[Federal Register Volume 75, Number 102 (Thursday, May 27, 2010)]
[Proposed Rules]
[Pages 29700-29705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12775]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2009-0013]
[92210-1117-000-B4]
RIN 1018-AV45


Endangered and Threatened Wildlife and Plants; Revised Critical 
Habitat for the Preble's Meadow Jumping Mouse

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the proposed revised 
designation of critical habitat for the Preble's meadow jumping mouse 
(Zapus hudsonius preblei) under the Endangered Species Act of 1973, as 
amended. We also announce the availability of a draft economic 
analysis, a draft environmental assessment, and an amended required 
determinations section of the proposal. We are reopening the comment 
period for the proposal to allow all interested parties an opportunity 
to comment simultaneously on the revised proposed rule, the associated 
draft economic analysis and draft environmental assessment, and the 
amended required determinations section. If you submitted comments 
previously, you do not need to resubmit them because we have already 
incorporated them into the public record and will fully consider them 
in preparation of the final rule.

DATES: We will consider public comments received on or before June 28, 
2010.

ADDRESSES: You may submit comments by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Search for docket FWS-R6-ES-2009-0013 and then follow the instructions 
for submitting comments.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R6-ES-2009-0013; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Susan Linner, Field Supervisor, U.S. 
Fish and Wildlife Service, Colorado Ecological Services Office, P.O. 
Box 25486, DFC (MS 65412), Denver, CO 80225; by telephone (303-236-
4773); or by facsimile (303-236-4005). Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed revision of critical habitat 
for the Preble's Meadow jumping mouse (PMJM) that was published in the 
Federal Register on October 8, 2009 (74 FR 52066), our draft economic 
analysis (DEA) of the proposed revised designation, our draft 
environmental assessment, and our amendment of required determinations 
provided in this document. We will consider information and 
recommendations from all interested parties. We are particularly 
interested in comments concerning:

[[Page 29701]]

    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Endangered Species Act of 
1973, as amended (Act) (16 U.S.C. 1531 et seq.), including whether the 
benefit of designation would outweigh any threats to the species due to 
designation, such that the designation of critical habitat is prudent.
    (2) Specific information on:
    <bullet> The amount and distribution of PMJM habitat in Colorado;
    <bullet> What areas occupied at the time of listing that contain 
the physical and biological features essential to the conservation of 
the species we should include in the revised designation and why;
    <bullet> What areas not occupied at the time of listing are 
essential to the conservation of the species and why; and
    <bullet> What special management consideration and protection the 
physical and biological features may require and why.
    (3) Information identifying or clarifying the physical and 
biological features essential to the conservation of the species.
    (4) Land use designations and current or planned activities in the 
subject areas and their possible impacts on the species and the 
proposed critical habitat.
    (5) How the proposed boundaries of the revised critical habitat 
could be refined to more accurately identify the riparian and adjacent 
upland habitats occupied by the PMJM.
    (6) Whether our proposed revised designation should be altered in 
any way to account for the potential effects of climate change and why.
    (7) Whether any specific areas being proposed as revised critical 
habitat should be excluded under section 4(b)(2) of the Act from the 
final designation, and whether the benefits of potentially excluding 
any particular area outweigh the benefits of including that area under 
section 4(b)(2) of the Act. We are specifically seeking comments from 
the public on the following:
    <bullet> Lands covered by the Douglas County Habitat Conservation 
Plan (HCP) (Service 2006a) and the potential modification of outward 
boundaries of proposed critical habitat to conform to Douglas County's 
Riparian Conservation Zones (streams, adjacent floodplains, and nearby 
uplands likely to be used as habitat by the PMJM) as mapped for the 
Douglas County HCP;
    <bullet> Lands within the Livermore Area HCP (Service 2006), the 
Larimer County's Eagle's Nest Open Space HCP (Service 2004), the Denver 
Water HCP (Service 2003a), the Struther's Ranch HCP (Service 2003b), 
and other HCPs;
    <bullet> Lands within El Paso County (because the county is 
currently developing a countywide HCP);
    <bullet> Lands within the proposed Seaman Reservoir expansion 
footprint; and
    <bullet> Lands within the Rocky Flats National Wildlife Refuge 
(NWR).
    (8) Any foreseeable economic, national security, or other relevant 
impacts that may result from the proposed revised designation and, in 
particular, any impacts on small entities, and the benefits of 
including or excluding areas from the proposed redesignation that 
exhibit these impacts.
    (9) Information on the extent to which the description of potential 
economic impacts in the DEA is complete and accurate.
    (10) Whether the DEA makes appropriate assumptions regarding 
current practices and any regulatory changes that will likely occur if 
we designate revised critical habitat.
    (11) Whether the DEA correctly assesses the effect of regional 
costs associated with land use controls that may result from the 
revised designation of critical habitat.
    (12) Whether the DEA identifies all Federal, State, and local costs 
and benefits attributable to the proposed revision of critical habitat, 
and information on any costs that have been inadvertently overlooked.
    (13) Whether the draft environmental assessment adequately presents 
the purpose of and need for the proposed action, the proposed action 
and alternatives, and the evaluation of the direct, indirect, and 
cumulative effects of the alternatives.
    (14) Whether our approach to designating revised critical habitat 
could be improved or modified in any way to provide for greater public 
participation and understanding, or to better accommodate public 
concerns and comments.
    You may submit your comments and materials concerning our proposed 
rule or the associated DEA and draft environmental assessment by one of 
the methods listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including your personal identifying information-- will be 
posted on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, draft economic 
analysis, and draft environmental assessment, will be available for 
public inspection on http://www.regulations.gov, or by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service, 
Colorado Ecological Services Office (see the FOR FURTHER INFORMATION 
CONTACT). You may obtain copies of the proposed revision of critical 
habitat, the DEA, and the draft EA on the Internet at http://www.regulations.gov at docket number FWS-R6-ES-2009-0013, or at http://www.fws.gov/mountain-prairie/species/mammals/preble/, or by mail from 
the Colorado Ecological Services Office (see the FOR FURTHER 
INFORMATION CONTACT).

Background

Previous Federal Actions

    It is our intent to discuss only those topics directly relevant to 
the proposed designation of critical habitat for the PMJM. For more 
information on previous Federal actions concerning the PMJM, refer to 
the proposed designation of revised critical habitat published in the 
Federal Register on October 8, 2009 (74 FR 52066). We proposed to 
designate approximately 418 mi (669 km) of rivers and streams and 
39,142 ac (15, 840 ha) of lands in 11 units located in Boulder, 
Broomfield, Douglas, El Paso, Jefferson, Larimer, and Teller Counties 
in Colorado, as critical habitat. That proposal had a 60-day public 
comment period, ending December 7, 2009. We will submit for publication 
in the Federal Register a final critical habitat designation for the 
PMJM on or before September 30, 2010.
    For additional information on the biology of this subspecies, see 
the May 13, 1998, final rule to list the PMJM as threatened (63 FR 
26517); the June 23, 2003, final rule designating critical habitat for 
the PMJM (68 FR 37275); and the July 10, 2008, final rule to amend the 
listing for the PMJM to specify over what portion of its range the 
subspecies is threatened (73 FR 39789).
    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by the species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection; and 
specific areas outside the geographical area occupied by the

[[Page 29702]]

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 that affect critical habitat must consult with us on 
the effects of their proposed actions, under section 7(a)(2) of the 
Act.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial data 
available, after taking into consideration the economic impact, impact 
on national security, or any other relevant impact of specifying any 
particular area as critical habitat. We have prepared a DEA of our 
October 8, 2009 (74 FR 52066), proposed rule to designate revised 
critical habitat for the Preble's Meadow jumping mouse.
    The intent of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed revised critical habitat 
designation for the PMJM. The DEA quantifies the economic impacts of 
all potential conservation efforts for the PMJM. Some of these costs 
will likely be incurred regardless of whether or not we designate 
revised critical habitat. The economic impact of the proposed revised 
critical habitat designation is analyzed by comparing scenarios both 
``with critical habitat'' and ``without critical habitat.'' The 
``without critical habitat'' scenario represents the baseline for the 
analysis, considering protections already in place for the species 
(e.g., under the Federal listing and other Federal, State, and local 
regulations). Therefore, the baseline represents the costs incurred 
regardless of whether revised critical habitat is designated. The 
``with critical habitat'' scenario describes the incremental impacts 
associated specifically with the designation of revised critical 
habitat for the species. The incremental conservation efforts and 
associated impacts are those not expected to occur absent the 
designation of critical habitat for the species. In other words, the 
incremental costs are those attributable solely to the designation of 
critical habitat above and beyond the baseline costs; these are the 
costs we may consider in the final designation of critical habitat. The 
analysis looks retrospectively at baseline impacts incurred since the 
species was listed, and forecasts both baseline and incremental impacts 
likely to occur if we finalize the proposed revised critical habitat 
designation.
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed revised critical habitat designation 
for the PMJM over the next 20 years, which was determined to be the 
appropriate period for analysis because limited planning information 
was available for most activities to reasonably forecast activity 
levels for projects beyond a 20-year timeframe. The DEA identifies 
potential incremental costs as a result of the proposed revised 
critical habitat designation; these are those costs attributed to 
critical habitat over and above those baseline costs attributed to 
listing. The DEA quantifies economic impacts of conservation efforts 
for the PMJM associated with the following categories of activity: (1) 
Residential and commercial development; (2) roads/bridges, utilities, 
and bank stabilization projects; (3) water supply development; (4) U.S. 
Forest Service land management; (5) Rocky Flats NWR land management; 
and (6) gravel mining.
    The DEA estimates that total potential incremental economic impacts 
in areas proposed as revised critical habitat over the next 20 years 
will be $21.4 million to $52.9 million (approximately $2.02 million to 
$4.99 million on an annualized basis), assuming a 7-percent discount 
rate. Approximately 95 percent of the incremental impacts attributed to 
the proposed designation of revised critical habitat are expected to be 
related to section 7 consultations with Federal agencies for 
residential and commercial development.
    Activities in proposed revised critical habitat units 9 and 10, 
West Plum Creek and Upper South Platte River, are projected to bear the 
largest incremental impacts attributable to the proposed rule, 
representing about 38 and 34 percent of total incremental impacts, 
respectively.
    As stated earlier, we are seeking data and comments from the public 
on the DEA and the draft environmental assessment, as well as all 
aspects of the proposed rule and our amended required determinations. 
We may revise the proposed rule or supporting documents to incorporate 
or address information we receive during the public comment period. In 
particular, we may exclude an area from revised critical habitat if we 
determine that the benefits of excluding the area outweigh the benefits 
of including the area, provided the exclusion will not result in the 
extinction of the species.

Draft Environmental Assessment; National Environmental Policy Act

    When the range of a species includes States within the Tenth 
Circuit, pursuant to the Tenth Circuit ruling in Catron County Board of 
Commissioners v. U.S. Fish and Wildlife Service, 75 F .3d 1429 (10th 
Cir. 1996), we will complete an analysis under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (NEPA), on 
critical habitat designations. The range of the PMJM includes the State 
of Colorado, which is within the Tenth Circuit.
    The draft environmental assessment presents the purpose of and need 
for critical habitat designation, the Proposed Action and alternatives, 
and an evaluation of the direct, indirect, and cumulative effects of 
the alternatives under the requirements of NEPA as implemented by the 
Council on Environmental Quality regulations (43 CFR 61292, et seq.) 
and according to the Department of the Interior's NEPA procedures.
    The draft environmental assessment will be used by the Service to 
decide whether or not critical habitat will be designated as proposed; 
if the Proposed Action requires refinement, or if another alternative 
is appropriate; or if further analyses are needed through preparation 
of an environmental impact statement. If the Proposed Action is 
selected as described (or is changed minimally) and no further 
environmental analyses are needed, then a Finding of No Significant 
Impact (FONSI) would be the appropriate conclusion of this process. A 
FONSI would then be prepared for the environmental assessment.

Required Determinations--Amended

    In our October 8, 2009, proposed rule (74 FR 52066), we indicated 
that we would defer our determination of compliance with several 
statutes and Executive Orders (EOs) until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders became available in the DEA. We have now 
made use of the DEA data in making these determinations. In this 
document, we affirm the information in our proposed rule concerning 
Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice 
Reform), the Paperwork Reduction Act, E.O. 12866 and E.O. 12988 
(Clarity of the Rule), and the President's memorandum of April 29, 
1994, ``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951). However,

[[Page 29703]]

based on the DEA data, we are amending our required determinations 
concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), E.O. 
13211 (Energy Supply, Distribution, or Use), and the Unfunded Mandates 
Reform Act (2 U.S.C. 1501 et seq.).

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 must 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 effects 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 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. Based on our DEA 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. Based on comments we 
receive, we may revise this determination as part of our final 
rulemaking.
    According to the Small Business Administration, 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 the 
rule, as well as the 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 revised critical 
habitat for the PMJM would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities (e.g., housing development, 
grazing, oil and gas production, timber harvesting). In order to 
determine whether it is appropriate for our agency to certify that this 
rule would not have a significant economic impact on a substantial 
number of small entities, we considered each industry or category 
individually. In estimating the numbers of small entities potentially 
affected, we also considered whether their activities have any Federal 
involvement. Critical habitat designation will not affect activities 
that do not have any Federal involvement; designation of critical 
habitat affects activities conducted, funded, permitted, or authorized 
by Federal agencies.
    Under the Act, designation of critical habitat only affects 
activities carried out, funded, or permitted by Federal agencies. If we 
finalize the proposed revised critical habitat designation, Federal 
agencies must consult with us under section 7 of the Act 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.
    Some kinds of activities are unlikely to have any Federal 
involvement and so would not result in any additional effects under the 
Act. However, there are some State laws that limit activities in 
designated critical habitat even where there is no Federal nexus. If 
there is a Federal nexus, Federal agencies will be required to consult 
with us under section 7 of the Act on activities they fund, permit, or 
carry out that may affect critical habitat. If we conclude, in a 
biological opinion, that a proposed action is likely to destroy or 
adversely modify critical habitat, we can offer ``reasonable and 
prudent alternatives.'' Reasonable and prudent alternatives are 
alternative actions that can be implemented in a manner consistent with 
the scope of the Federal agency's legal authority and jurisdiction, 
that are economically and technologically feasible, and that would 
avoid destroying or adversely modifying critical habitat.
    Within the proposed revised critical habitat designation, the types 
of actions or authorized activities that we have identified as 
potential concerns and that may be subject to consultation under 
section 7 if there is a Federal nexus are: Residential and commercial 
development; roads/bridges, utilities, and bank stabilization projects; 
water supply development; U.S. Forest Service land management 
practices; Rocky Flats NWR management practices; and gravel mining. As 
discussed in Appendix A of the DEA, of the activities addressed in the 
analysis, only residential and commercial development, and construction 
and maintenance of roads/bridges, utilities, and bank stabilization 
projects are expected to experience incremental, administrative 
consultation costs that may be borne by small businesses.
    Any existing and planned projects, land uses, and activities that 
could affect the proposed revised critical habitat but have no Federal 
involvement would not require section 7 consultation with the Service, 
so they are not restricted by the requirements of the Act. Federal 
agencies may need to reinitiate a previous consultation if 
discretionary involvement or control over the Federal action has been 
retained or is authorized by law and the activities may affect critical 
habitat.
    In the DEA, we evaluated the potential economic effects on small 
entities resulting from implementation of conservation actions related 
to the proposed designation of critical habitat for the PMJM. Please 
refer to our draft economic analysis of the proposed revised critical 
habitat designation for a more detailed discussion of potential 
economic impacts; we will summarize key points of the analysis below.
    The DEA, and its associated initial regulatory flexibility 
analysis, estimate that total potential incremental economic impacts in 
areas proposed as revised critical habitat over the next 20 years will 
be $2.02 million to $4.99 million annually, assuming a 7-percent 
discount rate. Approximately 95 percent of the incremental impacts 
attributed to the proposed designation of critical habitat are expected 
to be related to section 7 consultations with Federal agencies for 
residential and commercial development. Expected impacts to residential 
and commercial development include added costs primarily due to 
administrative consultations and required modifications to development 
project scope or design, including mitigation (or setting aside 
conservation lands), habitat restoration and enhancement, and project 
delays. Small entities represent 97 percent of all entities in the 
residential and commercial development industry that may be affected. 
Incremental costs also are expected related to road/bridge, utility, 
and bank stabilization construction and maintenance activities 
throughout proposed revised critical habitat. Small entities represent 
90 percent of all entities in the road/bridge, utility, and

[[Page 29704]]

bank stabilization construction and maintenance industries that may be 
affected. The Small Business Size Standard for the industry sectors 
that could potentially be affected by the proposed revised critical 
habitat designation are as follows:
    <bullet> New Housing Operative Builders--$33.5 million in annual 
receipts.
    <bullet> Land Subdivision--$7 million in annual receipts
    <bullet> Natural Gas Distribution--500 employees.
    <bullet> Water Supply and Irrigation Systems--$7 million annual 
receipts.
    <bullet> Pipeline Transportation of Natural Gas--$7 million annual 
receipts.
    In addition, government entities in the area may be affected. Of 
these, 70 percent are small government jurisdictions (i.e., cities, 
counties, towns, townships, villages, school districts, or special 
districts with a population of less than 50,000).
    Of principal interest is residential and commercial development, 
and associated land subdivision, since an estimated 95 percent of 
potential incremental impacts may affect that industry sector. The 
small businesses in this industry sector may bear a total of $19.6 to 
$49.9 million (at a 7-percent discount rate) in incremental impacts 
related to section 7 consultations over the next 20 years (through 
2029). However, when expressed as a percentage of a small developer's 
annual sales revenue, assuming that one small developer is required for 
each of the development projects, these monetary incremental impacts 
are likely to be small. The incremental impact due to critical habitat 
designation is estimated to range from $115,000 to $292,000 per 
project. An average of nine projects is anticipated to occur in 
critical habitat per year. For new home builders, estimated annual 
sales in 2007 per developer in Colorado were $6.51 million. Therefore, 
in years where a developer has a project in critical habitat, the 
estimated incremental impact represents 1.8 to 4.5 percent of that 
developer's annual sales in this industry. However, we expect these 
costs to be incurred over a period of more than one year, since most 
developments will take longer than one year to complete (i.e., if a 
project takes two or more years to complete, the impact as a proportion 
of revenue in any one year will be substantially less).
    For land subdividers, the DEA assumes that annual sales per 
establishment are limited to the small business threshold of $7 million 
annually. The estimated annual incremental impact therefore represents 
1.6 to 4.2 percent of a subdivider's annual sales. As discussed above, 
the incremental impact associated with each project is expected to be 
incurred over a period of more than one year. Thus, this analysis 
overstates the actual annual impact on a small entity.
    There are additional factors that may cause this analysis to 
overstate the actual impact on small residential and commercial 
developers, and on land subdividers. First, it is likely that a portion 
of the impact will be realized by landowners in the form of higher 
housing prices. The proportion of the total impact borne by landowners 
is unknown. We believe the analysis gives a high estimate of possible 
development and that it is likely the actual amount of development will 
be less. The analysis likely overstates the amount of development 
activity and, therefore, the total incremental impact, associated with 
residential and commercial development. Lastly, anecdotal evidence and 
existing county building restrictions suggest that fewer properties in 
critical habitat are being developed than are quantified by the DEA. 
This will likely further reduce the annual incremental impact borne per 
small entity.
    For road/bridge, utility, and bank stabilization construction and 
maintenance, the DEA estimates that incremental impacts will range from 
$392,000 to $818,000 over 20 years, or $37,000 to $77,200 annually. 
Given an estimated average of four projects impacting critical habitat 
and requiring section 7 consultation each year, and assuming one small 
entity (municipality, wastewater district, etc.) conducts each 
activity, the impact to each small government entity involved would be 
$9,250 to $19,300. We expect this to be a very small percentage of the 
annual budgets for the small governments that may be affected; however, 
we invite comments or information specific to these potential economic 
impacts to the small governments which may be affected by the proposed 
revised critical habitat designation.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. Given the analysis above, the expected annual 
impacts to small businesses in the affected industries are 
significantly less than the annual revenues that could be garnered by a 
single small operator in those industries, and as such, impacts are low 
relative to potential revenues. However, we are seeking public comments 
regarding the estimated incremental impacts of this proposed revised 
critical habitat designation on small entities. Specifically, we are 
interested in evidence suggesting that the incremental economic impact 
of section 7(a)(2) consultations in areas proposed as PMJM critical 
habitat is expected to be larger or smaller than estimated in this 
analysis.

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

    On May 18, 2001, the President issued E.O. 13211 (Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use) 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. The 
Office of Management and Budget's guidance for implementing this 
Executive Order outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to no regulatory action. The 
only criterion that may be relevant to this analysis is increases in 
the cost of energy distribution in excess of one percent. As described 
in the DEA, constructing and maintaining electrical and natural gas 
distribution and transmission systems is a type of utility project 
potentially occurring in the proposed revised critical habitat. The DEA 
concludes that incremental impacts may be incurred; however, they are 
unlikely to reach the threshold of one percent. Therefore, designation 
of revised critical habitat is not expected to lead to any adverse 
outcomes (such as a reduction in electricity production or an increase 
in the cost of energy production or distribution), 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 
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. First, it excludes ``a condition of federal 
assistance.'' Second, it excludes ``a duty arising from participation 
in a voluntary

[[Page 29705]]

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. While 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, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) As discussed in the DEA of the proposed designation of revised 
critical habitat for the PMJM, we do not believe that the rule would 
significantly or uniquely affect small governments because it would not 
produce a Federal mandate of $100 million or greater in any year; that 
is, it is not a ``significant regulatory action'' under the Unfunded 
Mandates Reform Act. The DEA concludes that incremental impacts may 
occur due to project modifications that may need to be made for 
development activities; however, these are not expected to affect small 
governments to the extent described above. Consequently, we do not 
believe that the proposed revised critical habitat designation would 
significantly or uniquely affect small government entities. As such, a 
Small Government Agency Plan is not required.

References Cited

    A complete list of all references we cited in the proposed rule and 
in this document is available on the Internet at http://www.regulations.gov or by contacting the Colorado Ecological Services 
Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this document are the staff members of the 
Colorado Ecological Services Office.

Authority

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

    Dated: May 18, 2010
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. 2010-12775 Filed 5-26-10; 8:45 am]
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