[Federal Register: June 6, 2006 (Volume 71, Number 108)]
[Proposed Rules]               
[Page 32496-32503]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jn06-18]                         

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU33

 
Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the Spikedace and Loach Minnow

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Revised proposed rule; reopening of public comment period, 
notice of availability of draft economic analysis and draft 
environmental assessment, notice of public hearings, and updated legal 
descriptions for critical habitat units.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
availability of the draft economic analysis and draft environmental 
assessment for the proposal to designate critical habitat for the 
spikedace (Meda fulgida) and loach minnow (Tiaroga cobitis) under the 
Endangered Species

[[Page 32497]]

Act of 1973, as amended (Act). The draft economic analysis finds that 
costs associated with spikedace and loachminnow conservation activities 
are forecast to range from $25.2 million to $100.3 million in constant 
dollars over the next 20 years. Adjusted for possible inflation the 
costs would range from $19.0 million to $83.6 million over 20 years, or 
$1.3 million to $5.7 million annually, using a three percent discount; 
or $13.9 million to $69.2 million over 20 years, or $1.4 million to 
$6.7 million over 20 years annually, using a seven percent discount 
rate.
    We are also reopening the public comment period for the proposal to 
designate critical habitat to allow all interested parties an 
opportunity to comment on and request changes to the proposed critical 
habitat designation, as well as the associated draft economic analysis 
and draft environmental assessment. In addition, we are proposing 
corrected legal descriptions for some of the critical habitat units. 
Comments previously submitted on the December 20, 2005, proposed rule 
need not be resubmitted as they have been incorporated into the public 
record and will be fully considered in preparation of the final rule. 
We will hold two public informational sessions and hearings (see DATES 
and ADDRESSES sections).

DATES: Comments must be submitted directly to the Service (see 
ADDRESSES) on or before July 6, 2006, or at the public hearings.
    We will hold a public informational session from 3 p.m. to 4:30 
p.m., followed by a public hearing from 6:30 p.m. to 8 p.m., on each of 
the following dates:
    1. June 13, 2006: Camp Verde, Arizona.
    2. June 20, 2006: Silver City, New Mexico.

ADDRESSES:

Information Sessions/Hearings

    The public informational sessions and hearings will be held at the 
following locations:
    1. Camp Verde, AZ: Cliff Castle Casino Hotel & Conference Center, 
Tri-City Room, 555 Middle Verde Road.
    2. Silver City, NM: Flame Convention Center, 2800 Pinos Altos Road.
    For information on requesting reasonable accommodations to attend a 
session, see ``Public Comments Solicited'' under SUPPLEMENTARY 
INFORMATION.

Comments

    If you wish to comment on the proposed rule, draft economic 
analysis, or draft environmental assessment, you may submit your 
comments and materials identified by RIN 1018-AU33, by any of the 
following methods:
    (1) E-mail: SD_LMComments@fws.gov. Include RIN 1018-AU33 in the 
subject line. Please submit electronic comments in ASCII file format 
and avoid the use of special characters or any form of encryption. 
Please also include your name and return address in the body of your 
message. If you do not receive a confirmation from the system that we 
have received your Internet message, contact us directly by calling our 
Arizona Ecological Services Field Office at (602) 242-0210.
    (2) Fax: (602) 242-2513.
    (3) Mail or hand delivery/courier: Steve Spangle, Field Supervisor, 
Arizona Ecological Services Field Office, 2321 W. Royal Palm Road, 
Suite 103, Phoenix, AZ 85021.
    (4) Federal eRulemaking Portal: http://www.regulations.gov. Follow 

the instructions for submitting comments.
    You may obtain copies of the proposed rule, draft economic 
analysis, and draft environmental assessment by mail or by visiting our 
Web site at http://arizonaes.fws.gov/. You may review comments and 

materials received and review supporting documentation used in 
preparation of this proposed rule by appointment, during normal 
business hours, at the Arizona Ecological Services Field Office (see 
ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, 
Arizona Ecological Services Field Office (telephone, 602-242-0210; 
facsimile, 602-242-2513).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning the proposed rule, the draft economic analysis, and 
the draft environmental assessment. Based on public comment on the 
proposed rule, the draft economic analysis, and the environmental 
assessment, as well as on the conclusions of the final economic 
analysis and environmental assessment, we may find during the 
development of our final determination that some areas proposed do not 
contain the features that are essential to the conservation of the 
species, are appropriate for exclusion under section 4(b)(2) of the 
Act, or are not appropriate for exclusion. We particularly seek 
comments concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Endangered Species 
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), including 
whether it is prudent to designate critical habitat;
    (2) Specific information on the distribution of the spikedace and 
loach minnow, the amount and distribution of the species' habitat, and 
which habitat contains the necessary features (primary constituent 
elements) essential to the conservation of these species and why;
    (3) Land-use designations and current or planned activities in the 
subject area and their possible impacts on these species or proposed 
critical habitat;
    (4) Whether our approach to critical habitat designation could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments;
    (5) Any foreseeable environmental impacts directly or indirectly 
resulting from the proposed designation of critical habitat;
    (6) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, and in particular, any 
impacts on small entities or families;
    (7) Whether the economic analysis identifies all State and local 
costs, and if not, what other costs should be included;
    (8) Whether the economic analysis makes appropriate assumptions 
regarding current practices and likely regulatory changes imposed as a 
result of the designation of critical habitat;
    (9) Whether the economic analysis correctly assesses the effect on 
regional costs associated with land- and water-use controls that derive 
from the designation;
    (10) Whether the critical habitat designation will result in 
disproportionate economic impacts to specific areas that should be 
evaluated for possible exclusion from the final designation;
    (11) Whether the economic analysis appropriately identifies all 
costs that could result from the designation or coextensively from the 
listing of these species in 1986;
    (12) Based on the information in the draft economic analysis, we 
are considering excluding the Verde River Unit based on 
disproportionate costs from the final designation per our discretion 
under section 4(b)(2) of the Act. We are specifically seeking

[[Page 32498]]

comment along with additional information on the estimated costs, how 
these estimated costs are distributed within the Verde River Unit, and 
whether we should exclude all or a portion of the Verde River Unit 
based on disproportionate costs from the final designation per our 
discretion under section 4(b)(2) of the Act; and
    (13) Whether the benefit of exclusion in any particular area 
outweigh the benefits of inclusion under Section 4(b)(2) of the Act.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. We will not consider anonymous comments and we will 
make all comments available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the Arizona 
Ecological Services Field Office (see ADDRESSES).
    All previous comments and information submitted during the initial 
comment period on the proposed rule need not be resubmitted. If you 
wish to comment, you may submit your comments and materials concerning 
this proposal by any one of several methods (see ADDRESSES). Our final 
designation of critical habitat for the spikedace and loach minnow will 
take into consideration all comments and any additional information 
received during both comment periods.
    Persons needing reasonable accommodations in order to attend and 
participate in a public hearing should contact the Field Supervisor, 
Arizona Ecological Services Field Office, at the address or phone 
number listed in the ADDRESSES and FOR FURTHER INFORMATION CONTACT 
sections as soon as possible. In order to allow sufficient time to 
process requests, please call no later than one week before the 
hearing. Information regarding this proposal is available in 
alternative formats upon request.

Background

    On December 20, 2005, we proposed to designate critical habitat for 
spikedace and loach minnow of approximately 633 stream miles (mi) 
(1018.7 stream kilometers (km)) of critical habitat, which includes 
various stream segments and their associated riparian areas, including 
the stream at bankfull width and a 300-foot buffer on either side of 
the stream banks (70 FR 75546). The proposed designation includes 
Federal, State, Tribal, and private lands in Arizona and New Mexico.
    Critical habitat identifies specific areas containing features 
essential to the conservation of a listed species and that may require 
special management considerations or protection. If the proposed 
critical habitat designation is finalized, section 7(a)(2) of the Act 
would require that Federal agencies ensure that actions they fund, 
authorize, or carry out are not likely to result in the destruction or 
adverse modification of critical habitat.
    Section 4 of the Act requires that we consider economic and other 
relevant impacts prior to making a final decision on what areas to 
designate as critical habitat. We may revise the proposal, or its 
supporting documents, to incorporate or address new information 
received during the comment period. 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 such exclusion will not result in the 
extinction of the species.
    The draft economic analysis considers and attempts to quantify the 
potential economic effects of efforts to protect the spikedace and 
loach minnow and their habitat, collectively referred to as ``spikedace 
and loach minnow conservation activities,'' in the proposed critical 
habitat designation, as well as the economic effects of protective 
measures taken as a result of the listing or other Federal, State, and 
local laws that aid habitat conservation in the areas proposed for 
designation. In the case of habitat conservation, these costs would 
reflect the costs associated with the commitment of resources to comply 
with habitat protection measures. The analysis also addresses how 
potential economic impacts are likely to be distributed.
    We did not propose Bear Creek, a tributary of the Gila River in New 
Mexico, as critical habitat because there had been no information to 
indicate this area was occupied by either species. However, we have 
since received information to indicate this area is occupied by loach 
minnow. Due to our tight timeframe for completion of the final rule and 
associated documents we are not able to consider inclusion of Bear 
Creek at this time. However, if the critical habitat designation is 
amended in the future we will consider inclusion of this area at that 
time.

Corrected Coordinates for Proposed Units of Critical Habitat

    Below we provide corrected legal descriptions for the spikedace and 
loach minnow proposed critical habitat designation. Following the 
publication of the proposed rule on December 20, 2005, and in part 
through comments we received during the subsequent comment period, we 
determined that some of the critical habitat units were incorrectly 
described. In particular, in Table 2, the column headings for Arizona 
and New Mexico were inadvertently switched. We have since corrected the 
descriptions and tables to accurately reflect what we are proposing as 
critical habitat, and we provide the corrected descriptions for all 
critical habitat units below. Table 1 below provides a corrected 
version of Table 2 from the December 20, 2005, proposed rule (70 FR 
75546) with approximate distances by major landowner type. Corrected 
Geographic Information System (GIS) layers are available at http://criticalhabitat.fws.gov/
.


                      Table 1.--Approximate Critical Habitat in Stream Kilometers and Miles
                                                 [7 River Units]
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                                                     New Mexico  km
                    Land owner                            (mi)         Arizona  km (mi)       Total  km (mi)
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Federal..........................................    167.71 (269.90)    197.99 (318.63)           365.7 (588.53)
Tribal...........................................          0.0 (0.0)      33.00 (53.11)            33.00 (53.11)
State............................................        1.32 (2.12)       8.32 (13.39)             9.64 (15.51)
County...........................................          0.0 (0.0)          0.0 (0.0)                0.0 (0.0)
Private..........................................     89.73 (144.40)    134.44 (216.36)          224.17 (360.76)
いいいいいいいいいいいいいいいいいいいいいいいいい
    Total........................................    258.75 (416.42)     373.75(601.49)         632.51 (1017.91)
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[[Page 32499]]

    No additional mileage was incorporated into the proposed 
designation through the corrections provided in Table 1. Mileage was 
reduced by approximately 0.51 mi (0.82 km) for Eagle Creek after 
correcting for a mapping error in the original proposal. Mileage was 
additionally modified for East Fork Black River and North Fork East 
Fork Black River due to a change in our determination of the confluence 
points of these two streams. Mileage that was previously attributed to 
North Fork East Fork Black River is now encompassed in the mileage for 
East Fork Black River. The overall mileage for these two streams 
remained the same. The majority of the changes correct errors in the 
Township, Range, and section descriptions provided for each proposed 
critical habitat unit.
    All legal descriptions for New Mexico and Arizona are based on the 
Public Lands Survey System (PLSS). Within this system, all coordinates 
reported for New Mexico are in the New Mexico Principal Meridian 
(NMPM), while those in Arizona are in the Gila and Salt River Meridian 
(GSRM). All mileage calculations were performed using GIS.

Required Determinations--Amended

    This revised proposed rule affirms the information contained in the 
December 20, 2005, proposed rule (70 FR 75546) concerning Executive 
Orders (EO) 13132 and EO 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). Based on the draft 
economic analysis, we are amending our required determinations, as 
provided below, concerning EO 12866 and the Regulatory Flexibility Act; 
EO 13211 and 12630; and the Unfunded Mandates Reform Act.

Regulatory Planning and Review

    In accordance with EO 12866, this document is a significant rule 
because it may raise novel legal and policy issues. However, based on 
our draft economic analysis, it is not anticipated that the proposed 
designation of critical habitat for the spikedace and loach minnow 
would result in an annual effect on the economy of $100 million or more 
or affect the economy in a material way. Due to the timeline for 
publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed the proposed rule or 
accompanying economic analysis.
    Further, EO 12866 directs Federal Agencies promulgating regulations 
to evaluate regulatory alternatives (OMB, Circular A-4, September 17, 
2003). Pursuant to Circular A-4, once it has been determined that the 
Federal regulatory action is appropriate, the agency will need to 
consider alternative regulatory approaches. Since the determination of 
critical habitat is a statutory requirement pursuant to the Act, we 
must then evaluate alternative regulatory approaches, where feasible, 
when promulgating a designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts under section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat, provided that the benefits of such 
exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.

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 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. Based upon our draft 
economic analysis of the proposed designation, we provide our factual 
basis for determining that this rule will not result in a significant 
economic impact on a substantial number of small entities. This 
determination is subject to revision based on comments received as part 
of the final rulemaking.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as 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 this proposed designation of critical habitat for 
the spikedace and loach minnow would affect a substantial number of 
small entities, we considered the number of small entities affected 
within particular types of economic activities (e.g., water management 
and use, livestock grazing, residential and related development, 
spikedace- and loach minnow-specific management activities, recreation 
activities, fire management activities, mining, and transportation). We 
considered each industry or category individually to determine if 
certification is appropriate. 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 and so will not be affected by 
the designation of critical habitat. Designation of critical habitat 
only affects activities conducted, funded, permitted, or authorized by 
Federal agencies; non-Federal activities are not affected by the 
designation.
    If this proposed critical habitat designation is made final, 
Federal agencies must consult with us 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.
    Our economic analysis of this proposed designation evaluated the 
potential economic effects on small business entities and small 
governments resulting from conservation actions related to the listing 
of this species and proposed designation of its critical habitat. We 
evaluated small business entities in nine categories: water management 
and use, livestock grazing activities, mining operations, spikedace

[[Page 32500]]

and loach minnow-specific management activities, recreation, 
residential and commercial development, Tribal activities, 
transportation activities, and fire management activities. Based on our 
analysis, impacts associated with small entities are anticipated to 
occur to water management and use, livestock grazing, residential and 
commercial development, Tribal businesses, transportation, and fire 
management. It should be noted that the majority of Tribal lands are 
under consideration for exclusion at this time. The following is a 
summary of the information contained in the draft economic analysis:

(a) Water Management and Use Related to Agricultural Production

    According to the draft economic analysis, spikedace and loach 
minnow conservation activities have not impacted private crop 
production since the listing of the species in 1986. However, because 
agricultural water use comprises 98 percent of surface water use and 81 
percent of groundwater use in counties that contain proposed critical 
habitat, it appears most likely that any additional water supplies 
needed for the species would potentially come from agriculture. The 
economic analysis estimates that only 810 acres of cropland are 
included within proposed critical habitat, and only 6,310 acres of 
cropland are in the vicinity of critical habitat. The average small 
farm includes 4,600 acres, and farms vary between 1,300 and 8,000 
acres. Based on the fact that at most 9,000 acres of cropland are 
involved, and small farms vary in size, we believe that there are not 
many farms located along the streams proposed for the designation. 
Additionally, under the assumption that all farms are small (1,884 
small business farming operations across five affected counties), there 
would be well less than one percent of small farm businesses impacted 
by this proposed designation. As a result of this information, we have 
determined that this proposed designation will not have an effect on a 
substantial number of small business farming operations.

(b) Livestock Grazing Activities

    Ranching operations that hold grazing allotment permits are 
anticipated to be impacted by conservation activities for the spikedace 
and loach minnow. The costs assumed to be incurred by livestock 
operations are primarily due to anticipated installation and 
maintenance of riparian fencing. The economic analysis concluded that 
approximately 76 ranches--or 4.7 percent of ranches in affected 
counties that contain proposed critical habitat, or 1 percent of 
ranches in New Mexico and Arizona--could be impacted by conservation 
activities. Annual costs to each of these 76 ranching operations may be 
between $390 and $9,200 per ranch. Average revenues of a ranch in the 
proposed critical habitat region are $133,000, or between 0.3 and 7 
percent of a ranch's estimated average revenue. Approximately 94 
percent of beef cattle ranching and farming operations in counties 
containing spikedace and loach minnow critical habitat are small 
businesses; thus approximately 72 small ranching operations may 
experience a reduction in revenues. Because only 1 percent of ranches 
in New Mexico and Arizona, or 4.7 percent of ranches, in affected 
counties are estimated to be impacted by this proposal, we have 
determined that this proposed designation will not have an effect on a 
substantial number of small business ranching operations. From this 
analysis, we also have determined that this proposed designation would 
also not result in a significant effect to the annual sales of these 
small businesses impacted by this proposed designation because the 
above analysis has determined that annual costs may represent between 
0.3 and 7 percent of a ranch's estimated average revenue.

(c) Residential and Commercial Development

    The draft economic analysis concludes that the most likely location 
for development activities within the proposed critical habitat 
designation is within the Verde River Complex, which contains a large 
amount of private land, has a large population, and is projected to 
have substantial human population growth over the next 20 years. No 
North American Industry Classification System (NAICS) code exists for 
landowners, and the Small Business Administration does not provide a 
definition of a small landowner. However, recognizing that it is 
possible that some of the landowners may be small businesses, this 
analysis provides information concerning the number of landowners 
potentially affected and the size of the impact on those owners. The 
draft economic analysis (section 7) estimates that 1,646 housing units 
could be built on the approximately 2,880 privately owned acres within 
proposed critical habitat over the next 20 years. Impacts to developers 
are estimated to include fencing costs, scientific studies, surveying 
and monitoring requirements, and possibly off-setting mitigation 
(habitat set-aside). Costs are estimated to range from $3.1 million to 
$4.8 million per large development, or $3,900 to $5,900 per housing 
unit ($190 to $300 annually, if costs are distributed evenly over 20 
years). Actual conservation requirements undertaken by an individual 
landowner will depend on how much of a parcel crosses proposed critical 
habitat. It is important to note that it is likely that some or all 
housing subdivisions may be developed by large corporations which do 
not qualify as small businesses under RFA/SBRFA. Furthermore, because 
there is no loss in housing units estimated, there would likely not be 
any impact to small businesses that are residential housing sub-
contractors. In addition, individual single-family home development has 
not historically been subject to consultation or habitat conservation 
requirements for the spikedace and loach minnow in Arizona or New 
Mexico, although consultation could be required if Federal permits from 
the Army Corps of Engineers, Environmental Protection Agency, or 
Federal Emergency Management Agency are required.
    Because individual single-family home development has not 
historically been subject to consultation or habitat conservation 
requirements as described above, the probability that single-family 
home development will involve many larger businesses, as opposed to 
small businesses, and because the impacts will not reduce the number of 
housing units, we have determined that this proposed designation will 
not have an effect on a substantial number of small businesses that are 
part of residential and commercial development. From this analysis, we 
also have determined that this proposed designation would also not 
result in a significant effect to the annual sales of these small 
businesses impacted by this proposed designation. This is because of 
the above analysis which has determined that each housing unit would 
bear at most a cost of $190 to $300 annually, if costs are distributed 
evenly over 20 years.

(d) Tribal Businesses

    The proposed critical habitat development includes lands of the 
Yavapai-Apache Nation (1.6 km (1 mi) of tributary proposed as critical 
habitat), San Carlos Apache Tribe (17.2 km (27.7 mi) of tributary 
proposed as critical habitat), and White Mountain Apache Tribe (12.5 km 
(20.1 mi) of tributary proposed as critical habitat). The Tribes have 
expressed concerns that critical habitat on their lands will have a 
disproportionate impact on their ability to use resources on their 
sovereign lands and to successfully achieve economic self-sufficiency. 
However, Tribal governments are not classified as small

[[Page 32501]]

businesses under RFA/SBRFA, whereas Tribal corporations may qualify as 
small businesses under RFA/SBRFA. The draft economic analysis concluded 
that future economic costs of implementing spikedace and loach minnow 
conservation efforts on Tribal lands could include administrative costs 
of consultation, surveys and monitoring, modifications to grazing, fire 
management, and recreation activities, and potential project 
modifications to grazing, fire management, and recreation activities, 
and potential project modifications to restoration activities. Impacts 
in each of these areas could affect the Tribes' revenues and employment 
in the future; however, many of these impacts may not fall on Tribal 
corporations, as opposed to the Tribal governments in question. It 
should be noted that the lands of both the White Mountain Apache Tribe 
and the San Carlos Apache Tribe are proposed for exclusion from the 
critical habitat designation in the proposed rule. Because both White 
Mountain Apache Tribe and the San Carlos Apache Tribe are proposed for 
exclusion from the critical habitat designation in the proposed rule 
and only 1.6 km (1 mi) of stream tributary is proposed as critical 
habitat on Yavapai-Apache Nation, we have determined this proposed 
designation will not have an effect on a substantial number of small 
businesses on Tribal lands.

(e) Recreation

    Areas currently stocked with non-native rainbow trout include the 
Camp Verde area of the Verde River in Complex 1 and East Fork Gila 
River in complex 5. The future impact of proposed critical habitat on 
the stocking regimes in these reaches is unknown, as is the reduction 
in fishing activity that would occur if stocking is curtailed. Further, 
it is unknown whether nonnative fish stocking may be replaced with 
catchable native fish stocking (e.g. Apache trout). Thus, the analysis 
in the economic analysis estimates the value of angler days at risk if 
sportfish stocking were discontinued on these reaches as part of the 
high-end estimates. Angling trips are valued at approximately $8.6 
million over 20 years (or $816,000 annually), assuming a discount rate 
of 7 percent. It should be noted that because State fish managers 
typically identify alternative sites for stocked fish when areas are 
closed to stocking, these angler days are likely to be redistributed to 
other areas rather than lost altogether. Thus, the high-end estimate 
does not consider the possibility that rather than not fishing at all, 
recreators will visit alternative, less desirable fishing sites. 
Existing models of angler behavior in these areas were not available to 
refine this estimate.
    The two stream reaches where impacts on recreation are anticipated 
are located in Yavapai County, Arizona, and Catron County, New Mexico. 
If, as in the low-end estimate of impacts, angler trips are not lost, 
but instead are redistributed to other streams, then regional impacts 
on small businesses are likely to be minimal. If, as in the high-end 
estimate of impacts, angler trips to the two stream reaches that 
currently stock nonnative fish are not undertaken, localized impacts on 
anglers and, in turn, small businesses that rely on fishing activities 
could occur. These impacts would be spread across a variety of 
industries, including food and beverage stores, food service and 
drinking places, accommodations, transportation, and sporting goods. 
These industries generate approximately $829 million in total annual 
sales for these two counties. The high-end estimate of annual loss of 
$485,000 in trip expenditures would therefore represent a loss of 
approximately 0.06 percent of annual revenues for these businesses.
    We have determined that this proposed designation will not have an 
effect on a substantial number of small businesses that may be impacted 
from lost recreation because these angler days are likely to be 
redistributed to other areas rather than lost altogether. From this 
analysis, we also have determined that this proposed designation would 
not result in a significant effect to the annual sales of these small 
businesses impacted by this proposed designation because any potential 
impact to small businesses from lost anglers not fishing in an area is 
likely to be redistributed to other areas and, if they are not 
redistributed, then they would represent a loss of approximately 0.06 
percent of annual revenues for these businesses.

E.O. 13211

    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. This proposed rule is considered a 
significant regulatory action under E.O. 12866 due to its potentially 
raising novel legal and policy issues, but it is not expected to 
significantly affect energy supplies, distribution, or use. Appendix B 
of the draft economic analysis provides a discussion and analysis of 
this determination. The OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared without the regulatory 
action under consideration. The draft economic analysis finds that none 
of these criteria are relevant to this analysis; thus, energy-related 
impacts associated with spikedace and loach minnow conservation 
activities within proposed critical habitat are not expected.

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 
the following two exceptions: It excludes ``a condition of federal 
assistance'' and ``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. At the 
time of enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``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.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or

[[Page 32502]]

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 that 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) The draft economic analysis discusses potential impacts of 
critical habitat designation for the spikedace and loach minnow on 
water management activities, livestock grazing, Tribes, residential and 
commercial development activities, recreation activities, fire 
management activities, mining, and transportation activities. The 
analysis estimates that annual costs of the rule could range from $25.2 
million to $100.3 million in constant dollars over 20 years. Impacts 
are largely anticipated to affect water operators and Federal and State 
agencies, with some effects on livestock grazing operations, 
residential and commercial development, and transportation. Impacts on 
small governments are not anticipated, or they are anticipated to be 
passed through to consumers. For example, costs to water operations 
would be expected to be passed on to consumers in the form of price 
changes. Consequently, for the reasons discussed above, we do not 
believe that the designation of critical habitat for the spikedace and 
loach minnow will significantly or uniquely affect small government 
entities. As such, a Small Government Agency Plan is not required.

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 spikedace and loach minnow in a 
takings implications assessment. The takings implications assessment 
concludes that this proposed designation of critical habitat for the 
spikedace and loach minnow does not pose significant takings 
implications.

List of Subjects in 50 CFR Part 17

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

Proposed Rule Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

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. Critical habitat for the loach minnow (Tiaroga cobitis) and 
spikedace (Meda fulgida) in Sec.  17.95(e), which was proposed on 
December 20, 2005, at 70 FR 75546, is proposed to be amended by 
revising some of the critical habitat unit descriptions as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Loach minnow (Tiaroga cobitis)
    1. Critical habitat for the loach minnow in Arizona and New Mexico 
is described in detail as follows.
* * * * *
    (6) Complex 2--Black River, Apache and Greenlee Counties, Arizona.
    (i) East Fork Black River--12.2 miles (19.7 km) of the river 
extending from the confluence with the West Fork Black River at 
Township 4 North, Range 28 East, section 11 upstream to the confluence 
with an unnamed tributary approximately 0.51 miles (0.82 km) downstream 
of the Boneyard Creek confluence at Township 5 North, Range 29 East, 
section 5. Land ownership: U.S. Forest Service (Apache-Sitgreaves 
National Forest).
    (ii) North Fork East Fork Black River--4.4 miles (7.1 km) of river 
extending from the confluence with East Fork Black River and an unnamed 
drainage at Township 5, Range 29, section 5 upstream to the confluence 
with an unnamed tributary at Township 6 North, Range 29 East, section 
30. Land ownership: U.S. Forest Service (Apache-Sitgreaves National 
Forest).
    (iii) Boneyard Creek--no changes from proposed rule at this time.
* * * * *
    (7) Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek, Pinal 
and Graham counties, Arizona.
    (i) Aravaipa Creek--no changes from the proposed rule at this time.
    (ii) Turkey Creek--2.7 miles (4.3 km) of creek extending from the 
confluence with Aravaipa Creek at Township 6 South, Range 19 East, 
section 19 upstream to the confluence with Oak Grove Canyon at Township 
6 South, Range 19 East, section 32. Land ownership: Bureau of Land 
Management.
    (iii) Deer Creek--no changes from the proposed rule at this time.
* * * * *
    (8) Complex 4--San Francisco and Blue Rivers, Pinal and Graham 
counties, Arizona and Catron County, New Mexico.
    (i) Eagle Creek--44.7 miles (71.9 km) of creek extending from the 
Phelps-Dodge Diversion Dam at Township 4 South, Range 28 East, section 
23 upstream to the confluence of Dry Prong and East Eagle creeks at 
Township 2 North, Range 28 East, section 29. Land ownership: U.S. 
Forest Service (Apache-Sitgreaves National Forest), Tribal (San Carlos) 
lands, and private.
    (ii) San Francisco River--126.5 miles (203.5 km) of river extending 
from the confluence with the Gila River at Township 5 South, Range 29 
East, section 21 upstream to the mouth of the Box, a canyon above the 
town of Reserve, at Township 6 South, Range 19 West, section 2. Land 
ownership: Bureau of Land Management, U.S. Forest Service (Apache-
Sitgreaves National Forest), State, and private in Arizona, and U.S. 
Forest Service (Gila National Forest) and private in New Mexico.
    (iii) Tularosa River--no changes from the proposed rule at this 
time.
    (iv) Negrito Creek--4.2 miles (6.8 km) of creek extending from the 
confluence with the Tularosa River at Township 7 South, Range 18 West, 
section 19 upstream to the confluence with Cerco Canyon at Township 7 
South, Range 18 West, section 21. Land ownership: U.S. Forest Service 
(Gila National Forest), and private lands.
    (v) Whitewater Creek--no changes from the proposed rule at this 
time.
    (vi) Blue River--51.1 miles (82.2 km) of river extending from the 
confluence with the San Francisco River at Township 2 South, Range 31 
East, section 31 upstream to the confluence of Campbell Blue and Dry 
Blue Creeks at Township 7 South, Range 21 West, section 6. Land 
ownership: U.S. Forest Service (Apache-Sitgreaves National Forest) and 
private lands in Arizona;

[[Page 32503]]

U.S. Forest Service (Gila National Forest) in New Mexico.
    (vii) Campbell Blue Creek--no changes from the proposed rule at 
this time.
    (viii) Dry Blue Creek--3.0 miles (4.8 km) of creek extending from 
the confluence with Campbell Blue Creek at Township 7 South, Range 21 
West, section 6 upstream to the confluence with Pace Creek at Township 
6 South, Range 21 West, section 28. Land ownership: U.S. Forest Service 
(Gila National Forest).
    (ix) Pace Creek--no changes from the proposed rule at this time.
    (x) Frieborn Creek--1.1 miles (1.8 km) of creek extending from the 
confluence with Dry Blue Creek at Township 7 South, Range 21 West, 
section 6 upstream to an unnamed tributary at Township 7 South, Range 
21 West, section 8. Land ownership: U.S. Forest Service (Gila National 
Forest).
    (xi) Little Blue Creek--no changes from the proposed rule at this 
time.
* * * * *
    (9) Complex 5--Upper Gila River Complex, Catron, Grant, and Hidalgo 
counties, New Mexico.
    (i) Upper Gila River--no changes from the proposed rule at this 
time.
    (ii) East Fork Gila River--26.1 miles (42.0 km) of river extending 
from the confluence with the West Fork Gila River at Township 13 South, 
Range 13 West, section 8 upstream to the confluence of Beaver and 
Taylor Creeks at Township 11 South, Range 12 West, section 17. Land 
ownership: U.S. Forest Service (Gila National Forest) and private 
lands.
    (iii) Middle Fork Gila River--no changes from the proposed rule at 
this time.
    (iv) West Fork Gila River--no changes from the proposed rule at 
this time.
* * * * *
Spikedace (Meda fulgida)
    1. Critical habitat for the spikedace in Arizona and New Mexico is 
depicted on the following overview map and described in detail 
following the map.
* * * * *
    (6) Complex 1--Verde River, Yavapai County, Arizona.
    (i) Verde River--106.5 miles (171.4 km) of river extending from the 
confluence with Fossil Creek at Township 11 North, Range 6 East, 
section 25 upstream 106.5 (171.4 km) miles to Sullivan Dam at Township 
17 North, Range 2 West, section 15. Land ownership: U.S. Forest Service 
(Coconino, Prescott, and Tonto National Forests), Tribal (Yavapai 
Apache Nation), State, and private lands.
* * * * *
    (7) Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek, Pinal 
and Graham counties, Arizona.
    (i) Gila River--no changes from the proposed rule at this time.
    (ii) Lower San Pedro River--no changes from the proposed rule at 
this time.
    (iii) Aravaipa Creek--28.1 miles (45.3 km) of creek extending from 
the confluence with the San Pedro River at Township 7 South, Range 16 
East, section 9 upstream to the confluence with Stowe Gulch at Township 
6 South, Range 19 East, section 35. Land ownership: Bureau of Land 
Management, Tribal, State, and private lands.
* * * * *
    (8) Complex 4--San Francisco and Blue Rivers, Pinal and Graham 
counties, Arizona.
    (i) Eagle Creek--44.7 miles (71.9 km) of creek extending from the 
Phelps-Dodge Diversion Dam at Township 4 South, Range 28 East, section 
23 upstream to the confluence of Dry Prong and East Eagle Creeks at 
Township 2 North, Range 28 East, section 29. Land ownership: Bureau of 
Land Management, U.S. Forest Service (Apache-Sitgreaves National 
Forest), Tribal (San Carlos), and private lands.
* * * * *
    (9) Complex 5--Upper Gila River Complex, Catron, Grant, and Hidalgo 
counties, New Mexico.
    (i) Upper Gila River--no changes from the proposed rule at this 
time.
    (ii) East Fork Gila River--26.1 miles (42.0 km) of river extending 
from the confluence with the West Fork Gila River at Township 13 South, 
Range 13 West, section 8 upstream to the confluence of Beaver and 
Taylor creeks at Township 11 South, Range 12 West, section 17. Land 
ownership: U.S. Forest Service (Gila National Forest) and private 
lands.
    (iii) Middle Fork Gila River--7.7 miles (12.3 km) of river 
extending from the confluence with the West Fork Gila River at Township 
12 South, Range 14 West, section 25 upstream to the confluence with Big 
Bear Canyon at Township 12 South, Range 14 West, section 2. Land 
ownership: U.S. Forest Service (Gila National Forest) and private 
lands.
    (iv) West Fork Gila River--no changes from the proposed rule at 
this time.
* * * * *

Authority

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

    Dated: May 25, 2006.
 Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-8645 Filed 6-5-06; 8:45 am]

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