[Federal Register Volume 73, Number 99 (Wednesday, May 21, 2008)]
[Proposed Rules]
[Pages 29471-29477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11321]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R1-ES-2008-0051; 92210-1117-0000-FY08-B4]
RIN 1018-AU37


Endangered and Threatened Wildlife and Plants; Proposed Revised 
Designation of Critical Habitat for the Northern Spotted Owl (Strix 
occidentalis caurina)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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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 northern spotted owl (Strix occidentalis 
caurina) 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 determination section of the proposal. We are reopening the 
comment period to allow all interested parties an opportunity to 
comment simultaneously on the proposed revised rule, the associated

[[Page 29472]]

draft economic analysis, and the amended required determinations 
section. If you submitted comments previously, then you do not need to 
resubmit them because we have already incorporated them into the public 
record and we will fully consider them in preparation of our final 
rule.

DATES: We will consider comments received or postmarked on or before 
June 20, 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: RIN 1018-AU37; 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: Matt Kales, Acting Project Leader, 
Oregon Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2600 
SE., 98th Ave., Suite 100, Portland, OR 97266; telephone 503-231-6179. 
If you use a telecommunications device for the deaf (TDD), 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 northern spotted owl published in the Federal 
Register on June 12, 2007 (72 FR 32450), the draft economic analysis 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.), 
including whether the benefit of designation would outweigh threats to 
the species caused by the designation, such that the designation of 
critical habitat is prudent.
    (2) Specific information on:
     The amount and distribution of northern spotted owl 
habitat,
     What areas occupied at the time of listing that contain 
features essential for 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 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 revised 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 species' listing.
    (5) Information on whether the DEA identifies all State and local 
costs and benefits attributable to the proposed revised 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 identifies all costs that could 
result from the revised designation.
    (8) 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.
    (9) The extent to which the description in the draft economic 
analysis of economic impacts to public land management and other 
activities is complete and accurate.
    (10) Information on areas that the revised critical habitat 
designation could potentially impact to a disproportionate degree.
    (11) Economic data on the incremental costs of designating any 
particular area as revised critical habitat.
    (12) Information on any quantifiable economic or other potential 
benefits of the proposed revised designation of critical habitat. 
Factors which may be considered under the potential benefits of 
critical habitat designation may include, but are not limited to, 
aesthetic considerations, recreational use, biodiversity, aquatic 
resources, intrinsic values, and benefits to local communities.
    (13) Any foreseeable economic, national security, or other relevant 
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. Other impacts 
in addition to economic effects that may be considered in the 
designation of critical habitat may include, but are not limited to, 
social factors, ecological factors, impacts on forest management, 
impacts on fire management, and impacts on local communities. The 
proposed revised designation specifically requested public comment on 
whether ``any areas should or should not be excluded from the revised 
designation under section 4(b)(2) of the Act and why'' (72 FR 32450).
    (14) The potential impact, if any, of the proposed revised 
designation on the receipt of Federal timber-based revenues by 
counties, including, but not limited to, counties receiving timber-
based revenues under the O&C Lands Act of 1937. Such impacts may 
include, but are not limited to, effects to the stability of county 
programs due to fluctuating or uncertain timber revenues.
    (15) Any foreseeable economic or other potential benefits resulting 
from the proposed revised designation. Factors which may be considered 
under the potential benefits of critical habitat designation may 
include, but are not limited to, aesthetic considerations, recreational 
use, biodiversity, aquatic resources, intrinsic values, and benefits to 
local communities.
    (16) After considering the potential impacts and benefits of the 
proposed revised critical habitat designation, whether the benefits of 
excluding any particular area from critical habitat outweigh the 
benefits of including that area as critical habitat under section 
4(b)(2) of the Act.
    (17) 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.
    In addition, the Final Recovery Plan for the Northern Spotted Owl 
is now available. The public is invited to use this reopened comment 
period to provide comments on the revised critical habitat designation 
in light of the Recovery Plan or any other relevant information that 
has become available since the last comment period, such as the 
Scientific Review of the Draft Northern Spotted Owl Recovery Plan 
prepared by Sustainable Ecosystems Institute for the Service.
    You may submit your comments and materials concerning our proposed 
revised rule, the associated DEA, and our amended required 
determinations by one of the methods listed in the ADDRESSES section. 
We will not consider comments sent by e-mail or fax or to an address 
not listed in the ADDRESSES section.

[[Page 29473]]

    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 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, 
Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
    You may obtain copies of the proposed revised rule and DEA by mail 
from the Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT), by visiting the Federal eRulemaking Portal at http://www.regulations.gov, or on our Web site at http://www.fws.gov/oregonfwo/species/. You may obtain copies of the Final Recovery Plan 
and Sustainable Ecosystems Institute report on the Internet at http://www.fws.gov/pacific/ecoservices/endangered/recovery/NSORecoveryPlanning.htm.

Background

    It is our intent to discuss only those topics directly relevant to 
the revised designation of critical habitat in this notice. For more 
information on the taxonomy and biology of the northern spotted owl, 
refer to the final listing rule published in the Federal Register on 
June 26, 1990 (55 FR 26114), and the proposed revised critical habitat 
rule published on June 12, 2007 (72 FR 32450).
    We published the final rule to list the northern spotted owl as 
threatened in the Federal Register on June 26, 1990 (55 FR 26114), and 
designated critical habitat for the species on January 15, 1992 (57 FR 
1796). On April 21, 2003, we published a notice of review initiating a 
5-year review of the northern spotted owl (68 FR 19569), and on July 
25, 2003, we published a second information request for the 5-year 
review (68 FR 44093). The 5-year review was completed on November 15, 
2004, and concluded that the northern spotted owl should remain listed 
as a threatened species. On April 26, 2007, we published the notice of 
availability for the draft recovery plan for the northern spotted owl 
(72 FR 20865).
    On January 13, 2003, we entered into a settlement agreement with 
the American Forest Resource Council, Western Council of Industrial 
Workers, Swanson Group Inc., and Rough & Ready Lumber Company to 
conduct a rulemaking to consider potential revisions to critical 
habitat for the northern spotted owl that includes a revised 
consideration of economic impacts and any other relevant aspects of 
designation. The dates for completion of this review were extended and 
called for the Service to submit a proposed revised critical habitat 
designation to the Federal Register by June 1, 2007, and to submit a 
final revised critical habitat designation to the Federal Register by 
June 1, 2008. We published the proposed revised designation of critical 
habitat for the northern spotted owl on June 12, 2007 (72 FR 32450), 
and reopened an additional comment period on the proposal on September 
5, 2007 (72 FR 50929).
    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 designated critical habitat based on economic impacts, 
national security, or any other relevant impact.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial data 
available, after taking into consideration the economic impact, impact 
on national security, or any other relevant impact of specifying any 
particular area as critical habitat. We have prepared a draft economic 
analysis of the proposed revised critical habitat designation based on 
our June 12, 2007, proposed rule to revise critical habitat for the 
northern spotted owl.
    The purpose of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed revised critical habitat 
designation for the northern spotted owl. The DEA quantifies the 
economic impacts of all potential conservation efforts for the northern 
spotted owl; some of these costs will likely be incurred regardless of 
whether we designate critical habitat. The economic impact of the 
proposed revised critical habitat designation is analyzed by comparing 
scenarios both ``with critical habitat'' and ``without critical 
habitat.'' The ``without critical habitat'' scenario represents the 
baseline for the analysis, considering protections already in place for 
the species; for example, under the Federal listing and other Federal, 
State, and local regulations. The baseline, therefore, represents the 
costs incurred regardless of whether critical habitat is designated. 
The ``with critical habitat'' scenario describes the incremental 
impacts associated specifically with the designation of critical 
habitat for the species. The incremental conservation efforts and 
associated impacts are those not expected to occur absent the 
designation of critical habitat for the species. In other words, the 
incremental costs are those attributable solely to the designation of 
critical habitat above and beyond the baseline costs; these are the 
costs we may consider in the final designation of critical habitat. The 
analysis looks retrospectively at baseline impacts incurred since the 
species was listed, and forecasts both baseline and incremental impacts 
likely to occur after the proposed revised critical habitat is 
finalized. The DEA provides estimated costs of the foreseeable 
potential economic impacts of the proposed revised critical habitat 
designation for the northern spotted owl over the next 20 years.
    The current draft economic analysis estimates the foreseeable 
economic impacts of the proposed revised critical habitat designation. 
The economic analysis identifies potential incremental costs as a 
result of the proposed revised critical habitat designation; these are 
those costs attributed to critical habitat over and above those 
baseline costs coextensive with listing. The analysis quantifies 
economic impacts of northern spotted owl conservation efforts 
associated primarily with the following activities: (1) Timber 
management, (2)

[[Page 29474]]

section 7 consultation, (3) survey and monitoring efforts, and (4) 
barred owl management.
    The annualized pre-designation (1990 to 2007) impacts associated 
with species conservation activities for the northern spotted owl in 
area proposed for revised designation are $563 million applying a 3 
percent discount rate and $600 million applying a 7 percent discount 
rate. These impacts are related to timber management, survey and 
monitoring efforts, barred owl management, and section 7 consultations. 
The post-designation impacts associated with species conservation were 
estimated over the period 2008 to 2027 for the same four categories of 
activities. The quantified post-designation baseline impacts (those 
estimated to occur in the absence of the critical habitat designation) 
are $601.80 to $602.21 million annualized applying a 7 percent discount 
rate, or $601.77 to $602.15 million annualized applying a 3 percent 
discount rate, over the 20-year period of analysis. Because these costs 
are projected to occur whether critical habitat is designated or not, 
they are not considered in our determination of whether the benefits of 
including an area as critical habitat outweigh the benefits of 
excluding the area.
    Of the activities considered in the analysis, only administrative 
costs of actions taken under section 7 of the Endangered Species Act 
associated with the geographic area proposed as revised critical 
habitat for the northern spotted owl were determined to be incremental 
costs associated with the critical habitat designation, and therefore 
appropriate to consider in that designation. The DEA forecasts these 
incremental impacts associated with the proposed rulemaking to be 
$132,000 to $202,000 annualized over the next 20 years using a 7 
percent discount rate, and $122,000 to $195,000 annualized using a 3 
percent discount rate. The U.S. Forest Service (USFS) is expected to 
bear approximately 60 percent of the total anticipated upper-bound 
incremental impacts, while the Service is forecast to bear more than 30 
percent of these impacts. The remaining incremental impacts (about 10 
percent) are anticipated to be borne by the Bureau of Land Management 
(BLM).
    Only the incremental costs of designating critical habitat, over 
and above the costs associated with species protection under the Act 
more generally, may be considered in designating critical habitat, 
therefore the methodology for distinguishing these two categories of 
costs is important. This is particularly true in the current case, 
where 99.97% of the total costs of species conservation over the next 
20 years are projected to be baseline costs, and 0.03% are projected to 
be incremental costs associated with the critical habitat designation. 
In the absence of critical habitat, Federal agencies must ensure that 
any actions they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of any endangered species or 
threatened species--costs associated with such actions are considered 
baseline costs. Once an area is designated as critical habitat, 
proposed actions that have a Federal nexus in this area will also 
require consultation and potential revision to ensure that the action 
does not result in the destruction or adverse modification of 
designated critical habitat--costs associated with these actions are 
considered incremental costs. The DEA explains that incremental 
consultation which takes place as a result of critical habitat 
designation may fall into one of three categories: (1) Additional 
effort to address adverse modification in a new consultation; (2) re-
initiation of consultation to address effects to critical habitat; and 
(3) incremental consultation resulting entirely from critical habitat 
designation (i.e., where a proposed action may affect unoccupied 
critical habitat). Based on historical data, the DEA estimates that 
there will be 28 incremental consultations annually in the first 
category, plus one additional re-initiation of consultation (category 
2) for each affected National Forest or BLM district regarding its land 
or resource management plan. Because no unoccupied habitat is being 
proposed for designation, no consultations in category 3 are projected.
    The DEA further projects that there will be no changes in 
management of any habitat resources that entail quantifiable costs 
resulting from these additional consultations over the 20-year period. 
This is because we believe that all costs of habitat management to 
protect northern spotted owls are already envisioned in the Northwest 
Forest Plan (NFWP) and the Western Oregon Plan Revisions (WOPR). As the 
DEA explains, ``Both the NWFP and WOPR apply to lands within the 
current critical habitat designations, as well as in the proposed 
designation; however, neither plan was developed nor designed 
specifically in response to critical habitat'' (DEA, p. 39). Thus, the 
roughly $21 billion in historical and projected costs for protecting 
species in critical habitat areas are attributable solely to the plans 
(which were in turn developed partially in response to the listing of 
the northen spotted owl) and not to either the current or proposed 
critical habitat designations. The Service notes that the majority of 
both current and proposed critical habitat areas are designated as Late 
Successional Reserves under the NFWP (which correspond roughly to Late 
Successional Management Areas under the WOPR), on which large scale 
harvesting of trees is generally not permitted, in order to protect 
late-successional and old-growth forests that are important to NSO 
preservation. However, we believe that the past and future management 
of these areas to protect northern spotted owls is a function solely of 
the plans, which did not result from, and will not be influenced in 
their future application by, the presence of critical habitat. Thus we 
project no incremental timber management costs as a result of the 
critical habitat designation.
    Ideally, we would have distinguished in the DEA between management 
of land previously designated as critical habitat within each NWFP land 
use allocation (LUA) category and management of land not designated as 
critical habitat within the same category. If such an analysis found 
that there was no statistically discernable difference between timber 
harvest probabilities on critical habitat and non-critical habitat land 
within an LUA category, this would further support our conclusion that 
designation as critical habitat did not affect past management of 
habitat and therefore will be unlikely to have substantive costs in the 
future. Conversely, if such an analysis found that within a given LUA 
category, there was a lower probability of harvest on critical habitat 
land than on non-critical habitat land, this might have caused us to 
reassess that conclusion. However, we have been unable to find, and the 
Federal land managers that we have consulted have been unable to 
provide, timber harvest data that distinguishes between critical 
habitat and non-critical habitat land. As a result we have been able to 
quantitatively assess only baseline impacts, by looking at harvest 
probabilities by LUA category (but not by critical habitat) before the 
NWFP was implemented and after implementation of the NWFP (see Table 3-
4 in the DEA). Lacking the relevant data for a statistical analysis of 
potential incremental impacts, we have instead relied on discussions 
with Service biologists and USFS and BLM land managers to assess 
incremental impacts. These discussions have confirmed that the 
anticipated impacts of the proposed designation on

[[Page 29475]]

timber management range from minimal to none (see Section ES-1 of the 
DEA).
    We request comment on the accuracy of our methodology for 
distinguishing baseline and incremental costs, and the assumptions 
underlying it. We also request comment on alternative methodologies. 
Finally, we request comment on whether there is data available that 
could be used to distinguish harvest outcomes on critical habitat 
versus non-critical habitat land within each NWFP LUA category.
    The DEA considers the potential economic effects of actions 
relating to the conservation of the northern spotted owl, 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 northern spotted owl in areas containing features 
essential to the conservation of the species. The DEA considers both 
economic efficiency and distributional effects. In the case of habitat 
conservation, efficiency effects generally reflect the ``opportunity 
costs'' associated with the commitment of resources to comply with 
habitat protection measures (such as lost economic opportunities 
associated with restrictions on land use).
    The DEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private 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 northern 
spotted owl as threatened (June 26, 1990; 55 FR 26114), and considers 
those costs that may occur in the 20 years following the revised 
designation of critical habitat. Because the DEA considers the 
potential economic effects of all actions relating to the conservation 
of the northern spotted owl, including costs associated with sections 
4, 7, and 10 of the Act and those attributable to the revised 
designation of critical habitat, the DEA overestimates the potential 
economic impacts of the revised critical habitat designation.
    As we 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 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 June 12, 2007, proposed revised rule (72 FR 32450), we said 
that we would defer our determination of compliance with several 
statutes and Executive Orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders became available in the DEA. We have now 
made use of the DEA data to make these determinations. In this document 
we affirm the information in our proposed rule concerning Executive 
Order (E.O.) 13132, E.O. 12988, the Paperwork Reduction Act, 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 (RFA) (5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 802(2)) (SBREFA), 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 revise this determination as part of our 
final rulemaking.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
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 northern spotted owl would affect a substantial number 
of small entities, we considered the number of small entities affected 
within particular types of

[[Page 29476]]

economic activities. 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; some kinds of 
activities are unlikely to have any Federal involvement. The 
designation of critical habitat 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.
    Appendix B of the DEA evaluates the potential economic effects of 
the proposed revised designation on small entities, based on the 
estimated incremental impacts associated with the proposed rulemaking. 
The screening analysis is based on the estimated impacts associated 
with the proposed rulemaking as described in chapters 3 through 7 and 
Appendix A of the DEA. The analysis evaluates the potential for 
economic impacts related to several categories, including: (1) Timber 
management, (2) barred owl management and control, (3) northern spotted 
owl surveys and monitoring, (4) fire management, (5) linear projects 
(i.e., transportation, pipelines, and powerlines), (6) restoration, (7) 
recreation, and (8) administrative costs associated with Section 7 
consultation. Of these activities, incremental impacts associated with 
the proposed revised critical habitat designation are anticipated only 
for the additive administrative costs of section 7 consultations and 
technical assistance requests (Appendix A of the DEA). The DEA 
concludes that as these incremental economic impacts will be borne 
entirely by Federal government agencies (USFS, BLM and the Service); 
the proposed rulemaking is not expected to affect any small entities.
    In summary, we have considered whether the proposed revised 
designation would result in a significant economic impact on a 
substantial number of small entities. Based on currently available 
information and as explained above, all incremental economic impacts of 
the proposed revised designation are expected to be borne entirely by 
Federal agencies and no impacts on any small entities are anticipated. 
We therefore certify that, if promulgated, the proposed revised 
designation 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 finds none of these criteria relevant to this analysis (Appendix B 
of the DEA). Thus, based on information in the DEA, we do not expect 
northern spotted owl 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 (2 U.S.C. 
1501), we make the following findings:
    (a) The rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
two exceptions. It excludes ``a condition of federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding'' and the State, local, 
or tribal governments ``lack authority'' to adjust accordingly. 
``Federal private sector mandate'' includes a regulation that ``would 
impose an enforceable duty upon the private sector, except as (i) a 
condition of Federal assistance; or (ii) a duty arising from 
participation in a voluntary Federal program.''
    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, or 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) We do not believe that the proposed designation will 
significantly or uniquely affect small governments because it will not 
produce a Federal mandate of $100 million or greater in any year, that 
is, it is not a ``significant regulatory action'' under the Unfunded 
Mandates Reform Act. The proposed revised designation of critical 
habitat imposes no obligations on State or local governments. The SBA 
does not consider the Federal Government to be a small governmental 
jurisdiction or entity. Consequently, we do not believe that the 
revised critical habitat designation would significantly or uniquely 
affect small government entities. As such, a Small Government Agency 
Plan is not required.

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 northern spotted owl in a 
takings implications assessment. This proposed revised critical habitat 
designation would only affect Federal lands and would not affect 
private property interests. Therefore, our takings

[[Page 29477]]

implications assessment concludes that the proposed revised designation 
of critical habitat for the northern spotted owl does not pose 
significant takings implications.

Authors

    The primary authors of this notice are the staff of the Division of 
Endangered Species, Pacific 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: May 15, 2008.
 Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E8-11321 Filed 5-20-08; 8:45 am]
BILLING CODE 4310-55-P