Federal Register, Volume 75, Number 7, January 12, 2010, Pages 1525-1696 Page: 1,573

                                
Federal Register/Vol. 75, No. 7/Tuesday, January 12, 2010/Proposed Rules

preparation such as leveling of land,
filling of wetlands, and excavation, in
addition to building construction.
Therefore, land subdivision, which
includes excavating land and preparing
it for future residential, commercial, and
industrial construction, is identified as
the most-applicable industry to capture
local private developers that may bear
incremental administrative costs due to
the designation of critical habitat.
Absent information on the specific
third parties that may be involved in
future development consultations, the
DEA conservatively assumes that all of
the entities involved in future
consultation efforts are small land
subdivision companies. Expected
annual impacts to the land subdivision
industry ($1,050 under the low-impact
scenario and $6,140 under the high-
impact scenario) are significantly less
than the maximum annual revenues that
could be generated by a single small
land subdivision entity ($7.0 million).
Annual revenues of small development
companies within the study area are
expected to be roughly $910,000. While
95 land subdivision companies operate
within the counties containing proposed
critical habitat, the number of these that
may be involved in development
projects subject to consultation for
Limnanthes floccosa ssp. grandiflora
and Lomatium cookii is unknown. The
estimated annualized impact may be
borne by one company or distributed
across many. If all impacts were borne
by a single small development
company, the estimated annualized
impact would represent less than 1
percent of total annual revenues under
both the low-and high-impact scenarios
(assuming average annual revenues for a
small development company of
$910,000).
In summary, we have considered
whether the proposed critical habitat
designation would result in a significant
economic impact on a substantial
number of small entities. As the only
anticipated incremental cost of the
designation are administrative costs
associated with section 7 consultations,
the vast majority of incremental costs
associated with the proposed
designation will be borne by Federal
agencies. The only incremental costs
identified for small entities are potential
costs associated with development
activities. Based on the DEA, even if all
incremental costs associated with
development activities were to be borne
by a single development company,
which we consider unlikely, the
estimated annualized impact would be
less than 1 percent of total annual
revenues under both the low-and high-

impact scenarios considered in the DEA.

For these reasons, we certify that, if
promulgated, the proposed designation
of critical habitat for Limnanthes
floccosa ssp. grandiflora and Lomatium
cookii 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
Executive Order 13211 requires
agencies to prepare Statements of
Energy Effects when undertaking certain
actions that may affect the supply,
distribution, and use of energy. 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.2, the DEA finds none of
these criteria are relevant to this
analysis. The DEA concludes that
energy-related impacts associated with
conservation actions within the
potential critical habitat are not
expected. All forecast impacts are
expected to occur associated with the
listing of Limnanthes floccosa ssp.
grandiflora and Lomatium cookii,
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). 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 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.
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 consult with the Service to 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 section of
the proposed designation of critical
habitat for Limnanthes floccosa ssp.
grandiflora and Lomatium cookii, 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 any
incremental impacts are limited to the
administrative costs of section 7
consultations; however, these are not
expected to affect small governments.
Consequently, a critical habitat
designation would not 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

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