[Federal Register Volume 74, Number 182 (Tuesday, September 22, 2009)]
[Proposed Rules]
[Pages 48211-48215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22801]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R1-ES-2009-0010]
[92210-1117-000-B4]
RIN 1018-AV87


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Oregon Chub

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, availability of 
draft economic analysis, amendment of required determinations, and 
announcement of public hearing.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on the proposed designation of critical 
habitat for the Oregon chub (Oregonichthys crameri) under the 
Endangered Species Act of 1973, as amended (Act). We also announce the 
availability of a draft economic analysis (DEA) and an amended required 
determinations section of the proposal. We are reopening the comment 
period for an additional 30 days to allow all interested parties an 
opportunity to comment simultaneously on the proposed designation of 
critical habitat for the Oregon chub, the associated DEA, and the 
amended required determinations section. If you submitted comments 
previously, you do not need to resubmit them because we have already 
incorporated them into the public record and will fully consider them 
in preparation of the final rule. We also announce a public hearing; 
the public is invited to review and comment on any of the above actions 
associated with the proposed critical habitat designation at the public 
hearing or in writing.

DATES: Written Comments: We will consider public comments received or 
postmarked on or before October 22, 2009.
    Public Hearing: We will hold a public hearing on Monday, October 5, 
2009, from 6:30 p.m. to 8:00 p.m. Pacific Time.

ADDRESSES: Written Comments: You may submit comments by one of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-R1-
ES-2009-0010.
     U.S. mail or hand-delivery: Public Comments 
Processing, Attn: FWS-R1-ES-2009-0010; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, Suite 222; Arlington, VA 22203.
    Public Hearing: We will hold the public hearing at Benton Plaza, 
Plaza Meeting Room, 408 SW Monroe Ave., Corvallis OR 97330.
    Availability of Comments: We will post all comments and the public 
hearing transcript 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: Paul Henson, State Supervisor, U.S. 
Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 
98th Avenue, Suite 100, Portland, OR 97266, by telephone (503-231-6179) 
or by facsimile (503-231-6195). 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 the proposed designation of critical habitat 
for the Oregon chub that was published in the Federal Register on March 
10, 2009 (74

[[Page 48212]]

FR 10412), the DEA of the proposed designation of critical habitat for 
the Oregon chub, and the amended required determinations provided in 
this document. Verbal testimony or written comments may also be 
presented during the public hearing (see the Public Hearing section 
below for more information). 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 certain 
habitat as critical habitat under section 4 of the Act (16 U.S.C. 1531 
et seq.), including whether there are threats to the Oregon chub from 
human activity, the type of human activity causing these threats, and 
whether the benefit of designation would outweigh the threats to the 
species due to the designation, such that the designation is prudent.
    (2) Specific information on:
     The current amount and distribution of Oregon chub 
habitat.
     What physical and biological factors are essential to the 
conservation of the Oregon chub and why. Please include information as 
to the distribution of these essential factors and what special 
management considerations or protections may be required to maintain or 
enhance them.
     What areas occupied at the time of listing contain 
features essential for the conservation of the species which we should 
include in the designation and why.
     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 the species and the 
proposed critical habitat.
    (4) Any foreseeable economic, national security, or other relevant 
impacts that may result from the proposed designation and, in 
particular, any impacts to small entities, and the benefits of 
including or excluding areas from the proposed designation that exhibit 
these impacts.
    (5) Special management considerations or protections that the 
essential physical and biological features identified in the proposed 
critical habitat may require.
    (6) Information on the extent to which the description of potential 
economic impacts in the DEA is complete and accurate.
    (7) The likelihood of adverse social reactions to the designation 
of critical habitat, and how the consequences of such reactions, if 
they occur, would relate to the conservation of the species and 
regulatory benefits of the proposed critical habitat designation.
    (8) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide an opportunity for greater 
public participation and understanding, or to assist us in 
accommodating public concerns and comments.
    You may submit your comments and materials concerning our proposed 
rule, the associated DEA, and our amended required determinations by 
one of the methods listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
submission -- including any personal identifying information -- will be 
posted on the website. If your submission is made via a hard copy that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so. We will 
post all hard copy comments on http://www.regulations.gov. Please 
include sufficient information with your comments to allow us to verify 
any scientific or commercial information you include.
    Comments and materials we receive, as well as supporting 
documentation used to prepare this notice, will be available for public 
inspection at 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 the FOR FURTHER INFORMATION CONTACT 
section). You may obtain copies of the proposed rule and DEA on the 
Internet at http://www.regulations.gov at Docket Number FWS-R1-ES-2009-
0010, from our Web site at http://www.fws.gov/oregonfwo/Species/Data/OregonChub/, or by mail from the Oregon Fish and Wildlife Office (see 
the FOR FURTHER INFORMATION CONTACT section).
    .

Public Hearing

    We are holding a public hearing on the date listed in the DATES 
section at the address listed in the ADDRESSES section. We are holding 
this public hearing to provide interested parties an opportunity to 
provide verbal testimony (formal, oral comments) or written comments 
regarding the proposed critical habitat designation, the associated 
DEA, and the amended required determinations section. An informational 
session will precede the hearing from 4:30 p.m. to 5:30 p.m. Pacific 
Time. During this session, Service biologists will be available to 
provide information and address questions on the proposed rule in 
advance of the formal hearing.
    People needing reasonable accommodations in order to attend and 
participate in the public hearings should contact Paul Henson, Oregon 
Fish and Wildlife Office, at 503-231-6179, as soon as possible (see FOR 
FURTHER INFORMATION CONTACT section). In order to allow sufficient time 
to process requests, please call no later than one week before the 
hearing date. Information regarding this notice is available in 
alternative formats upon request.

Background

    It is our intent to discuss only those topics directly relevant to 
the proposed designation of critical habitat for the Oregon chub in 
this notice. For more information on previous Federal actions 
concerning the Oregon chub, refer to the proposed designation of 
critical habitat published in the Federal Register on March 10, 2009 
(74 FR 10412). For more information on the Oregon chub or its habitat, 
refer to the final listing rule published in the Federal Register on 
October 18, 1993 (58 FR 53800), or contact the Oregon Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT).
    On March 9, 2007, the Institute for Wildlife Protection filed suit 
against the Service for failure to designate critical habitat for the 
Oregon chub within the statutory timeframe, and for failure to conduct 
a 5-year status review (Institute for Wildlife Protection v. U.S. Fish 
and Wildlife Service). In a settlement agreement with the Plaintiff, we 
agreed to complete a status review by March 1, 2008, submit a proposed 
critical habitat rule for the Oregon chub to the Federal Register by 
March 1, 2009, and to submit a final critical habitat determination to 
the Federal Register by March 1, 2010.
    On March 8, 2007, we published a notice that we would begin a 
status review of the Oregon chub (72 FR 10547). We completed the Oregon 
chub's 5-year review on February 11, 2008. We published the proposed 
designation of critical habitat in the Federal Register on March 10, 
2009 (74 FR 10412).
    Section 3 of the Act defines critical habitat as ``the specific 
areas within the geographical area occupied by the species, at the time 
it is listed in accordance with'' the Act, ``on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require

[[Page 48213]]

special management considerations or protection; and specific areas 
outside the geographical area occupied by the species at the time it is 
listed'' ``upon a determination by the Secretary that such areas are 
essential for the conservation of the species'' (16 USC 1532(5)(A)(i 
and ii)). 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 that affect 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 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 (DEA), which identifies 
and analyzes the potential economic impacts associated with the 
proposed designation of critical habitat for the Oregon chub that we 
published in the Federal Register on March 10, 2009 (74 FR 10412). The 
DEA quantifies the economic impacts of all potential conservation 
efforts for the Oregon chub; some of these costs will likely be 
incurred regardless of whether or not we designate critical habitat. 
The economic impact of the proposed 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 (e.g., 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 if we finalize the proposed critical habitat 
designation.
    The DEA estimates impacts based on activities that are reasonably 
foreseeable, including, but not limited to, activities that are 
currently authorized, permitted, or funded, or for which proposed plans 
are currently available to the public. The DEA provides estimated costs 
of the foreseeable potential economic impacts of the proposed critical 
habitat designation for the Oregon chub over the next 20 years, which 
was determined to be the appropriate period for analysis because 
limited planning information was available for most activities to 
reasonably forecast activity levels for projects beyond a 20-year 
timeframe. The DEA 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 DEA quantifies economic impacts of 
conservation efforts for the Oregon chub associated with the following 
categories of activity: (1) Transportation; (2) habitat management; (3) 
agriculture; (4) water management; and (5) forestry.
    Total future (2010-2029) baseline impacts are estimated to be $3.74 
million to $12.9 million using a 3 percent discount rate, and $2.74 
million to $11.1 million using a 7 percent discount rate. Impacts to 
mitigation banking for anticipated transportation projects in Unit 
2B(1) (Ankeny Willow Marsh) are expected to bear the majority of the 
total future baseline impacts ($4.59 million), using a 7 percent 
discount rate. Under the low-end scenario (3 percent discount rate), 
Unit 3H (Hospital Pond) has the highest levels of impacts ($525,000), 
stemming primarily from habitat management activities.
    The DEA estimates that total potential incremental economic impacts 
in areas proposed as critical habitat over the next 20 years will be 
$146,000 using a 3 percent discount rate, and $108,000 using a 7 
percent discount rate. Approximately 67 percent of the incremental 
impacts attributed to the proposed designation of critical habitat are 
expected to be related to section 7 consultations with Federal agencies 
for habitat management activities, followed by water management 
consultations (20.5 percent), transportation consultations (8.3 
percent), and forestry consultations (4.5 percent). We do not 
anticipate section 7 consultations related to agricultural activities 
during the DEA timeframe.
    As stated earlier, we are seeking data and comments from the public 
on the DEA, as well as all aspects of the proposed rule and our amended 
required determinations. We may revise the proposed rule or supporting 
documents to incorporate or address information we receive during the 
public comment period, including information received during or in 
response to the public hearing. 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 the species.

Required Determinations -- Amended

    In our March 10, 2009, proposed rule (74 FR 10412), we indicated 
that we would defer our determination of compliance with several 
statutes and Executive Orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders became available in the DEA. We have now 
made use of the DEA data in making these determinations. In this 
document, we affirm the information in our proposed rule concerning 
Executive Order (E.O.) 13132 (Federalism), E.O. 12988 (Civil Justice 
Reform), the Paperwork Reduction Act, the National Environmental Policy 
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 are amending our required 
determinations concerning E.O. 12866 (Regulatory Planning and Review) 
and the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211 
(Energy Supply, Distribution, or Use), E.O. 12630 (Takings), and the 
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.).

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
proposed rule is not significant and has not reviewed this proposed 
rule under E.O. 12866. The OMB based 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.

[[Page 48214]]

    (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) 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 (i.e., small 
businesses, small organizations, and small government jurisdictions), 
as described below. However, no regulatory flexibility analysis is 
required if the head of an agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
Based on our DEA of the proposed designation, we provide our analysis 
for determining whether the proposed rule would result in a significant 
economic impact on a substantial number of small entities. Based on 
comments we receive, we may revise this determination as part of a 
final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
the Oregon chub would affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities, such as residential and commercial 
development. In order to determine whether it is appropriate for our 
agency to certify that this rule would not have a significant economic 
impact on a substantial number of small entities, we considered each 
industry or category individually. In estimating the numbers of small 
entities potentially affected, we also considered whether their 
activities have any Federal involvement. Critical habitat designation 
will not affect activities that do not have any Federal involvement; 
designation of critical habitat only affects activities conducted, 
funded, permitted, or authorized by Federal agencies.
    If we finalize this proposed 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 due to the 
chub's current status under the Act as an endangered species.
    In the DEA, we evaluated the potential economic effects on small 
business entities resulting from implementation of conservation actions 
related to the proposed designation of critical habitat for the Oregon 
chub. The DEA identified the estimated incremental impacts associated 
with the proposed designation of critical habitat as described in 
sections 3 through 7, and evaluated the potential for economic impacts 
related to activity categories including water management, agriculture, 
forestry, transportation, and habitat management.
    As discussed in Appendix A of the DEA, of the activities addressed 
in the analysis, only forestry activities are expected to experience 
incremental, administrative consultation costs that may be borne by 
small businesses. These costs may arise when the U.S. Forest Service 
consults on Federal timber sales, with small logging and timber tract 
companies as third parties. In Lane and Benton Counties, there are 178 
logging operations and 98 timber tract operations that are considered 
small, representing between 98 and 100 percent of all businesses in the 
affected industry sector within these two counties. These small 
businesses may bear a total of $1,440 in incremental impacts related to 
these consultations through 2029. Please refer to our Draft Economic 
Analysis of the proposed critical habitat designation for a more 
detailed discussion of potential economic impacts.
    In summary, we have considered whether the proposed designation 
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, the proposed 
designation of critical habitat for the Oregon chub would not have a 
significant economic impact on a substantial number of small business 
entities. Therefore, an initial regulatory flexibility analysis is not 
required.

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

    On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply, distribution, and use. 
Executive Order 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. The OMB's guidance for 
implementing this Executive Order outlines nine outcomes that may 
constitute ``a significant adverse effect'' when compared to no 
regulatory action. As discussed in Appendix A, the DEA finds that none 
of these criteria are relevant to this analysis. The DEA concludes that 
no incremental impacts are forecast associated specifically with this 
rulemaking on the production, distribution, or use of energy. All 
forecast impacts are expected to occur associated with the listing of 
the Oregon chub, regardless of the designation of critical habitat. 
Therefore, designation of critical habitat is not expected to lead to 
any adverse outcomes (such as a reduction in electricity production or 
an increase in the cost of energy production or distribution), 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, the Service 
makes the following findings:
    (a) This rulemaking 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

[[Page 48215]]

governments,'' with two exceptions. First, it excludes ``a condition of 
federal assistance.'' Second, it 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. 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) As discussed in the DEA of the proposed designation of critical 
habitat for the Oregon chub, we do not believe that this rule would 
significantly or uniquely affect small governments because it would not 
produce a Federal mandate of $100 million or greater in any year; that 
is, it is not a ``significant regulatory action'' under the Unfunded 
Mandates Reform Act. The DEA concludes that incremental impacts may 
occur due to project modifications that may need to be made for 
agricultural and development activities; however, these are not 
expected to affect small governments. Consequently, we do not believe 
that the 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 critical habitat for the Oregon chub in a takings 
implications assessment. 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. The proposed critical habitat for the 
Oregon chub does not pose significant takings implications for the 
above reasons.

References Cited

    A complete list of all references we cited in the proposed rule and 
in this document is available on the Internet at http://www.regulations.gov or by contacting the Oregon Fish and Wildlife 
Office (see the FOR FURTHER INFORMATION CONTACT section).

Authors

    The primary authors of this rulemaking are the staff members of the 
Oregon Fish and Wildlife Office.

Authority

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

    Dated: August 24, 2009
Will Shafroth
Acting Assistant Secretary for Fish and Wildlife and Parks
[FR Doc. E9-22801 Filed 9-21-09; 8:45 am]
BILLING CODE 4310-55-S