29700 Federal Register / Vol. 75, No. 102 / Thursday, May 27, 2010 / Proposed Rules 

Place: The Marriot Inn and 

Conference Center UMUC, 3501 

University Boulevard E., Hyattsville, 

MD 20783. 

FOR FURTHER INFORMATION CONTACT: 

Jonathan V. Szalajda, NIOSH, National 

Personal Protective Technology 

Laboratory (NPPTL), Post Office Box 

18070, 626 Cochrans Mill Road, 

Pittsburgh, Pennsylvania 15236, 

telephone (412) 386–5200, facsimile 

(412) 386–4089, e-mail zfx1@cdc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Department of Health and Human 

Services published a proposed rule on 

the Total Inward Leakage Requirements 

for Respirators on Friday, October 30, 

2009 (74 FR 56141). 

NIOSH held a public meeting on the 

proposed rule on December 3, 2009, at 

which time commenters asked for an 

extension of the comment period in 

order to evaluate the feasibility and cost 

associated with the proposed rule. 

NIOSH subsequently published an 

extension of the comment period to 

March 30, 2010 in the Federal Register 

on December 17, 2009 (74 FR 66935). 

During the comment period, several 

commenters requested a further 

extension of the comment period in 

order to conduct tests and prepare 

responses. On April 20, 2010, NIOSH 

responded by reopening the docket for 

comments until September 30, 2010 (75 

FR 20546). 

II. Public Meeting 

NIOSH will hold a second public 

meeting on the proposed rule, on the 

date and time listed above to allow 

commenters to present their findings 

and ongoing activities. 

Requests to make presentations at the 

public meeting should be mailed to the 

NIOSH Docket Office, Robert A. Taft 

Laboratories, MS–C34, 4676 Columbia 

Parkway, Cincinnati, OH 45226. 

Requests may also be submitted by 

telephone (513) 533–8611, facsimile 

(513) 533–8285, or e-mailed to 

niocindocket@cdc.gov. All requests to 

present should contain the name, 

address, telephone number and relevant 

business affiliations of the presenter, 

and the approximate time requested for 

the presentation. Oral presentations 

should be limited to 15 minutes. 

After reviewing the requests for 

presentations, NIOSH will notify the 

presenter that his/her presentation is 

scheduled. If a participant is not in 

attendance when his/her presentation is 

scheduled to begin, the remaining 

participants will be heard in order. After 

the last scheduled speaker is heard, 

participants who missed their assigned 

times may be allowed to speak, limited 

by time available. Attendees who wish 

to speak but did not submit a request for 

the opportunity to make a presentation 

may be given this opportunity after the 

scheduled speakers are heard, at the 

discretion of the presiding officer and 

limited by time available. 

This meeting will also be using 

Audio/LiveMeeting Conferencing, 

remote access capabilities where 

interested parties may listen in and 

review the presentations over the 

Internet simultaneously. Parties 

remotely accessing the meeting will 

have the opportunity to comment 

during the open comment period. To 

register to use this capability, please 

contact the National Personal Protective 

Technology Laboratory (NPPTL), Policy 

and Standards Development Branch, 

Post Office Box 18070, 626 Cochrans 

Mill Road, Pittsburgh, PA 15236, 

telephone (412) 386–5200, facsimile 

(412) 386–4089. This option will be 

available to participants on a first come, 

first served basis and is limited to the 

first 50 participants. 

Dated: May 20, 2010. 

Tanja Popovic, 

Deputy Associate Director for Science, 

Centers for Disease Control and Prevention. 

[FR Doc. 2010–12744 Filed 5–26–10; 8:45 am] 

BILLING CODE 4163–19–P 

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. 

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: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for docket 

FWS-R6-ES-2009-0013 and then follow 

the instructions for submitting 

comments. 

• 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: 

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Federal Register / Vol. 75, No. 102 / Thursday, May 27, 2010 / Proposed Rules 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: 

•The amount and distribution of 

PMJM habitat in Colorado; 

•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; 

•What areas not occupied at the time 

of listing are essential to the 

conservation of the species and why; 

and 

•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: 

• 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; 

• 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; 

• Lands within El Paso County 

(because the county is currently 

developing a countywide HCP); 

• Lands within the proposed Seaman 

Reservoir expansion footprint; and 

• 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 

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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, 

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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 

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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: 

• New Housing Operative Builders— 

$33.5 million in annual receipts. 

• Land Subdivision—$7 million in 

annual receipts 

• Natural Gas Distribution—500 

employees. 

•Water Supply and Irrigation 

Systems—$7 million annual receipts. 

• 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 

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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 nonFederal 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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