[Federal Register Volume 69, Number 185 (Friday, September 24, 2004)]
[Proposed Rules]
[Pages 57250-57253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21480]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AJ07


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Gaura neomexicana ssp. coloradensis (Colorado 
Butterfly Plant)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; extension of comment period and notice of 
availability of draft economic analysis and draft environmental 
assessment.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service) announce the 
availability of a draft economic analysis and draft environmental 
assessment for the proposed designation of critical habitat for Gaura 
neomexicana ssp. coloradensis (hereafter referred to as ``Colorado 
butterfly plant'') under the Endangered Species Act of 1973, as amended 
(Act). In addition, we announce the extension of the comment period on 
the proposed rule to designate critical habitat for the Colorado 
butterfly plant.

DATES: We will accept all comments received on or before October 25, 
2004. Any comments that we receive after the closing date may not be 
considered in the final decision on this proposal.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposed rule, the draft economic analysis, 
and the draft environmental assessment by any one of several methods:
    (1) You may submit written comments and information to the Field 
Supervisor, U.S. Fish and Wildlife Service, Wyoming Field Office, 4000 
Airport Parkway, Cheyenne, Wyoming 82001, or by facsimile (307) 772-
2358.
    (2) You may hand-deliver written comments to our office, at the 
address given above.
    (3) You may send comments by electronic mail (e-mail) to [email protected]. Please see the Public Comments Solicited 
section below for file format and other information about electronic 
filing. In the event that our Internet connection is not functional, 
please submit your comments by the alternate methods mentioned above.
    Comments and materials received, as well as supporting 
documentation used in preparation of the proposed critical habitat 
rule, will be available for public inspection, by appointment, during 
normal business hours at the above address. You may obtain copies of 
the draft economic analysis and draft environmental assessment for the 
Colorado butterfly plant by contacting the Wyoming Field Office at the 
above address. The draft economic analysis, draft environmental 
assessment, and the proposed rule for critical habitat designation also 
are available on the Internet at http://www.r6.fws.gov/species/plants/cobutterfly/. In the event that our Internet connection is not 
functional, please obtain copies of documents directly from the Wyoming 
Fish and Wildlife Office.

FOR FURTHER INFORMATION CONTACT: Brian T. Kelly, Field Supervisor 
(telephone (307) 772-2374; facsimile (307) 772-2358), Wyoming Field 
Office, at the address listed above.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend any final action resulting from the proposed rule to be 
as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific

[[Page 57251]]

community, industry, or any other interested party concerning the 
economic analysis, the environmental analysis, or the proposed rule. We 
particularly seek comments concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act, including 
whether the benefits of excluding outweigh benefits of including any 
area as critical habitat;
    (2) Specific information on the amount and distribution of Colorado 
butterfly plant habitat and what habitat is essential to the 
conservation of this species and why;
    (3) Land use designations and current or planned activities in the 
subject area and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families;
    (5) Whether the economic analysis identifies all State and local 
costs. If not, what costs are overlooked;
    (6) Whether the economic analysis makes appropriate assumptions 
regarding current practices and likely regulatory changes imposed as a 
result of the designation of critical habitat;
    (7) Whether the economic analysis correctly assesses the effect on 
regional costs associated with land 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 the final designation;
    (9) Whether the economic analysis appropriately identifies all 
costs that could result from the designation;
    (10) Whether the environmental analysis accurately reports the 
environmental impact of designating critical habitat; and
    (11) Whether our approach to critical habitat designation could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concern and comments.
    All comments and information submitted during the previous comment 
period on the proposed rule need not be resubmitted. If you wish to 
comment, you may submit your comments and materials concerning this 
rule by any one of several methods (see ADDRESSES section). Please 
submit Internet comments to [email protected] and include 
``Attn: Colorado Butterfly Plant Critical Habitat'' in your e-mail 
subject header, and your name and return address in the body of your 
message. If you do not receive a confirmation from the system that we 
have received your Internet message, contact us directly by calling our 
Wyoming Field Office (see FOR FURTHER INFORMATION CONTACT section).
    Our practice is to make comments, including names and home 
addresses of respondents, available to the public. Individual 
respondents may request that we withhold their home addresses from the 
administrative record, which we will honor to the extent allowable by 
law. There also may be circumstances in which we would withhold from 
the administrative record a respondent's identity, as allowable by law. 
If you wish us to withhold your name and/or address, you must state 
this prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety. Comments 
and materials received will be available for public inspection, by 
appointment, during normal business hours at the above address.

Background

    Colorado butterfly plant is a member of the evening primrose family 
and is a short-lived perennial herb with one to several reddish, 
pubescent stems. It is a regional endemic restricted to Laramie and 
Platte Counties in Wyoming, western Kimball County in Nebraska, and 
Weld County in Colorado. Of the known populations of the Colorado 
butterfly plant, the vast majority occur on private lands managed 
primarily for agriculture and livestock. Haying and mowing at certain 
times of the year, water development, land conversion for cultivation, 
competition with exotic plants, non-selective use of herbicides, and 
loss of habitat to urban development are the main threats to these 
populations (Mountain West Environmental Services 1985, Marriott 1987, 
Fertig 1994).
    On October 18, 2000, the Colorado butterfly plant was designated as 
threatened throughout its entire range under the Act (65 FR 62302). On 
October 4, 2000, the Center for Biological Diversity and the 
Biodiversity Legal Foundation filed a complaint in the Federal District 
Court for the District of Colorado concerning our failure to designate 
critical habitat for the Colorado butterfly plant (Center for 
Biological Diversity, et al. v. Norton, et al. (Civ. Action No. 00-D-
1980)). On March 19, 2001, the Court approved a settlement agreement 
requiring us to submit a final critical habitat designation for the 
Colorado butterfly plant to the Federal Register on or before December 
31, 2004. For more information on previous Federal actions concerning 
the Colorado butterfly plant, refer to the final listing rule (65 FR 
62302). On August 6, 2004 (69 FR 47834), we published a proposed 
critical habitat designation for the Colorado butterfly plant.
    Critical habitat identifies specific areas, both occupied and 
unoccupied, that are essential to the conservation of a listed species 
and that may require special management considerations or protection. 
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 of the Act requires that we consider economic impacts, 
impacts to National security, and other relevant impacts prior to 
making a final decision on what areas to designate as critical habitat. 
We have prepared a draft economic analysis for the proposal to 
designate certain areas as critical habitat for the Colorado butterfly 
plant. This analysis considers the potential economic effects of our 
proposed designation. It also considers the economic effects of 
protective measures taken as a result of listing the species under the 
Act, and other Federal, State, and local laws that aid habitat 
conservation in areas proposed for designation.
    The majority of these areas occur on privately owned land. We know 
of no Federal, tribal, or military lands within proposed critical 
habitat. A small portion of land within Unit 7 is owned by the City of 
Cheyenne, Wyoming, and Unit 8 is owned by the City of Fort Collins, 
Colorado. The economic analysis and environmental assessment address 
the impacts of Colorado butterfly plant conservation efforts on 
activities occurring on lands proposed for designation. The economic 
analysis measures lost economic efficiency associated with conservation 
agreements, oil and gas development, real estate development, 
agriculture, road and bridge construction and maintenance projects, as 
well as other State law requirements, uncertainty, and project delay.

[[Page 57252]]

    There is a great deal of uncertainty in estimating the impact of 
Colorado butterfly plant conservation activities in the future. For 
some activities the analysis estimates an upper-bound cost estimate, 
for others a conservative approach is taken to reach a best estimate. 
The implicit lower-bound cost estimate predicts very low impact.
    Total efficiency costs (e.g., lost economic opportunities 
associated with restrictions on land use) for the upper-bound scenario 
of the preferred alternative are estimated to be $286,700 from 2005 to 
2024. The efficiency costs for the lower-bound scenario of the 
preferred alternative are estimated to be $7,000 from 2005 to 2024. In 
both cases, the Service is estimated to experience the highest cost 
overall, followed by agriculture and natural gas pipeline construction 
projects.
    The environmental analysis discusses four alternatives, including 
the ``no action'' alternative, and analyzes the following ``impact 
areas''--physical environment; fish, wildlife, and plants; human 
environment; archaeological and cultural resources; environmental 
justice, and cumulative effects. The environmental analysis refers to 
and incorporates the economic analysis.

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise novel legal and policy issues. 
However, it is not anticipated to have an annual effect on the economy 
of $100 million or more or affect the economy in a material way. Due to 
the tight timeline for publication in the Federal Register, the Office 
of Management and Budget (OMB) has not formally reviewed this rule.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) 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 effect of the rule on small entities. However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities.
    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 
proposed rule 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 rule would affect a substantial number 
of small entities, we considered the number of small entities affected 
within particular types of economic activities (e.g., housing 
development, oil and gas production, timber harvesting). We considered 
each industry 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 affects only activities 
conducted, funded, permitted or authorized by Federal agencies; non-
Federal activities are not affected by the designation.
    If this 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. In areas where occupancy by Colorado 
butterfly plant is unknown, the designation of critical habitat could 
trigger additional review of Federal agencies pursuant to section 7 of 
the Act and may result in additional requirements on Federal activities 
to avoid destruction or adverse modification of critical habitat.
    In reviewing past formal consultations under section 7 of the Act 
and the activities they involved in the context of the proposed 
critical habitat, we do not believe the outcomes would have been 
different in areas designated as critical habitat.
    An analysis of the effects of the voluntary conservation agreements 
for Colorado butterfly plant on small entities is conducted pursuant to 
the RFA as amended by the SBREFA in 1996, while the energy analysis is 
required by Executive Order No. 13211.
    The draft economic analysis considers the extent to which the 
analytic results reflect impacts to small businesses. The small 
business analysis presented in this section is based on information 
gathered from the SBA, U.S. Census Bureau, U.S. Department of 
Agriculture, and Dun and Bradstreet, and comparisons with the results 
of the economic analysis. The following summarizes the sources of 
potential future impacts on small businesses attributable specifically 
to the rulemaking.
    Based on the draft economic analysis results, activities undertaken 
by small businesses that are potentially affected by the rulemaking 
include agricultural production. The SBA small business size standard 
for farming and ranching is annual sales of $750,000. Recent county-
level farm sales data from the National Agricultural Statistics Service 
2002 Agriculture Census was used to determine the number of small agri-
businesses operating within the proposed critical habitat designation. 
The 2002 Agriculture Census data indicate that 95 percent of the 
farmers operating within the five counties encompassed by the proposed 
designation have annual sales less than $500,000. In Laramie County, 
Wyoming, where more than 85 percent of the critical habitat is located, 
736 of 755 farmers reported annual farm sales less than $500,000. These 
data indicate that ranching operations in the area surrounding the 
proposed designation tend to be small. For the purpose of this small 
business analysis, because of the high percentage of farming operations 
with annual sales below $500,000, all agriculture operations forecast 
to be impacted by the proposed designation of critical habitat for the 
Colorado butterfly plant are considered small.
    Assuming all landowners within the proposed designation participate 
in the voluntary conservation agreement program with the Service, up to 
37 agriculture operations could be impacted by conservation measures 
for the Colorado butterfly plant. Assuming an operation is required to 
implement all of the activities recommended to protect the species and 
its habitat, the annualized cost of the conservation measures to the 
operator ($263) represents 0.1 of a percent of the average

[[Page 57253]]

annual farm's sales in the five counties surrounding the proposed 
designation. The annualized impact ranges between 0.1 of a percent of 
an average farm's sales in Weld County in Colorado, to 0.4 of a percent 
in Larimer County in Colorado, and Kimball County in Nebraska. In 
Laramie County, Wyoming, the annualized impact represents 0.3 of a 
percent of the average farmer's annual sales. Note that, we do not know 
the finances of the individual people that may be affected. Thus, the 
draft economic analysis used averaged industry data (see Exhibit 4-10) 
to estimate costs of ranching operations, and this table reflects the 
variability of this data. It is important to note that these costs will 
only be incurred by ranching operations to the extent that they agree 
to participate in the voluntary conservation agreement program with the 
Service.
    In summary, we have considered whether this proposed rule would 
result in a significant economic impact on a substantial number of 
small entities, and we have concluded that it would not. We have no 
indication that the types of activities we review under section 7 of 
the Act will change significantly in the future. Therefore, we are 
certifying that this proposed designation of critical habitat for the 
Colorado butterfly plant is not expected to have a significant adverse 
impact on a substantial number of small entities, and an initial 
regulatory flexibility analysis is not required.
    The preceding discussion is based on information regarding 
potential economic impacts that is currently available to us. This 
assessment of economic effect may be modified prior to publication of a 
final rule due to public comments received during the public comment 
period. This analysis is for the purposes of compliance with the 
Regulatory Flexibility Act and does not reflect our position on the 
type of economic analysis required by New Mexico Cattle Growers Assn. 
v. U.S. Fish & Wildlife Service 248 F. 3d 1277 (10th Cir. 2001).

Author

    The primary author of this notice is the Tyler Abbott, Wyoming Fish 
and Wildlife Office staff (see ADDRESSES section).
    The authority for this action is the Endangered Species Act of 1973 
(16 U.S.C. 1531 et seq.).

    Dated: September 17, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-21480 Filed 9-23-04; 8:45 am]
BILLING CODE 4310-55-P