Endangered and Threatened Wildlife and Plants: Revised Designation of Critical Habitat for the California Red-Legged Frog

Federal Register: April 28, 2009 (Volume 74, Number 80)

Proposed Rules

Page 19184-19192

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr28ap09-20

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 50 CFR Part 17

FWS-R8-ES-2008-0089; 81420-1117-8B10 B4

RIN 1018-AV90

Endangered and Threatened Wildlife and Plants; Revised

Designation of Critical Habitat for the California Red-Legged Frog

(Rana aurora draytonii)

AGENCY: Fish and Wildlife Service, Interior.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on our September 16, 2008, proposed revised designation of critical habitat for the California red-legged frog under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of the draft economic analysis (DEA), a revision to proposed critical habitat Unit MEN-1, 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 revision of critical habitat

(including the changes to proposed critical habitat Unit MEN-1), the associated DEA, and the amended required determinations section.

Comments previously submitted on this rulemaking do not need to be resubmitted. These comments have already been incorporated into the public record and will be fully considered in preparation of the final rule.

DATES: We will accept comments received on or before May 28, 2009.

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-AV90; 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, U.S.

Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800

Cottage Way, Room W-2605, Sacramento, CA 95825; telephone 916-414-6600; facsimile 916-414-6712. 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 revision to critical habitat for the California red-legged frog published in the Federal Register on

September 16, 2008 (73 FR 53492), as revised by this notice, 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.), including whether there are threats to the subspecies from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat is not prudent.

(2) Specific information on:

The amount and distribution of California red-legged frog habitat,

Locations within the geographical area occupied at the time of listing that contain features essential to the conservation of the subspecies that we should include in the designation and why, and

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Locations not within the geographical area occupied at the time of listing that are essential to the conservation of the subspecies 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) Probable economic, national security, or other impacts of designating particular areas as critical habitat. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas that exhibit these impacts.

(5) The potential exclusion of non-Federal lands covered by the

East Contra Costa County Habitat Conservation Plan (ECCHCP) from final revised critical habitat, and whether such exclusion is appropriate and why.

(6) The potential exclusion of non-Federal lands owned and managed by the East Bay Regional Park District within the boundaries of the

ECCHCP from final revised critical habitat, and whether such exclusion is appropriate and why.

(7) The potential exclusion of non-Federal lands covered by the

Western Riverside County Multiple Species Habitat Conservation Plan

(MSHCP) from final revised critical habitat, and whether such exclusion is appropriate and why.

(8) The potential exclusion of non-Federal lands covered by the

Bonny Doon Settlement Ponds Habitat Conservation Plan from final revised critical habitat, and whether such exclusion is appropriate and why.

(9) Whether the lands proposed as critical habitat on Department of

Defense land at Vandenberg Air Force Base in Santa Barbara County and

Camp San Luis Obispo in San Luis Obispo County should be exempted under section 4(a)(3) of the Act or excluded under section 4(b)(2) of the Act and why.

(10) Whether the U.S. Forest Service lands managed under the Sierra

Nevada Forest Plan Amendment within the units being proposed as critical habitat should be excluded and why under section 4(b)(2) of the Act.

(11) Whether Unit CAL-1 (Young's Creek) in Calaveras County should be excluded and why under section 4(b)(2) of the Act.

(12) Whether changes made to the proposed critical habitat Unit

MEN-1 in Mendocino County appropriately reflect the current knowledge of the subspecies distribution and occurrence within the area and whether that area should be designated as critical habitat.

(13) Whether there are areas we previously designated, but did not include in our proposed revision to critical habitat, that should be designated as critical habitat.

(14) Information on the extent to which any Federal, State, and local environmental protection measures we reference in the DEA were adopted largely as a result of the subspecies' listing.

(15) Information on whether the DEA identifies all Federal, State, and local costs and benefits attributable to the proposed revision of critical habitat, and information on any costs or benefits that we may have overlooked.

(16) Information on whether the DEA makes appropriate assumptions regarding current practices and any regulatory changes that likely may occur if we designate revised critical habitat.

(17) Information on whether the DEA correctly assesses the effect on regional costs associated with any land use controls that may result from the revised designation of critical habitat.

(18) Information on areas that the revised critical habitat designation could potentially impact to a disproportionate degree.

(19) Information on whether the DEA identifies all costs that could result from the proposed revised designation.

(20) Information on any quantifiable economic benefits of the revised designation.

(21) Whether the benefits of excluding any particular area outweigh the benefits of including that area under section 4(b)(2) of the Act.

(22) Economic data on the incremental costs of designating a particular area as revised critical habitat.

(23) Whether we could improve or modify our approach to designating critical habitat to provide for greater public participation and understanding, or assist us in accommodating public concerns and comments.

(24) Any foreseeable impacts on energy supplies, distribution, and use resulting from the proposed designation and, in particular, any impacts on electricity production, and the benefits of including or excluding areas that exhibit these impacts.

If you submitted comments or information on the proposed revised rule (73 FR 53492) during the initial comment period from September 16, 2008, to November 17, 2008, please do not resubmit them. These comments are included in the public record for this rulemaking and we will fully consider them in the 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 determination, find that areas within those proposed do not meet the definition of critical habitat, that some modifications to the described boundaries are appropriate, or that areas are appropriate for exclusion under section 4(b)(2) of the Act.

You may submit your comments and materials concerning the proposed revised rule or DEA 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 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 proposed revised rule, 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 original proposed revision of critical habitat and the DEA on the Internet at http://www.regulations.gov, on the Sacramento Fish and Wildlife Office web page at http://www.fws.gov/ sacramento, or by contacting the Sacramento Fish and Wildlife Office

(see FOR FURTHER INFORMATION CONTACT).

Background

For more information on previous Federal actions concerning the

California red-legged frog, refer to the proposed revised designation of critical habitat published in the Federal Register on September 16, 2008 (73 FR 53492). On December 12, 2007, the Center for Biological

Diversity filed a complaint in the U.S. District Court for the Northern

District of California challenging our designation of critical habitat for the California red-legged frog (Center for Biological Diversity v.

Kempthorne, et al., Case No. C-07-6404-WHA). On April 2, 2008, the court entered a consent decree requiring a proposed revised critical habitat rule to

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be submitted to the Federal Register by August 29, 2008, and a final revised critical habitat designation to be submitted to the Federal

Register by August 31, 2009.

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, under 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. In making a decision to exclude areas, we consider the economic impact, impact on national security, or any other relevant impact of the designation.

Change in Nomenclature

Until recently the red-legged frog was recognized as two conspecific subspecies, Rana aurora aurora and Rana aurora draytonii.

Recent genetic analysis of the Rana aurora/draytonii complex has concluded that the two Rana aurora subspecies are in fact separate species (Shaffer et al. 2004, pp. 2667-2677, Frost et al. 2006, p. 370). Separate species status was originally proposed for R. aurora and

R. draytonii by Baird & Girard (1852, pp. 174-177), but they were later reclassified as a single species with two subspecies (Camp 1917, pp. 115-125). Slater (1939, pp. 145-149) later recognized R. cascadae as a separate species more closely related to R. aurora. R. draytonii differs from R. aurora, the Northern red-legged frog, both physically and behaviorally. Adult R. draytonii tend to be larger and longer (35 to 40 millimeters (mm) (1.4 to 1.6 inches (in.)) than adult R. aurora

(Hayes and Miyamoto 1984, pp. 1018-1022) and have dorsal spots with usually lighter centers (Stebbins 1951, p. 334). R. draytonii has paired vocal sacs and typically calls from the air, while R. aurora lacks vocal sacs and typically calls from underwater (Hayes and

Krempels 1986, pp. 929-932; Licht 1969, p. 1290). Based on the genetic analysis by Shaffer et al. (2004), the herpetological community, academic and governmental researchers, and biologists have accepted the raise to species level and nomenclature change for the California red- legged frog. As a result, we are proposing to make a nomenclature change to the California red-legged frog from Rana aurora draytonii to

Rana draytonii and have included those proposed changes in the regulatory section of this rule to be published in the Code of Federal

Regulations when this rule is made final. For the purposes of this document, however, we will use the subspecies designation.

Changes to Proposed Revised Critical Habitat

In this document we are proposing revisions to the area of proposed revised critical habitat in Unit MEN-1 in Mendocino County as described in the September 16, 2008, revised proposed rule (73 FR 53492). This revision involves adjusting the boundaries of the proposed revised critical habitat to better reflect new subspecies occurrence data within the area and the habitat surrounding those records. The original revised proposal used information from the California Natural Diversity

Database (CNDDB), which identified a grouping of California red-legged frog occurrence records in the Greenwood Creek watershed. Based on new genetic information, these records have been identified as Rana aurora aurora or as containing a greater proportion of R. aurora aurora genetic characteristics than those records identified south of Mills

Creek. As a result we are proposing to revise the revised critical habitat for MEN-1 to include those areas where the records south of

Mills Creek are of either pure R. aurora draytonii or of frogs with a greater proportion of R. aurora draytonii genetic characteristics.

Revised unit and boundary descriptions and a revised map for the proposed critical habitat Unit MEN-1 are included with this notice.

MEN-1, Mills Creek (26,875 ac (10,876 ha))

This unit is located along the coast north and west of Manchester,

California, including the majority of the Mills Creek watershed in

Mendocino County. MEN-1 contains aquatic habitat for breeding and non- breeding activities (PCE 1 and PCE 2), and upland habitat for foraging and dispersal activities (PCE 3 and PCE 4). The records within the unit were identified subsequent to listing as northern Mendocino County was thought to be outside the known range of the subspecies. Subsequent genetic research has identified the subspecies in Mendocino County

(Shaffer et al. 2004, p. 2676). This unit is currently occupied and contains the following essential features: permanent and ephemeral aquatic habitats consisting of streams and natural and man-made ponds surrounded by emergent vegetation and marshland with upland comprised of forested timber that provides for breeding and upland areas for dispersal, shelter, and foraging. The unit also contains freshwater pond and stream habitats associated with upland dune complexes near the coast. Additionally, the unit represents the northernmost extent of the subspecies range along the coast of California and may be genetically significant to the subspecies (Shaffer et al. 2004, p. 2676). The essential features in this unit may require special management considerations or protection due to land management activities, which may alter aquatic and upland habitats and thereby result in the predation and desiccation of egg masses or direct death of adults. The unit consists of approximately 86 acres (ac) (35 hectares (ha)) of

Federal land, 296 ac (120 ha) of State land, 92 ac (37 ha) of Tribal land, and 26,400 ac (10,683 ha) of private land.

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 our September 16, 2008 (73 FR 53492), proposed revised rule to designate critical habitat for the California red-legged frog.

The intent of the DEA is to identify and analyze the potential economic impacts associated with the proposed revised critical habitat designation for the California red-legged frog. Additionally, the economic analysis looks retrospectively at costs incurred since the May 23, 1996 (61 FR 25813), listing of the California red-legged frog as threatened. The DEA quantifies the economic impacts of all potential conservation efforts for the California

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red-legged frog; some of these costs will likely be incurred regardless of whether we designate revised 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 if we finalize the proposed revised critical habitat.

The DEA 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 DEA describes economic impacts of California red-legged frog conservation efforts associated with the following categories of activity: (1) Residential and Commercial Development; (2) Water

Management; (3) Agriculture; (4) Ranching/Grazing; (5) Timber Harvest;

(6) Transportation; (7) Fire Management; (8) Utility and Oil and Gas

Pipeline Construction and Maintenance; and (9) Habitat and Vegetation

Management.

The baseline economic impacts are those impacts that result from listing and other conservation efforts for the California red-legged frog. Conservation efforts related to development activities constitute the majority of total baseline costs (approximately 72 to 73 percent) in areas of proposed revised critical habitat. Impacts to agriculture make up the majority of the remainder of the costs associated with the proposed revised designation. The total future baseline impacts are estimated to be $2.38 billion to $2.50 billion ($180 million to $188 million on an annualized basis), assuming a 3 percent discount rate, or

$1.65 billion to $1.74 billion ($152 million to $160 million on an annualized basis), assuming a 7 percent discount rate, through the year 2030.

The majority of incremental impacts attributed to the proposed revised critical habitat designation are expected to be related to development (approximately 78 percent) followed by agricultural impacts

(approximately 22 percent). Impacts to all other activities represent less than one percent of the total incremental impacts. The DEA estimates total potential incremental economic impacts in areas proposed as revised critical habitat over the next 22 years (2009 to 2030) to be $1.04 billion to $1.10 billion ($93.7 million to $97.9 million annualized) in present value terms using a 3 percent discount rate, and $721 million to $767 million ($67.9 to $72.0 million annualized) in present value terms using a 7 percent discount rate.

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

(e.g., 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.

As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as on all aspects of the proposed revised critical habitat rule and our amended required determinations. The final revised critical habitat rule may differ from the proposed revised rule based on new information we receive during the public comment periods. 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 as critical habitat, provided the exclusion will not result in the extinction of the subspecies.

Required Determinations--Amended

In our proposed rule dated September 16, 2008 (73 FR 53492), 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 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, 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 revised 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 (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 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 (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

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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 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 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 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 revised designation of critical habitat for the California red-legged frog would affect a substantial number of small entities, we consider 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. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation. In areas where the species is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the California red-legged frog. Federal agencies also must consult with us if their activities may affect critical habitat.

In the DEA of the proposed revision to critical habitat, we evaluate the potential economic effects on small business entities resulting from implementation of conservation actions related to the proposed revision to critical habitat for the California red-legged frog. The DEA identifies the estimated incremental impacts associated with the proposed rulemaking as described in Chapters 4 through 13 of the DEA, and evaluates the potential for economic impacts related to activity categories including urban development, water management, agriculture, grazing and ranching, timber harvest activities, transportation, utility pipeline construction and maintenance, fire management activities, and habitat management. The DEA concludes that the incremental impacts resulting from this rulemaking that may be borne by small businesses will be associated with urban development and agriculture. Incremental impacts are either not expected for the other types of activities considered or, if expected, will not be borne by small entities.

As discussed in Appendix A of the DEA, the largest impacts of the proposed rule on small businesses would result from section 7 consultations with the Service on development projects not subject to an existing habitat conservation plan. The analysis assumes full build out of all acres identified as likely to be developed (as defined in

Chapter 4 of the DEA) within the next 22 years. The DEA (exhibit 4-5) identifies approximately 2,226 ac (860 ha) of potentially developable land attributable to the designation of critical habitat (incremental impact). Assuming an 100-acre (40-hectare) average development size, this yields approximately 22 development projects over the next 22 years, or approximately 1 project annually. The analysis also assumes that one developer is required per development project, and that all of these developers are small businesses. As a result, the incremental impact due to critical habitat is estimated to range from $25 to $27 million at a 7 percent discount rate per small business developer over the next 22 years. We realize that this may be on overestimation of real costs because of the assumptions involved.

The incremental costs attributed to agriculture are explained in

Chapter 6 of the DEA. As described in Chapter 6, a stipulated injunction issued by the U.S. District Court for the Northern District of California will restrict pesticide application in designated critical habitat. The analysis assumes that the affected lands will be taken out of production; to the extent that there are alternative beneficial uses of agricultural land (e.g., organic farming or grazing), this analysis may overstate future economic impacts. To estimate the potential incremental impact on small farmers, the total cropland value by county (assumed to be taken out of production) was divided by the number of small farmers to estimate per-farm impacts.

According to the DEA, the designation of critical habitat would affect 499 farms over the next 22 years. Total impacts are anticipated to range between $156 and $169 million, or $313,000 to $338,000 per farm.

Exhibit A-4 presents impacts by county, per small business farmer.

In summary, we have considered whether the proposed rule would result in a significant economic impact on a substantial number of small entities. As a result of the uncertainty that exists regarding both the numbers of entities that may be impacted by the proposed rule and the degree of impact on individual entities, we have developed an

Initial Regulatory Flexibility Analysis (IRFA) (DEA Appendix A).

However, due to the number of uncertainties identified in the DEA, we have prepared this IRFA without first making the threshold determination of whether the proposed critical habitat designation could be certified as not having a significant economic impact on a substantial number of small entities. This IRFA is intended to improve the Service's understanding of the effects of the proposed rule on small entities and to identify opportunities to minimize these impacts in the final rulemaking.

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

E.O. 13211 requires agencies to prepare Statements of Energy

Effects when undertaking certain actions that may affect the supply, distribution, and use of energy. This proposed revision to critical habitat for the California red-

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legged frog is not considered a significant regulatory action under

E.O. 12866. 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 highlighted in

Chapter 10 (Exhibits 10-2 and 10-3), a number of oil and gas companies own and operate pipelines that pass through the study area, and Waste

Management and the Linde Group plan to build the world's largest landfill gas plant in ALA-2. However, the incremental impact to these entities over the next 22 years is solely attributable to the costs of section 7 consultation and no measurable impacts to the quantity or cost of energy production and distribution are likely to result from the designation of critical habitat (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 (2 U.S.C. 1501), the Service makes the following findings:

(a) This rule will not produce a Federal mandate. In general, a

Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, 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 destroy or adversely modify 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 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 incremental impacts may occur due to project modifications that may need to be made for development and

Tribal activities; however, these are not expected to affect small governments as the costs attributed to development is limited to private lands and not those owned by local governments. 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 California red-legged frog in a takings implications assessment. Our takings implications assessment concludes that the proposed revision to critical habitat for the California red-legged frog does not pose significant takings implications.

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 Sacramento Fish and Wildlife

Office (see FOR FURTHER INFORMATION CONTACT section).

Authors

The primary authors of this rulemaking are the staff members of the

Sacramento Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

For the reasons outlined in the preamble, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal

Regulations, as follows:

PART 17--[AMENDED] 1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted. 2. In Sec. 17.11(h) revise the entry for ``Frog, California red- legged,'' under ``AMPHIBIANS,'' to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

Species

Vertebrate population

Historic range

where endangered or

Status

When

Critical Special

Common name

Scientific name

threatened

listed habitat

rules

* * * * * * *

Amphibians

Page 19190

* * * * * * *

Frog, California red-legged..... Rana draytonii..... U.S.A. (CA), Mexico Entire.................. T................

583 17.95(d)

17.43

* * * * * * *

3. Section 17.95, as proposed to be revised on September 16, 2008

(73 FR 53492), is proposed to be further amended, as follows:

A. In paragraph (a), in the Critical habitat for the California red-legged frog, by removing the scientific name ``Rana aurora draytonii'', and adding the scientific name ``Rana draytonii'' in its place, and

B. Revising paragraph (d)(13) as set forth below.

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *

(d) Amphibians.

* * * * *

California Red-Legged Frog (Rana draytonii)

* * * * *

(13) Unit MEN-1: Mendocino County, California. From USGS 1:24,000 scale quadrangles Cold Spring, Eureka Hill, Mallo Pass Creek, and Point

Arena.

(i) Land bounded by the following UTM zone 10, NAD 1983 coordinates

(E, N): 443694, 4322801; 443753, 4322799; 443831, 4322807; 443933, 4322804; 444066, 4322760; 444270, 4322717; 444325, 4322702; 444354, 4322595; 444390, 4322528; 444430, 4322489; 444537, 4322433; 444586, 4322394; 444667, 4322308; 444693, 4322290; 444746, 4322240; 444777, 4322201; 444798, 4322163; 444833, 4322075; 444853, 4322034; 444868, 4322015; 444911, 4322014; 444968, 4322006; 445006, 4321980; 445064, 4321914; 445106, 4321838; 445118, 4321807; 445145, 4321758; 445175, 4321748; 445262, 4321770; 445287, 4321757; 445312, 4321722; 445366, 4321682; 445394, 4321656; 445450, 4321612; 445479, 4321569; 445486, 4321525; 445506, 4321495; 445544, 4321448; 445567, 4321433; 445609, 4321438; 445667, 4321438; 445710, 4321415; 445722, 4321383; 445739, 4321353; 445886, 4321304; 445966, 4321295; 446016, 4321260; 446038, 4321224; 446070, 4321112; 446087, 4321091; 446117, 4321029; 446144, 4320941; 446193, 4320761; 446221, 4320736; 446274, 4320697; 446319, 4320635; 446451, 4320391; 446476, 4320336; 446528, 4320259; 446616, 4320179; 446673, 4320150; 446734, 4320127; 446793, 4320111; 446843, 4320105; 446908, 4320083; 447011, 4320041; 447045, 4320024; 447068, 4320031; 447101, 4320064; 447139, 4320117; 447180, 4320199; 447227, 4320210; 447266, 4320205; 447306, 4320195; 447351, 4320194; 447394, 4320214; 447424, 4320255; 447467, 4320365; 447485, 4320382; 447521, 4320380; 447611, 4320364; 447722, 4320332; 447805, 4320287; 447886, 4320218; 447919, 4320153; 447951, 4320066; 447969, 4319988; 447983, 4319889; 447981, 4319825; 447958, 4319651; 447940, 4319611; 447916, 4319542; 447922, 4319483; 447971, 4319445; 448103, 4319392; 448196, 4319365; 448343, 4319374; 448430, 4319368; 448482, 4319347; 448547, 4319333; 448652, 4319342; 448785, 4319365; 448853, 4319365; 448939, 4319385; 449030, 4319417; 449128, 4319442; 449227, 4319448; 449352, 4319472; 449490, 4319517; 449548, 4319570; 449597, 4319628; 449666, 4319695; 449733, 4319755; 449789, 4319784; 449875, 4319792; 449979, 4319807; 450035, 4319807; 450150, 4319759; 450210, 4319703; 450282, 4319596; 450420, 4319414; 450504, 4319347; 450635, 4319305; 450673, 4319272; 450743, 4319196; 450810, 4319130; 450914, 4319048; 450966, 4319022; 451092, 4318916; 451162, 4318828; 451226, 4318719; 451194, 4318654; 451170, 4318562; 451149, 4318452; 451099, 4318235; 451063, 4318107; 451042, 4318062; 450935, 4317981; 450859, 4317956; 450782, 4317952; 450714, 4317937; 450597, 4317880; 450510, 4317818; 450481, 4317760; 450473, 4317700; 450495, 4317605; 450510, 4317454; 450512, 4317340; 450520, 4317297; 450521, 4317204; 450494, 4317128; 450486, 4317090; 450486, 4317057; 450518, 4317008; 450570, 4316902; 450600, 4316891; 450624, 4316875; 450749, 4316850; 450769, 4316841; 450786, 4316828; 450839, 4316774; 450855, 4316749; 450889, 4316685; 450900, 4316624; 450909, 4316605; 450925, 4316588; 450980, 4316547; 451041, 4316487; 451106, 4316437; 451168, 4316381; 451257, 4316313; 451327, 4316268; 451352, 4316246; 451377, 4316209; 451391, 4316172; 451417, 4316124; 451467, 4316018; 451479, 4315983; 451505, 4315878; 451510, 4315844; 451509, 4315823; 451504, 4315804; 451502, 4315781; 451458, 4315652; 451442, 4315626; 451407, 4315587; 451328, 4315533; 451284, 4315450; 451273, 4315417; 451261, 4315362; 451266, 4315318; 451251, 4315220; 451270, 4315196; 451302, 4315145; 451333, 4315115; 451353, 4315088; 451369, 4315056; 451407, 4315001; 451487, 4314929; 451527, 4314884; 451570, 4314852; 451584, 4314832; 451575, 4314812; 451531, 4314761; 451501, 4314714; 451476, 4314644; 451466, 4314587; 451453, 4314558; 451418, 4314529; 451352, 4314505; 451294, 4314491; 451151, 4314476; 451049, 4314502; 450897, 4314504; 450827, 4314485; 450753, 4314459; 450723, 4314445; 450621, 4314367; 450591, 4314336; 450558, 4314328; 450524, 4314325; 450478, 4314335; 450448, 4314346; 450393, 4314379; 450307, 4314414; 450275, 4314435; 450217, 4314487; 450180, 4314513; 450154, 4314527; 450136, 4314528; 450095, 4314515; 450080, 4314502; 450073, 4314481; 450067, 4314432; 450059, 4314412; 450050, 4314395; 450011, 4314365; 449948, 4314325; 449863, 4314289; 449837, 4314281; 449782, 4314280; 449663, 4314313; 449646, 4314320; 449541, 4314406; 449491, 4314461; 449478, 4314469; 449428, 4314487; 449376, 4314501; 449346, 4314504; 449303, 4314491; 449277, 4314477; 449249, 4314454; 449233, 4314434; 449227, 4314420; 449201, 4314393; 449180, 4314383; 449152, 4314377; 449106, 4314376; 449037, 4314386; 448999, 4314396; 448972, 4314396; 448930, 4314388; 448909, 4314377; 448838, 4314329; 448811, 4314315; 448748, 4314292; 448666, 4314308; 448627, 4314328; 448552, 4314343; 448431, 4314264; 448417, 4314255; 448395, 4314250; 448353, 4314262; 448321, 4314276; 448291, 4314293; 448254, 4314321; 448212, 4314359; 448159, 4314397; 448145, 4314425; 448139, 4314447; 448128, 4314512; 448105, 4314550; 448064, 4314682; 448041, 4314742; 447981, 4314831; 447953, 4314863; 447825, 4314997; 447804, 4315012; 447718, 4315043; 447642, 4315058;

Page 19191

447566, 4315083; 447535, 4315087; 447484, 4315072; 447379, 4315047; 447350, 4315045; 447289, 4315057; 447205, 4315062; 447152, 4315058; 447121, 4315049; 447108, 4315023; 447105, 4314998; 447112, 4314819; 447127, 4314749; 447140, 4314719; 447195, 4314628; 447201, 4314597; 447229, 4314525; 447231, 4314491; 447228, 4314463; 447200, 4314378; 447188, 4314354; 447158, 4314262; 447143, 4314230; 447126, 4314210; 447092, 4314181; 447047, 4314063; 446999, 4313912; 446968, 4313845; 446955, 4313824; 446926, 4313793; 446911, 4313781; 446851, 4313747; 446820, 4313719; 446785, 4313679; 446763, 4313642; 446746, 4313591; 446742, 4313514; 446749, 4313495; 446822, 4313419; 446846, 4313381; 446885, 4313345; 446995, 4313304; 447044, 4313279; 447133, 4313254; 447175, 4313227; 447262, 4313158; 447301, 4313116; 447330, 4313072; 447351, 4313052; 447375, 4313021; 447395, 4312988; 447441, 4312938; 447455, 4312902; 447467, 4312842; 447500, 4312740; 447528, 4312683; 447555, 4312613; 447579, 4312526; 447582, 4312493; 447497, 4312491; 447347, 4312527; 447316, 4312531; 447190, 4312558; 447147, 4312559; 447108, 4312546; 447023, 4312509; 446997, 4312510; 446929, 4312528; 446904, 4312529; 446876, 4312524; 446810, 4312498; 446701, 4312427; 446698, 4312358; 446660, 4312227; 446637, 4312169; 446590, 4312099; 446554, 4312026; 446522, 4311999; 446501, 4311988; 446447, 4311974; 446426, 4311965; 446364, 4311921; 446346, 4311900; 446328, 4311873; 446299, 4311818; 446289, 4311794; 446284, 4311722; 446276, 4311691; 446259, 4311663; 446230, 4311626; 446206, 4311600; 446182, 4311580; 446070, 4311529; 446038, 4311519; 446019, 4311506; 446005, 4311485; 445993, 4311458; 445962, 4311356; 445891, 4311224; 445875, 4311201; 445788, 4311116; 445724, 4311029; 445670, 4310960; 445644, 4310929; 445615, 4310903; 445559, 4310863; 445536, 4310852; 445471, 4310833; 445416, 4310807; 445318, 4310702; 445267, 4310672; 445159, 4310668; 445095, 4310678; 444881, 4310647; 444754, 4310641; 444634, 4310655; 444565, 4310659; 444455, 4310546; 444408, 4310515; 444345, 4310483; 444326, 4310477; 444217, 4310454; 444184, 4310425; 444165, 4310357; 444141, 4310311; 444029, 4310153; 443992, 4310117; 443938, 4310087; 443912, 4310068; 443818, 4309984; 443738, 4309898; 443702, 4309851; 443687, 4309826; 443679, 4309807; 443673, 4309764; 443708, 4309721; 443758, 4309682; 443785, 4309656; 443835, 4309583; 443885, 4309537; 443970, 4309441; 443981, 4309425; 443988, 4309404; 443982, 4309360; 443936, 4309239; 443934, 4309212; 443938, 4309125; 443936, 4309057; 443932, 4309024; 443919, 4308998; 443900, 4308978; 443808, 4308942; 443755, 4308909; 443738, 4308891; 443791, 4308802; 443816, 4308751; 443825, 4308738; 443916, 4308619; 443971, 4308552; 444039, 4308477; 444132, 4308361; 444178, 4308279; 444204, 4308240; 444272, 4308156; 444318, 4308088; 444334, 4308060; 444392, 4307866; 444408, 4307829; 444424, 4307816; 444405, 4307816; 444353, 4307837; 444304, 4307845; 444194, 4307846; 444112, 4307837; 443989, 4307802; 443836, 4307774; 443680, 4307737; 443601, 4307714; 443377, 4307684; 443141, 4307612; 442935, 4307552; 442882, 4307540; 442745, 4307493; 442552, 4307470; 442237, 4307422; 442148, 4307413; 442128, 4307398; 442115, 4307395; 442054, 4307365; 442001, 4307333; 441881, 4307259; 441819, 4307207; 441776, 4307182; 441711, 4307152; 441681, 4307145; 441575, 4307166; 441454, 4307226; 441351, 4307281; 441248, 4307317; 441024, 4307329; 440921, 4307226; 440862, 4307213; 440795, 4307212; 440715, 4307218; 440624, 4307211; 440505, 4307186; 440472, 4307174; 440427, 4307149; 440402, 4307138; 440274, 4307148; 440225, 4307257; 440122, 4307360; 440020, 4307414; 439886, 4307499; 439886, 4307571; 439832, 4307686; 439778, 4307795; 439735, 4307898; 439729, 4308019; 439584, 4308086; 439505, 4308171; 439433, 4308285; 439342, 4308370; 439251, 4308467; 439221, 4308667; 439166, 4308818; 439100, 4308909; 439021, 4308957; 438888, 4309018; 438858, 4309151; 438803, 4309211; 438731, 4309339; 438652, 4309447; 438573, 4309526; 438519, 4309605; 438513, 4309641; 438410, 4309732; 438259, 4309792; 438095, 4309865; 437964, 4309936; 437946, 4309954; 437887, 4310001; 437815, 4310050; 437717, 4310138; 437707, 4310146; 437678, 4310234; 437593, 4310422; 437526, 4310621; 437526, 4310749; 437635, 4310785; 437738, 4310785; 437895, 4310664; 438041, 4310567; 438016, 4310385; 438022, 4310240; 438228, 4310016; 438585, 4309938; 438652, 4309956; 438670, 4310022; 438755, 4310022; 438918, 4310016; 439039, 4310016; 439136, 4310113; 439318, 4310107; 439469, 4310113; 439663, 4310143; 439796, 4310174; 439838, 4310204; 440032, 4310204; 440165, 4310392; 440141, 4310500; 440092, 4310628; 440056, 4310730; 440074, 4310779; 440135, 4310827; 440159, 4311027; 440159, 4311148; 440147, 4311227; 440147, 4311366; 440237, 4311505; 440244, 4311584; 440244, 4311663; 440244, 4311699; 440352, 4311892; 440449, 4312026; 440371, 4312134; 440262, 4312207; 440183, 4312213; 440116, 4312207; 440038, 4312231; 439989, 4312310; 439983, 4312419; 439947, 4312498; 439874, 4312582; 439911, 4312697; 439893, 4312812; 439808, 4312933; 439759, 4313012; 439741, 4313115; 439790, 4313121; 439941, 4313066; 440007, 4312982; 440086, 4312915; 440116, 4312818; 440092, 4312758; 440189, 4312721; 440135, 4312649; 440153, 4312576; 440213, 4312498; 440310, 4312552; 440486, 4312504; 440546, 4312479; 440588, 4312516; 440643, 4312534; 440667, 4312619; 440764, 4312740; 440915, 4312812; 441079, 4312818; 441218, 4312818; 441430, 4312861; 441648, 4312927; 441775, 4313042; 441884, 4313224; 441811, 4313399; 441660, 4313545; 441617, 4313660; 441424, 4313684; 441381, 4313847; 441321, 4313944; 441290, 4314029; 441363, 4314125; 441363, 4314222; 441369, 4314392; 441351, 4314440; 441212, 4314555; 441169, 4314628; 441157, 4314815; 441054, 4314973; 441054, 4315154; 440885, 4315336; 440824, 4315499; 440697, 4315548; 440316, 4315530; 440116, 4315536; 439941, 4315457; 439778, 4315427; 439566, 4315421; 439215, 4315481; 439172, 4315838; 439251, 4316068; 439318, 4316238; 439414, 4316365; 439729, 4316371; 439996, 4316491; 440050, 4316516; 440038, 4316698; 439959, 4316952; 439826, 4317127; 439820, 4317315; 439771, 4317424; 439838, 4317757; 439886, 4317968; 439953, 4318217; 439971, 4318374; 440056, 4318670; 440141, 4319015; 440143, 4319025; 440189, 4319251; 440231, 4319397; 440334, 4319403; 440425, 4319330; 440613, 4319421; 440734, 4319530; 440837, 4319627; 441054, 4319675; 441206, 4319711; 441418, 4319748; 441418, 4319917; 441611, 4319954; 441726, 4320144; 441626, 4320204; 441608, 4320409; 441605, 4320443; 441446, 4320538; 441421, 4320652; 441392, 4320784; 441453, 4321002; 441465, 4321230; 441649, 4321332; 441790, 4321409; 441972, 4321510; 442151, 4321497; 442234, 4321687; 442037, 4321827; 441843, 4321965; 441600, 4322137; 441466, 4322232; 441421, 4322386; 441355, 4322607; 441279, 4322863; 441395, 4323046; 441675, 4323230; 441859, 4323249; 442036, 4323268; 442207, 4323285; 442382, 4323304; 442488, 4323370; 442526, 4323453;

Page 19192

442556, 4323518; 442559, 4323524; 442685, 4323642; 442648, 4323741; 442649, 4323740; 442780, 4323626; 442806, 4323610; 442880, 4323597; 442930, 4323582; 442973, 4323563; 443023, 4323526; 443057, 4323470; 443078, 4323427; 443085, 4323374; 443085, 4323326; 443092, 4323280; 443116, 4323243; 443217, 4323205; 443281, 4323150; 443330, 4323082; 443380, 4323024; 443626, 4322826; returning to 443694, 4322801.

(ii) Note: Map of Unit MEN-1 for the California red-legged frog follows:

BILLING CODE 4310-55-P

GRAPHIC

TIFF OMITTED TP28AP09.006

Dated: April 12, 2009.

Will Shafroth,

Acting Assistant Secretary, Department of the Interior.

FR Doc. E9-9141 Filed 4-27-09; 8:45 am

BILLING CODE 4310-55-C