[Federal Register Volume 70, Number 168 (Wednesday, August 31, 2005)]
[Proposed Rules]
[Pages 51732-51738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17450]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG16


Endangered and Threatened Wildlife and Plants; Listing the Gila 
Chub as Endangered With Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Revised proposed rule; notice of availability of draft economic 
analysis and draft environmental assessment, reopening of public 
comment period, notice of public hearings, and updated legal 
descriptions for critical habitat units.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
availability of the draft economic analysis and draft environmental 
assessment for the proposal to list as endangered and designate 
critical habitat for the Gila chub (Gila intermedia) under the 
Endangered Species Act of 1973, as amended (Act). We are also reopening 
the public comment period for the proposal to list the Gila chub as 
endangered with critical habitat to allow all interested parties an 
opportunity to comment on and request changes to the proposed listing 
and critical habitat designation, as well as the associated draft 
economic analysis and draft environmental assessment.
    The draft economic analysis finds that costs associated with Gila 
chub conservation activities are forecast to range from $11.3 million 
to $28.1 million in constant dollars over 20 years ($0.8 million to 
$1.9 million annually). In addition, we are proposing corrected legal 
descriptions for the critical habitat units. Comments previously 
submitted on the August 9, 2002, proposed rule need not be resubmitted 
as they have been incorporated into the public record and will be fully 
considered in preparation of the final rule. We will hold three public 
informational sessions and hearings (see DATES and ADDRESSES sections).

DATES: Comments must be submitted directly to the Service (see 
ADDRESSES section) on or before September 30, 2005, or at the public 
hearings.
    We will hold public informational sessions from 3 p.m. to 4:30 
p.m., followed by a public hearing from 6:30 p.m. to 8 p.m., on the 
following dates:
    1. September 13, 2005: Silver City, New Mexico.
    2. September 14, 2005: Thatcher, Arizona.
    3. September 15, 2005: Camp Verde, Arizona.

ADDRESSES: Meetings. The public informational sessions and hearings 
will be held at the following locations:
    1. Silver City, NM: Flame Convention Center, 2800 Pinos Altos Road, 
Silver City, New Mexico.
    2. Thatcher, AZ: Eastern Arizona College Activity Center, Lee 
Little Theater (Information Session--Activity Center Quiet Lounge), 
1014 North College Avenue, Thatcher, Arizona.
    3. Camp Verde, AZ: Camp Verde Unified School District Multi-Use 
Complex Theater, 280 Camp Lincoln Road, Camp Verde, Arizona.

[[Page 51733]]

    For information on requesting reasonable accommodations to attend a 
session, see the ``Public Comments Solicited'' section below.
    Comments. If you wish to comment on the proposed rule, draft 
economic analysis, or draft environmental assessment, you may submit 
your comments and materials by any one of several methods:
    1. You may submit written comments and information by mail or hand-
delivery to the Field Supervisor, Arizona Ecological Services Field 
Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, Arizona 85021.
    2. Written comments may be sent by facsimile to (602) 242-2513.
    3. You may send your comments by electronic mail (e-mail) to 
<a href="/cdn-cgi/l/email-protection#35525c5954565d4057565a5858505b4146755342461b525a43"><span class="__cf_email__" data-cfemail="5a3d33363b39322f38393537373f342e291a3c2d29743d352c">[email protected]</span></a>. For directions on how to submit electronic 
filing of comments, see the ``Public Comments Solicited'' section 
below.
    You may obtain copies of the proposed rule, draft economic 
analysis, and draft environmental assessment by mail or by visiting our 
Web site at http://arizonaes.fws.gov/. You may review comments and 
materials received and review supporting documentation used in 
preparation of this proposed rule by appointment, during normal 
business hours, at the Arizona Ecological Services Field Office 
(address provided above).

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, 
Arizona Ecological Services Field Office (telephone, 602-242-0210; 
facsimile, 602-242-2513; or electronic mail, <a href="/cdn-cgi/l/email-protection#bac9cedfccdfe5c9cadbd4ddd6dffadccdc994ddd5cc"><span class="__cf_email__" data-cfemail="6013140516053f1310010e070c05200617134e070f16">[email protected]</span></a>).

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 solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning the proposed rule, the draft economic analysis, and 
the draft environmental assessment. On the basis of public comment on 
the proposed rule analysis, the draft economic analysis and the 
environmental assessment, and the final economic analysis and 
environmental assessment, we may during the development of our final 
determination find that areas proposed are not essential, are 
appropriate for exclusion under section 4(b)(2) of the Act, or not 
appropriate for exclusion. We particularly seek comments concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act, including 
whether the benefits of designation will outweigh any threats to the 
species resulting from designation;
    (2) Specific information on the distribution of the Gila chub, the 
amount and distribution of the species' habitat, and which habitat is 
essential to the conservation of the species and why;
    (3) Land-use designations and current or planned activities in the 
subject area and their possible impacts on the species or proposed 
critical habitat;
    (4) Whether our approach to listing or critical habitat designation 
could be improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments;
    (5) Any foreseeable environmental impacts directly or indirectly 
resulting from the proposed designation of critical habitat;
    (6) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat or coextensively from the 
proposed listing, and in particular, any impacts on small entities or 
families;
    (7) Whether the economic analysis identifies all State and local 
costs, and if not, what other costs should be included;
    (8) Whether the economic analysis makes appropriate assumptions 
regarding current practices and likely regulatory changes imposed as a 
result of the listing of the species or the designation of critical 
habitat;
    (9) Whether the economic analysis correctly assesses the effect on 
regional costs associated with land- and water-use controls that derive 
from the designation;
    (10) Whether the critical habitat designation will result in 
disproportionate economic impacts to specific areas that should be 
evaluated for possible exclusion from the final designation; and
    (11) Whether the economic analysis appropriately identifies all 
costs that could result from the designation or coextensively from the 
listing.
    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. 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 Arizona 
Ecological Servies Field Office (see ADDRESSES section above).
    All previous comments and information submitted during the initial 
comment period on the proposed rule need not be resubmitted. If you 
wish to comment, you may submit your comments and materials concerning 
this proposal by any one of several methods (see ADDRESSES section). 
Our final designation of critical habitat for the Gila chub will take 
into consideration all comments and any additional information received 
during both comment periods. Please submit electronic comments in ASCII 
file format and avoid the use of special characters or any form of 
encryption. Please also include your name and return address in the 
body of your message. If you do not receive a confirmation from the 
system that we have received your Internet message, contact us directly 
by calling our Arizona Ecological Services Field Office at (602) 242-
0210.
    Persons needing reasonable accommodations in order to attend and 
participate in a public hearing should contact Steve Spangle, Field 
Supervisor, Arizona Ecological Services Field Office at the phone 
number or address listed in the ADDRESSES section as soon as possible. 
In order to allow sufficient time to process requests, please call no 
later than one week before the hearing. Information regarding this 
proposal is available in alternative formats upon request.

Background

    We proposed to list the Gila chub as endangered, and to designate 
approximately 211.9 stream miles (mi) (340.9 stream kilometers (km)) of 
critical habitat, which includes various stream segments and their 
associated riparian areas, including the stream at bankfull width and a 
300-foot buffer on either side of the stream banks. The designation 
includes Federal, State, tribal, and private lands in Arizona and New 
Mexico. The proposed rule was published in the Federal Register on 
August 9, 2002 (67 FR 51948), pursuant

[[Page 51734]]

to a settlement agreement resulting from litigation by the Center for 
Biological Diversity and others. The proposed rule also constituted our 
12-month finding for the petition to list the Gila chub.
    Critical habitat identifies specific areas containing features 
essential to the conservation of a listed species and that may require 
special management considerations or protection. If the proposed 
listing and critical habitat designation is finalized, section 7(a)(2) 
of the Act would require that Federal agencies ensure that actions they 
fund, authorize, or carry out are not likely to jeopardize the 
continued existence of the species or result in the destruction or 
adverse modification of critical habitat.
    Section 4 of the Act requires that we consider economic and other 
relevant impacts prior to making a final decision on what areas to 
designate as critical habitat. We may revise the proposal, or its 
supporting documents, to incorporate or address new information 
received during the comment period. In particular, we may exclude an 
area from critical habitat if we determine that the benefits of 
excluding the area outweigh the benefits of including the area as 
critical habitat, provided such exclusion will not result in the 
extinction of the species.
    The draft economic analysis considers and attempts to quantify the 
potential economic effects of efforts to protect the Gila chub and its 
habitat, collectively referred to as ``Gila chub conservation 
activities,'' in the proposed critical habitat designation, as well as 
the economic effects of protective measures taken as a result of the 
listing or other Federal, State, and local laws that aid habitat 
conservation in the areas proposed for designation. In the case of 
habitat conservation, these costs would reflect the costs associated 
with the commitment of resources to comply with habitat protection 
measures. The analysis also addresses how potential economic impacts 
are likely to be distributed.

Corrected Coordinates for Proposed Units of Critical Habitat

    Below we provide corrected legal descriptions for the Gila chub 
proposed critical habitat designation. Following the publication of the 
proposed rule on August 9, 2002, and in part through comments we 
received during the subsequent comment period, we discovered that some 
of the critical habitat units were incorrectly described. We have since 
corrected the descriptions to accurately reflect what we are 
considering for designation of critical habitat, and we provide the 
corrected descriptions for all critical habitat units below. Corrected 
Geographic Information System (GIS) layers are available at http://criticalhabitat.fws.gov/. The total corrected amount of critical 
habitat being proposed is approximately 211.9 stream mi (340.9 stream 
km). Tables 1 and 2 below provide approximate distances by major 
landowner type.
    All legal descriptions for New Mexico and Arizona are based on the 
Public Lands Survey System (PLSS). Within this system, all coordinates 
reported for New Mexico are in the New Mexico Principal Meridian 
(NMPM), while those in Arizona are in the Gila and Salt River Meridian 
(GSRM). Township has been abbreviated as ``T,'' Range as ``R,'' and 
section as ``sec.'' Where possible, the ending or starting points have 
been described to the nearest quarter-section, abbreviated as ``\1/
4\.'' Cardinal directions are also abbreviated (N = North, S = South, W 
= West, and E = East). All mileage calculations were performed using 
GIS.

              Table 1.--Approximate Critical Habitat in Stream Kilometers and Miles (7 River Units)
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                                                                New Mexico  km
                          Land owner                                 (mi)       Arizona  km (mi)  Total  km (mi)
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Federal.......................................................     18.9 (11.7)     171.1 (106.4)   190.0 (118.1)
State.........................................................               0       17.1 (10.6)     17.1 (10.6)
County........................................................               0       17.2 (10.7)     17.2 (10.7)
Private.......................................................       3.4 (2.1)       66.1 (41.1)     69.5 (43.2)
Tribal........................................................               0       47.1 (29.3)     47.1 (29.3)
    Total.....................................................     22.3 (13.8)     318.6 (198.1)   340.9 (211.9)
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                                                                                                           xxxxx
                                                                                                   xxxxxxxxxxx
                                                                                                   x
                                                                                                   x
                                                                                                   x
                                                                                                   x
                                                                                                   x
                                                                                                   x

 Table 2.--Approximate Critical Habitat in Stream Kilometers and Miles (7 River Units), by Individual Landowners
----------------------------------------------------------------------------------------------------------------
                           Land owner                               New Mexico        Arizona          Total
----------------------------------------------------------------------------------------------------------------
Gila National Forest............................................     18.9 (11.7)               0     18.9 (11.7)
Apache-Sitgreaves National Forest...............................               0     50.5 (31.4)     50.5 (31.4)
Coconino National Forest........................................               0     16.9 (10.5)     16.9 (10.5)
Coronado National Forest........................................               0      15.4 (9.6)      15.4 (9.6)
Prescott National Forest........................................               0     21.0 (13.1)     21.0 (13.1)
Tonto National Forest...........................................               0       7.4 (4.6)       7.4 (4.6)
                                                                 -----------------
    SUBTOTAL....................................................     18.9 (11.7)    111.2 (69.2)    130.1 (80.9)
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BLM--Phoenix District...........................................               0       7.7 (4.8)       7.7 (4.8)
BLM--Safford District...........................................               0     27.7 (17.2)     27.7 (17.2)
BLM--Tucson District............................................               0     24.5 (15.2)     24.5 (15.2)
                                                                 -----------------
    SUBTOTAL....................................................               0     59.9 (37.2)     59.9 (37.2)
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        TOTAL...................................................     18.9 (11.7)   171.1 (106.4)   190.0 (118.1)
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[[Page 51735]]

Required Determinations--Amended

    This revised proposed rule affirms the information contained in the 
August 9, 2002, proposed rule (67 FR 51948) concerning Executive Orders 
13132 and 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 draft economic analysis, we 
are amending our required determinations, as provided below, concerning 
Executive Order 12866 and the Regulatory Flexibility Act; Executive 
Orders 13211 and 12630; and the Unfunded Mandates Reform Act.

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise novel legal and policy issues. 
However, based on our draft economic analysis, it is not anticipated 
that the proposed designation of critical habitat for the Gila chub 
would result in an annual effect on the economy of $100 million or more 
or affect the economy in a material way. Due to the timeline for 
publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed the proposed rule or 
accompanying economic analysis.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (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, then the agency will need to consider 
alternative regulatory approaches. Since the determination of critical 
habitat is a statutory requirement pursuant to the Endangered Species 
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), 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 (RFA) (5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. Based upon our draft 
economic analysis of the proposed designation, we provide our factual 
basis for determining that this rule will not result in a significant 
economic impact on a substantial number of small entities.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if this proposed designation of critical habitat for 
the Gila chub would affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities (e.g., water management and use, livestock 
grazing, San Carlos Apache Tribal activities, residential and related 
development, Gila chub-specific management activities, recreation 
activities, fire management activities, mining, and transportation). We 
considered each industry or category individually to determine if 
certification is appropriate. In estimating the numbers of small 
entities potentially affected, we also considered whether their 
activities have any Federal involvement; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
the designation of critical habitat. Designation of critical habitat 
only affects activities conducted, funded, permitted, or authorized by 
Federal agencies; non-Federal activities are not affected by the 
designation.
    If this proposed critical habitat designation is made final, 
Federal agencies must consult with us if their activities may affect 
designated critical habitat. Consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
existing consultation process.
    Our economic analysis of this proposed designation evaluated the 
potential economic effects on small business entities and small 
governments resulting from conservation actions related to the proposed 
listing of this species and proposed designation of its critical 
habitat. We evaluated small business entities in nine categories: water 
management and use, livestock grazing activities, San Carlos Apache 
Tribal activities, residential and related development, Gila chub-
specific management activities, recreation activities, fire management 
activities, mining, and transportation. Based on our analysis, impacts 
are anticipated to occur in water management, livestock grazing, and 
tribal enterprises of the San Carlos Apache Tribe. The following is a 
summary of the information contained in Appendix B of the draft 
economic analysis:
    (a) Water Management. Two water supply entities could potentially 
be impacted by conservation activities related to water supply for the 
Gila chub, both of which are small entities: the City of Safford, 
Arizona, and Vail Water Company. The Vail Water Company is considered a 
small business because its annual revenues are $99,000. The potential 
restriction to this company relates to its ability to sell water from 
one of its seven wells. This well is not currently used by Vail Water 
Company for domestic supply due to high levels of certain constituents. 
The company could begin pumping water from the well for non-potable 
uses or for

[[Page 51736]]

potable uses with some treatment. The economic analysis estimates that 
the total annualized replacement costs to the company if it is not able 
to pump water from the well is $73,000 and $171,000 (discounted at 3 
and 7 percent, over 20 years; using high-end estimates of water 
replacement needs). If the Vail Water Company's ability to sell non-
potable water from this well is restricted, we find that it would be a 
significant effect on the Company.
    The potential restriction to the City of Safford as a result of 
Gila chub conservation measures is related to its ability to make use 
of its water source in Bonita Creek. The annualized water replacement 
cost to the City of Safford is $287,000 and $669,000 (discounted at 3 
and 7 percent, over 20 years). In the case of Safford, data on the 
City's current overall budget is unknown. However, annualized impacts 
could represent approximately between 2.3 and 5.3 percent of annual 
revenues to the City of Safford's utilities department. If the City is 
required to locate a replacement source of water, we find that would be 
a significant effect on the City. A section 7 consultation is currently 
being developed with the Bureau of Reclamation to expand the City's use 
of the infiltration gallery, which may allow the City to continue to 
withdraw water from the Creek. However, the consultation is in its 
early stages and the outcome is unknown.
    (b) Livestock Grazing Activities. Ranching operations are 
anticipated to be impacted by conservation activities for the Gila 
chub. Approximately 16 ranching operations may be impacted annually. 
Annual costs to each of these 16 ranching operations may be between 
$1,400 and $11,700. Average revenues of a ranch in the region of the 
proposed critical habitat designation are $144,000. These potential 
losses represent between 1 and 8 percent of each ranch's estimated 
average revenues. Exhibit B-2 in the draft economic analysis presents 
the average revenues of ranches by county. Of the 118 beef cattle 
ranching and farming operations (NAICS 112111) in Arizona counties with 
proposed Gila chub critical habitat, 92 percent are considered small 
businesses. Therefore, 15 small ranching operations (92 percent of 16 
operations) may experience a reduction in revenues of between 1 and 8 
percent annually. The extent to which these impacts are significant to 
any of these ranching operations will depend on the individual 
financial conditions of the ranch.
    (c) Tribal Enterprises. As explained in Appendix B of the draft 
economic analysis, Tribal governments are not considered small 
governments under RFA/SBREFA but rather as independent sovereigns. 
However, tribal enterprises can be considered small entities under the 
RFA/SFREFA. For the purpose of this analysis we find that approximately 
three livestock associations and one timber operation are considered to 
be small entities. Quantified impacts to tribal livestock grazing 
activities are estimated to range from $22,000 to $306,000 annually 
using a seven percent discount rate ($18,000 to $274,000 discounted at 
three percent), or between one percent and 57 percent of annual 
revenues to each of the three livestock associations. Quantified 
impacts of reduced lumber production are estimated to be approximately 
$15,000 annually. These impacts could be borne by a Tribally-owned 
timber mill, a private leasee of the mill, and/or a small logging 
contractor. There are 25 forestry and logging companies in Arizona.
    Based on these data, we have determined that this proposed 
designation would not affect a substantial number of small businesses 
involved in or affected by water management activities, timber harvest, 
or livestock grazing. As such, we are certifying that this proposed 
designation of critical habitat would not result in a significant 
economic impact on a substantial number of small entities. Please refer 
to Appendix B of our draft economic analysis of this designation for a 
more detailed discussion of potential economic impacts to small 
business 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 its 
potentially raising novel legal and policy issues, but it is not 
expected to significantly affect energy supplies, distribution, or use. 
Appendix B of the draft economic analysis provides a discussion and 
analysis of this determination. 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, energy-related impacts associated with Gila chub 
conservation activities within proposed critical habitat are not 
expected.

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)-``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; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. Non-Federal entities that receive Federal 
funding, assistance, or permits, or that otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat. However, the legally

[[Page 51737]]

binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) The economic analysis discusses potential impacts of critical 
habitat designation for the Gila chub on water management activities, 
livestock grazing, Tribes, residential and commercial development 
activities, recreation activities, fire management activities, mining, 
and transportation activities. The analysis estimates that annual costs 
of the rule could range from $11.3 million to $28.1 million in constant 
dollars over 20 years ($0.8 million to $1.9 million annually). Impacts 
are largely anticipated to affect water operators and Federal and State 
agencies, with some effects on livestock grazing operations. Impacts on 
small governments are not anticipated, or they are anticipated to be 
passed through to consumers. For example, costs to water operations 
would be expected to be passed on to consumers in the form of price 
changes. Consequently, for the reasons discussed above, we do not 
believe that the designation of critical habitat for the Gila chub will 
significantly or uniquely affect small government entities. As such, a 
Small Government Agency Plan is not required.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing critical habitat for the Gila chub in a takings implications 
assessment. The takings implications assessment concludes that this 
proposed designation of critical habitat for the Gila chub does not 
pose significant takings implications.

List of Subjects in 50 CFR Part 17

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

Proposed Rule 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. As proposed on August 9, 2002, at 67 FR 51948, amend Sec.  
17.11(h) by adding Gila chub, in alphabetical order under ``FISHES'', 
to the List of Endangered and Threatened Wildlife, to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                       When       Critical     Special
                                                            Historic range       endangered or         Status         listed      habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes
 
                                                                      * * * * * * *
Chub, Gila.......................  Gila intermedia.....  U.S.A. (AZ, NM),     Entire.............  E                        NA     17.95(e)           NA
                                                          Mexico.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Critical habitat for the Gila chub (Gila intermedia) in Sec.  
17.95 (e), which was proposed to be added on August 9, 2002, at 67 FR 
51948, is proposed to be amended by revising the critical habitat unit 
descriptions as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *

Gila chub (Gila intermedia)

    1. Critical habitat for the Gila chub in Arizona and New Mexico is 
depicted on the following overview map and described in detail 
following the map.
* * * * *

Upper Gila River Area 1

    a. Turkey Creek--13.7 km (8.5 mi) of creek extending from the edge 
of the Gila Wilderness boundary at T14S, R16W, sec. 15 NW\1/4\ and 
continuing upstream to T13S, R15W, sec. 30 NE\1/4\. Land ownership: 
Gila National Forest.
    b. Eagle Creek and East Eagle Creek--39.2 km (24.4 mi) of creek 
extending from its confluence with an unnamed tributary at T1N, R28E, 
sec. 31 SW\1/4\ upstream to the headwaters of East Eagle Creek just 
south of Highway 191 in T3N, R29E, sec. 28 SE\1/4\. Land ownership: 
Apache-Sitgreaves National Forest and private.
    c. Harden Cienega Creek--22.6 km (14.0 mi) of creek extending from 
its confluence with the San Francisco in GSRM T3S, R31E, sec. 3 SE\1/4\ 
continuing upstream to the headwaters in NMPM T14S R21W sec. 6 NE\1/4\. 
Land ownership: Apache-Sitgreaves National Forest, Gila National 
Forest, and private.
    d. Dix Creek--Portions of the Creek beginning 1.0 mi upstream from 
its confluence with the San Francisco River at a natural rock barrier 
in T3S, R31E, sec. 9 NE\1/4\ continuing upstream for 0.9 km (0.6 mi.) 
to the confluence of the right and left forks of Dix Creek in T3S, 
R31E, sec. 9 center. Left Fork Dix Creek continues upstream 2.0 km 
(1.24 mi) to T3S, R31E, section 15 NW\1/4\. Land ownership: Apache-
Sitgreaves National Forest. Right Fork Dix Creek continues upstream 4.8 
km (3.0 mi) to T3S, R31E, section 20 SE\1/4\. Land ownership: Apache-
Sitgreaves National Forest.
* * * * *

Middle Gila River Area 2

    a. Mineral Creek--14.4 km (9.0 mi) of creek extending from its 
confluence with Devil's Canyon in T2S, R13E, section 35 NW\1/4\ 
continuing upstream to its headwaters in T2S, R14E, sec. 15 center at 
the confluence of Mineral Creek and an unknown drainage. Land 
ownership: Tonto National Forest, State Lands, and private.
    b. Blue River--40.5 km (25.2 mi) of creek extending from its 
confluence

[[Page 51738]]

with the San Carlos River in T1N R19E, sec. 20 on the border of section 
20 and 29, continuing upstream to T3N, R20E, sec. 21 NE\1/4\. Land 
ownership: San Carlos Apache Reservation.
    c. Bonita Creek--30.6 km (19.0 mi) of Creek extending from T6S, 
R28E, sec. 21 SE\1/4\ continuing upstream to T4S, R27E, sec. 18 SW\1/
4\. Land ownership: Bureau of Land Management, Tribal, and private.
* * * * *

Babocomari River Area 3

    a. O'Donnell Canyon--10.0 km (6.2 mi) of creek extending from its 
confluence with Turkey Creek at T21S, R18E, sec. 22 SE\1/4\ upstream to 
the confluences of Western, Middle, and Pauline Canyons in T22S, R18E, 
sec. 17 NE\1/4\. Land ownership: Bureau of Land Management, Coronado 
National Forest, and private.
    b. Turkey Creek--6.3 km (3.9 mi) of creek extending from its 
confluence with O'Donnell Canyon in T21S, R18E, sec. 22 SE\1/4\ 
upstream to where Turkey Creek crosses AZ Highway 83 in T22S, R18E, 
sec. 9 NE\1/4\. Land ownership: Coronado National Forest and private.
    c. Post Canyon--4.6 km (2.8 mi) of creek extending from its 
confluence with O'Donnell Canyon in T21S, R18E, sec. 22 SE\1/4\ 
upstream to Welch Spring at T21S, R18E, sec. 29 NW\1/4\. Land 
ownership: Coronado National Forest, Bureau of Land Management, and 
private.
* * * * *

Lower San Pedro River Area 4

    a. Bass Canyon--5.5 km (3.4 mi) of creek extending from its 
confluence with Hot Springs Canyon in T12S, R20E, sec. 36 NE\1/4\ 
upstream to the confluence with Pine Canyon in T12S, R21E, sec. 20 
SW\1/4\. Land ownership: Bureau of Land Management and private.
    b. Hot Springs Canyon--10.5 km (6.5 mi) of creek extending from 
T13S R20E, sec. 5 NW\1/4\ continuing upstream to its confluence with 
Bass Canyon in T12S, R20E, sec. 36 NE\1/4\. Land ownership: Bureau of 
Land Management, State Lands, private (The Nature Conservancy).
    c. Redfield Canyon--11.6 km (7.2 mi) of creek extending from the 
western boundary of T11S, R19E, section 35 upstream to its confluence 
with Sycamore Canyon in T11S, R20E, sec. 20 NE\1/4\. Land ownership: 
Bureau of Land Management, State Lands, and private.
* * * * *

Lower Santa Cruz River Area 5

    a. Cienega Creek--(Two Segments) First segment includes 17.2 km 
(10.7 mi) of creek extending from where Cienega Creek becomes Pantano 
Wash in T16S, R16E, sec. 10, S\1/2\ to where it crosses I-10 at T17S, 
R17E, sec. 1 NW\1/4\. Land ownership: County. Second segment includes 
13.6 km (8.4 mi) of creek extending from T18S, R18E, sec. 6 S\1/2\ to 
its confluence with an unnamed stream at T19S, R17E, sec. 3 SW\1/4\. 
Land ownership: Bureau of Land Management.
    b. Mattie Canyon--4.0 km (2.5 mi) of creek extending from its 
confluence with Cienega Creek in T18S, R17E, sec. 23 NE\1/4\ upstream 
to the Bureau of Land Management Boundary in T18S, R17E, sec. 25 SW\1/
4\. Land ownership: Bureau of Land Management.
    c. Empire Gulch--5.2 km (3.2 mi) of creek extending from its 
confluence with Cienega Creek in T19S, R17E, sec. 3 SE\1/4\ continuing 
upstream to T19S, R17E, sec. 16 NW\1/4\ on the western boundary of 
section 16. Land ownership: Bureau of Land Management and State.
    d. Sabino Canyon--11.1 km (6.9 mi) of creek extending from the 
southern boundary of the Coronado National Forest in T13S, R15E, sec. 9 
SE\1/4\ upstream to its confluence with the West Fork of Sabino Canyon 
in T12S, R15E, sec. 22 NE\1/4\. Land ownership: Coronado National 
Forest.
* * * * *

Verde River Area 6

    a. Walker Creek--7.6 km (4.7 mi) of creek extending from Prescott 
National Forest Road 618 in T15N, R6E, sec. 33 SW\1/4\ upstream to its 
confluence with Spring Creek in T14N, R6E, sec. 1, SE\1/4\. Land 
ownership: Coconino National Forest and private lands.
    b. Red Tank Draw--11.1 km (6.9 mi) of creek extending from the 
National Park Service boundary just upstream of its confluence with Wet 
Beaver Creek in T15N, R6E, sec. 31 NE\1/4\ upstream to the confluence 
of Mullican and Rarick canyons in T15N, R6E, sec. 2 NW\1/4\. Land 
ownership: Coconino National Forest and private.
    c. Spring Creek--5.7 km (3.6 mi) of creek extending from T16N, R4E, 
sec. 27 SE\1/4\ at the boundary of Forest Service land and continuing 
upstream to the Arizona Highway 89A crossing in T16N, R4E, sec. 16 
SE\1/4\. Land ownership: Coconino National Forest, State Lands, and 
private.
    d. Williamson Valley Wash--7.2 km (4.4 mi) of creek extending from 
the gauging station in T17N, R3W, sec. 7 SE\1/4\ upstream to the 
crossing of the Williamson Valley Road in T17N, R4W, sec. 36 NE\1/4\. 
Land ownership: private.
* * * * *

Agua Fria River Area 7

    a. Little Sycamore Creek--4.7 km (2.9 mi) of creek extending from 
its confluence with Sycamore Creek in T11N, R4E, sec. 6 SW\1/4\ 
upstream to T11N, R4E, sec. 4 NE\1/4\. Land ownership: Prescott 
National Forest and private.
    b. Sycamore Creek--18.3 km (11.4 mi) of creek extending from its 
confluence with Little Sycamore Creek at T11N, R4E, sec. 6 SW\1/4\ 
upstream to Nelson Place Spring in T11N, R5E, sec. 21 NE\1/4\. Land 
ownership: Prescott National Forest and private.
    c. Indian Creek--8.4 km (5.2 mi) of creek extending from T11N, R3E, 
sec. 35 NE\1/4\ to Upper Water Springs in T11N, R4E, sec. 16 SE\1/4\. 
Land ownership: Bureau of Land Management, Prescott National Forest, 
and private.
    d. Silver Creek--8.5 km (5.3 mi) of creek extending from T10N, R3E, 
sec. 10 SE\1/4\ continuing upstream to the spring in T10N, R4E, Sec. 4 
SW\1/4\. Land ownership: Tonto National Forest and Bureau of Land 
Management.
    e. Larry Creek--Portions of the creek from an unnamed tributary and 
continuing upstream 0.7 km (0.4 mi) to the confluence of two adjoining 
unnamed tributaries, entirely within T9N, R3E, sec. 9 NW\1/4\. Land 
ownership: Bureau of Land Management.
    f. Lousy Canyon--Portions of the creek from the confluence of an 
unnamed tributary upstream to the fork with an unnamed tributary 
approximately 0.6 km (0.4 mi) upstream, all entirely within T9N, R3E, 
sec. 5 NW\1/4\. Land ownership: Bureau of Land Management.
* * * * *

    Authority: The authority for this action is the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.).

    Dated: August 23, 2005.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-17450 Filed 8-29-05; 2:55 pm]
BILLING CODE 4310-55-P


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