Federal Register / Vol. 72, No. 49 / Wednesday, March 14, 2007 / Proposed Rules 11819 

desire notification of receipt of 

comments must include a selfaddressed, stamped envelope or 

postcard. Comments made during the 

meeting will be transcribed to preserve 

an accurate record of the discussion. 

Meeting Information 

Individuals who are unable to attend 

the meetings may submit written 

comments to the docket identified at the 

beginning of this notice. 

Issued on: March 7, 2007. 

John H. Hill, 

Administrator. 

[FR Doc. 07–1209 Filed 3–9–07; 4:00 pm] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU76 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Catesbaea melanocarpa 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period, 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 comment period on the 

proposed designation of critical habitat 

for the plant Catesbaea melanocarpa 

(no common name) and the availability 

of the draft economic analysis of the 

proposed designation of critical habitat 

under the Endangered Species Act of 

1973, as amended (Act). The draft 

economic analysis identifies potential 

costs of approximately $132,300 to 

$441,000 over a 20-year period as a 

result of the proposed designation of 

critical habitat, including those costs 

coextensive with listing. We are 

reopening the comment period to allow 

all interested parties an opportunity to 

comment simultaneously on the 

proposed rule and the associated draft 

economic analysis. If you previously 

submitted comments on the proposed 

rule, you need not resubmit them, 

because we have incorporated them into 

the public record and will fully 

considered them in preparation of our 

final rule. 

DATES: We will accept public comments 

on this document and the proposed rule 

published at 71 FR 48883, Aug. 22, 2006 

until April 13, 2007. 

ADDRESSES: If you wish to comment, 

you may submit your comments and 

information concerning this proposal by 

any one of several methods: 

1. Mail or hand-deliver to Edwin E. 

Mun ̃iz, Field Supervisor, U.S. Fish and 

Wildlife Service, Caribbean Fish and 

Wildlife Office, Road 301 Km. 5.1, P.O. 

Box 491, Boquero ́n, PR 00622. 

2. Send by electronic mail (e-mail) to 

marelisa_rivera@fws.gov. Please see the 

‘‘Public Comments Solicited’’ section 

below for file format and other 

information about electronic filing. 

3. Fax to 787–851–7440. 

4. Submit comments on the Federal ERulemaking Portal at http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Comments and materials we receive, 

as well as supporting documentation we 

used in the preparation of this proposed 

rule, will be available for public 

inspection, by appointment, during 

normal business hours at the Caribbean 

Fish and Wildlife Office at the above 

address. 

FOR FURTHER INFORMATION CONTACT: 

Marelisa Rivera, Caribbean Fish and 

Wildlife Office (see ADDRESSES); 

telephone, 787–851–7297, extension 

231; facsimile, 787–851–7440. If you use 

a telecommunications device for the 

deaf (TDD), you may call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We intend that any final action 

resulting from this proposal will be as 

accurate and as effective as possible. 

Therefore, we hereby solicit comments 

or suggestions from the public, other 

concerned governmental agencies, the 

scientific community, industry, or any 

other interested party concerning this 

proposed rule and the draft economic 

analysis. We particularly seek 

comments concerning: 

(1) The reasons we should or should 

not determine any habitat to be critical 

habitat as provided by section 4 of the 

Act; 

(2) Specific information on the 

presence of Catesbaea melanocarpa, 

particularly: of the areas that were 

occupied at the time of listing and 

contain features that are essential for the 

conservation of the species, which areas 

we should include in the designations, 

and why; and, of the areas that were not 

occupied at listing, which are essential 

to the conservation of the species, and 

why; 

(3) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat; 

(4) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation and, in particular, any 

impacts on small entities; 

(5) Whether the draft economic 

analysis identifies all State and local 

costs attributable to the proposed 

critical habitat designation, and 

information on any costs that we may 

have inadvertently overlooked; 

(6) 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; 

(7) 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; 

(8) Any foreseeable economic or other 

impacts resulting from the proposed 

designation of critical habitat, and in 

particular, any impacts on small entities 

or families; and other information that 

would indicate that the designation of 

critical habitat would or would not have 

any impacts on small entities or 

families; 

(9) Whether the draft economic 

analysis appropriately identifies all 

costs and benefits that could result from 

the designation; 

(10) Whether we could improve or 

modify our approach to critical habitat 

designation in any way, to provide for 

greater public participation and 

understanding, or to assist us in 

accommodating public concern and 

comments; and 

(11) Whether the benefits of exclusion 

in any particular area outweigh the 

benefits of inclusion. 

If you wish to comment, you may 

submit your comments and materials 

concerning this proposal by any one of 

several methods (see ADDRESSES). Please 

submit comments electronically to 

marelisa_rivera@fws.gov. Please also 

include ‘‘Attn: Catesbaea melanocarpa’’

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 electronic message, 

contact us directly by calling the 

Caribbean Fish and Wildlife Service 

Office at 787–851–7297. 

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 names and home 

addresses, etc., but if you wish us to 

consider withholding this information, 

you must state this prominently at the 

beginning of your comments. In 


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11820 Federal Register / Vol. 72, No. 49 / Wednesday, March 14, 2007 / Proposed Rules 

addition, you must present rationale for 

withholding this information. This 

rationale must demonstrate that 

disclosure would constitute a clearly 

unwarranted invasion of privacy. 

Unsupported assertions will not meet 

this burden. In the absence of 

exceptional, documentable 

circumstances, we will release this 

information. We will always make 

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 we receive will 

be available for public inspection, by 

appointment, during normal business 

hours at the Caribbean Fish and Wildlife 

Office (see ADDRESSES). 

You may obtain copies of the 

proposed rule and draft economic 

analysis for critical habitat designation 

by mail from the Caribbean Fish and 

Wildlife Office at the address listed 

under ADDRESSES or on the Internet at 

http://www.fws.gov/southeast. 

Our final designation of critical 

habitat will take into consideration all 

comments and any additional 

information we receive during both 

comment periods. On the basis of public 

comment on this analysis and on the 

critical habitat proposal, and the final 

economic analysis, we may, during the 

development of our final determination, 

find that areas we proposed are not 

essential, are appropriate for exclusion 

under section 4(b)(2) of the Endangered 

Species Act of 1973 (16 U.S.C. 1531 et 

seq.) (Act), or not appropriate for 

exclusion. An area may be excluded 

from critical habitat if we determine 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 

On August 22, 2006, we published a 

proposed rule to designate critical 

habitat for Catesbaea melanocarpa (71 

FR 48883). We proposed to designate 

approximately 50 acres (ac) (20 hectares 

(ha)) in one unit located in 

Christiansted, St. Croix, U.S. Virgin 

Islands, as critical habitat for C. 

melanocarpa. We will submit for 

publication in the Federal Register a 

final critical habitat designation for C. 

melanocarpa on or before August 15, 

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 we make our proposed rule 

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 we 

have designated as critical habitat must 

consult with us on the effects of their 

proposed actions, pursuant to section 

7(a)(2) of the Act. 

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 or any other relevant 

impact of specifying any particular area 

as critical habitat. Based on the August 

22, 2006, proposed rule (71 FR 48883) 

to designate critical habitat for 

Catesbaea melanocarpa, we have 

prepared a draft economic analysis of 

the proposed critical habitat 

designation. 

The draft economic analysis considers 

the potential economic effects of actions 

relating to the conservation of Catesbaea 

melanocarpa, 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 C. 

melanocarpa in the critical habitat area. 

The draft analysis considers both 

economic efficiency and distributional 

effects. In the case of habitat 

conservation, efficiency effects generally 

reflect the ‘‘opportunity costs’’

associated with the commitment of 

resources to comply with habitat 

protection measures (such as lost 

economic opportunities associated with 

restrictions on land use). 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. Decision-makers can 

use this information 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 

incurred since the date we listed the 

species as endangered (64 FR 13116, 

March 17, 1999) and considers those 

costs that may occur in the 20 years 

following a designation of critical 

habitat. 

The draft economic analysis estimates 

the foreseeable economic impacts of the 

proposed critical habitat designation on 

government agencies and private 

businesses and individuals. The draft 

economic analysis identifies potential 

costs of approximately $132,300 to 

$441,000 to the private landowners over 

a 20-year period as a result of the 

proposed designation of critical habitat, 

including those costs coextensive with 

listing. The analysis measures lost 

economic efficiency associated with 

residential and commercial 

development, and public projects and 

activities. Overall, the analysis does not 

anticipate a decrease in the amount of 

construction activity on St. Croix as a 

result of the proposed rule. As a result, 

we do not anticipate small developers 

and construction firms to be affected. 

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 we receive during the 

comment period. 

Required Determinations—Amended 

In our August 22, 2006, proposed rule 

(71 FR 48883), we indicated that we 

would be deferring our determination of 

compliance with several statutes and 

Executive Orders until the information 

concerning potential economic impacts 

of the designation and potential effects 

on landowners and stakeholders was 

available in the draft economic analysis. 

Those data are now available for our use 

in making these determinations. In this 

notice, we are affirming the information 

contained in the proposed rule 

concerning Executive Order 13132 and 

Executive Order 12988; the Paperwork 

Reduction Act; 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, 


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Federal Register / Vol. 72, No. 49 / Wednesday, March 14, 2007 / Proposed Rules 11821 

and the Unfunded Mandates Reform 

Act. 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule because it may raise novel legal and 

policy issues. Based on our draft 

economic analysis of the proposed 

designation of critical habitat for 

Catesbaea melanocarpa, we estimate 

costs related to conservation activities 

for C. melanocarpa pursuant sections 4, 

7, and 10 of the Act to range from 

$132,300 to $441,000 over a 20-year 

period. Therefore, based on our draft 

economic analysis, we do not anticipate 

that the proposed designation of critical 

habitat 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 did not 

formally review 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 an 

agency has determined that the Federal 

regulatory action is appropriate, the 

agency will need to consider alternative 

regulatory approaches. Since the 

determination of critical habitat is a 

statutory requirement 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. 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 

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. In our proposed rule, we 

withheld our determination of whether 

this designation would result in a 

significant effect as defined under 

SBREFA until we completed our draft 

economic analysis of the proposed 

designation so that we would have the 

factual basis for our determination. 

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 C. 

melanocarpa 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 by the designation. 

In our draft economic analysis of the 

proposed critical habitat designation, 

we evaluated the potential economic 

effects on small business entities 

resulting from conservation actions 

related to the listing of Catesbaea 

melanocarpa and proposed designation 

of critical habitat. The property 

proposed for designation is managed by 

the Virgin Islands Title and Trust 

Company on behalf of several 

individual landowners. This analysis 

estimates that these landowners could 

lose from $132,300 to $441,000 over a 

20-year period. However, private 

landowners are generally not considered 

to be small entities. Furthermore, this 

analysis does not anticipate a decrease 

in the amount of construction activity 

on St. Croix as a result of the proposed 

rule. As a result, we do not anticipate 

that small developers and construction 

firms would be affected. Please refer to 

our draft economic analysis of the 

proposed critical habitat designation for 

a more detailed discussion of potential 

economic impacts. 

Executive Order 13211—Energy Supply, 

Distribution, and Use 

On May 18, 2001, the President issued 

Executive Order 13211 on regulations 

that significantly affect energy supply, 

distribution, and use. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This 

proposed designation of critical habitat 

for Catesbaea melanocarpa is 

considered a significant regulatory 

action under Executive Order 12866 due 

to its potential raising of novel legal and 

policy issues. The Office of Management 

and Budget has provided guidance for 

implementing this Executive Order that 

outlines nine outcomes that may 

constitute ‘‘a significant adverse effect’’

when compared without the regulatory 

action under consideration. The draft 

economic analysis finds that none of 

these criteria are relevant to this 

analysis. Thus, based on the information 

in the draft economic analysis, we do 

not expect energy-related impacts 

associated with C. melanocarpa 

conservation activities within proposed 

critical habitat. As such, we do not 

expect the proposed designation of 

critical habitat to significantly affect 

energy supplies, distribution, or use. A 

Statement of Energy Effects is not 

required. 


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11822 Federal Register / Vol. 72, No. 49 / Wednesday, March 14, 2007 / Proposed Rules 

Unfunded Mandates Reform Act 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make 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 of the Act. NonFederal entities that receive Federal 

funding, assistance, or 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 onto 

State governments. 

(b) As discussed in the draft economic 

analysis of the proposed designation of 

critical habitat for Catesbaea 

melanocarpa, we expect the impacts on 

nonprofits and small governments to be 

negligible. There is no record of 

consultations between us and any of 

these governments since we listed C. 

melanocarpa as endangered on March 

17, 1999 (64 FR 13116). It is likely that 

small governments involved with 

developments and infrastructure 

projects will be interested parties or 

involved with projects involving section 

7 (of the Act) consultations for C. 

melanocarpa 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 C. 

melanocarpa will significantly or 

uniquely affect these small 

governmental 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 Catesbaea melanocarpa. 

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 C. 

melanocarpa does not pose significant 

takings implications. 

Author 

The primary authors of this notice are 

the staff of the Caribbean Fish and 

Wildlife Service Office. 

Authority 

The authority for this action is the 

Endangered Species Act of 1973 (16 

U.S.C. 1531 et seq.). 

Dated: March 5, 2007. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. E7–4542 Filed 3–13–07; 8:45 am] 

BILLING CODE 4310–55–P 


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