67676 Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Proposed Rules 

operator of a vessel shall proceed as 

directed. 

(5) The Coast Guard may be assisted 

by other federal, state, or local agencies. 

Dated: October 19, 2010. 

C.L. Stowe, 

Captain, U.S. Coast Guard, Captain of the 

Port San Francisco. 

[FR Doc. 2010–27707 Filed 11–2–10; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–R09–OAR–2010–0814; FRL–9219–6] 

Delegation of National Emission 

Standards for Hazardous Air Pollutants 

for Source Categories; State of 

Nevada; Clark County Department of 

Air Quality and Environmental 

Management 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Pursuant to section 112(l) of 

the Clean Air Act as amended in 1990, 

EPA is proposing to grant delegation of 

specific national emission standards for 

hazardous air pollutants (NESHAP) to 

Clark County, Nevada. 

DATES: Any comments on this proposal 

must arrive by December 3, 2010. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2010–0814, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

on-line instructions. 

2. E-mail: steckel.andrew@epa.gov. 

3. Mail or Deliver: Andrew Steckel 

(AIR–4), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at http://www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

http://www.regulations.gov or e-mail. 

http://www.regulations.gov is an 

‘‘anonymous access’’ system, and EPA 

will not know your identity or contact 

information unless you provide it in the 

body of your comment. If you send email directly to EPA, your e-mail 

address will be automatically captured 

and included as part of the public 

comment. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. 

Docket: The index to the docket for 

this action is available electronically at 

http://www.regulations.gov and in hard 

copy at EPA Region IX, 75 Hawthorne 

Street, San Francisco, California. While 

all documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: Mae 

Wang, EPA Region IX, (415) 947–4124, 

wang.mae@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

proposal concerns the delegation of 

unchanged NESHAP to Clark County, 

Nevada. In the Rules and Regulations 

section of this Federal Register, EPA is 

amending regulations to reflect the 

current delegation status of NESHAP in 

Nevada. EPA is taking direct final action 

without prior proposal because the 

Agency believes this action is not 

controversial. If we receive adverse 

comments, however, we will publish a 

timely withdrawal of the direct final 

rule and address the comments in a 

subsequent action based on this 

proposed rule. Please note that if we 

receive adverse comment on an 

amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

we may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment. 

We do not plan to open a second 

comment period, so anyone interested 

in commenting should do so at this 

time. If we do not receive adverse 

comments, no further activity is 

planned. For further information, please 

see the direct final action. 

Authority: This action is issued under the 

authority of Section 112 of the Clean Air Act, 

as amended, 42 U.S.C. 7412. 

Dated: October 5, 2010. 

Deborah Jordan, 

Director, Air Division, Region IX. 

[FR Doc. 2010–27804 Filed 11–2–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2009–0078; MO 

92210–0–0009–B4] 

RIN 1018–AW53 

Endangered and Threatened Wildlife 

and Plants; Revised Critical Habitat for 

Astragalus jaegerianus (Lane Mountain 

Milk-Vetch) 

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 comment period on our 

April 1, 2010, proposed revised 

designation of critical habitat for 

Astragalus jaegerianus (Lane Mountain 

milk-vetch) under the Endangered 

Species Act of 1973, as amended (Act). 

We also announce the availability of a 

draft economic analysis (DEA) of the 

proposed revised designation of critical 

habitat for Astragalus jaegerianus and 

an amended required determinations 

section of the proposal. We are 

reopening the comment period for an 

additional 30 days to allow all 

interested parties an opportunity to 

comment on the items listed above. 

Comments previously submitted need 

not be resubmitted and will be fully 

considered in preparation of the final 

rule. 

DATES: We will consider public 

comments we receive on or before 

December 3, 2010. Comments must be 

received by 11:59 p.m. Eastern Time on 

the closing date. Any comments that we 

receive after the closing date may not be 

considered in the final decision on this 

action. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

on Docket No. FWS–R8–ES–2009–0078. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R8– 

ES–2009–0078; 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). 


srobinson on DSKHWCL6B1PROD with PROPOSALS
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FOR FURTHER INFORMATION CONTACT: 

Connie Rutherford, Listing and 

Recovery Coordinator, Ventura Fish and 

Wildlife Office, 2493 Portola Road, 

Suite B, Ventura, CA 93003; telephone 

(805) 644–1766; facsimile (805) 644– 

3958. 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 intend that any final action 

resulting from the proposed rule will be 

based on the best scientific data 

available and will be as accurate and 

effective as possible. Therefore, we 

request comments or information from 

other concerned government agencies, 

the scientific community, industry, or 

any other interested party during this 

reopened comment period on the 

proposed revised designation of critical 

habitat for Astragalus jaegerianus 

published in the Federal Register on 

April 1, 2010 (75 FR 16404), including 

the draft economic analysis of the 

proposed revised designation of critical 

habitat for A. jaegerianus 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 revise the designation of 

habitat as ‘‘critical habitat’’ under 

section 4 of the Act (16 U.S.C. 1531 et 

seq.), including whether there are 

threats to the species from human 

activity, the degree of which can be 

expected to increase due to the 

designation, and whether that increase 

in threat outweighs the benefit of 

designation such that the designation of 

critical habitat is not prudent. 

(2) Specific information on: 

• The amount and distribution of 

Astragalus jaegerianus habitat, 

• What areas within the geographical 

area occupied by the species 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 outside the geographical 

area occupied at the time of listing are 

essential to the conservation of the 

species and why. 

(3) Land-use designations and current 

or planned activities in the subject areas 

and their possible effects on proposed 

revised critical habitat for Astragalus 

jaegerianus. 

(4) Any foreseeable economic, 

national security, or other relevant 

impacts of designating any area that 

may be included in the final 

designation. We are particularly 

interested in any impacts on small 

entities, and the benefits of including or 

excluding areas from the proposed 

designation that exhibit these impacts. 

(5) The likelihood of adverse social 

reactions to the designation of critical 

habitat, as discussed in the DEA, and 

how the consequences of such reactions, 

if likely to occur, would relate to the 

conservation and regulatory benefits of 

the proposed critical habitat 

designation. 

(6) Comments or information that may 

assist us in identifying or clarifying the 

primary constituent elements and the 

resulting physical and biological 

features essential to the conservation of 

Astragalus jaegerianus. 

(7) How the proposed revised critical 

habitat boundaries could be refined to 

more closely circumscribe the 

landscapes identified as essential. 

(8) Information on the potential 

effects of climate change on Astragalus 

jaegerianus and its habitat. 

(9) Any foreseeable impacts on energy 

supplies, distribution, and use resulting 

from the proposed revised designation 

and, in particular, any impacts on 

electricity production, and the benefits 

of including or excluding any particular 

areas that exhibit these impacts. 

(10) Whether our approach to 

designating 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. 

(11) Information on whether the DEA 

makes appropriate assumptions 

regarding current practices and any 

regulatory changes that likely may occur 

if we designate proposed revised critical 

habitat for Astragalus jaegerianus. 

(12) Information on the accuracy of 

our methodology in the DEA for 

distinguishing baseline and incremental 

costs, and the assumptions underlying 

the methodology. 

(13) Information on whether the DEA 

correctly assesses the effect on regional 

costs associated with any land use 

controls that may result from the 

proposed revised designation of critical 

habitat for Astragalus jaegerianus. 

(14) Information on whether the 

proposed revised designation of critical 

habitat will result in disproportionate 

economic impacts to specific areas or 

small businesses, including small 

businesses in the land development 

sector in San Bernardino County. 

(15) Information on whether the DEA 

identifies all costs that could result from 

the proposed revised designation of 

critical habitat for Astragalus 

jaegerianus. 

(16) Economic data on the 

incremental costs of designating a 

particular area as revised critical 

habitat. 

If you submitted comments or 

information on the proposed revised 

rule (75 FR 16404) during the initial 

comment period from April 1, 2010, to 

June 1, 2010, please do not resubmit 

them. We will incorporate them into the 

public record as part of this comment 

period, and we will fully consider them 

in the preparation of our final 

determination. Our final determination 

concerning revised critical habitat will 

take into consideration all written 

comments and any additional 

information we receive during both 

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 our proposed rule, 

the associated DEA, and our amended 

required determinations by one of the 

methods listed in the ADDRESSES

section. We will not consider comments 

sent by e-mail or fax or to an address not 

listed in the ADDRESSES section. 

If you submit a comment via http:// 

www.regulations.gov, your entire 

comment—including any personal 

identifying information—will be posted 

on the Web site. If you submit a hard 

copy 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 hard copy comments on 

http://www.regulations.gov. 

Comments and materials we receive 

(and have received), as well as 

supporting documentation we used in 

preparing the proposed rule and DEA, 

will be available for public inspection 

on http://www.regulations.gov (Docket 

Number FWS–R8–ES–2009–0078), or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Ventura Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). 

You may obtain copies of the 

proposed rule and DEA by mail from the 

Ventura Fish and Wildlife Office (see 

FOR FURTHER INFORMATION CONTACT), by 

visiting the Federal eRulemaking Portal 

at http://www.regulations.gov (Docket 

Number FWS–R8–ES–2009–0078), or on 

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

ventura. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
67678 Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Proposed Rules 

Background 

It is our intent to discuss only those 

topics directly relevant to the proposed 

revised designation of critical habitat for 

Astragalus jaegerianus in this 

document. For more information on 

previous Federal actions concerning A. 

jaegerianus, refer to the proposed 

revised designation of critical habitat 

published in the Federal Register on 

April 1, 2010 (75 FR 16404). Additional 

information on A. jaegerianus may also 

be found in the final listing rule 

published in the Federal Register on 

October 6, 1998 (63 FR 53596), and the 

proposed designation of critical habitat 

for A. jaegerianus in the Federal 

Register on April 6, 2004 (69 FR 18018). 

These documents are available on the 

Ventura Fish and Wildlife Office Web 

site at http://www.fws.gov/ventura. 

On April 8, 2005 (70 FR 18220), we 

published our final designation of 

critical habitat for Astragalus 

jaegerianus. Because we excluded all 

proposed acreage from the designation, 

the final designation included zero (0) 

acres (0 hectares). On December 19, 

2007, the 2005 critical habitat 

determination was challenged by the 

Center for Biological Diversity (Center 

for Biological Diversity v. United States 

Fish and Wildlife Service et al., Case No. 

CV–07–08221–JFW–JCRx). In a 

settlement agreement accepted by the 

court on June 27, 2008, we agreed to 

reconsider the critical habitat 

designation for A. jaegerianus. The 

settlement stipulated that we submit a 

proposed revised critical habitat rule for 

A. jaegerianus to the Federal Register 

for publication on or before April 1, 

2010, and submit a final revised 

determination on the proposed critical 

habitat rule to the Federal Register for 

publication on or before April 1, 2011. 

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, under 

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, including but 

not limited to the value and 

contribution of continued, expanded, or 

newly forged conservation partnerships. 

When considering the benefits of 

inclusion for an area, we consider the 

additional regulatory benefits that area 

would receive from the protection from 

adverse modification or destruction as a 

result of actions with a Federal nexus 

(activities conducted, funded, 

permitted, or authorized by Federal 

agencies); the educational benefits of 

mapping areas containing essential 

features that aid in the recovery of the 

listed species; and any benefits that may 

result from designation due to State or 

Federal laws that may apply to critical 

habitat. 

When considering the benefits of 

exclusion, we consider, among other 

things, whether exclusion of a specific 

area is likely to result in conservation; 

the continuation, strengthening, or 

encouragement of partnerships; or 

implementation of a management plan. 

In the case of Astragalus jaegerianus, 

the benefits of critical habitat include 

public awareness of the presence of A. 

jaegerianus and the importance of 

habitat protection, and, where a Federal 

nexus exists, increased habitat 

protection for A. jaegerianus due to 

protection from adverse modification or 

destruction of critical habitat. In 

practice, situations with a Federal nexus 

exist primarily on Federal lands or for 

projects undertaken by Federal agencies. 

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 

prepared a DEA of our April 1, 2010 (75 

FR 16404), proposed revised 

designation of critical habitat for 

Astragalus jaegerianus. 

The intent of the DEA is to identify 

and analyze the potential economic 

impacts associated with the proposed 

revised designation of critical habitat for 

Astragalus jaegerianus. The DEA 

quantifies the economic impacts of all 

potential conservation efforts for A. 

jaegerianus; some of these costs will 

likely be incurred regardless of whether 

we designate revised critical habitat. 

The economic impact of the proposed 

revised designation of critical habitat for 

A. jaegerianus 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 (for example, under the 

Federal listing and other Federal, State, 

and local regulations). The baseline, 

therefore, represents the costs incurred 

regardless of whether critical habitat is 

designated and may include costs 

incurred in the future. The ‘‘with critical 

habitat’’ scenario describes the 

incremental impacts associated 

specifically with the designation of 

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 we 

listed the species, and forecasts both 

baseline and incremental impacts likely 

to occur if we finalize the proposed 

revised designation of critical habitat for 

the A. jaegerianus. For a further 

description of the methodology of the 

analysis, see Chapter 2, ‘‘Framework for 

the Analysis,’’ of the DEA. 

The current DEA estimates the 

foreseeable economic impacts of the 

proposed revised designation of critical 

habitat for Astragalus jaegerianus by 

identifying the potential resulting 

incremental costs. The DEA analyzed 

economic impacts of A. jaegerianus 

conservation efforts on the following 

activities: Recreational OHV use, 

recreational surface mining, and wind 

energy development. It also assessed 

possible indirect impacts to economic 

activities as the result of possible 

applications of the California 

Environmental Quality Act (CEQA), and 

regulatory uncertainty or delay. The 

DEA considers future baseline and 

incremental impacts over the next 20 

years (2011 to 2030), which was 

determined to be the appropriate period 

for analysis because limited planning 

information is available for most 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Proposed Rules 67679 

activities to forecast activity levels for 

projects beyond a 20-year timeframe. 

The DEA estimates that no economic 

impacts are likely to result from the 

designation of critical habitat. The main 

reason for this conclusion is that 

approximately 79 percent of the 

designated area is Federal land that is 

either being managed for Astragalus 

jaegerianus conservation by the Bureau 

of Land Management (BLM) under the 

guidance of the California Desert 

Conservation Area Plan, as modified by 

the West Mojave Plan, or is being held 

by the Department of Defense (DOD). 

Because the DOD acquired these lands 

as mitigation for the expansion of Fort 

Irwin, it will not permit any grounddisturbing activities on them. 

Ultimately, the DOD will transfer the 

lands to the BLM, and BLM will manage 

them as part of the Coolgardie Mesa and 

West Paradise Areas of Critical 

Environmental Concern. The Service, 

DOD, and BLM do anticipate 

consultation on the land transfer, but 

expect that the consultation would be 

informal and not require a formal 

biological opinion under section 7 of the 

Act. An additional reason that no 

economic impacts are likely to result 

from the designation of critical habitat 

is that the private lands (remaining 21 

percent of designation interspersed in a 

checkerboard fashion among the BLM 

ACECs lands) occur in a remote region 

where access, development, and 

construction are limited. Also land use 

activities specifically within ACECs are 

limited. These private lands are being 

targeted through the WMP for 

acquisition by Federal agencies from 

willing sellers to eventually become part 

of one of the two ACECs. No section 7 

consultations have occurred regarding 

activities on private lands within the 

area since the listing of the desert 

tortoise (Gopherus agassizii) in 1990. 

The federally threatened desert tortoise 

occurs throughout the area that we have 

proposed as critical habitat; critical 

habitat for the desert tortoise also 

completely overlaps the areas proposed 

as critical habitat for A. jaegerianus. 

Consequently, based on discussions 

with land managers and the lack of 

consultations on private lands in this 

area since the listing of the desert 

tortoise, we do not anticipate any land 

use changes that will result in future 

consultations. 

The DEA also discusses the potential 

benefits associated with the designation 

of critical habitat. The primary intended 

benefit of critical habitat is to support 

the conservation of endangered and 

threatened species, such as Astragalus 

jaegerianus. However, economic 

benefits are not quantified or monetized 

in the DEA. As described in the DEA, 

modifications to future projects are 

unlikely given the extensive baseline 

protections already provided to A. 

jaegerianus habitat, the anticipated lack 

of economic activity, and lack of a 

Federal nexus on privately owned, 

unprotected parcels. 

The DEA considered 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 (e.g., 

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, small 

entities, and the energy industry. We 

can use this information to assess 

whether the effects of the revised 

designation might unduly burden a 

particular group or economic sector. 

As we stated earlier, we are soliciting 

data and comments from the public on 

the DEA, as well as on all aspects of the 

proposed revised designation of critical 

habitat, and our amended required 

determinations. We may revise the 

proposed rule or the economic analysis 

to incorporate or address information 

we receive during this public 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 proposed rule dated April 1, 

2010 (75 FR 16404), 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 became 

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.) 

12866 (Regulatory Planning and 

Review), E.O. 12630 (Takings), E.O. 

13132 (Federalism), E.O. 12988 (Civil 

Justice Reform), the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.), the National Environmental 

Policy Act (42 U.S.C. 4321 et seq.), and 

the President’s memorandum of April 

29, 1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951). Based on 

the DEA data, we are also affirming our 

required determinations made in the 

proposed rule concerning the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.), Unfunded Mandates Reform Act 

(2 U.S.C. 1501 et seq.), and E.O. 13211 

(Energy, Supply, Distribution, and Use). 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act, 

as amended by the Small Business 

Regulatory Enforcement Fairness Act (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 an 

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 

revised 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 a 

final rulemaking. 

According to the Small Business 

Administration, 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 

small business firm’s business 

operations. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
67680 Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Proposed Rules 

To determine if the proposed revised 

designation of critical habitat for 

Astragalus jaegerianus 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 only 

affects activities conducted, funded, 

permitted, or authorized by Federal 

agencies. Some kinds of activities are 

unlikely to have any Federal 

involvement and so will not be affected 

by critical habitat designation. In areas 

where the species is present, Federal 

agencies already are required to consult 

with us under section 7 of the Act on 

activities they fund, permit, or 

implement that may affect A. 

jaegerianus. If the proposed critical 

habitat designation is finalized, 

consultations to avoid the destruction or 

adverse modification of critical habitat 

would be incorporated into the existing 

consultation process. 

In the DEA of the proposed revised 

designation of critical habitat, we 

evaluated the potential economic effects 

resulting from implementation of 

conservation actions related to the 

proposed revised designation of critical 

habitat. The DEA estimates that no 

economic impacts are likely to result 

from the designation of critical habitat 

for Astragalus jaegerianus. This 

determination is based on the fact that 

approximately 79 percent of the 

proposed critical habitat is already 

subject to conservation measures that 

benefit the plant. Economic impacts are 

unlikely in the remaining 21 percent, 

given the limited potential for future 

economic activity and the low 

probability of a Federal nexus that 

would require consultation with the 

Service. Based on that analysis, no 

impacts to small entities are expected as 

a result of the proposed critical habitat 

designation. Please refer to chapter 3 of 

the DEA for a more detailed discussion 

of our analysis. 

In summary, we have considered 

whether the proposed designation 

would result in a significant economic 

impact on a substantial number of small 

entities. Information for this analysis 

was gathered from the Small Business 

Administration, stakeholders, and the 

Service. For the reasons discussed 

above, and based on currently available 

information, we certify that if 

promulgated, the proposed designation 

would 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. Executive Order 

13211 requires an agency to prepare a 

Statement of Energy Effects when 

undertaking certain actions. We 

implement this executive order using 

the Office of Management and Budget’s 

guidance which outlines nine outcomes 

that may constitute ‘‘a significant 

adverse effect’’ when compared to no 

regulatory action. As discussed in 

chapter 3, the DEA finds that this 

proposed revised critical habitat 

designation is expected not to have any 

impacts on the energy industry. As a 

result, 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, the Service 

makes the following findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

Tribal governments, or the private 

sector, and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

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

658(5)–(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 (i) as 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 that may affect designated 

critical habitat. However, the legally 

binding duty to avoid destruction or 

adverse modification of critical habitat 

rests squarely on the Federal agency. 

Furthermore, to the extent that nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply, nor would 

critical habitat shift the costs of the large 

entitlement programs listed above on to 

State governments. 

(b) As discussed in the DEA of the 

proposed designation of critical habitat 

for Astragalus jaegerianus, we do not 

believe that this 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 critical habitat 

designation for A. jaegerianus is not 

likely to result in incremental direct or 

indirect impacts to economic activities. 

Because no incremental costs are 

anticipated, no small entities are 

expected to be affected by the 

designation. Consequently, we do not 

believe that the 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 from the 

Ventura Fish and Wildlife Office (see 

FOR FURTHER INFORMATION CONTACT

section). 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Proposed Rules 67681 

Authors 

The primary authors of this notice are 

staff members of the Ventura 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: October 25, 2010. 

Will Shafroth, 

Acting Assistant Secretary for Fish & Wildlife 

and Parks. 

[FR Doc. 2010–27773 Filed 11–2–10; 8:45 am] 

BILLING CODE 4310–55–P 


srobinson on DSKHWCL6B1PROD with PROPOSALS