6684 Federal Register / Vol. 73, No. 24 / Tuesday, February 5, 2008 / Proposed Rules 

species with a lower priority if they 

overlap geographically or have the same 

threats as the species with the high 

priority. 

ACTIONS ANTICIPATED TO BE FUNDED IN FY 2008 THAT HAVE YET TO BE COMPLETED

Species Action 

Actions Subject to Court Order/Settlement Agreement 

Bonneville cutthroat trout ................................................................................................................ 12-month petition finding (remand). 

Actions With Statutory Deadlines 

Polar bear ........................................................................................................................................ Final listing determination. 

3 Southeastern aquatic species ...................................................................................................... Final listing. 

Phyllostegia hispida ........................................................................................................................ Final listing. 

Yellow-billed loon ............................................................................................................................ 12-month petition finding. 

Black-footed albatross ..................................................................................................................... 12-month petition finding. 

Mount Charleston blue butterfly ...................................................................................................... 12-month petition finding. 

Goose Creek milk-vetch .................................................................................................................. 12-month petition finding. 

White-tailed prairie dog ................................................................................................................... 12-month petition finding. 

Mono Basin sage grouse (vol. remand) ......................................................................................... 90-day petition finding. 

Ashy storm petrel ............................................................................................................................ 90-day petition finding. 

Longfin smelt—San Fran. Bay population ...................................................................................... 90-day petition finding. 

Black-tailed prairie dog ................................................................................................................... 90-day petition finding. 

Lynx (include New Mexico in listing) .............................................................................................. 90-day petition finding. 

Wyoming pocket gopher ................................................................................................................. 90-day petition finding. 

Llanero coqui ................................................................................................................................... 90-day petition finding. 

Least chub ....................................................................................................................................... 90-day petition finding. 

American pika ................................................................................................................................. 90-day petition finding. 

Dusky tree vole ............................................................................................................................... 90-day petition finding. 

Sacramento Mts. checkerspot butterfly .......................................................................................... 90-day petition finding. 

Kokanee—Lake Sammamish population ........................................................................................ 90-day petition finding. 

206 species ..................................................................................................................................... 90-day petition finding. 

475 Southwestern species .............................................................................................................. 90-day petition finding. 

High Priority Listing Actions 

31 Kauai species 1 .......................................................................................................................... Proposed listing. 

8 packages of high-priority candidate species ............................................................................... Proposed listing. 

1Funds used for this listing action were also provided in FY 2007. 

We have endeavored to make our 

listing actions as efficient and timely as 

possible, given the requirements of the 

relevant law and regulations, and 

constraints relating to workload and 

personnel. We are continually 

considering ways to streamline 

processes or achieve economies of scale, 

such as by batching related actions 

together. Given our limited budget for 

implementing section 4 of the Act, these 

actions described above collectively 

constitute expeditious progress. 

Conclusion 

We will add the montane portion of 

the Gunnison’s prairie dog to the list of 

candidate species. We intend any listing 

action for the species to be as accurate 

as possible by reflecting the best 

available information. Therefore, we 

will continue to accept additional 

information and comments on the status 

of and threats to this species from all 

concerned governmental agencies, the 

scientific community, industry, or any 

other interested party concerning this 

finding. If an emergency situation 

develops that warrants an emergency 

listing of this species, we will act 

immediately to provide additional 

protection. 

References 

A complete list of all references cited 

herein is available upon request from 

the Western Colorado Field Office (see 

ADDRESSES). 

Author 

The primary authors of this document 

are staff located at the Colorado Field 

Office (see ADDRESSES). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as amended 

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

Dated: January 29, 2008. 

H. Dale Hall, 

Director, U.S. Fish and Wildlife Service. 

[FR Doc. 08–493 Filed 2–4–08; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R8–ES–2008–0014; 92210–1117–

0000–B4] 

RIN 1018–AV05 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Sierra Nevada Bighorn 

Sheep (Ovis canadensis californiana) 

and Proposed Taxonomic Revision 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period, notice of availability 

of draft economic analysis, and 

amended required determinations. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

reopening of the public comment period 

on the proposed designation of critical 

habitat for the Sierra Nevada bighorn 

sheep (Ovis canadensis californiana) 

and proposed taxonomic revision under 


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the Endangered Species Act of 1973, as 

amended (Act). We also announce the 

availability of the draft economic 

analysis (DEA) of the proposed critical 

habitat designation, and an amended 

required determinations section of the 

proposal. The DEA provides 

information about the pre-designation 

costs and forecasts post-designation 

costs associated with conservation 

efforts for Sierra Nevada bighorn sheep. 

The DEA estimates potential future 

costs due to conservation efforts 

(baseline costs) to be approximately 

$26.7 million and costs associated 

solely with the designation of critical 

habitat (incremental costs) to be 

approximately $135,000 in 

undiscounted dollars over a 20-year 

period in areas proposed as critical 

habitat. The amended required 

determinations section provides our 

determination concerning compliance 

with applicable statutes and Executive 

Orders that we have deferred until the 

information from the DEA of the 

proposal was available. We are 

reopening the comment period to allow 

all interested parties an opportunity to 

comment simultaneously on the 

proposed rule, the associated DEA, and 

the amended required determinations 

section. Comments submitted during the 

initial comment period from July 25 to 

September 24, 2007, on the proposed 

rule (72 FR 40956), or from October 9 

to November 23, 2007, during the 

reopened comment period on the 

proposed rule (72 FR 57276) have been 

incorporated into the supporting for this 

rulemaking and need not be 

resubmitted. We will incorporate all 

comments into the supporting record as 

part of this comment period, and we 

will fully consider them when preparing 

our final determination. 

DATES: We will accept public comments 

until March 6, 2008. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R8–

ES–2008–0014, Division of Policy and 

Directives Management, U.S. Fish and 

Wildlife Service, 4401 N. Fairfax Drive, 

Suite 222, Arlington, VA 22203. 

We will not accept e-mail or faxes. 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: 

Robert D. Williams, Field Supervisor, 

U.S. Fish and Wildlife Service, Nevada 

Fish and Wildlife Office, 1340 Financial 

Blvd., Suite 234, Reno, NV 89502–7147; 

telephone 775–861–6300; or facsimile 

775–861–6301. 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 

critical habitat designation for the Sierra 

Nevada bighorn sheep and proposed 

taxonomic revision published in the 

Federal Register on July 25, 2007 (72 FR 

40956), our draft economic analysis 

(DEA) of the proposed designation, and 

the amended required determinations 

provided in this document. We will 

consider information and 

recommendations from all interested 

parties. We are particularly interested in 

comments concerning: 

(1) The reasons why we should or 

should not designate habitat as critical 

habitat under section 4 of the Act (16 

U.S.C. 1531 et seq.), including whether 

the benefits of designation would 

outweigh threats to the species caused 

by the designation, such that the 

designation of critical habitat is 

prudent. 

(2) Specific information on: 

• The amount and distribution of 

Sierra Nevada bighorn sheep habitat, 

• What areas occupied at the time of 

listing that contain features essential to 

the conservation of the species we 

should include in the designation and 

why, and 

• What areas not occupied at the time 

of listing are essential for the 

conservation of the species and why. 

(3) Land-use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat. 

(4) Information on the extent to which 

any State and local environmental 

protection measures we reference in the 

DEA may have been adopted largely as 

a result of the listing of the Sierra 

Nevada bighorn sheep. 

(5) Information on whether the DEA 

identifies all State and local costs and 

benefits attributable to the proposed 

critical habitat designation, and 

information on any costs or benefits that 

we have overlooked. 

(6) Information on whether the DEA 

makes appropriate assumptions 

regarding current practices and any 

regulatory changes likely if we designate 

critical habitat. 

(7) Information on whether the DEA 

identifies all costs that could result from 

the designation and whether you agree 

with the analysis. 

(8) Information on whether the DEA 

correctly assesses the effect on regional 

costs associated with any land use 

controls that may result from the critical 

habitat designation. 

(9) Information on areas that the 

critical habitat designation could 

potentially impact to a disproportionate 

degree. 

(10) Economic data on the 

incremental costs of designating any 

particular area as critical habitat. 

(11) Information on any quantifiable 

economic benefits of the designation of 

critical habitat. 

(12) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation and, in particular, any 

impacts on small entities, and the 

benefits of including or excluding areas 

that exhibit these impacts. 

(13) Whether the benefit of excluding 

any particular area outweigh the 

benefits of including that area under 

section 4(b)(2) of the Act. 

(14) Whether we could improve or 

modify our approach to designating 

critical habitat in any way to provide for 

greater public participation and 

understanding, or to better 

accommodate public concerns and 

comments. 

Comments submitted during the 

initial comment period from July 25 to 

September 24, 2007, on the proposed 

rule (72 FR 40956), or from October 9 

to November 23, 2007, during the 

reopened comment period on the 

proposed rule (72 FR 57276) have been 

incorporated into the supporting for this 

rulemaking and need not be 

resubmitted. We will incorporate them 

into the supporting record as part of this 

comment period, and we will fully 

consider them in preparation of our 

final determination. If you wish to 

comment, you may send your comments 

and materials concerning our proposed 

rule, DEA, or amended required 

determinations by one of the methods 

listed in the ADDRESSES section. Our 

final determination concerning critical 

habitat will take into consideration all 

written comments and any additional 

information we receive during the 

comment periods. On the basis of public 

comments, 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 are 

not appropriate for exclusion. 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in the 

ADDRESSES section. We will no longer 


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accept comments you send by e-mail or 

fax. Please note that we will consider 

comments we receive after the date 

specified in the DATES section in our 

final determination. 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that we 

will post your entire comment—

including your personal identifying 

information—on http:// 

www.regulations.gov. While you can ask 

us in your comment to withhold your 

personal identifying information from 

public review, we cannot guarantee that 

we will be able to do so. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparation of the proposal to 

designate critical habitat, will be 

available for public inspection on 

http://www.regulations.gov, or by 

appointment during normal business 

hours, at the Nevada Fish and Wildlife 

Office, 1340 Financial Boulevard, Suite 

234, Reno, NV 89502–7147; telephone 

775–861–6300. You may obtain copies 

of the proposed critical habitat rule and 

the DEA by mail from the Nevada Fish 

and Wildlife Office or by visiting our 

Web site at http://www.fws.gov/nevada. 

Background 

On December 8, 2005, the Center for 

Biological Diversity filed a complaint 

based on the Service’s failure to 

designate critical habitat for this 

subspecies within the time mandated 

under the Act (Center for Biological 

Diversity v. U.S. Fish and Wildlife 

Service, et al. Case No. 2:05–CB–02492–

DFL–KJM). On June 6, 2006, the Service 

entered into a settlement agreement 

with the Center for Biological Diversity 

to submit a proposed critical habitat 

designation for this subspecies for 

publication in the Federal Register by 

July 17, 2007, and to submit a final 

determination on the proposed critical 

habitat designation for publication by 

July 17, 2008. On July 25, 2007, we 

published a proposed rule to designate 

critical habitat for the Sierra Nevada 

bighorn sheep (72 FR 40956), 

identifying a total of approximately 

417,577 acres (168,992 hectares) of land 

in Tuolumne, Mono, Fresno, Inyo, and 

Tulare counties, California. In that 

proposal, we also proposed a taxonomic 

revision of the listed entity from a 

distinct population segment to a 

subspecies (Ovis Canadensis sierrae) 

based on recent published information. 

Section 3 of the Act defines critical 

habitat as the specific areas within the 

geographical area occupied by a species, 

at the time it is listed in accordance 

with the Act, on which are found those 

physical or biological features essential 

to the conservation of the species and 

that may require special management 

considerations or protection, and 

specific areas outside the geographical 

area occupied by a species at the time 

it is listed, upon a determination that 

such areas are essential for the 

conservation of the species. If the 

proposed rule is made final, section 7 of 

the Act will prohibit destruction or 

adverse modification of critical habitat 

by any activity funded, authorized, or 

carried out by any Federal agency. 

Federal agencies proposing actions 

affecting areas designated as critical 

habitat must consult with us on the 

effects of their proposed actions, in 

accordance with section 7(a)(2) of the 

Act. 

Under section 4(b)(2) of the Act, we 

may exclude an area from critical 

habitat if we determine that the benefits 

of such exclusion outweigh the benefits 

of including that particular area as 

critical habitat, unless failure to 

designate that specific area as critical 

habitat will result in the extinction of 

the species. We may exclude an area 

from designated critical habitat based on 

economic impacts, national security, or 

any other relevant impact. 

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. Based 

on the July 25, 2007, proposed rule to 

designate critical habitat for the Sierra 

Nevada bighorn sheep (72 FR 40956), 

we have prepared a DEA of the 

proposed critical habitat designation. 

The intent of the DEA is to quantify 

the economic impacts of all potential 

conservation efforts for the Sierra 

Nevada bighorn sheep; some of these 

costs will likely be incurred regardless 

of whether we designate critical habitat. 

The DEA provides estimated costs of the 

foreseeable potential economic impacts 

of the proposed critical habitat 

designation (incremental impacts) and 

other conservation-related actions 

(baseline impacts) for this species over 

the next 20 years. It also considers past 

costs associated with conservation of 

the species from the time it was listed 

in 2000 (65 FR 20, January 3, 2000), 

until the year the proposed critical 

habitat rule was published (72 FR 

40956, July 25, 2007). 

Activities associated with the 

conservation of the Sierra Nevada 

bighorn sheep are likely to primarily 

impact future domestic sheep grazing, 

recreation management, and habitat 

management. Pre-designation (2000 to 

2007) impacts associated with species 

conservation activities in areas 

proposed for designation are estimated 

at $11.1 million in 2007 dollars. The 

DEA forecasts baseline economic 

impacts in the areas proposed for 

designation to be approximately $26.7 

million (undiscounted dollars) over the 

next 20 years. The present value of these 

impacts, applying a 3 percent discount 

rate, is $20.4 million ($1,370,000 

annualized), or $15.1 million 

($1,430,000 annualized) using a 7 

percent discount rate. The DEA 

forecasts incremental economic impacts 

to be approximately $135,000 

(undiscounted) over the next 20 years. 

The present value of these impacts, 

applying a 3 percent discount rate, is 

$106,000 ($7,090 annualized), or 

$80,300 ($7,580 annualized) using a 7 

percent discount rate. The cost 

estimates are based on the proposed 

designation of critical habitat published 

in the Federal Register on July 25, 2007 

(72 FR 40956). 

The DEA considers the potential 

economic effects of actions relating to 

the conservation of the Sierra Nevada 

bighorn sheep, including costs 

associated with sections 4, 7, and 10 of 

the Act, as well as costs attributable to 

the designation of critical habitat. It 

further considers the economic effects of 

protective measures taken as a result of 

other Federal, State, and local laws that 

aid habitat conservation for the Sierra 

Nevada bighorn sheep in areas 

containing features essential to the 

conservation of the species. The DEA 

considers both economic efficiency and 

distributional effects. In the case of 

habitat conservation, efficiency effects 

generally reflect the ‘‘opportunity costs’’

associated with the commitment of 

resources to comply with habitat 

protection measures (such as lost 

economic opportunities associated with 

restrictions on land use). 

The DEA also addresses how potential 

economic impacts are likely to be 

distributed, including an assessment of 

any local or regional impacts of habitat 

conservation and the potential effects of 

conservation activities on government 

agencies, private business, and 

individuals. The DEA measures lost 

economic efficiency associated with 

residential and commercial 

development and public projects and 

activities, such as economic impacts on 

water management and transportation 

projects, Federal lands, small entities, 

and the energy industry. Decisionmakers can use this information to 

assess whether the effects of the 


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designation might unduly burden a 

particular group or economic sector. 

Finally, the DEA looks retrospectively at 

costs that have been incurred since the 

date Sierra Nevada bighorn sheep was 

listed as endangered (65 FR 20, January 

3, 2000) and considers those costs that 

may occur in the 20 years following the 

designation of critical habitat. Forecasts 

of economic conditions and other 

factors beyond this point would be 

speculative. 

As stated earlier, we solicit data and 

comments from the public on the DEA, 

as well as on all aspects of the proposed 

rule and our amended required 

determinations. We may revise the 

proposed rule or its supporting 

documents to incorporate or address 

new information we receive during this 

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 the exclusion will not result in 

the extinction of the species. 

Required Determinations—Amended 

In our July 25, 2007, proposed rule 

(72 FR 40956), we indicated that we 

would defer our determination of 

compliance with several statutes and 

Executive Orders until the information 

concerning potential economic impacts 

of the designation and potential effects 

on landowners and stakeholders was 

available in the DEA. We have now 

made use of the DEA to make these 

determinations. In this document we 

affirm the information in our proposed 

rule concerning Executive Order (E.O.) 

13132; E.O. 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). However, 

based on the DEA data, we revise our 

required determinations concerning 

E.O. 12866; the Regulatory Flexibility 

Act, including the Small Business 

Regulatory Enforcement Fairness Act; 

E.O. 13211 (Energy, Supply, 

Distribution, and Use); E.O. 12630 

(Takings); and the Unfunded Mandates 

Reform Act. 

Regulatory Planning and Review 

In accordance with Executive Order 

12866 (E.O. 12866), we evaluate four 

parameters in determining whether a 

rule is significant. The four parameters 

that would result in a designation of 

significant under E.O. 12866 are: 

(a) The rule would have an annual 

economic effect of $100 million or more 

or adversely affect an economic sector, 

productivity, jobs, the environment, or 

other units of the government. 

(b) The rule would create 

inconsistencies with other Federal 

agencies’ actions. 

(c) The rule would materially affect 

entitlements, grants, user fees, loan 

programs, or the rights and obligations 

of their recipients. 

(d) The rule would raise novel legal 

or policy issues. 

If OMB requests to informally review a 

rule designating critical habitat for a 

species, we consider that rule to raise 

novel legal and policy issues. Because 

no other Federal agencies designate 

critical habitat, the designation of 

critical habitat will not create 

inconsistencies with other agencies’

actions. We use the economic analysis 

of the critical habitat designation to 

evaluate the potential effects related to 

the other parameters of E.O. 12866 and 

to make a determination as to whether 

the regulation may be significant under 

parameter (a) or (c) listed above. 

Based on the economic analysis of the 

critical habitat designation, we have 

determined that the designation of 

critical habitat for the Sierra Nevada 

bighorn sheep will not result in an 

annual effect on the economy of $100 

million or more or affect the economy 

in a material way. Based on previous 

critical habitat designations and the 

economic analysis, we believe this rule 

will not materially affect entitlements, 

grants, user fees, loan programs, or the 

rights and obligations of their recipients. 

OMB has requested to informally review 

this rule, and thus this action may raise 

novel legal or policy issues. In 

accordance with the provisions of E.O. 

12866, this rule is considered 

significant. 

Further, E.O. 12866 directs Federal 

agencies issuing regulations to evaluate 

regulatory alternatives (OMB Circular 

A–4, September 17, 2003). Under 

Circular A–4, once an agency 

determines that a regulatory action is 

appropriate, the agency needs to 

consider alternative regulatory 

approaches. Since the designation of 

critical habitat is a statutory 

requirement under the Act, we must 

then evaluate alternative regulatory 

approaches, where feasible, when 

promulgating a designation of critical 

habitat. 

In developing our critical habitat 

designations, we consider economic 

impacts, impacts to national security, 

and other relevant impacts under 

section 4(b)(2) of the Act. Based on the 

discretion section 4(b)(2) allows, we 

may exclude any particular area from 

the critical habitat designation as long 

as the benefits of such exclusion 

outweigh the benefits of specifying the 

area as critical habitat, and as long as 

the exclusion will not result in the 

species’ extinction. As such, we believe 

that the evaluation of the inclusion or 

exclusion of particular areas, or a 

combination, in a critical habitat 

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 (SBREFA) (5 

U.S.C. 802(2)), 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 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 (SBA), small entities 

include small organizations, such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and 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 


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small business firm’s business 

operations. 

To determine if the proposed 

designation of critical habitat for the 

Sierra Nevada bighorn sheep would 

affect a substantial number of small 

entities, we considered the number of 

small entities affected within particular 

types of economic activities, such as 

residential and commercial 

development. 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, or authorized by Federal 

agencies. 

If we finalize the proposed 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. 

In our DEA of the proposed critical 

habitat designation, we evaluated the 

potential economic effects on small 

business entities resulting from 

conservation actions related to the 

listing of the Sierra Nevada bighorn 

sheep and the proposed designation of 

critical habitat. The analysis is based on 

the estimated impacts associated with 

the proposed rulemaking as described in 

Chapters 2 through 4 and Appendix A 

of the DEA and evaluates the potential 

for economic impacts related to three 

categories: Grazing, recreation 

management, and habitat management. 

The DEA identified one domestic 

sheep grazing permittee operating in the 

Humboldt-Toiyabe National Forest, and 

two resorts and unidentified outdoor 

pack companies operating in the 

Humboldt-Toiyabe and the Inyo 

National Forests that qualify as small 

businesses that could be impacted due 

to their activities within areas proposed 

as critical habitat. 

For the one grazing permittee, the 

DEA estimates a cost of $13,000 

associated with conservation activities 

for the Sierra Nevada bighorn sheep 

over the next 20 years at a 3 percent 

discounted rate ($875 annualized). For 

the two resorts and unidentified outdoor 

pack companies, the DEA estimates a 

cost of $2,730 associated with 

conservation activities for the Sierra 

Nevada bighorn sheep over the next 20 

years at a 3 percent discounted rate 

($183 annualized). Incremental impacts 

are expected only to occur in proposed 

critical habitat Units 1 and 2. This 

number of small business entities is not 

considered a substantial number. 

The U.S. Forest Service (USFS) is 

expected to incur incremental costs as a 

result of this designation, but it is not 

considered a small entity by the SBA. 

In summary, we have considered 

whether the proposed rule would result 

in a significant economic impact on a 

substantial number of small entities. For 

the above reasons and based on 

currently available information, we 

certify that, if made final, the proposed 

rule will not have a significant 

economic impact on a substantial 

number of small business entities. 

Therefore, an initial regulatory 

flexibility analysis is not required. 

Executive Order 13211—Energy Supply, 

Distribution, and Use 

On May 18, 2001, the President issued 

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. OMB’s guidance for 

implementing this Executive Order 

outlines nine outcomes that may 

constitute ‘‘a significant adverse effect’’

when compared to no regulatory action. 

The DEA finds none of these criteria 

relevant to this analysis. Thus, based on 

the information in the DEA, we do not 

expect Sierra Nevada bighorn sheep 

conservation activities within proposed 

critical habitat to lead to energy-related 

impacts. As such, we do not expect the 

proposed designation of critical habitat 

to significantly affect energy supplies, 

distribution, or use, and a Statement of 

Energy Effects is not required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (UMRA) (2 U.S.C. 

1501 et seq.), we make the following 

findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

Tribal governments, or the private 

sector, and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or Tribal 

governments,’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and Tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except as (i) a 

condition of Federal assistance; or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’

Critical habitat designation does not 

impose a legally binding duty on nonFederal government entities or private 

parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. Designation of 

critical habitat may indirectly impact 

non-Federal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action. However, the legally binding 

duty to avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Furthermore, to the extent that nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply, nor would 

critical habitat shift the costs of the large 

entitlement programs listed above on to 

State governments. 

(b) We do not believe that this rule 

would significantly or uniquely affect 

small governments. As discussed in the 

DEA, approximately 99 percent of the 

lands proposed as critical habitat are 

comprised of lands managed by the 

Federal government (e.g., USFS, 

National Park Service (NPS), and 

Bureau of Land Management (BLM)), 

which does not qualify as a small 

government. The Federal government is 

not considered a small governmental 

jurisdiction or entity by the Small 

Business Administration because it 

services a population exceeding the 

criteria for a ‘‘small entity.’’

Consequently, we do not believe that 

critical habitat designation would 

significantly or uniquely affect small 


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Federal Register / Vol. 73, No. 24 / Tuesday, February 5, 2008 / Proposed Rules 6689 

government entities. As such, a Small 

Government Agency Plan is not 

required. 

Executive Order 12630—Takings 

In accordance with E.O. 12630 

(‘‘Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights’’), we have analyzed the 

potential takings implications of 

proposing critical habitat for the Sierra 

Nevada bighorn sheep in a takings 

implications assessment. Our takings 

implications assessment concludes that 

this proposed designation of critical 

habitat for the Sierra Nevada bighorn 

sheep does not pose significant takings 

implications. 

References Cited 

A complete list of all references cited 

in the proposed rule is available on 

http://www.regulations.gov. 

Author 

The primary author of this notice is 

the staff of the Nevada Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: January 24, 2008. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. E8–1805 Filed 2–4–08; 8:45 am] 

BILLING CODE 4310–55–P 


rmajette on PROD1PC64 with PROPOSALS