        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R2-ES-2013-0004; 4500030113]
        RIN 1018-AZ26
        Endangered and Threatened Wildlife and Plants; Listing as Endangered and Designation of Critical Habitat for Six West Texas Aquatic Invertebrate Species

          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 August 16, 2012, proposed endangered status for six west Texas aquatic invertebrate species under the Endangered Species Act of 1973, as amended (Act). We also announce the reopening of comment on the August 16, 2012, proposed designation of critical habitat for the six west Texas aquatic invertebrate species and the availability of a draft economic analysis of the proposed designation and amended required determinations in the proposed rule. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed rules, the associated draft economic analysis, and the amended required determinations. Comments previously submitted need not be resubmitted, as they will be fully considered in preparation of the final rules.

          DATES:

          We will consider comments received or postmarked on or before March 22, 2013. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES section, below) 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.

            Public Hearing: We will hold a public hearing on these proposed rules at Balmorhea State Park in Toyahvale, Texas, on February 21, 2013 (see ADDRESSES).

          ADDRESSES:

            Document availability: You may obtain a copy of the proposed rule on the internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0029 or by mail from the Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may obtain a copy of the draft economic analysis at Docket No. FWS-R2-ES-2013-0004.

            Written comments: You may submit written comments by one of the following methods:
          (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the listing proposal to Docket No. FWS-R2-ES-2012-0029, and submit comments on the critical habitat proposal and associated draft economic analysis to Docket No. FWS-R2-ES-2013-0004. See SUPPLEMENTARY INFORMATION for an explanation of the two dockets.
          (2) By hard copy: Submit comment on the listing proposal by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2012-0029; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203. Submit comment on the critical habitat proposal and draft economic analysis by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2013-0004; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.

          We request that you send comments only by the methods described above. 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).

            Public informational session and public hearing: The public informational session and hearing will be held in the conference room at Balmorhea State Park, State Highway 17, Toyahvale, Texas. The public information session will begin at 5:00 p.m., and the public hearing will begin at 6:00 p.m. Central Time. People needing reasonable accommodation in order to attend and participate in the public hearing should contact Adam Zerrenner, Field Supervisor, Austin Ecological Services Office, as soon as possible (see FOR FURTHER INFORMATION CONTACT).

          FOR FURTHER INFORMATION CONTACT:
          Adam Zerrenner, Field Supervisor, U.S. Fish and Wildlife Service, Austin Ecological Services Field Office, 10711 Burnet Road, Suite 200, Austin, TX 78758; by telephone (512-490-0057); or by facsimile (512-490-0974). 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 are reopening the comment period for our proposed listing determination and proposed critical habitat designation for the Phantom Cave snail (Pyrgulopsis texana), Phantom springsnail (Tryonia cheatumi), diminutive amphipod (Gammarus hyalleloides), Diamond Y Spring snail (Pseudotryonia adamantina), Gonzales springsnail (Tryonia circumstriata), and Pecos amphipod (Gammarus pecos) (the six west Texas aquatic invertebrate species) that was published in the Federal Register on August 16, 2012 (77 FR 49602). We are specifically seeking comments on the draft economic analysis, which is now available, for the critical habitat designation; see ADDRESSES.

        We are also notifying the public that we will publish two separate rules for the final listing determination and the final critical habitat determination for the six west Texas aquatic invertebrate species. The final listing rule will publish under the existing docket number, FWS-R2-ES-2012-0029, and the final critical habitat designation will publish under docket number FWS-R2-ES-2013-0004.
        We request that you provide comments specifically on our listing determination under the existing docket number [FWS-R2-ES-2012-0029]. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:
        (1) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and regulations that may be addressing those threats.
        (2) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.
        (3) Any information on the biological or ecological requirements of the species, and ongoing conservation measures for the species and its habitat.
        (4) Current or planned activities in the areas occupied by the species and possible impacts of these activities on this species.
        We request that you provide comments specifically on the critical habitat determination and draft economic analysis under docket number [FWS-R2-ES-2013-0004]. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

        (5) 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 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 may not be prudent.
        (6) Specific information on:
        (a) The amount and distribution of habitat for the six west Texas aquatic invertebrates;
        (b) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of the species, should be included in the designation and why;
        (c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and
        (d) What areas not occupied at the time of listing are essential for the conservation of the species and why.
        (7) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
        (8) Information on the projected and reasonably likely impacts of climate change on the six west Texas aquatic invertebrates and proposed critical habitat.
        (9) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation; in particular, any impacts on small entities or families, and the benefits of including or excluding areas that exhibit these impacts.
        (10) Information on the extent to which the description of economic impacts in the draft economic analysis is complete and accurate.
        (11) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.
        (12) Whether the benefits of exclusion outweigh the benefits of including the area proposed as critical habitat around San Solomon Spring at Balmorhea State Park based on the existing habitat conservation plan or other relevant factors.
        (13) 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.
        If you submitted comments or information on the proposed rules (77 FR 49601; August 16, 2012) during the initial comment period from August 16, 2012, to October 15, 2012, please do not resubmit them. We have incorporated them into the public record, and we will fully consider them in the preparation of our final rules. On the basis of public comments and other relevant information, we may, during the development of our final determination on the proposed critical habitat designation, 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 the proposed rule or draft economic analysis by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described 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. We will post all hardcopy comments on http://www.regulations.gov as well. 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.

        Comments and materials we receive, as well as supporting documentation we used, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0029 (for the proposed listing rule) and Docket No. FWS-R2-ES-2013-0004 (for the proposed critical habitat designation and draft economic analysis), or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0029 and the draft economic analysis at Docket No. FWS-R2-ES-2013-0004, or by mail from the Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT section).
        Background

        It is our intent to discuss only those topics directly relevant to the designation of critical habitat for six west Texas aquatic invertebrate species in this document. For more information on the six west Texas aquatic invertebrate species, the species' habitat, and previous Federal actions concerning the species, refer to the proposed listing rule and designation of critical habitat, published in the Federal Register on August 16, 2012 (77 FR 49602). The proposed rule is available online at http://www.regulations.gov (at Docket No. FWS-R2-ES-2012-0029) or from the Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
        Previous Federal Actions

        On August 16, 2012, we published a proposed rule to list as endangered and to designate critical habitat for the six west Texas aquatic invertebrate species (77 FR 49602). In total, approximately 181.7 hectares (ha) (450.6 acres (ac)) were proposed for designation as critical habitat in four units for three species and one unit for three other species. The proposed critical habitat is located in Pecos, Reeves, and Jeff Davis Counties, Texas. We proposed to designate approximately 3.7 ha (9.2 ac) in four units located in Reeves and Jeff Davis Counties, Texas, as critical habitat for the Phantom Cave snail, Phantom springsnail, and diminutive amphipod. We also proposed to designate approximately 178.6 ha (441.1 ac) in one unit located in Pecos County, Texas, as critical habitat for the Diamond Y Spring snail, Gonzales springsnail, and Pecos amphipod. That proposal had a 60-day comment period, ending October 15, 2012. We received a request for a public hearing; therefore, a public hearing will be held (see DATES and ADDRESSES). We will submit for publication in the Federal Register a final listing determination and critical habitat designation for the six west Texas aquatic invertebrates on or before August 16, 2013.
        Critical Habitat
        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 by the Secretary 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 critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
        Consideration of Impacts Under Section 4(b)(2) of the Act
        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific 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 may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
        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. We are considering excluding the San Solomon Spring Unit that is currently covered under a habitat conservation plan with Texas Parks and Wildlife Department for the Phantom Cave snail, Phantom springsnail, and diminutive amphipod for management activities at Balmorhea State Park. However, the final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis concerning the proposed critical habitat designation, which is available for review and comment (see ADDRESSES section).
        Draft Economic Analysis
        The purpose of the draft economic analysis is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for the Phantom Cave snail, Phantom springsnail, diminutive amphipod, Diamond Y Spring snail, Gonzales springsnail, and Pecos amphipod. The draft economic analysis separates conservation measures into two distinct categories according to “without critical habitat” and “with critical habitat” scenarios. The “without critical habitat” scenario represents the baseline for the analysis, considering protections otherwise afforded to the six west Texas aquatic invertebrate species (e.g., under the Federal listing and other Federal, State, and local regulations). The “with critical habitat” scenario describes the incremental impacts specifically due to designation of critical habitat for the species. In other words, these incremental conservation measures and associated economic impacts would not occur but for the designation. Conservation measures implemented under the baseline (without critical habitat) scenario are described qualitatively within the draft economic analysis, but economic impacts associated with these measures are not quantified. Economic impacts are only quantified for conservation measures implemented specifically due to the designation of critical habitat (i.e., incremental impacts). For a further description of the methodology of the analysis, see Appendix B, “Framework,” of the draft economic analysis.

        The draft economic analysis provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for the six west Texas aquatic invertebrate species over the next 20 years, which was determined to be the appropriate period for analysis because limited planning information is available for most activities to forecast activity levels for projects beyond a 20-year timeframe. It identifies potential incremental costs as a result of the proposed critical habitat designation; these are those costs attributed to critical habitat over and above those baseline costs attributed to listing.
        The draft economic analysis quantifies economic impacts of the six west Texas aquatic invertebrate species conservation efforts associated with the following categories of activity: (1) Water withdrawals for agricultural and municipal use; (2) oil and gas development; and (3) recreation and species management.
        We do not anticipate recommending incremental conservation measures to avoid adverse modification of critical habitat over and above those recommended to avoid jeopardy of the species, and, as such, the economic analysis forecasts few incremental economic impacts as a result of the designation of critical habitat for these species. A number of factors limit the extent to which the proposed critical habitat designation will result in incremental costs, including the fact that all the proposed habit is occupied by the species, the species' survival is so closely linked to the quality of their habitat, few actions being carried out in the area are subject to a Federal nexus, and much of the proposed habitat is currently managed for conservation.
        The total projected incremental costs of administrative efforts resulting from section 7 consultations on the six invertebrates are approximately $40,000 over 20 years ($4,000 on an annualized basis), assuming a seven percent discount rate. The analysis estimates potential future administrative impacts based on the historical rate of consultation on co-occurring listed species in areas proposed for critical habitat, as discussed in Chapter 2 of the draft economic analysis.
        As stated earlier, we are soliciting data and comments from the public on the draft economic analysis, as well as all aspects of the proposed rules and our amended required determinations. We may revise the proposed rules or supporting documents to incorporate or address information we receive during the 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, provided the exclusion will not result in the extinction of this species.
        Required Determinations—Amended

        In our August 16, 2012, proposed rule (77 FR 49601), 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 draft economic analysis. We have now made use of the draft economic analysis data 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), E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), 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). However, based on the draft economic analysis data, we are amending our required determination concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
        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 of 1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 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. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. Based on our draft economic analysis 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; 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.
        To determine if the proposed designation of critical habitat for the six west Texas aquatic invertebrate species would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as water withdrawals for agricultural and municipal use, oil and gas development, and recreation and species management. In order to determine whether it is appropriate for our agency to certify that this proposed 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. If we finalize the proposed listing for the species, in areas where any one of the six west Texas aquatic invertebrate species is present, Federal agencies will be required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

        In the draft economic analysis, 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 Phantom Cave snail, Phantom springsnail, diminutive amphipod, Diamond Y Spring snail, Gonzales springsnail, and Pecos amphipod. We do not anticipate recommending incremental conservation measures to avoid adverse modification of critical habitat over and above those recommended to avoid jeopardy of the species, and as such the economic analysis forecasts few incremental economic impacts as a result of the designation of critical habitat for these species. Those incremental impacts forecasted are solely related to administrative costs for adverse modification analyses in section 7 consultations. We anticipate conducting approximately 7 formal, 15 informal, and 3 technical assistance consultations considering the designation, for a total of 25 consultations, over the next 20 years. Assuming the consultations are equally likely to occur in any year, this results in fewer than two consultations a year. Based on the consultation history, most consultations are unlikely to involve a third party. If any consultations were to involve a third party, fewer than two small entities, if any, could be affected each year. The incremental cost per entity of participating in a consultation is likely to range from $400 to $5,000. Please refer to Appendix A of the draft economic analysis of the proposed critical habitat designation for a more detailed discussion of potential economic impacts.
        The Service's current understanding of recent case law is that Federal agencies are only required to evaluate the potential impacts of rulemaking on those entities directly regulated by the rulemaking; therefore, they are not required to evaluate the potential impacts to those entities not directly regulated. The designation of critical habitat for an endangered or threatened species only has a regulatory effect where a Federal action agency is involved in a particular action that may affect the designated critical habitat. Under these circumstances, only the Federal action agency is directly regulated by the designation, and, therefore, consistent with the Service's current interpretation of RFA and recent case law, the Service may limit its evaluation of the potential impacts to those identified for Federal action agencies. Under this interpretation, there is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated, such as small businesses. However, Executive Orders 12866 and 13563 direct Federal agencies to assess costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consequently, it is the current practice of the Service to assess to the extent practicable these potential impacts, if sufficient data are available, whether or not this analysis is believed by the Service to be strictly required by the RFA. In other words, while the effects analysis required under the RFA is limited to entities directly regulated by the rulemaking, the effects analysis under the Act, consistent with the EO regulatory analysis requirements, can take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable.
        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. We conclude that future consultations are unlikely to involve a third party. However if a third party were to be involved in a consultation, we identified fewer than two small business entities that could be affected each year as a result of the designation of critical habitat for the six west Texas aquatic invertebrate species. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designations would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
        Authors
        The primary authors of this notice are the staff members of the Austin Ecological Services Field Office, Southwest Region, U.S. Fish and Wildlife Service.
        Authority

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

          Dated: January 23, 2013.
          Michael J. Bean,
          Acting Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 2013-02051 Filed 2-4-13; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 600
        [I.D. 021004C]
        Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing Permits (EFPs)

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Notification of a proposal for EFPs to conduct experimental fishing; request for comments.

          SUMMARY:

          The Assistant Regional Administrator for Sustainable Fisheries, Northeast Region, NMFS (Assistant Regional Administrator) has made a preliminary determination that the subject EFP application contains all the required information and warrants further consideration.  The Assistant Regional Administrator has also made a preliminary determination that the activities authorized under the EFP would be consistent with the goals and objectives of the Northeast (NE) Multispecies Fishery Management Plan (FMP).  However, further review and consultation may be necessary before a final determination is made to issue the EFP.  Therefore, NMFS announces that the Assistant Regional Administrator proposes to recommend that an EFP be issued that would allow one commercial fishing vessel to conduct fishing operations that are otherwise restricted by the regulations governing the fisheries of the Northeastern United States.  The EFP would allow exemptions from the FMP as follows: the Days-At-Sea (DAS) notification requirements, the effort-control program, the fishing restrictions imposed by the Gulf of Maine (GOM) rolling closure areas, the minimum mesh size requirements specified for the GOM Regulated Mesh Area, and the minimum fish size requirements for the temporary retention of undersized fish for data collection purposes.  The EFP would allow these exemptions for not more than 25 days of sea trials.  All experimental work would be monitored by University of New Hampshire (UNH) Cooperative Extension scientists/observers.
          Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed EFPs.

          DATES:
          Comments on this document must be received on or before  March 3, 2004.

          ADDRESSES:

          Comments on this notice may be submitted by e-mail. The mailbox address for providing e-mail comments is DA391@noaa.gov.  Include in the subject line of the e-mail comment the following document identifier:  “Comments on UNH Cooperative Extension Codend Mesh Size Selectivity Study.”  Written comments should be sent to Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 1 Blackburn Drive, Gloucester, MA 01930.  Mark the outside of the envelope “Comments on UNH Cooperative Extension Codend Mesh Size Selectivity Study.”  Comments may also be sent via facsimile (fax) to (978) 281-9135.

          FOR FURTHER INFORMATION CONTACT:
          Brian Hooker, Fishery Management Specialist, phone 978-281-9220.

        SUPPLEMENTARY INFORMATION:
        The UNH Cooperative Extension submitted an application for an EFP on January 14, 2004.  The application was complete as received.  This EFP would complete the final year's testing of a 2-year study.  The EFP application requests authorization to use one commercial fishing vessel to conduct sea trials utilizing a 3-inch (7.6 cm) mesh hydrodynamic codend cover.  The codend cover would be used to determine species and size selectivity of different trawl codend mesh sizes in the GOM multispecies fishery.  Furthermore, the proposal seeks to determine fish retention in large mesh codends for GOM cod, haddock, whiting, and flounder (winter, witch, and American plaice).  The experiment would compare the selectivity of 6.5-inch (16.5 cm) diamond mesh, 6.5-inch (16.5 cm) square mesh, 7-inch (17.8 cm) diamond mesh, and 7-inch (17.8 cm) square mesh codends against the 6-inch (15.2 cm) diamond mesh specified in the regulations as the minimum allowable mesh size.  Underwater video technology would be employed to observe the codend, the cover, and the fish escaping from the net.  The biological impact of mesh size increases, including fishing mortality and discard rates of regulated multispecies would be analyzed.  The results of this mesh selectivity study would then be made available to the New England Fishery Management Council and NMFS.
        The at-sea portion of the experiment would last no longer than 25 days between May 1, 2004, and April 30, 2005.  The activity would occur in Federal waters off the coast of New Hampshire, excluding the Western GOM closure area.  A total of 75, 1-hour tows at 2.8 knots would be conducted (three per day).  UNH researchers would be required to be aboard the vessel at all times during the experimental work.  All undersized fish would be returned to the sea as quickly as possible after measurement and examination.  However, legal-sized fish that otherwise would have to be discarded would be allowed to be retained and sold, within applicable GOM possession limits.  The participating vessel would be required to report all landings in its Vessel Trip Report.  The catch levels are not expected to have a detrimental impact on the NE multispecies resources.  Estimated total landings for the 25 DAS, based upon the previous year's results, are:  Yellowtail flounder 9,790 lb (4,441 kg); American plaice 4,405 lb (1,998 kg); witch flounder 7,132 lb (3,235 kg); winter flounder 469 lb (213 kg); cod 9,901 lb (4,491 kg); and haddock 13,478 lb (6,114 kg).  Because the vessel would be fishing with a 3-inch (7.6 cm) codend cover, total discards are expected to exceed that of normal fishing operations.  Total discards are estimated to be:  Yellowtail flounder 7,046 lb (3,196 kg); American plaice 4,404 lb (1,998 kg); witch flounder 6,230 lb (2,826 kg); winter flounder 678 lb (308 kg); cod 18,670 lb (8,469 kg); haddock 5,055 lb (2,293 kg); spiny dogfish 5,000 lb (2,268 kg); thorny skates 5,000 lb (2,268 kg); red hake 5,000 lb (2,268 kg); and whiting 7,000 lb (3,175 kg).  Researchers will take precautions to avoid areas where there are concentrations of undersized fish.

          Authority:
          16 U.S.C. 1801 et seq.

          Dated: February 11, 2004.
          Peter H. Fricke,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 04-3391 Filed 2-13-04; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AU50
        Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Laguna Mountains Skipper (Pyrgus ruralis lagunae)

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of public comment period and notice of availability of draft economic analysis.

          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 Laguna Mountains skipper (Pyrgus ruralis lagunae) and the availability of a draft economic analysis of the proposed designation of critical habitat. The draft economic analysis estimates the potential total future impacts to range from $6.5 million to $8.9 million (undiscounted) over 20 years. Discounted future costs are estimated to be $3.7 million to $5.1 million over this same time period ($351,000 to $480,000 annually) using a real rate of 7 percent, or $5.0 million to $6.9 million ($337,000 to $461,000 annually) using a real rate of 3 percent. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed rule and the associated draft economic analysis. Comments previously submitted on the proposed rule need not be resubmitted as they have already been incorporated into the public record and will be fully considered in our final determination.

          DATES:
          We will accept public comments and information until August 7, 2006.

          ADDRESSES:
          Written comments and materials may be submitted to us by any one of the following methods:
          1. You may submit written comments and information to Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92011;
          2. You may hand-deliver written comments and information to our Carlsbad Fish and Wildlife Office at the above address;
          3. You may fax your comments to 760/431-9624.

          4. You may send your comments by electronic mail (e-mail) to FW8pchskipper@fws.gov. For directions on how to submit e-mail comments, see the “Public Comments Solicited” section.
          5. Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

          FOR FURTHER INFORMATION CONTACT:

          Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, at the address listed in ADDRESSES (telephone, 760/431-9440; facsimile, 760/431-9624.)

        SUPPLEMENTARY INFORMATION:
        Public Comments Solicited

        We will accept written comments and information during this reopened comment period. We solicit comments on the original proposed critical habitat designation, published in the Federal Register on December 13, 2005 (70 FR 73699), and on our draft economic analysis of the proposed designation. We will consider information and recommendations from all interested parties. We particularly seek comments concerning:

        (1) The reasons any habitat should or should not be determined to be critical habitat, as provided by section 4 of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), including whether it is prudent to designate critical habitat and whether the benefit of designation will outweigh any threats to the species due to designation;
        (2) Specific information on: the amount and distribution of Laguna Mountains skipper habitat; which areas should be included in the designation that were occupied at the time of listing and contain the physical and biological features that are essential to the conservation of the species and why; and which areas not 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 impacts on proposed critical habitat;
        (4) Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities;
        (5) Whether the draft economic analysis identifies all State and local costs, and, if not, what other costs should be included;
        (6) Whether the draft economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the listing of the species or the designation of critical habitat;

        (7) Whether the economic analysis correctly assesses the effect on regional costs associated with land- and water use controls that derive from the designation;
        (8) Whether the designation will result in disproportionate economic impacts to specific areas that should be evaluated for possible exclusion from any final designation;
        (9) Whether the economic analysis appropriately identifies all costs and benefits that could result from the critical habitat designation;
        (10) Whether there is information about areas that could be used as substitutes for the economic activities planned in critical habitat areas that would offset the costs and allow for the conservation of critical habitat areas; and
        (11) 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 assist us in accommodating public concerns and comments.

        All previous comments and information submitted during the initial comment period on the proposed rule need not be resubmitted. If you wish to comment, you may submit your comments and materials concerning the draft economic analysis and the proposed rule by any one of several methods (see ADDRESSES section). Our final determination concerning designation of critical habitat for the Laguna Mountains skipper will take into consideration all comments and any additional information received during both comment periods. On the basis of public comment on the critical habitat proposal, the draft economic analysis, and the final economic analysis, we may during the development of our final determination find that areas proposed are not essential or are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

        If you wish to submit comments electronically, please submit them in an ASCII file and avoid the use of any special characters or any form of encryption. Also, please include “Attn: Laguna Mountains skipper” and your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, please contact the person listed under FOR FURTHER INFORMATION CONTACT or submit your comments in writing using one of the alternate methods listed in the ADDRESSES section. Please note that the Internet address FW8pchskipper@fws.gov will be closed at the termination of the public comment period.
        Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. We will not consider anonymous comments and we will make all comments available for public inspection in their entirety.

        Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for public inspection, by appointment, during normal business hours at the Carlsbad Fish and Wildlife Office at the address listed under ADDRESSES. Copies of the proposed critical habitat rule for the Laguna Mountains skipper and the draft economic analysis are also available on the Internet at http://www.fws.gov/carlsbad. In the event that our Internet connection is not functional, please obtain copies of documents directly from the Carlsbad Fish and Wildlife Office.
        Background
        On December 13, 2005, we published a proposed rule in the Federal Register (70 FR 73699) to designate critical habitat for the Laguna Mountains skipper. We proposed to designate approximately 6,662 acres (ac) (2,696 hectares (ha)) of critical habitat in two units on Laguna and Palomar Mountains in San Diego County, California. For more information on the Laguna Mountains skipper, refer to the final rule listing the species as endangered, published in the Federal Register on January 16, 1997 (62 FR 2313).
        Critical habitat is defined in section 3 of the Act as the specific areas within the geographic 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 geographic 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, pursuant to section 7(a)(2) of the Act.
        Section 4(b)(2) of the Act requires that we designate or revise critical habitat on the basis of the best scientific data available, after taking into consideration the economic impact, impact to national security, and any other relevant impacts of specifying any particular area as critical habitat. We have prepared a draft economic analysis of the December 13, 2005 (70 FR 73699), proposed designation of critical habitat for the Laguna Mountains skipper.
        The draft economic analysis considers the potential economic effects of actions relating to the conservation of the Laguna Mountains skipper, including costs associated with sections 4, 7, and 10 of the Act, and including those attributable to designating 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 Laguna Mountains skipper in areas containing features essential to the conservation of this species. The analysis 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 (e.g., lost economic opportunities associated with restrictions on land use).
        This analysis 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 small entities and the energy industry. This information can be used by decision-makers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, this analysis looks retrospectively at costs that have been incurred since the date the species was listed as an endangered species and considers those costs that may occur in the 20 years following the designation of critical habitat.

        Laguna Mountains skipper conservation activities are likely to primarily impact recreational camping and utility maintenance activities. The draft economic analysis estimates the potential total future impacts to range from $6.5 million to $8.9 million (undiscounted) over 20 years. Discounted future costs are estimated to be $3.7 million to $5.1 million over this same time period ($351,000 to $480,000 annually) using a real rate of 7 percent, or $5.0 million to $6.9 million ($337,000 to $461,000 annually) using a real rate of 3 percent. Differences in the low and high impact estimates result primarily from uncertainty regarding the potential impacts to utility companies conducting maintenance activities and making repairs in proposed critical habitat. The low-end estimate of costs assumes grazing on private lands is not affected and biologists' time on site during utility repairs and maintenance is limited to one day per project. Costs under this estimate are dominated (88 percent) by welfare losses to campers in Subunits 1A and 1C. The high-end estimate of costs assumes grazing activities on private lands in proposed critical habitat will be restricted and that utility projects will last longer than a single day. Costs under this estimate are dominated by lost camping opportunities (64 percent) and to a lesser extent costs to utilities (22 percent). In the low-end estimate, 95 percent of the costs are associated with Subunits 1A and 1C. In the high-end estimate, Subunits 1A and 1C again dominate total costs, accounting for 83 percent of total estimated impacts.
        Required Determinations—Amended
        Regulatory Planning and Review

        In accordance with Executive Order 12866, this document is a significant rule in that it may raise novel legal and policy issues. However, because the draft economic analysis indicates the potential economic impact associated with a designation of all habitat with features essential to the conservation of this species would total no more than $480,000 annually, applying a 7 percent discount rate, we do not anticipate that this final rule will have an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the time line for publication in the Federal Register, the Office of Management and Budget (OMB) did not formally review the proposed rule.
        Further, Executive Order 12866 directs Federal Agencies promulgating regulations to evaluate regulatory alternatives (Office of Management and Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it has been determined that the Federal regulatory action is appropriate, the agency will need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement pursuant to the Act, we must then evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat.
        In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts pursuant to section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat providing that the benefits of such exclusion outweigh the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the species. As such, we believe that the evaluation of the inclusion or exclusion of particular areas, or combination thereof, in a designation constitutes our regulatory alternative analysis.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 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 effects of the rule on small entities (e.g., 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. In our proposed rule, we withheld our determination of whether this designation would result in a significant effect as defined under SBREFA until we completed our draft economic analysis of the proposed designation so that we would have the factual basis for our determination.
        According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.
        To determine if the proposed designation of critical habitat for the Laguna Mountains skipper would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (e.g., hiking, residential development). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies; non-Federal activities are not affected by the designation.
        If this proposed critical habitat designation is made final, Federal agencies must consult with us if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

        Our draft economic analysis determined that costs involving conservation measures for the Laguna Mountains skipper would be incurred for activities involving (1) Grazing activities, (2) recreational camping activities, (3) recreational hiking activities, (4) utility activities, (5) rural development, (6) other activities on Federal lands, and (7) Laguna Mountains skipper management activities on State lands. Of these seven categories, impacts of skipper conservation are not anticipated to affect small entities in five of these categories: hiking, utilities, rural development, other activities on Federal lands, and management activities on State lands. Residential development is unlikely to be impacted by skipper conservation activities (see Chapter 6 of draft economic analysis). Since neither Federal nor State governments are defined as small entities by the Small Business Administration (SBA), the economic impacts borne by the United States Forest Service (USFS) and the California Department of Fish and Game (CDFG) resulting from implementation of skipper conservation activities or modifications to activities on Federal lands are not relevant to this analysis (for further discussion see Chapters 5, 6, 7, and 8 of draft economic analysis). Likewise, neither of the major utility companies involved (SDG&E and AT&T) would fit the SBA definition of small entities. Accordingly, the small business analysis focuses on economic impacts to grazing and recreational camping activities.
        The proposed designation includes areas of USFS and private lands that are used for livestock grazing. On some Federal allotments that contain Laguna Mountains skipper habitat, meadow areas have been excluded from grazing, thus reducing the carrying capacity, or permitted Animal Unit Months (AUMs), on those allotments. Historically, returns to cattle operations have been low throughout the West. In recent years, these returns have been lower due to the recent wildfires and droughts in California. As a result, any reductions in grazing effort for the Laguna Mountains skipper may affect the sustainability of ranching operations in these areas. The analysis assumes that in the future, grazing efforts on proposed critical habitat areas will be reduced, or in the high-end estimate, eliminated on private land due to skipper concerns. Private ranchers could be affected either by reductions in federally-permitted AUMs that they hold permits to, or by reductions on grazing efforts on private property to avoid adverse impacts on Laguna Mountains skipper habitat. The expected reduction in AUMs is based on an examination of historic grazing levels, section 7 consultations, and discussions with range managers, wildlife biologists, and permittees. Based on this analysis, the high-end impact on grazing activities is estimated at an annual reduction of 1,980 AUMs, of which 1,363 are Federally permitted and 617 are private. The majority of these AUM reductions fall on two ranchers: one operating in Subunit 1A and another operating in Subunit 2A. Therefore, cumulatively over 20 years, two ranchers could be affected by total reductions in AUMs due to Laguna Mountains skipper conservation activities. These impacts doe not represent a substantial number of small entities and the potential impact is not considered significant.
        This analysis considers lower and upper bounds of potential economic impact on recreational camping activities. The lower bound equals no economic impact. In the upper bound, economic impacts are estimated for recreational campers whose activities may be interrupted by Laguna Mountains skipper conservation activities resulting in a decrease in the number of camping trips. This scenario concludes that camping trips may decrease by as many as 5,352 trips per year. If fewer camping trips were to occur within proposed critical habitat areas, local establishments providing services to campers may be indirectly affected by Laguna Mountains skipper conservation activities. Decreased visitation may reduce the amount of money spent in the region across a variety of industries, including food and beverage stores, food service and drinking places, accommodations, transportation and rental services.
        The draft economic analysis uses regional economic modeling—in particular a software package called IMPLAN—to estimate the total economic effects of the reduction in economic activity in camping-related industries in the one county (San Diego County) associated with Laguna Mountains skipper conservation activities. Commonly used by State and Federal agencies for policy planning and evaluation purposes, IMPLAN translates estimates of initial trip expenditures (e.g., food, lodging, and gas) into changes in demand for inputs to affected industries. Changes in output and employment are calculated for all industries and then aggregated to determine the regional economic impact of reduced recreational camping-related expenditures potentially associated with Laguna Mountains skipper conservation activities.
        This analysis uses the average expenditures reported by the 2001 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation for California for fishing, hunting and wildlife-associated recreation, or approximately $26.23 per trip. This per-trip estimate of expenditures is then combined with the number of camping trips potentially lost due to Laguna Mountains skipper conservation activities (a 1-year loss of 5,352 trips per year) to estimate the regional economic impacts. When compared to the $192 billion dollar regional economy of San Diego County, the potential loss generated by a decrease in camping trips is a relatively small impact (i.e., less than 0.01 percent). Therefore based on these results, this analysis determines no significant effect on camping-related industries due to Laguna Mountains skipper conservation activities in San Diego County.
        We may also exclude areas from the final designation if it is determined that designation of critical habitat in localized areas would have an impact to a substantial number of businesses and a significant proportion of their annual revenues. Based on the above data, we have determined that this proposed designation would not result in a significant economic impact on a substantial number of small entities. As such, we are certifying that this proposed designation of critical habitat would not result in a significant economic impact on a substantial number of small entities. Please refer to Appendix A of our draft economic analysis of the proposed designation for a more detailed discussion of potential economic impacts to small business entities.
        Executive Order 13211
        On May 18, 2001, the President issued Executive Order (E.O.) 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule is considered a significant regulatory action under E.O. 12866 because it raises novel legal and policy issues. On the basis of our draft economic analysis, the proposed critical habitat designation is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant action, and no Statement of Energy Effects is required. Please refer to Appendix A of our draft economic analysis of the proposed designation for a more detailed discussion of potential effects on energy supply.
        Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
        In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:

        (a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, 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. At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”
        The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.
        (b) The draft economic analysis did not identify or examine small governments that fall within proposed critical habitat areas because there were no estimates of impacts to small governments. Consequently, we do not believe that this rule will significantly or uniquely affect small governments. As such, a Small Government Agency Plan is not required.
        Takings
        In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for the Laguna Mountains skipper. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. In conclusion, the designation of critical habitat for the Laguna Mountains skipper does not pose significant takings implications.
        Author

        The primary authors of this notice are the staff of the Carlsbad Fish and Wildlife 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: June 27, 2006.
          Matt Hogan,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

       [FR Doc. E6-10577 Filed 7-6-06; 8:45 am]
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