands management and conservation planning; transportation, utilities, 
and municipal activities; and mining operations. Based on our analysis, 
impacts associated with small entities are anticipated to occur to 
timber activities, recreation, public lands management, conservation 
planning, transportation, and mining. Because no information was 
available regarding how residential and commercial development may be 
affected by lynx conservation, the analysis does not quantify specific 
impacts to residential and commercial development but rather provides 
the full option value for development within the study area. Thus, 
residential and commercial development impacts to small entities are 
not addressed in the SBREFA screening analysis. We are seeking comments 
from potentially affected small entities involved in timber activities, 
residential and commercial development, recreation, and mining. The 
following is a summary of the information contained in the draft 
economic analysis:

(a) Timber Activities

    According to the draft economic analysis, impacts on timberlands 
have historically resulted from implementation of lynx management plans 
and project modifications. The majority of forecast impacts on timber 
relate to potential restrictions on pre-commercial thinning, with 
nearly half of these impacts occurring on private timberland in Maine. 
The economic analysis applied two scenarios to bound the impacts 
resulting from potential changes to timber activities. Under Scenario 
2, the upper bound, timber impacts range from $15.6 million (discounted 
at 7 percent) to $33.3 million (discounted at 3 percent) over 20 years. 
When compared to forestry-related earning across counties in the study 
area ($454 million in 2003), these potential losses are approximately 3 
to 7 percent of total forestry-related earnings. Total forecast impacts 
to timber activities range from $117 million to $808 million over 20 
years. Exhibits C-1 through C-4 of the economic analysis quantify the 
small timber companies that may be affected by the proposed rule. 
However, the draft economic analysis states that it is uncertain 
whether private timber companies will be affected by the designation of 
critical habitat. Government agencies, such as the U.S. Forest Service, 
are subject to critical habitat consultations.

(b) Residential and Commercial Development

    Because specific information on how residential and commercial 
development projects would mitigate for impacts to lynx and its habitat 
is unknown, the draft economic analysis does not attempt to quantify 
the economic impacts of mitigating development activities. Instead, it 
presents the full value that may be derived from potential future 
development within the potential critical habitat. The total projected 
future development value of areas proposed for designation as critical 
habitat for the lynx is approximately $2.26 billion. Approximately 69.1 
percent ($1.56 billion) of this is the value of future development in 
Minnesota (Unit 2); 25.7 percent ($579 million) of this is the value of 
future development in Maine (Unit 1), of which $1.57 million is 
proposed for exclusion; and 5.2 percent ($117 million) of this is the 
value of future development in Montana. Lands proposed for critical 
habitat in Washington are characterized by public lands managed for 
timber and recreation. As such, residential and commercial development 
is not considered to be a future land use, and the value of these lands 
for future development is considered to be negligible. Recognizing that 
approximately 80 percent of the projected value of potential future 
residential and commercial development within the area proposed as 
critical habitat consist of lands within Minnesota and recognizing the 
potential effects on landowners and development companies, we will 
consider this information pursuant to section 4(b)(2) during the 
development of the final designation.
    No North American Industry Classification System (NAICS) code 
exists for landowners, and the Small Business Administration does not 
provide a definition of a small landowner. However, recognizing that it 
is possible that some of the landowners may be small businesses, this 
analysis provides information concerning the number of landowners 
potentially affected: An upward estimate of 38 in Maine, 53 in 
Minnesota, and 110 in Montana. It is possible that a portion of these 
affected landowners could be small businesses in the residential or 
commercial land development industry or could be associated businesses, 
such as builders and developers. Actual conservation requirements 
undertaken by an individual landowner will depend on how much of a 
parcel lies within or affects proposed critical habitat. Individual 
single-family home development has not historically been subject to 
consultation or habitat conservation requirements for lynx, although 
consultation could be required if Federal permits from the Army Corps 
of Engineers, Environmental Protection Agency, or Federal Emergency 
Management Agency are required.
    For these reasons, we are requesting comments from any potentially 
affected small businesses involved in residential and commercial 
development activities, about the impacts resulting from the proposed 
designation of critical habitat. How will small businesses, such as 
landowners, builders or developers be affected by this critical habitat 
designation? The economic analysis presents the full potential 
development value of impacted lands within the potential critical 
habitat as a baseline, but does not provide a cost estimate. How could 
this estimate be refined to demonstrate how small businesses in the 
residential and commercial development field will be affected by this 
critical habitat designation? What would you suggest as another measure 
of these costs?

(c) Recreation

    Recreational activities that have the potential to affect the lynx 
and its habitat include over-the-snow trails for snowmobiling and 
cross-country skiing, accidental trapping or shooting, and recreation 
area expansions such as ski resorts, campgrounds, or snowmobile areas. 
Total forecast costs to all recreation activities in areas proposed for 
designation are $1.05 to $3.46 million, or an annualized estimate of 
$57,600 to $178,000 (applying a 7 percent discount rate) or $54,500 to 
$175,000 (applying a 3 percent discount rate). Impacts to recreation 
activity forecast in the draft analysis include welfare impacts to 
individual snowmobilers; however, the level of participation is not 
expected to change. As no decrease in the level of snowmobiling 
activity is forecast, impacts to small businesses that support the 
recreation sector are not anticipated.
    We are requesting comments from any potentially affected small 
businesses involved in recreation activities, about the impacts 
resulting from the proposed designation of critical habitat. What are 
the estimated cost impacts of this

[[Page 53360]]

proposed designation to your small business?

(d) Public lands management and conservation planning

    The draft economic analysis estimates that total post-designation 
costs of lynx conservation efforts associated with public and 
conservation lands management in areas proposed for designation to be 
approximately $12.8 million over the next 20 years, or an annualized 
cost of $940,000 (present value applying a 7 percent discount rate) or 
$767,000 (applying a 3 percent discount rate). The majority of public 
lands are managed by Federal and State entities that do not qualify as 
small businesses. As such, designation of critical habitat for lynx is 
not anticipated to have a significant impact on a substantial number of 
small businesses involved in public lands management or conservation 
planning.

(e) Transportation, Utilities, and Municipal Activities

    The draft economic analysis estimates that total post-designation 
costs resulting from lynx conservation efforts associated with 
transportation, utilities, and municipal activities for areas proposed 
for designation will range from $34.9 million to $55.1 million over the 
next 20 years, or an annualized value of $1.9 to 2.9 million (present 
value applying a 7 percent discount rate) or $1.8 to $2.8 million 
(present value applying a 3 percent discount rate). Of the total post-
designation costs, approximately 71 percent are attributed to 
transportation activities, and 29 percent are attributed to utility and 
municipal activities. Impacts to transportation and municipal projects 
are expected to be borne by the Federal and State agencies undertaking 
lynx-related modifications to these types of projects, including the 
Federal Highway Administration, the Federal Emergency Management 
Agency, the U.S. Army Corps of Engineers, and State transportation 
departments. Since Federal and State entities do not qualify as small 
businesses, the designation of critical habitat for the lynx is not 
anticipated to have a significant impact on a substantial number of 
small businesses associated with transportation, utilities, and 
municipal activities.
    Impacts to dam projects, including costs of remote monitoring for 
lynx that could be required for relicensing of dams, could be borne by 
the companies that own the dams. In particular, 14 dams in Minnesota 
and two in Maine are expected to consider lynx conservation at the time 
of relicensing. The economic analysis estimated costs of $13,000 to 
$18,000 to each of these 16 dam projects in 2025. Based on these small 
costs, we do not anticipate that this would be a significant impact to 
dam operators.

(f) Mining Operations

    The draft economic analysis estimates total post-designation costs 
resulting from lynx conservation efforts associated with mining 
projects of approximately $430,000, or an annualized rate of $38,000 
(present value applying a 7 percent discount rate) or $28,100 (present 
value applying a 3 percent discount rate). Unit 2 (Minnesota) is the 
only area of potential critical habitat for which future surface mining 
expansion and development projects have been identified; specifically, 
three new or expanded mining projects are forecast to occur on leased 
lands of Superior National Forest. The greatest impact estimated is 
$375,000 or an annualized impact of $33,100 for the East Reserve Mine, 
which has a total value of $819 million, which equates to less than a 1 
percent annual impact to the mine relative to its total value. There is 
an uncertainty for realized impacts on the mining industry from lynx 
conservation activities.
    We are requesting comments from any potentially affected small 
businesses involved in the mining industry, about the impacts resulting 
from the proposed designation of critical habitat. What are the 
estimated cost impacts of this proposed designation to your small 
business?
    We evaluated small business entities relative to the proposed 
designation of critical habitat for the lynx to determine potential 
effects to these business entities and the scale of any potential 
impact. Based on our analysis, there are potential projected impacts 
associated with small entities in the areas of timber activities, 
recreation, public lands management, conservation planning, 
transportation, and mining. There is also a possibility of potential 
projected impacts to development activities. Due to the lack of 
information, the economic analysis for this critical habitat does not 
attempt to assign development impacts to specific small entities, 
rather leaving open the question of whether any small entities will be 
affected. We have outlined above potential projected future impacts to 
these entities resulting from conservation-related activities for the 
lynx, and asked potential affected small entities for input as to what 
the likely impacts will be for their industry sectors. We do, however, 
recognize that there may be disproportionate impact to certain sectors 
and geographic areas within lands proposed for designation. As such, we 
will more fully evaluate these potential impacts during the development 
of the final designation, and may, if appropriate, consider such lands 
for exclusion pursuant to section 4(b)(2) of the Act.

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

    On May 18, 2001, the President issued Executive Order 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. This proposed 
designation of critical habitat for the Canada lynx is considered a 
significant regulatory action under Executive Order 12866 due to it 
potentially raising novel legal and policy issues. OMB has provided 
guidance for implementing this Executive Order that outlines nine 
outcomes that may constitute ``a significant adverse effect'' when 
compared without the regulatory action under consideration. The draft 
economic analysis finds that none of these criteria are relevant to 
this analysis (refer to Appendix C of the draft economic analysis). 
Thus, based on the information in the draft economic analysis, energy-
related impacts associated with lynx conservation activities within 
proposed critical habitat are not expected. As such, the proposed 
designation of critical habitat is not expected to significantly affect 
energy supplies, distribution, or use 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 the following two exceptions: It excludes ``a 
condition of federal assistance'' and ``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

[[Page 53361]]

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. At the time of enactment, these 
entitlement programs were: Medicaid; AFDC work programs; Child 
Nutrition; Food Stamps; Social Services Block Grants; Vocational 
Rehabilitation State Grants; Foster Care, Adoption Assistance, and 
Independent Living; Family Support Welfare Services; and Child 
Support Enforcement. ``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.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies 
must ensure that their actions do not destroy or adversely modify 
critical habitat under section 7. Non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may 
be indirectly impacted by the designation of 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 on to 
State governments.
    (b) The draft economic analysis discusses potential impacts of 
critical habitat designation for lynx on timber activities, 
development, recreation, public lands management and conservation 
planning, transportation, utilities, and municipal activities, and 
mining operations. The analysis estimates that annual costs of the 
rule could range from $175 million to $889 million in constant 
dollars over 20 years. Impacts are largely anticipated to affect 
timber management, with some effects on residential and commercial 
development, recreation, and transportation. Impacts on small 
governments are either not anticipated, or they are anticipated to 
be passed through to consumers. Consequently, for the reasons 
discussed above, we do not believe that the designation of critical 
habitat for lynx will significantly or uniquely affect small 
government entities. As such, a Small Government Agency Plan is not 
required.

Executive Order 12630--Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing critical habitat for the lynx in a takings implications 
assessment. The takings implications assessment concludes that this 
proposed designation of critical habitat for the lynx does not pose 
significant takings implications.

Author

    The primary authors of this notice are the staff of the Montana 
Ecological Services Field Office (see ADDRESSES section).

    Authority: The authority for this action is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq).

    Dated: August 29, 2006.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-7579 Filed 9-6-06; 2:32 pm]
BILLING CODE 4310-55-P


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