Federal Register / Vol. 72, No. 53 / Tuesday, March 20, 2007 / Proposed Rules 13061 

III. What Is Our Proposed Action? 

EPA is proposing to approve revisions 

to New Jersey’s regulations as described 

above. The State of New Jersey has 

adopted the above rule revisions in 

accordance with state rulemaking 

procedures. EPA is therefore proposing 

to approve the revisions to New Jersey’s 

Operating Permits Rule, codified at 

N.J.A.C. 7:27–22, as a revision to New 

Jersey’s Operating Permit Program. 

IV. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this proposed 

action is not a ‘‘significant regulatory 

action’’ and therefore is not subject to 

review by the Office of Management and 

Budget. For this reason, this action is 

also not subject to Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This proposed action merely 

proposes to approve state law as 

meeting Federal requirements and 

imposes no additional requirements 

beyond those imposed by state law. 

Accordingly, the Administrator certifies 

that this proposed rule will not have a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). Because this rule 

proposes to approve pre-existing 

requirements under state law and does 

not impose any additional enforceable 

duty beyond that required by state law, 

it does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4). 

This proposed rule also does not have 

tribal implications because it will not 

have a substantial direct effect on one or 

more Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

proposes to approve a state rule 

implementing a Federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. This proposed rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. 

In reviewing State Operating Permit 

Programs submitted pursuant to title V 

of the Clean Air Act, EPA will approve 

such regulations provided that they 

meet the requirements of the Clean Air 

Act and EPA’s regulations codified at 40 

CFR part 70. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove such regulations for 

failure to use VCS. It would, thus, be 

inconsistent with applicable law for 

EPA, when it reviews such regulations, 

to use VCS in place of a State regulation 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This proposed 

rule does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.). 

List of Subjects in 40 CFR Part 70 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Reporting and 

recordkeeping requirements. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: March 6, 2007. 

Alan J. Steinberg, 

Regional Administrator, Region 2. 

[FR Doc. E7–5026 Filed 3–19–07; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 

hedch@fws.gov. 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. 


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13062 Federal Register / Vol. 72, No. 53 / Tuesday, March 20, 2007 / Proposed Rules 

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 

hedch@fws.gov 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 hedch@fws.gov 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. 


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Federal Register / Vol. 72, No. 53 / Tuesday, March 20, 2007 / Proposed Rules 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 


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13064 Federal Register / Vol. 72, No. 53 / Tuesday, March 20, 2007 / Proposed Rules 

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 postdesignation (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 


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Federal Register / Vol. 72, No. 53 / Tuesday, March 20, 2007 / Proposed Rules 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 noninstitutional 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 userelated 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, 


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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-bysector 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 energyrelated 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 nonFederal government entities or private 

parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. 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 nonFederal 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 


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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 § 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: 

§ 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 11⁄2 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 


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* * * * * 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 


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