[Federal Register Volume 71, Number 186 (Tuesday, September 26, 2006)]
[Proposed Rules]
[Pages 56085-56094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8191]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU45


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Astragalus ampullarioides (Shivwits Milk-Vetch) 
and Astragalus holmgreniorum (Holmgren Milk-Vetch)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Revised proposed rule; reopening of public comment period, 
notice of availability of draft economic analysis and draft 
environmental assessment, and revisions to proposed critical habitat 
boundaries.

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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 Astragalus ampullarioides (Shivwits milk-vetch) 
and Astragalus holmgreniorum (Holmgren milk-vetch) under the Endangered 
Species Act of 1973, as amended (Act). We also announce the 
availability of the draft economic analysis for the proposed 
designation of critical habitat for Holmgren and Shivwits milk-vetches. 
The draft economic analysis finds that, over 20 years, post-designation 
costs for Holmgren and Shivwits milk-vetch conservation-related 
activities are estimated to range between $8.8 and $14.1 million in 
undiscounted 2006 dollars. In discounted terms, potential post-
designation economic costs are estimated to be $8.5 to $13.0 million 
(using a 3 percent discount rate) or $8.2 to $12.1 million (using a 7 
percent discount rate). In addition, we announce the availability of a 
draft environmental assessment that has been prepared in accordance 
with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq. ) (NEPA). Finally, we propose to revise boundary descriptions for 
two critical habitat subunits: Holmgren milk-vetch's Unit 2a (Stucki 
Spring) and Unit 2b (South Hills).

DATES: We will accept comments until October 26, 2006.

ADDRESSES: If you wish to comment on the proposed rule, draft economic 
analysis, or draft environmental assessment, you may submit your 
comments and materials 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#7e160d13171215081b0a1d163e18090d50191108"><span class="__cf_email__" data-cfemail="4c243f212520273a29382f240c2a3b3f622b233a">[email protected]</span></a>. Please see Public Comments Solicited section below 
for file format and other information about electronic filing.
    (2) Fax: You may fax comments to (801) 975-3331.
    (3) Mail or hand delivery/courier: You may submit written comments 
to Larry Crist, Acting Field Supervisor, Utah Ecological Services Field 
Office, 2369 West Orton Circle, Suite 50, West Valley City, Utah 84119.
    (4) Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT: Larry Crist, Acting Field Supervisor, 
Utah Ecological Services Field Office, at the address listed in 
ADDRESSES (telephone, 801-975-3330; facsimile, 801-975-3331).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We will accept written comments and information during this 
reopened comment period. We solicit comments or suggestions from the 
public, other concerned governmental agencies, the scientific 
community, industry, or any other interested party concerning the

[[Page 56086]]

original proposed rule published in the Federal Register on March 29, 
2006 (71 FR 15966), revisions to the proposed rule described in this 
document, the draft economic analysis, and the draft environmental 
assessment. In addition to the points listed in the March 29, 2006, 
proposed rule, 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 Endangered Species 
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), including 
whether it is prudent to designate critical habitat;
    (2) Specific information on the distribution of the Holmgren and 
Shivwits milk-vetches, the amount and distribution of the species' 
habitat, and which habitat contains the necessary features (primary 
constituent elements) essential to the conservation of these species 
and why;
    (3) Land-use designations and current or planned activities in the 
subject area and their possible impacts on these species or proposed 
critical habitat;
    (4) Whether our approach to critical habitat designation 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;
    (5) Any foreseeable environmental impacts directly or indirectly 
resulting from the proposed designation of critical habitat;
    (6) Any foreseeable economic, national security or other potential 
impacts resulting from the proposed designation of critical habitat, 
and in particular, any impacts on small entities or families;
    (7) Whether the economic analysis identifies all State and local 
costs attributable to the proposed critical habitat, and information on 
any costs that have been inadvertently overlooked;
    (8) Whether the economic analysis makes appropriate assumptions 
regarding current practices and likely regulatory changes imposed as a 
result of the designation of critical habitat;
    (9) Whether the economic analysis correctly assesses the effect on 
regional costs associated with land-use controls that derive from the 
designation;
    (10) 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;
    (11) Whether the economic analysis appropriately identifies all 
costs that could result from the critical habitat designation; and
    (12) Whether the benefit of exclusion in any particular area 
outweighs the benefits of inclusion under section 4(b)(2) of the Act.
    Comments previously submitted on the March 29, 2006, proposed rule 
(71 FR 15966) need not be resubmitted as they have been incorporated 
into the record and will be fully considered in preparation of the 
final rule. If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods (see 
ADDRESSES). Our final designation of critical habitat for the Holmgren 
and Shivwits milk-vetches will take into consideration all comments and 
any additional information received during both comment periods. Based 
on public comment on the proposed rule, the draft economic analysis, 
and the draft environmental assessment, as well as on the conclusions 
of the final economic analysis and environmental assessment, we may 
find during the development of our final determination that some areas 
proposed do not contain the features that are essential to the 
conservation of the species, are appropriate for exclusion under 
section 4(b)(2) of the Act, or are not appropriate for exclusion.
    Please submit electronic comments in ASCII file format and avoid 
the use of special characters or any form of encryption. Please also 
include ``Attn: RIN 1018-AU45'' in the subject line, and your name and 
return address in the body of your message. If you do not receive a 
confirmation from the system that we have received your Internet 
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 will be available for public 
inspection, by appointment, during normal business hours at the Utah 
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 from the Utah 
Ecological Services Field Office at the address listed under ADDRESSES 
or by visiting our Web site at http://mountain-prairie.fws.gov/species/plants/milkvetche/index.htm.

Background

    Holmgren and Shivwits milk-vetches are members of the pea family 
(Fabaceae or Leguminosae). Holmgren milk-vetch is a stemless, 
herbaceous (non-woody) perennial that produces leaves and small purple 
flowers in the spring. Shivwits milk-vetch is a perennial, herbaceous 
plant with yellow to cream-colored flowers that is considered a tall 
member of the pea family. Holmgren milk-vetch is known from Mohave 
County, Arizona, and Washington County, Utah. Shivwits milk-vetch is 
known only from Washington County in Utah. Threats to both species that 
resulted in their listing on September 28, 2001 (66 FR 49560), include 
development of land for residential and urban use, habitat modification 
from human disturbances such as off-road vehicle use, competition with 
nonnative plant species, and impacts from mining and grazing.
    On March 29, 2006, we proposed to designate approximately 2,421 
acres (ac) (980 hectares (ha)) of critical habitat for Shivwits milk-
vetch, and 6,475 ac (2,620 ha) of critical habitat for Holmgren milk-
vetch, which include known occupied sites and associated habitats 
containing the identified primary constituent elements (71 FR 15966). 
The proposed designation includes Federal, State, Tribal, and private 
lands in Arizona and Utah. On August 1, 2006, the Service announced the 
availability of a draft recovery plan for the two species (71 FR 
43514). The recovery plan identifies the areas important for recovery; 
these areas correspond to those we have proposed as critical habitat.
    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

[[Page 56087]]

proposed actions, under section 7(a)(2) of the Act.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. In compliance with section 4(b)(2) of the 
Act, we have prepared a draft economic analysis of the March 29, 2006 
(71 FR 15966), proposed designation of critical habitat for Holmgren 
and Shivwits milk-vetches.
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of the two milk-
vetches, including costs associated with sections 4, 7, and 10 of the 
Act, and including those attributable to designating critical habitat. 
It further considers the economic effects of protective measures taken 
as a result of other Federal, State, and local laws that aid habitat 
conservation for the two milk-vetches in essential habitat areas. The 
draft economic 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 economic 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 economic analysis looks 
retrospectively at costs that have been incurred since the date the two 
milk-vetches were listed in 2001, and considers those costs that may 
occur in the 20 years following a designation of critical habitat.
    Pre-designation (2001-2006) costs associated with species 
conservation activities are estimated to range from $9.3 to $13.7 
million in 2006 dollars. Potential post-designation (2007-2026) costs 
are estimated to range between $8.8 and $14.1 million in undiscounted 
2006 dollars. In discounted terms, potential post-designation economic 
costs are estimated to be $8.5 to $13.0 million (using a 3 percent 
discount rate) and $8.2 to $12.1 million (using a 7 percent discount 
rate). In annualized terms, potential post-designation costs are 
expected to range from $0.6 to $0.9 million annually (annualized at 3 
percent) and $0.9 to $1.1 million annually (annualized at 7 percent).
    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.

Draft Environmental Assessment; 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 (42 U.S.C. 4321 et seq.) 
(NEPA) as implemented by the Council on Environmental Quality 
regulations (40 CFR 1500 et seq.) and according to the Department of 
the Interior's NEPA procedures.
    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.

Proposed Change to Boundaries of Holmgren Milk-Vetch Units 2a and 2b

    Following publication of the proposed critical habitat rule on 
March 29, 2006, we received updated information from the Bureau of Land 
Management (BLM), St. George Field Office, St. George, Utah on plant 
habitat and occupancy. Based on this information, we propose to amend 
the boundaries of two subunits for the Holmgren milk-vetch within Unit 
2 (Santa Clara): Unit 2a (Stucki Spring) and Unit 2b (South Hills). 
Corrected maps and boundary descriptions are provided in the Proposed 
Regulation Promulgation section below.
    We propose changes to Unit 2a (Stucki Springs) and Unit 2b (South 
Hills) based on 2006 field survey results and comments contributed by 
BLM. Field reconnaissance in 2006 by BLM resulted in adjustment of 
boundaries to better include Holmgren milk-vetch habitat. Specific 
changes to Unit 2a (Stucki Springs) include: (1) Extension of the 
boundary to the north and west that results in the inclusion of an 
additional 139 ac (56.3 ha); and (2) retraction of the boundary on the 
south and southeast that results in the deletion of 114 ac (46.2 ha). 
The adjustment to the north and west further captures watershed and 
some of the formation contributing to the occupancy of Holmgren milk-
vetch, and better reflects recent surveyed habitat and occupancy. The 
retraction to the south and southeast excludes habitat that is not 
occupied by Holmgren milk-vetch. Boundary adjustments for Unit 2a 
(Stucki Springs) result in an increase of proposed critical habitat in 
this subunits from approximately 412 ac (168 ha) to 437 ac (177 ha).
    Specific changes to Unit 2b (South Hills) include: (1) The addition 
of 7 ac (2.8 ha) to the northeast portion of the subunit to include 
drainage patterns from the ridgeline and slope of the adjacent 
formation; (2) the deletion of 17 ac (6.9 ha) to the southeast to 
correct a mapping error that proposed critical habitat outside the area 
known to be occupied by the taxon; and (3) the realignment of the 
western boundary 100 feet (30 meters) to the east for management 
purposes. Boundary adjustments for Unit 2b (South Hills) result in a 
decrease of proposed critical habitat in this subunit from 
approximately 147 ac (59 ha) to 129 ac (52 ha).
    Overall, therefore, the total proposed critical habitat for the two 
milk-vetches would be increased by only 8 ac (3.3 ha) as a result of 
these proposed changes to the boundaries of Holmgren milk-vetch Units 
2a and 2b.

Future Boundary Changes

    Manmade features within the boundaries of proposed designated, 
mapped units, such as buildings, roads, parking lots, and other paved 
areas, do not contain any of the primary constituent elements for 
Holmgren and Shivwits milk-vetches and are not considered critical 
habitat. Additional efforts will be made to remove these areas in the 
final critical habitat designation for Holmgren and Shivwits milk-
vetches. However, any such structures and the land under them

[[Page 56088]]

inadvertently left inside critical habitat boundaries have been 
excluded by text and are not designated as critical habitat.

Required Determinations--Amended

    In our March 29, 2006, proposed rule (71 FR 15966), 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 Orders 13132 and 
Executive Order 12988; the Paperwork Reduction 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. We are also complying with NEPA by preparation of a draft 
environmental assessment of the critical habitat proposal.

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise legal and policy issues. Based on 
our draft economic analysis, potential post-designation (2007-2026) 
costs are estimated to range between $8.8 and $14.1 million in 
undiscounted 2006 dollars. In discounted terms, potential economic 
costs are estimated to be $8.5 to $13.0 million (using a 3 percent 
discount rate) and $8.2 to $12.1 million (using a 7 percent discount 
rate). In annualized terms, potential costs are expected to range from 
$0.6 to $0.9 million annually (annualized at 3 percent) and $0.9 to 
$1.1 million annually (annualized at 7 percent). Therefore, we do not 
believe that the proposed designation of critical habitat for the 
Holmgren and Shivwits milk-vetches 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). Under Circular A-4, once it has been 
determined that the Federal regulatory action is appropriate, the 
agency will need to consider alternative regulatory approaches. Because 
the determination of critical habitat is a statutory requirement under 
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. Based upon our draft 
economic analysis of the proposed designation, we provide our analysis 
for determining whether the proposed rule would result in a significant 
economic impact on a substantial number of small entities. This 
determination is subject to revision based on comments received as part 
of the final rulemaking.
    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 the proposed designation of critical habitat for 
the Holmgren and Shivwits milk-vetches would affect a substantial 
number of small entities, we considered the number of small entities 
affected within particular types of economic activities (e.g., housing 
development, livestock grazing, residential and related development, 
recreation activities, mining, and transportation). We considered each 
industry or category individually to determine if certification is 
appropriate. 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; non-
Federal activities are not affected by the designation.
    If the 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.
    Our draft economic analysis of the proposed critical habitat 
designation evaluated the potential economic effects on small business 
entities and small governments resulting from conservation actions 
related to the listing of these species and proposed designation of 
their critical habitat. The activities affected by Holmgren and 
Shivwits milk-vetches' conservation

[[Page 56089]]

efforts may include land development, transportation and utility 
operations, and conservation on public and tribal lands. More than 98 
percent of the prospective economic costs (based on upper-bound future 
undiscounted cost figures) associated with conservation activities for 
Holmgren and Shivwits milk-vetches are expected to be borne by Federal 
agencies (primarily BLM) and state departments of transportation. Thus, 
impacts to land development (i.e., BLM land disposal) and 
transportation and utilities operations (i.e., Western and Southern 
Corridor projects) are not expected to affect small entities. The 
following is a summary of the information contained in the draft 
economic analysis:

(a) Development

    According to the draft economic analysis, Holmgren and Shivwits 
milk-vetches' development-related losses account for approximately 71 
percent of forecast costs, and range from $7.2 to $10.0 million (in 
2006 dollars) over 20 years. The costs consist of losses in Federal 
land value resulting from the removal of BLM-administered public lands 
from disposal status, meaning the lands cannot be sold or exchanged for 
private use. The only clearly directly affected entity is the BLM, a 
large government agency. Federal governments are not defined as small 
entities by the Small Business Administration. As a result of this 
information, we have determined that the proposed designation is not 
anticipated to have a substantial effect on a substantial number of 
small development businesses.

(b) Transportation and Utility Operations

    Potential costs to transportation and utility operations in habitat 
proposed for designation account for another 25 percent of forecast 
costs. Undiscounted costs are estimated to range between $1.0 and $3.5 
million (in 2006 dollars) over 20 years, or $0.8 to $2.5 million 
assuming a 3 percent discount rate and $0.6 to $1.7 million assuming a 
7 percent discount rate. The amounts are driven by project modification 
costs associated with the Southern and Western Corridor transportation 
projects. These projects comprise more than 95 percent of the 
transportation and utility-related costs. These costs are expected to 
be borne by state departments of transportation. State governments are 
not defined as small entities by the Small Business Administration. As 
a result of this information, we have determined that the proposed 
designation is not anticipated to have a substantial effect on a 
substantial number of transportation and utility businesses.
    Costs associated with utilities (power lines) as a result of 
species conservation activities is expected to be minimal, with total 
pre-designation (2001-2006) costs estimated around $3,000 (in 2006 
dollars). No post-designation costs (2007-2026) are anticipated, since 
no foreseeable project is located within the proposed critical habitat 
area.

(c) Conservation on Public and Tribal Lands

    Future costs associated with managing critical habitat on public 
and tribal lands account for an additional three percent of forecast 
costs. Undiscounted costs are estimated at approximately $0.5 million 
(in 2006 dollars) over 20 years, or $0.4 million assuming a 3 percent 
discount rate and $0.3 million assuming a 7 percent discount rate. The 
costs primarily consist of ecological studies and habitat monitoring by 
BLM and the United States Geological Survey. These activities 
constitute over 95 percent of the conservation activities on public and 
tribal lands.
    In summary, three subunits (State Line, South Hills, and Stucki 
Springs) for Holmgren milk-vetch account for more than 95 percent of 
total undiscounted costs. We have considered whether this proposed rule 
would result in a significant economic impact on a substantial number 
of small entities, and we have concluded that it would not. Federal 
agencies (primarily BLM) and State Departments of Transportation 
account for approximately 74 and 25 percent of total undiscounted 
costs, respectively.

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

    On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply, distribution, and use. E.O. 
13211 requires agencies to prepare Statements of Energy Effects when 
undertaking certain actions. This proposed rule is considered a 
significant regulatory action under E.O. 12866 due to potential novel 
legal and policy issues, but it is not expected to significantly affect 
energy supplies, distribution, or use. Appendix A of the draft economic 
analysis provides a discussion and analysis of this determination. OMB 
has provided guidance for implementing this Executive Order that 
outlines nine outcomes that may constitute ``a significant adverse 
effect'' when compared to the situation without any regulatory action 
being taken. The draft economic analysis finds that none of these 
criteria are relevant to this analysis (no foreseeable utility project 
is located within the proposed critical habitat area). Thus, no energy-
related impacts associated with Holmgren and Shivwits milk-vetches' 
conservation activities within proposed critical habitat are 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 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

[[Page 56090]]

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 the Holmgren and Shivwits milk-vetches 
on land development, transportation and utility operations, and 
conservation on public and tribal lands. The analysis estimates that 
costs of the rule could range from $8.8 million to $14.1 million in 
undiscounted dollars over 20 years. Ninety-nine percent of the impacts 
are anticipated to affect Federal agencies (primarily BLM) and State 
Departments of Transportation. Impacts on small governments are not 
anticipated, or they are anticipated to be passed through to consumers. 
Consequently, we do not believe that the designation of critical 
habitat for the Holmgren and Shivwits milk-vetches 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 Holmgren and Shivwits milk-vetches 
in a takings implications assessment. The takings implications 
assessment concludes that this proposed designation of critical habitat 
for the Holmgren and Shivwits milk-vetches does not pose significant 
takings implications.

Author

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

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Critical habitat for the Holmgren milk-vetch (Astragalus 
holmgreniorum) and Shivwits milk-vetch (Astragalus ampullarioides) in 
Sec.  17.96(a), which was proposed to be added on March 29, 2006, at 71 
FR 15966, is proposed to be amended by revising the index map and two 
of the critical habitat unit descriptions for Holmgren milk-vetch as 
follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    Family Fabaceae: Astragalus holmgreniorum (Holmgren Milk-vetch).
* * * * *
    (5) Note: Index map (Map 5) follows:
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* * * * *
    (7) Unit 2--Santa Clara Unit: Washington County, Utah. This Unit 
consists of two subunits: Stucki Spring and South Hills.
    (i) Unit 2a: Stucki Spring, Washington County, Utah. Land bounded 
by the UTM Zone 12 NAD 83 coordinates (meters E, meters N): 263203, 
4109419; 261650, 4109466; 261683, 4110718; 262761, 4110687; 263214, 
4109938; 263203, 4109419.
    (ii) Unit 2b: South Hills, Washington County, Utah. Land bounded by 
the UTM Zone 12 NAD 83 coordinates (meters E, meters N): 263385, 
4112054; 263932, 4112044; 263975, 4111990; 264261, 4111983; 263824, 
4111209; 263504, 4111208; 263503, 4111213; 263502, 4111218; 263501, 
4111220; 263498, 4111226; 263494, 4111234; 263489, 4111239; 263485, 
4111243; 263481, 4111246; 263476, 4111248; 263475, 4111249; 263463, 
4111252; 263462, 4111253; 263456, 4111254; 263454, 4111259; 263453, 
4111262; 263447, 4111274; 263443, 4111280; 263427, 4111298; 263427, 
4111298; 263418, 4111308; 263413, 4111323; 263409, 4111337; 263406, 
4111354; 263406, 4111366; 263406, 4111383; 263406, 4111386; 263405, 
4111403; 263405, 4111407; 263402, 4111422; 263400, 4111427; 263396, 
4111440; 263394, 4111449; 263395, 4111455; 263397, 4111460; 263400, 
4111464; 263405, 4111473; 263406, 4111478; 263407, 4111479; 263408, 
4111493; 263408, 4111503; 263406, 4111515; 263405, 4111516; 263403, 
4111529; 263402, 4111534; 263407, 4111547; 263409, 4111553; 263411, 
4111568; 263412, 4111572; 263413, 4111592; 263412, 4111597; 263411, 
4111609; 263409, 4111615; 263407, 4111620; 263405, 4111624; 263399, 
4111631; 263398, 4111634; 263397, 4111644; 263401, 4111660; 263408, 
4111679; 263421, 4111711; 263422, 4111714; 263429, 4111738; 263430, 
4111746; 263431, 4111767; 263431, 4111772; 263428, 4111792; 263428, 
4111822; 263430, 4111853; 263429, 4111860; 263428, 4111865; 263428, 
4111866; 263420, 4111884; 263419, 4111888; 263421, 4111904; 263421, 
4111913; 263417, 4111935; 263416, 4111937; 263405, 4111976; 263399, 
4112013; 263398, 4112017; 263390, 4112041; 263390, 4112042; 263385, 
4112054.

    (iii) Note: Map of Unit 2 (Map 7) follows:
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* * * * *

    Dated: September 19, 2006.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-8191 Filed 9-25-06; 8:45 am]
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