[Federal Register Volume 73, Number 73 (Tuesday, April 15, 2008)]
[Proposed Rules]
[Pages 20237-20241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7689]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2008-0034; 92210-1117-0000-B4]
RIN 1018-AV24


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Bay Checkerspot Butterfly (Euphydryas editha 
bayensis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, notice of 
availability of draft economic analysis, and amended required 
determinations.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on the proposed revised designation of 
critical habitat for the Bay checkerspot butterfly (Euphydryas editha 
bayensis) under the Endangered Species Act of 1973, as amended (Act). 
We also announce the availability of the draft economic analysis (DEA) 
of the proposed revised critical habitat designation and an amended 
required determinations section of the proposal. We are reopening the 
comment period to allow all interested parties an opportunity to 
comment simultaneously on the proposed rule, the associated DEA, and 
the amended required determinations section. You do not have to resend 
comments sent earlier. We will incorporate them into the public record 
as part of this comment period, and we will fully consider them when 
preparing our final determination.

DATES: We will accept public comments received or postmarked on or 
before May 15, 2008.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R8-ES-2008-0034; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.

We will not accept e-mail or faxes. We will post all comments on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Susan Moore, Field Supervisor or 
Arnold Roessler, Listing Program Coordinator, U.S. Fish and Wildlife 
Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-
2605, Sacramento, CA 95825; telephone 916-414-6600; or facsimile 916-
414-6712. Persons who use a telecommunications device for the deaf 
(TDD) may call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed revised critical habitat 
designation for the Bay checkerspot butterfly published in the Federal 
Register on August 22, 2007 (72 FR 48178), the DEA of the proposed 
revised designation, and the amended required determinations provided 
in this document. We will consider information and recommendations from 
all interested parties. We are particularly interested in comments 
concerning:
    (1) The reasons why we should or should not designate habitat as 
critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq.).
    (2) Specific information on:
     The amount and distribution of Bay checkerspot butterfly 
habitat,
     What areas occupied at the time of listing that contain 
features essential to the conservation of the species we should include 
in the designation and why, and
     What areas not occupied at the time of listing are 
essential for the conservation of the species and why.
    (3) Land-use designations and current or planned activities in the 
subject areas and their possible effects on proposed critical habitat.
    (4) Information on the extent to which any State and local 
environmental protection measures we reference in the DEA may have been 
adopted largely as a result of the listing of the Bay checkerspot 
butterfly, and which were either already in place at the time of 
listing or enacted for other reasons.
    (5) Information on whether the DEA identifies all State and local 
costs and benefits attributable to the proposed critical habitat 
designation, and information on any costs or benefits that we have 
overlooked.
    (6) Information on whether the DEA makes appropriate assumptions 
regarding current practices and any regulatory changes likely if we 
designate revised critical habitat.
    (7) Information on whether the DEA correctly assesses the effect on 
regional costs associated with any land use controls that may result 
from the revised critical habitat designation.
    (8) Information on areas that the revised critical habitat 
designation could potentially impact to a disproportionate degree.
    (9) Any foreseeable economic, national-security, or other potential 
impacts resulting from the proposed revised designation and, in 
particular, any impacts on small entities, and the benefits of 
including or excluding areas that exhibit these impacts.
    (10) Information on whether the DEA identifies all costs that could 
result from the revised designation.
    (11) Information on any quantifiable economic benefits of the 
revised designation of critical habitat.
    (12) Whether the benefits of excluding any particular area outweigh 
the benefits of including that area under section 4(b)(2) of the Act.
    (13) Economic data on the incremental costs of designating any 
particular area as revised critical habitat.
    (14) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    If you submitted comments or information during the initial comment 
period from August 22 to October 22, 2007, on the proposed rule (72 FR 
48178), 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 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 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 this proposed 
rule 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 hardcopy comment that includes 
personal identifying information, you

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may request at the top of your document that we withhold this 
information from public review. However, we cannot guarantee that we 
will be able to do so. We will post all hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this notice will be available for 
public inspection on http://www.regulations.gov, or by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service, 
Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).
    You may obtain copies of the proposed rule and DEA by mail from the 
Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT) or by visiting our Web site at http://www.fws.gov/sacramento.

Background

    On April 30, 2001, we published in the Federal Register the final 
designation of critical habitat for the Bay checkerspot butterfly (66 
FR 21450, April 30, 2001) which encompassed approximately 23,903 acres 
(ac) (9,673 hectares (ha)). On March 30, 2005, the Home Builders 
Association of Northern California (Home Builders) filed a complaint 
contending, among other things, that the Service failed to adequately 
analyze the economic costs of the designation of critical habitat for 
this subspecies (Home Builders of Northern California v. U.S. Fish and 
Wildlife Service, et al. Case No. cv-01363-LKK-JFM). On February 24, 
2006, the Service entered into a settlement agreement with Home 
Builders to submit for publication a proposed revised critical habitat 
designation for this subspecies to the Federal Register by August 14, 
2007, and to submit a final determination of critical habitat for 
publication by August 14, 2008. The April 30, 2001, designation remains 
in place during this revision process. On August 22, 2007, we published 
a proposed rule to revise critical habitat for the Bay checkerspot 
butterfly (72 FR 48178), identifying a total of approximately 19,746 ac 
(7,990 ha) of land in San Mateo and Santa Clara Counties, California.
    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, pursuant to 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 designation as critical habitat based on economic impacts, 
national security, or any other relevant impact.
    If we make final the proposed rule of August 22, 2007, 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.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial data 
available, after taking into consideration the economic impact, impact 
on national security, or any other relevant impact of specifying any 
particular area as critical habitat. We have prepared a DEA of the 
proposed revised critical habitat designation based on our August 22, 
2007, proposed rule to revise the critical habitat designation for the 
Bay checkerspot butterfly (72 FR 48178).
    The intent of the DEA is to quantify the economic impacts of all 
potential conservation efforts for the Bay checkerspot butterfly; some 
of these costs will likely be incurred regardless of whether we revise 
the designated critical habitat. The DEA provides estimated costs of 
the foreseeable potential economic impacts of the proposed revised 
critical habitat designation (incremental impacts) and other 
conservation-related actions (baseline impacts) for this species over 
the next 22 years. A 22-year period was chosen because information was 
available to reliably forecast economic activity to 2030. It also 
considers past costs associated with conservation of the species from 
the time it was listed in 1987 (52 FR 35366, September 18, 1987), until 
the year the proposed revised critical habitat rule was published (72 
FR 48178, August 22, 2007). Because the current DEA is analyzing the 
future costs of the proposed revised designation (72 FR 48178), the 
costs associated with the current designation of critical habitat (66 
FR 21450) have been included only in the past baseline economic 
impacts.
    The economic analysis quantifies impacts associated with the 
conservation of the Bay checkerspot butterfly including future urban 
development, management of invasive plants, pesticide use, and over or 
under grazing. These activities were identified as factors that may 
require special management (72 FR 48183-48184). Pre-designation (1987 
to 2007) impacts associated with species conservation activities in 
areas proposed for designation are estimated at approximately $9 
million in 2007 dollars. The DEA forecasts baseline economic impacts in 
the areas proposed for designation to be approximately $390 million 
($18 million annualized) (2008 dollars) applying a 3 percent discount 
rate over the next 22 years, $270 million ($13 million annualized) 
(2008 dollars) applying a 7 percent discount rate over the next 22 
years, and $550 million (25 million annualized) (2008 dollars) at an 
undiscounted rate over the next 22 years. The DEA forecasts incremental 
economic impacts to be approximately $0 to $750,000 ($0 to $44,000 
annualized) (2008 dollars) applying a 3 percent discount rate over the 
next 22 years. The cost estimates are based on the proposed revised 
designation of critical habitat published in the Federal Register on 
August 22, 2007 (72 FR 48178).
    The DEA considers the potential economic effects of actions 
relating to the conservation of the Bay checkerspot butterfly, 
including costs associated with sections 4, 7, and 10 of the Act, as 
well as costs attributable to the designation of revised 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 Bay checkerspot butterfly in areas 
containing features essential to the conservation of the species. The 
DEA considers both economic efficiency and distributional effects. In 
the case of habitat conservation, efficiency effects generally reflect 
the ``opportunity costs'' associated with the commitment of resources 
to comply with habitat protection measures (such as lost

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economic opportunities associated with restrictions on land use).
    The DEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. The DEA measures lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. Decision-makers can use this information to assess whether 
the effects of the revised designation might unduly burden a particular 
group or economic sector. Finally, the DEA looks retrospectively at 
costs that have been incurred since the date we listed the Bay 
checkerspot butterfly as endangered (52 FR 35366, September 18, 1987) 
and considers those costs that may occur in the 22 years following the 
designation of critical habitat. Because the DEA considers the 
potential economic effects of all actions relating to the conservation 
of the Bay checkerspot butterfly, including costs associated with 
sections 4, 7, and 10 of the Act and those attributable to a revised 
designation of critical habitat, the DEA may have overestimated the 
potential economic impacts of the revised critical habitat designation.
    As stated earlier, we are soliciting data and comments from the 
public on this DEA, as well as on all aspects of the proposed rule and 
our amended required determinations. We may revise the proposed rule or 
its supporting documents to incorporate or address information we 
receive during this comment period. In particular, we may exclude an 
area from the revised critical habitat if we determine that the 
benefits of excluding the area outweigh the benefits of including the 
area as revised critical habitat, provided the exclusion will not 
result in the extinction of the species.

Required Determinations--Amended

    In our August 22, 2007, proposed rule (72 FR 48178), 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 not 
made use of the DEA data to make these determinations. In this document 
we affirm the information contained in our proposed rule concerning 
Executive Order (E.O.) 13132; E.O. 12988; the Paperwork Reduction Act; 
and the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments (59 FR 
22951). However, based on the DEA data, we revise our required 
determinations concerning E.O. 12866 and the Regulatory Flexibility 
Act, E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded 
Mandates Reform Act, and E.O. 12630 (Takings).

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under Executive 
Order 12866 (E.O. 12866). OMB bases its determination upon the 
following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

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) (5 U.S.C. 802(2)), whenever an agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. Based on our DEA of 
the proposed 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 revised this determination as part of our 
final rulemaking.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
revised 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 revised designation of critical 
habitat for the Bay checkerspot butterfly would affect a substantial 
number of small entities, we considered the number of affected small 
entities within particular types of economic activities, such as 
residential and commercial development. In order to determine whether 
it is appropriate for our agency to certify that this rule would not 
have a significant economic impact on a substantial number of small 
entities, we considered each industry or category individually. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement. 
Critical habitat designation will not affect activities that do not 
have any Federal involvement; designation of critical habitat affects 
activities conducted, funded, permitted, or authorized by Federal 
agencies.
    If we finalize this proposed revised critical habitat designation, 
Federal agencies must consult with us under section 7 of the Act if 
their activities may affect designated critical habitat. Consultations 
to avoid the destruction or adverse modification of critical habitat 
would be incorporated into the existing consultation process.
    In our DEA of the proposed revised critical habitat designation, we 
evaluated the potential economic effects on small business entities 
from conservation actions related to the listing of the Bay checkerspot 
butterfly

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and the proposed revised designation of the species' critical habitat.
    The DEA did not identify any small entities according to the Small 
Business Administration's (SBA) definition of small entities. As a 
result there are no economic impacts to small businesses with the 
designation of this critical habitat. We have considered whether this 
rule would result in a significant economic effect on a substantial 
number of small entities. We have determined and therefore certify 
that, for the above reasons and based on currently available 
information, the proposed designation will not have a significant 
economic impact on a substantial number of small business entities.
    In summary, we have considered whether the proposed rule would 
result in a significant economic impact on a substantial number of 
small entities. For the above reasons and based on currently available 
information, we certify that, if promulgated, this proposed rule would 
not have a significant economic impact on a substantial number of small 
entities. Therefore, an initial regulatory flexibility analysis is not 
required.

Executive Order 13211--Energy Supply, Distribution, and Use

    On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply, distribution, and use. E.O. 
13211 requires agencies to prepare Statements of Energy Effects when 
undertaking certain actions. OMB's guidance for implementing this 
Executive Order outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to no regulatory action. The 
DEA has identified one electric energy firm (Calpine Corporation) which 
owns land within the proposed revised designation of critical habitat 
(Unit 5). In 2000, the Calpine Corporation proposed to construct and 
operate a 600-megawatt, natural gas-fired, combined cycle electric 
generation facility. The land located within the proposed revised 
designation of critical habitat was purchased by the Calpine 
Corporation as compensation to off-set project-related effects to the 
Bay checkerspot butterfly and its habitat as a result of the U.S. 
Environmental Protection Agency (EPA) permitting of the Calpine 
Corporation's Metcalf Energy Center in Santa Clara County, California 
(Service File 1-1-00-F-235) in 2001. The Calpine Corporation does not 
plan to expand its facilities or construct new facilities associated 
with the Metcalf Energy Center on any of its land within or near the 
area. The biological opinion under section 7 of the Act for this 
project identifies the measures already taken by the Calpine 
Corporation to compensate for effects to the butterfly and its habitat, 
and the designation of revised critical habitat is not expected to lead 
to any reduction in electricity production or an increase in cost of 
energy production or distribution.
    Thus, based on information in the DEA, we do not expect Bay 
checkerspot butterfly conservation activities within proposed revised 
critical habitat to lead to energy-related impacts. As such, we do not 
expect the proposed revised designation of critical habitat to 
significantly affect energy supplies, distribution, or use, and a 
Statement of Energy Effects is not required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (UMRA) (2 
U.S.C. 1501 et seq.), 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) 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 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. 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 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 
onto State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments. As discussed in the DEA, the majority of 
lands proposed as revised critical habitat are comprised of privately 
owned lands, which do not qualify as a small government. Consequently, 
we do not believe that revised critical habitat designation would 
significantly or uniquely affect small government entities. As such, a 
Small Government Agency Plan is not required.

Executive Order 12630--Takings

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing revised critical habitat for the Bay checkerspot butterfly in 
a takings implications assessment. Our takings implications assessment 
concludes that this proposed revised designation of critical habitat 
for the Bay checkerspot butterfly does not pose significant takings 
implications.

References Cited

    A complete list of all references we cited in the proposed rule is 
available on http://www.regulations.gov.

Author

    The primary author of this notice is staff of the Sacramento Fish 
and Wildlife Office.

Authority

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


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    Dated: April 2, 2008.
 David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E8-7689 Filed 4-14-08; 8:45 am]
BILLING CODE 4310-55-P