Federal Register / Vol. 71, No. 175 / Monday, September 11, 2006 / Proposed Rules 53355 

I. General Information 

A. Does This Action Apply to Me? 

This action applies to any facility 

handling Isophorone Diisocyanate. 

B. What Should I Consider as I Prepare 

My Comments for EPA? 

Submitting CBI. Do not submit this 

information to EPA through 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD ROM that 

you mail to EPA, mark the outside of the 

disk or CD ROM as CBI and then 

identify electronically within the disk or 

CD ROM the specific information that is 

claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

Dated: August 31, 2006. 

Stephen L. Johnson, 

Administrator. 

[FR Doc. E6–14843 Filed 9–8–06; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 

fw6_lynx@fws.gov. 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, 


jlentini on PROD1PC65 with PROPOSAL
53356 Federal Register / Vol. 71, No. 175 / Monday, September 11, 2006 / Proposed Rules 

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 wateruse 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. 


jlentini on PROD1PC65 with PROPOSAL
Federal Register / Vol. 71, No. 175 / Monday, September 11, 2006 / Proposed Rules 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 email 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 (mi2) (46,699 square kilometers 

(km2)) 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. 


jlentini on PROD1PC65 with PROPOSAL
53358 Federal Register / Vol. 71, No. 175 / Monday, September 11, 2006 / Proposed Rules 

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 


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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 precommercial 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 forestryrelated 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 


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53360 Federal Register / Vol. 71, No. 175 / Monday, September 11, 2006 / Proposed Rules 

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 lynxrelated 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 


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Federal Register / Vol. 71, No. 175 / Monday, September 11, 2006 / Proposed Rules 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 


jlentini on PROD1PC65 with PROPOSAL