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[Federal Register Volume 72, Number 53 (Tuesday, March 20, 2007)]
[Proposed Rules]
[Pages 13061-13068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-1368]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU74

Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Hine's Emerald Dragonfly

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Revised proposed rule; reopening of comment period and notice 
of availability of draft economic analysis, 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 and the availability of the 
draft economic analysis for the proposed designation of critical 
habitat for the endangered Hine's emerald dragonfly (Somatochlora 
hineana) under the Endangered Species Act of 1973, as amended (Act). We 
are also revising our proposed rule, published on July 26, 2006 (71 FR 
42442), to include an additional proposed critical habitat unit in Door 
County, Wisconsin, and amending the Required Determinations for the 
proposal. The draft economic analysis forecasts that costs associated 
with conservation activities for the Hine's emerald dragonfly would 
range from $16.8 million to $46.7 million in undiscounted dollars over 
the next 20 years. In discounted terms, potential economic costs are 
estimated to be $13.3 to $34.5 million (using a 3 percent discount 
rate) and $10.5 to $25.2 million (using a 7 percent discount rate). In 
annualized terms, potential costs are expected to range from $0.8 to 
$2.3 million annually (annualized at 3 percent) and $0.9 to $2.4 
million annually (annualized at 7 percent). We are reopening the public 
comment period to allow all interested parties an opportunity to 
comment simultaneously on the proposed rule, our revision to the 
proposed rule, the associated draft economic analysis, and the amended 
Required Determinations. Comments previously submitted need not be 
resubmitted as they will be incorporated into the public record and 
fully considered in preparation of the final rule.

DATES: We will accept public comments until April 3, 2007.

ADDRESSES: If you wish to comment, you may submit your comments and 
information concerning this proposal, identified by ``Attn: Hine's 
Emerald Dragonfly Critical Habitat,'' by any one of several methods:
    (1) Mail or hand-deliver to: John Rogner, Field Supervisor, U.S. 
Fish and Wildlife Service, Chicago Illinois Ecological Services Field 
Office, 1250 S. Grove, Suite 103, Barrington, IL 60010.
    (2) Send by electronic mail (e-mail) to [email protected]. Please see 
the Public Comments Solicited section below for file format and other 
information about electronic filing.
    (3) Fax your comments to: (847) 381-2285.
    (4) Submit comments via the Federal eRulemaking portal: http://www.regulations.gov. Follow the instructions for submitting comments.

[[Page 13062]]

FOR FURTHER INFORMATION CONTACT: John Rogner, Field Supervisor, Chicago 
Illinois Ecological Services Field Office, 1250 S. Grove, Suite 103, 
Barrington, Illinois 60010 (telephone (847) 381-2253, extension 28; 
facsimile (847) 381-2285).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from the proposal will be 
as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning the proposed rule are hereby solicited. Comments 
particularly are being sought concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 
et seq.), including whether the benefit of designation will outweigh 
any adverse impacts to the species due to designation;
    (2) Specific information on the amount and distribution of Hine's 
emerald dragonfly habitat, particularly what areas should be included 
in the designations that were occupied at the time of listing and that 
contain features that are essential for the conservation of the species 
and why; and what areas that were not occupied at the time of listing 
are essential to the conservation of the species and why;
    (3) Information that would add further clarity or specificity to 
the physical and biological features determined to be essential for the 
conservation of the Hine's emerald dragonfly (i.e., primary constituent 
elements), particularly whether the primary constituent elements as 
described fulfill the needs for the various life stages of the Hine's 
emerald dragonfly (e.g., whether old fields adjacent to and in near 
proximity to larval areas are essential features);
    (4) Whether lands not currently occupied by the species should be 
included in the designation, and if so, the basis for such an 
inclusion;
    (5) Whether the methodology used to map critical habitat units 
captures all of the biological and physical features essential to the 
conservation of the Hine's emerald dragonfly;
    (6) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (7) Whether the benefit of exclusion in any particular area 
outweigh the benefits of inclusion under Section 4(b)(2) of the Act;
    (8) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities;
    (9) We are considering excluding areas under the jurisdiction of 
the Hiawatha National Forest in Michigan, the Mark Twain National 
Forest in Missouri, and the Missouri Department of Conservation and 
units under private ownership in Missouri from the final designation of 
critical habitat under section 4(b)(2) of the Act on the basis of 
conservation programs and partnerships. We will also review other 
relevant information for units being proposed in this rule as we 
receive it to determine whether other units may be appropriate for 
exclusion from the final designation under section 4(b)(2) of the Act. 
We specifically solicit comment on the inclusion or exclusion of such 
areas and:
    (a) Whether these areas have features that are essential to the 
conservation of the species or are otherwise essential to the 
conservation of the species;
    (b) Whether these, or other areas proposed, but not specifically 
addressed in this proposal, warrant exclusion;
    (c) Relevant factors that should be considered by us when 
evaluating the basis for not designating these areas as critical 
habitat under section 4(b)(2) of the Act;
    (d) Whether management plans in place adequately provide 
conservation measures and protect the Hine's emerald dragonfly, its 
habitat, and features essential to its conservation;
    (e) Whether designation would assist in the regulation of any 
threats not addressed by existing management plans; and
    (f) Whether designating these lands may result in an increased 
degree of threat to the species on these lands;
    (10) Whether the draft economic analysis identifies all State and 
local costs attributable to the proposed critical habitat designation, 
and information on any costs that have been inadvertently overlooked;
    (11) Whether the draft economic analysis makes appropriate 
assumptions regarding current practices and likely regulatory changes 
imposed as a result of the designation of critical habitat;
    (12) Whether the draft economic analysis correctly assesses the 
effect on regional costs associated with any land use controls that may 
derive from the designation of critical habitat;
    (13) Whether the draft economic analysis appropriately identifies 
all costs and benefits that could result from the designation; and
    (14) 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 concern and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please note that comments merely stating support or 
opposition to the actions under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations to be made ``solely on the basis of the best scientific 
and commercial data available.'' Please submit comments electronically 
to [email protected] in ASCII or Microsoft Word file format. Please also 
include ``Attn: Hine's Emerald Dragonfly Critical Habitat'' in your e-
mail subject header 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 e-mail, contact us directly by calling the 
Chicago Illinois Ecological Services Field Office at telephone number 
(847) 381-2253. Please note that the e-mail address [email protected] will 
be closed out at the termination of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment, but you should be aware that the Service may be required to 
disclose your name and address pursuant to the Freedom of Information 
Act. However, we will not consider anonymous comments. We will make all 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, 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 address 
indicated in the ADDRESSES section.

[[Page 13063]]

    Copies of the draft economic analysis and the proposed rule for 
critical habitat designation are available on the Internet at http://www.fws.gov/midwest/Endangered/ or from the Chicago Illinois Ecological 
Services Field Office (see ADDRESSES).
    Our final designation of critical habitat will take into 
consideration all comments and any additional information we received 
during both comment periods. Previous comments and information 
submitted during the initial comment period on the July 26, 2006, 
proposed rule (71 FR 42442) need not be resubmitted. On the basis of 
information received during the public comment periods, we may, during 
the development of our final critical habitat determination, find that 
areas proposed are not essential, are appropriate for exclusion under 
section 4(b)(2) of the Act, or are not appropriate for exclusion. An 
area may be excluded from critical habitat if it is determined that the 
benefits of such exclusion outweigh the benefits of including a 
particular area as critical habitat, unless the failure to designate 
such area as critical habitat will result in the extinction of the 
species. We may exclude an area from designated critical habitat based 
on economic impacts, national security, or any other relevant impact.

Background

    The Hine's emerald dragonfly has bright emerald-green eyes and a 
metallic green body with yellow stripes on its sides. Its body is about 
2.5 inches (in) (6.4 centimeters (cm) long; its wingspan reaches about 
3.3 in (8.4 cm). It lives in calcareous (high in calcium carbonate), 
spring-fed marshes and sedge meadows overlaying dolomite bedrock. 
Threats that resulted in the species' listing on January 26, 1995 (60 
FR 5267) include habitat destruction, contamination of wetlands by 
pesticides or other pollutants, and decreases in the amount or quality 
of ground water flowing to the dragonfly's habitat.
    On July 26, 2006, we published a proposed rule to designate 
critical habitat for the Hine's emerald dragonfly (71 FR 42442). In 
total, approximately 27,689 acres (ac) (11,205 hectares (ha)) fall 
within the boundaries of the proposed critical habitat designation in 
49 units located in Cook, DuPage, and Will Counties in Illinois; 
Alpena, Mackinac, and Presque Isle Counties in Michigan; Dent, Iron, 
Morgan, Phelps, Reynolds, Ripley, Shannon, Washington, and Wayne 
Counties in Missouri; and Door and Ozaukee Counties in Wisconsin. We 
are considering excluding, under section 4(b)(2) of the Act, all 26 
units in Missouri and 2 units in Michigan from the final critical 
habitat designation. In the proposal, we addressed a number of general 
issues that are relevant to the exclusions we are considering, 
including conservation partnerships on non-Federal lands, conservation 
agreements, and National Forest plans.
    As a result of corrections described below, the proposed critical 
habitat now encompasses approximately 27,836 acres (ac) (11,264 
hectares (ha)), including those areas we are considering for exclusion 
from the final designation. Other than the changes described herein, 
the proposed rule of July 26, 2006, remains intact. We will submit for 
publication in the Federal Register a final critical habitat 
designation for the Hine's emerald dragonfly on or before May 7, 2007.
    Critical habitat is defined in section 3 of the Act as the specific 
areas within the geographic 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 geographic 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.

Additional Proposed Critical Habitat Unit

    As discussed in the July 26, 2006, proposal (71 FR 42442), 
additional sites in Wisconsin were evaluated to determine if they are 
essential for the conservation of the Hine's emerald dragonfly. Based 
on our evaluation of research results from 2006 fieldwork, we have 
determined that Kellner's Fen in Door County, Wisconsin, is essential 
to the conservation of Hine's emerald dragonfly. We are, therefore, 
proposing to include it in the critical habitat designation. Adult 
Hine's emerald dragonflies have been observed in this area, but 
breeding has not been confirmed. The additional proposed critical 
habitat unit, Wisconsin Unit 11, is described below.

Wisconsin Unit 11--Door County, Wisconsin

    Wisconsin Unit 11 consists of approximately 147 acres (59 hectares) 
in Door County, Wisconsin. This unit was not known to be occupied at 
the time of listing. All primary constituent elements for the Hine's 
emerald dragonfly are present in this unit. Adults have been observed 
in this unit over multiple years. Male patrolling behavior has been 
observed, and crayfish burrows are present. The unit consists of larval 
and adult habitat, including a floating sedge mat and lowland and 
upland conifer and deciduous forest. This unit is essential to the 
conservation of the species because it provides for the redundancy and 
resilience of populations in this portion of the species' range, where 
habitat is under threat from multiple factors. Known threats to the 
primary constituent elements which may require special management or 
protections include loss of habitat due to residential and/or 
commercial development, alteration of the hydrology of the wetlands, 
contamination of surface and ground water, logging, and invasive 
plants. All land in the unit is privately owned.

Economic Analysis

    Section 4(b)(2) of the Act requires that we designate critical 
habitat based upon the best scientific and commercial data available, 
after taking into consideration the economic or any other relevant 
impact of specifying any particular area as critical habitat. We have 
prepared a draft economic analysis based on the July 26, 2006, proposed 
rule (71 FR 42442) to designate critical habitat for the Hine's emerald 
dragonfly; the additional proposed unit in Door County, Wisconsin, is 
included in that analysis. The draft economic analysis estimates the 
reasonably foreseeable economic impacts of Hine's emerald dragonfly 
conservation measures within the proposed critical habitat designation. 
The analysis measures lost economic efficiency associated with (1) 
Residential and commercial development, (2) water use, (3) utility and 
road maintenance, (4) road and railway use, (5) species management, and 
(6) recreation. The draft economic analysis considers the potential 
economic effects of all actions relating to the conservation of the 
Hine's emerald dragonfly, including costs associated with sections 4, 
7, and 10 of the Act, and those attributable to designating critical 
habitat.
    The draft economic analysis considers the potential economic 
effects of all actions relating to the conservation of

[[Page 13064]]

the Hine's emerald dragonfly, including costs coextensive with listing. 
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 Hine's emerald dragonfly in proposed critical 
habitat areas. The draft analysis considers both economic efficiency 
and distributional effects. In the case of habitat conservation, 
efficiency effects generally reflect lost economic opportunities 
associated with restrictions on land use (opportunity costs). This 
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, this draft analysis looks retrospectively at costs that have 
been incurred since the date the species was listed as endangered and 
considers those costs that may occur in the 20 years following 
designation of critical habitat. As stated earlier, we solicit data and 
comments from the public on this draft economic analysis, as well as on 
all aspects of the proposal. We may revise the proposal, or its 
supporting documents, to incorporate or address new information 
received during the comment period.
    The draft economic analysis forecasts that costs associated with 
conservation activities for the Hine's emerald dragonfly would range 
from $16.8 million to $46.7 million in undiscounted dollars over the 
next 20 years. In discounted terms, potential economic costs are 
estimated to be $13.3 to $34.5 million (using a 3 percent discount 
rate) and $10.5 to $25.2 million (using a 7 percent discount rate). In 
annualized terms, potential costs are expected to range from $0.8 to 
$2.3 million annually (annualized at 3 percent) and $0.9 to $2.4 
million annually (annualized at 7 percent). Overall, the residential 
and commercial development industry is calculated to experience the 
highest estimated costs. According to the draft economic analysis, the 
forecast cost of Hine's emerald dragonfly development-related losses 
range from $13.0 to $22.6 million (undiscounted) over 20 years, or 
$10.1 to $15.9 million assuming a 3 percent discount rate, and $8.0 to 
$11.2 assuming a 7 percent discount rate.

Required Determinations--Amended

    In our July 26, 2006, proposed rule (71 FR 42442), we indicated 
that we were 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; 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 legal and policy issues. Based on 
our draft economic analysis, potential post-designation (2007-2026) 
costs are estimated to range from $16.8 to $46.6 million in 
undiscounted 2006 dollars. In discounted terms, potential economic 
costs are estimated to be $13.3 to $34.5 million (using a 3 percent 
discount rate) and $10.5 to $25.2 million (using a 7 percent discount 
rate). In annualized terms, potential costs are expected to range from 
$0.8 to $2.3 million annually (annualized at 3 percent) and $0.9 to 
$2.4 million annually (annualized at 7 percent). Therefore, we do not 
believe that the proposed designation of critical habitat for the 
Hine's emerald dragonfly 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 draft economic analysis.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, 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. 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 pursuant to 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 providing 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 (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (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

[[Page 13065]]

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 Hine's emerald dragonfly critical 
habitat designation would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities (such as residential and 
commercial development). 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.
    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.
    In our draft economic analysis, we evaluated the potential economic 
effects on small business entities resulting from conservation actions 
related to the listing of the Hine's emerald dragonfly and proposed 
designation of its critical habitat. This analysis estimated 
prospective economic impacts due to the implementation of Hine's 
emerald dragonfly conservation efforts in six categories: Development 
activities, water use, utility and infrastructure maintenance, road and 
railway use, species management and habitat protection activities, and 
recreation. The following is a summary of information contained in the 
draft economic analysis:
(a) Development Activities
    According to the draft economic analysis, the forecast cost of 
Hine's emerald dragonfly development-related losses ranges from $13.0 
to $22.6 million (undiscounted) over 20 years, or $10.1 to $15.9 
million assuming a 3 percent discount rate and $8.0 to $11.2 assuming a 
7 percent discount rate. The costs consist of the following: (1) Losses 
in residential land value in Wisconsin and Michigan due to potential 
limitations on residential development; (2) impacts to Material 
Services Corporation (MSC) quarrying operations in Illinois; and (3) 
dragonfly conservation efforts associated with the construction of the 
Interstate 355 Extension. Given the small average size and value of 
private land parcels in Wisconsin and Michigan, the non-institutional 
landowners (those for which land value losses were computed; 
institutionally owned properties do not have assessed property values) 
are most likely individuals, who are not considered small entities by 
the SBA. MSC has 800 employees in Illinois and Indiana, and was 
recently purchased by Hanson, PLC, which has more than 27,000 employees 
worldwide. The SBA Small Business Standard for Crushed and Broken 
Limestone Mining and Quarrying industry sector is 500 employees. 
Therefore, MSC is not considered a small entity. The conservation-
related costs associated with the construction of the Interstate 355 
Extension are borne by the Illinois Tollway Authority. The Illinois 
Tollway Authority does not meet the definition of a small entity. As a 
result of this information, we have determined that the proposed 
designation is not anticipated to have a significant effect on a 
substantial number of small development businesses.
(b) Water Use
    According to the draft economic analysis, the forecast cost of 
Hine's emerald dragonfly water use-related losses range from $46,000 to 
$7.0 million (undiscounted) over 20 years, or $33,000 to $5.4 million 
assuming a 3 percent discount rate and $21,000 to $4.0 million assuming 
a 7 percent discount rate. Public water systems may incur costs 
associated with drilling deep water aquifer wells. The U.S. 
Environmental Protection Agency has defined small entity water systems 
as those that serve 10,000 or fewer people. None of the municipalities 
that could be required to construct deep aquifer wells as a result of 
conservation efforts for the Hine's emerald dragonfly has populations 
below 10,000. 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 municipalities.
(c) Utility and Infrastructure Maintenance
    According to the draft economic analysis, the forecast cost of 
Hine's emerald dragonfly utility and infrastructure maintenance-related 
losses is estimated to be $1.5 million (undiscounted) over 20 years, or 
$1.3 million assuming a 3 percent discount rate and $1.1 million 
assuming a 7 percent discount rate. The costs are associated with 
necessary utility and infrastructure maintenance using dragonfly-
sensitive procedures. Within proposed critical habitat units, 
Commonwealth Edison is responsible for electrical line maintenance, 
county road authorities for road maintenance, and MidWest Generation 
for railroad track maintenance in Illinois units 1 and 2. Neither 
company is considered a small entity. As a result of this information, 
we have determined that the proposed designation is not anticipated to 
have a significant effect on a substantial number of small entities.
(d) Road and Railway Use
    According to the draft economic analysis, the forecast cost of 
Hine's emerald dragonfly road and railway use-related losses range from 
$1.7 to $15.0 million (undiscounted) over 20 years, or $1.5 to $11.7 
million assuming a 3 percent discount rate and $1.3 to $8.8 million 
assuming a 7 percent discount rate. The costs are associated with 
necessary railway upgrades for dragonfly conservation. MidWest 
Generation is responsible for railroad track improvements in Illinois. 
Neither MidWest Generation nor the individual travelers who would be 
affected by slower road speeds are considered small entities. As a 
result of this information, we have determined that the proposed 
designation is not anticipated to have a significant effect on a 
substantial number of small entities.
(e) Species Management and Habitat Protection Activities
    According to the draft economic analysis, the forecast cost of 
Hine's emerald dragonfly species management and habitat protection-
related losses is estimated at $886,000 (undiscounted) over 20 years, 
or $710,000 assuming a 3 percent discount rate and $563,000 assuming a 
7 percent discount rate. The costs primarily consist of species 
monitoring, maintenance of habitat,

[[Page 13066]]

invasive species and feral hog control, and beaver dam mitigation. 
Species management and habitat protection costs will be borne by The 
Nature Conservancy (Wisconsin chapter), The Ridges Sanctuary, the 
Service, the U.S. Forest Service, the Michigan Department of Natural 
Resources, and the Missouri Department of Conservation. None of those 
entities meets the definition of a small entity. As a result of this 
information, we have determined that the proposed designation is not 
anticipated to have a significant effect on a substantial number of 
small entities.
(f) Recreation
    According to the draft economic analysis, the forecast cost of 
Hine's emerald dragonfly recreation-related losses are estimated at 
$19,000. Recreational off-road vehicles and equestrian activities have 
the potential to alter Hine's emerald dragonfly habitat and extirpate 
populations. The costs are associated with mitigating the effects of 
those recreational activities. Those costs will be borne by the 
Michigan Department of Natural Resources, Missouri Department of 
Conservation, the U.S. Forest Service, and various county police 
departments. None of those entities meets the definition of a small 
entity. As a result of this information, we have determined that the 
proposed designation is not anticipated to have a significant effect on 
a substantial number of small entities.
    Based on the previous, sector-by-sector analysis, we have 
determined that this proposed critical habitat designation would not 
result in a significant economic impact on a substantial number of 
small entities.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (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. The MidWest Generation facilities that rely on the 
transportation of coal through Illinois Units 1 and 2 generate 1,960 
megawatts of electricity. The dragonfly conservation measures advocated 
by the Service (through a ``Right-of-Way Management Team'' formed as a 
result of an informal consultation that was done on a 404 permit to 
reestablish the use of the rail line), are not intended to alter the 
operation of these facilities. Rather, the recommended conservation 
activities focus on improving maintenance and railway upgrades. Thus, 
no energy-related impacts associated with Hine's emerald dragonfly 
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 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding'' and the State, local, 
or tribal governments ``lack authority'' to adjust accordingly. At the 
time of enactment, these entitlement programs were: Medicaid; Aid to 
Families with Dependent Children 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, permits, or 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) As discussed in the draft economic analysis of the proposed 
designation of critical habitat for the Hine's emerald dragonfly, the 
impacts on nonprofits and small governments are expected to be 
negligible. It is likely that small governments involved with 
development and infrastructure projects will be interested parties or 
involved with projects involving section 7 consultations for the Hine's 
emerald dragonfly within their jurisdictional areas. Any costs 
associated with this activity are likely to represent a small portion 
of a local government's budget. Consequently, we do not believe that 
the designation of critical habitat for the Hine's emerald dragonfly 
will significantly or uniquely affect these small governmental 
entities. As such, a Small Government Agency Plan is not required.

Takings

    In accordance with E.O. 12630 (``Government Actions and 
Interference with constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing critical habitat for the Hine's emerald dragonfly. Critical 
habitat designation does not affect landowner actions that do not 
require Federal funding or permits, nor does it preclude development of 
habitat conservation programs or issuance of incidental take permits to 
permit actions that do require Federal funding or permits to go 
forward. In conclusion, the designation of critical habitat for this 
species does

[[Page 13067]]

not pose significant takings implications.

Author

    The primary author of this notice is Kris Lah of the Chicago 
Illinois 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 Hine's emerald dragonfly (Somatochlora 
hineana) in Sec.  17.95(i), which was proposed to be added on July 26, 
2006, at 71 FR 42442, is proposed to be amended by adding an additional 
proposed critical habitat unit as follows:

Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.
* * * * *
    Hine's emerald dragonfly (Somatochlora hineana)
* * * * *
    (30) Wisconsin Unit 11, Door County, Wisconsin.
    (i) Wisconsin Unit 11: Door County. Located in T27N, R26E, SE \1/4\ 
Sec. 11, Sec. 12, NW \1/4\ Sec. 13, and NE \1/4\ Sec. 14 of the 
Sturgeon Bay East 7.5' USGS topographic quadrangle. Lands are located 
south of County Road TT, east of Mathey Road, north of Buffalo Ridge 
Trail, west of Lake Forest Park Road (also County Road TT), about 1\1/
2\ miles west of the City of Sturgeon Bay, and include portions of 
Kellner's Fen.
    (ii) Note: Map of Wisconsin proposed critical habitat Unit 11 
(Wisconsin Map 7) follows:

BILLING CODE 4310-55-P

[[Page 13068]]

[GRAPHIC] [TIFF OMITTED] TP20MR07.000

* * * * *

    Dated: March 14, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-1368 Filed 3-15-07; 5:05 pm]
BILLING CODE 4310-55-C
```