Federal Register / Vol. 71, No. 130 / Friday, July 7, 2006 / Proposed Rules 38593

Carson Agnew, Executive Vice President, DEPARTMENT OF THE INTERIOR the ‘‘Public Comments Solicited’’ Mobile Satellite Ventures, LP section. Michael R. Anderson, Chairman, PART– Fish and Wildlife Service 5. Federal eRulemaking Portal: 15.ORG http://www.regulations.gov. Follow the Robert G. (Gil) Bailey, ENP, 50 CFR Part 17 instructions for submitting comments. Telecommunications Manager, Harrison RIN 1018–AU50 FOR FURTHER INFORMATION CONTACT: Jim County, MS Emergency Communications Bartel, Field Supervisor, Carlsbad Fish Commission Endangered and Threatened Wildlife and Wildlife Office, at the address listed Kevin Beary, Sheriff, Orange County, FL and Plants; Proposed Designation of in ADDRESSES (telephone, 760/431– Greg Bicket, Vice President/Regional Critical Habitat for the Laguna 9440; facsimile, 760/431–9624.) Manager, Cox Communications Mountains Skipper (Pyrgus ruralis Lt. Colonel Joseph Booth, Deputy SUPPLEMENTARY INFORMATION: lagunae) Superintendent, Louisiana State Police Public Comments Solicited Steve Davis, Senior Vice President— AGENCY: Fish and Wildlife Service, We will accept written comments and Engineering, Clear Channel Radio Interior. Robert G. Dawson, President & CEO, information during this reopened ACTION: Proposed rule; reopening of SouthernLINC Wireless comment period. We solicit comments public comment period and notice of Stephen A. Dean, Fire Chief, City of Mobile, on the original proposed critical habitat availability of draft economic analysis. AL designation, published in the Federal Register on December 13, 2005 (70 FR Steve Delahousey, Vice President— SUMMARY: We, the U.S. Fish and 73699), and on our draft economic Operations, American Medical Response Wildlife Service (Service), announce the analysis of the proposed designation. Dave Flessas, Vice President—Network reopening of the public comment period We will consider information and Operations, Sprint Nextel Corp. on the proposed designation of critical recommendations from all interested Martin D. Hadfield, Vice President— habitat for the Laguna Mountains parties. We particularly seek comments Engineering, Entercom Communications skipper (Pyrgus ruralis lagunae) and the Corp. concerning: availability of a draft economic analysis (1) The reasons any habitat should or Jim O. Jacot, Vice President, Cingular of the proposed designation of critical Network Group should not be determined to be critical habitat. The draft economic analysis habitat, as provided by section 4 of the Tony Kent, Vice President—Engineering & estimates the potential total future Network Operations, Cellular South Endangered Species Act of 1973, as impacts to range from $6.5 million to Kelly Kirwan, Vice President—State and amended (Act) (16 U.S.C. 1531 et seq.), $8.9 million (undiscounted) over 20 Local Government and Commercial including whether it is prudent to years. Discounted future costs are Markets Division, The Americas Group, designate critical habitat and whether estimated to be $3.7 million to $5.1 Government, Enterprise, and Mobility the benefit of designation will outweigh million over this same time period Solutions, Motorola Communications any threats to the species due to ($351,000 to $480,000 annually) using a and Electronics, Inc. designation; Jonathan D. Linkous, Executive Director, real rate of 7 percent, or $5.0 million to (2) Specific information on: the American Telemedicine Association $6.9 million ($337,000 to $461,000 amount and distribution of Laguna Adora Obi Nweze, Director, Hurricane Relief annually) using a real rate of 3 percent. Mountains skipper habitat; which areas Efforts, NAACP; President, Florida State We are reopening the comment period should be included in the designation Conference, NAACP; Member, National to allow all interested parties an that were occupied at the time of listing Board of Directors, NAACP opportunity to comment simultaneously and contain the physical and biological Eduardo Pen˜ a, Board Member, League of on the proposed rule and the associated features that are essential to the United Latin American Citizens draft economic analysis. Comments conservation of the species and why; Billy Pitts, President of Government Affairs, previously submitted on the proposed and which areas not occupied at the The NTI Group rule need not be resubmitted as they time of listing are essential to the Major Michael Sauter, Commander, Office of have already been incorporated into the conservation of the species and why; Technology and Communications, New public record and will be fully (3) Land use designations and current Orleans Police Department considered in our final determination. or planned activities in the subject areas Marion Scott, Vice President—Operations, DATES: We will accept public comments and their possible impacts on proposed CenturyTel and information until August 7, 2006. critical habitat; Kay Sears, Senior Vice President of Sales and ADDRESSES: Written comments and (4) Any foreseeable economic, Marketing, G2 Satellite Solutions, materials may be submitted to us by any national security, or other potential PanAmSat Corporation one of the following methods: impacts resulting from the proposed Edmund M. ‘‘Ted’’ Sexton, Sr., President, 1. You may submit written comments designation and, in particular, any National Sheriffs Association and information to Jim Bartel, Field impacts on small entities; Edwin D. Smith, Chief, Baton Rouge Fire Supervisor, Carlsbad Fish and Wildlife (5) Whether the draft economic Department Office, 6010 Hidden Valley Road, analysis identifies all State and local William L. Smith, Chief Technology Officer, Carlsbad, CA 92011; costs, and, if not, what other costs BellSouth Corporation 2. You may hand-deliver written should be included; Patrick Yoes, President, Louisiana Fraternal comments and information to our (6) Whether the draft economic Order of Police, National Secretary, Carlsbad Fish and Wildlife Office at the analysis makes appropriate assumptions Fraternal Order of Police above address; regarding current practices and likely [FR Doc. 06–6013 Filed 7–6–06; 8:45 am] 3. You may fax your comments to regulatory changes imposed as a result BILLING CODE 6712–01–P 760/431–9624. of the listing of the species or the 4. You may send your comments by designation of critical habitat; electronic mail (e-mail) to (7) Whether the economic analysis [email protected]. For directions correctly assesses the effect on regional on how to submit e-mail comments, see costs associated with land- and water

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use controls that derive from the Our practice is to make comments, available, after taking into consideration designation; including names and home addresses of the economic impact, impact to national (8) Whether the designation will respondents, available for public review security, and any other relevant impacts result in disproportionate economic during regular business hours. We will of specifying any particular area as impacts to specific areas that should be not consider anonymous comments and critical habitat. We have prepared a evaluated for possible exclusion from we will make all comments available for draft economic analysis of the December any final designation; public inspection in their entirety. 13, 2005 (70 FR 73699), proposed (9) Whether the economic analysis Comments and materials received, as designation of critical habitat for the appropriately identifies all costs and well as supporting documentation used Laguna Mountains skipper. benefits that could result from the in preparation of the proposal to The draft economic analysis considers critical habitat designation; designate critical habitat, will be the potential economic effects of actions (10) Whether there is information available for public inspection, by relating to the conservation of the about areas that could be used as appointment, during normal business Laguna Mountains skipper, including substitutes for the economic activities hours at the Carlsbad Fish and Wildlife costs associated with sections 4, 7, and planned in critical habitat areas that Office at the address listed under 10 of the Act, and including those would offset the costs and allow for the ADDRESSES. Copies of the proposed attributable to designating critical conservation of critical habitat areas; critical habitat rule for the Laguna habitat. It further considers the and Mountains skipper and the draft economic effects of protective measures (11) Whether our approach to economic analysis are also available on taken as a result of other Federal, State, designating critical habitat could be the Internet at http://www.fws.gov/ and local laws that aid habitat improved or modified in any way to carlsbad. In the event that our Internet conservation for the Laguna Mountains provide for greater public participation connection is not functional, please skipper in areas containing features and understanding, or to assist us in obtain copies of documents directly essential to the conservation of this accommodating public concerns and from the Carlsbad Fish and Wildlife species. The analysis considers both economic efficiency and distributional comments. Office. effects. In the case of habitat All previous comments and Background conservation, efficiency effects generally information submitted during the initial On December 13, 2005, we published reflect the ‘‘opportunity costs’’ comment period on the proposed rule a proposed rule in the Federal Register associated with the commitment of need not be resubmitted. If you wish to (70 FR 73699) to designate critical resources to comply with habitat comment, you may submit your habitat for the Laguna Mountains protection measures (e.g., lost economic comments and materials concerning the skipper. We proposed to designate opportunities associated with draft economic analysis and the approximately 6,662 acres (ac) (2,696 restrictions on land use). proposed rule by any one of several hectares (ha)) of critical habitat in two This analysis also addresses how methods (see ADDRESSES section). Our units on Laguna and Palomar Mountains potential economic impacts are likely to final determination concerning in San Diego County, California. For be distributed, including an assessment designation of critical habitat for the more information on the Laguna of any local or regional impacts of Laguna Mountains skipper will take into Mountains skipper, refer to the final habitat conservation and the potential consideration all comments and any rule listing the species as endangered, effects of conservation activities on additional information received during published in the Federal Register on small entities and the energy industry. both comment periods. On the basis of January 16, 1997 (62 FR 2313). This information can be used by public comment on the critical habitat Critical habitat is defined in section 3 decision-makers to assess whether the proposal, the draft economic analysis, of the Act as the specific areas within effects of the designation might unduly and the final economic analysis, we may the geographic area occupied by a burden a particular group or economic during the development of our final species, at the time it is listed in sector. Finally, this analysis looks determination find that areas proposed accordance with the Act, on which are retrospectively at costs that have been are not essential or are appropriate for found those physical or biological incurred since the date the species was exclusion under section 4(b)(2) of the features essential to the conservation of listed as an endangered species and Act, or are not appropriate for the species and that may require special considers those costs that may occur in exclusion. management considerations or the 20 years following the designation of If you wish to submit comments protection, and specific areas outside critical habitat. electronically, please submit them in an the geographic area occupied by a Laguna Mountains skipper ASCII file and avoid the use of any species at the time it is listed, upon a conservation activities are likely to special characters or any form of determination that such areas are primarily impact recreational camping encryption. Also, please include ‘‘Attn: essential for the conservation of the and utility maintenance activities. The Laguna Mountains skipper’’ and your species. If the proposed rule is made draft economic analysis estimates the name and return address in your e-mail final, section 7 of the Act will prohibit potential total future impacts to range message. If you do not receive a destruction or adverse modification of from $6.5 million to $8.9 million confirmation from the system that we critical habitat by any activity funded, (undiscounted) over 20 years. have received your e-mail message, authorized, or carried out by any Discounted future costs are estimated to please contact the person listed under Federal agency. Federal agencies be $3.7 million to $5.1 million over this FOR FURTHER INFORMATION CONTACT or proposing actions affecting areas same time period ($351,000 to $480,000 submit your comments in writing using designated as critical habitat must annually) using a real rate of 7 percent, one of the alternate methods listed in consult with us on the effects of their or $5.0 million to $6.9 million ($337,000 the ADDRESSES section. Please note that proposed actions, pursuant to section to $461,000 annually) using a real rate the Internet address 7(a)(2) of the Act. of 3 percent. Differences in the low and [email protected] will be closed Section 4(b)(2) of the Act requires that high impact estimates result primarily at the termination of the public we designate or revise critical habitat on from uncertainty regarding the potential comment period. the basis of the best scientific data impacts to utility companies conducting

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maintenance activities and making particular area from the designation of small business firm’s business repairs in proposed critical habitat. The critical habitat providing that the operations. low-end estimate of costs assumes benefits of such exclusion outweigh the To determine if the proposed grazing on private lands is not affected benefits of specifying the area as critical designation of critical habitat for the and biologists’ time on site during habitat and that such exclusion would Laguna Mountains skipper would affect utility repairs and maintenance is not result in the extinction of the a substantial number of small entities, limited to one day per project. Costs species. As such, we believe that the we considered the number of small under this estimate are dominated (88 evaluation of the inclusion or exclusion entities affected within particular types percent) by welfare losses to campers in of particular areas, or combination of economic activities (e.g., hiking, Subunits 1A and 1C. The high-end thereof, in a designation constitutes our residential development). We estimate of costs assumes grazing regulatory alternative analysis. considered each industry or category activities on private lands in proposed individually to determine if certification Regulatory Flexibility Act (5 U.S.C. 601 critical habitat will be restricted and is appropriate. In estimating the et seq.) that utility projects will last longer than numbers of small entities potentially a single day. Costs under this estimate Under the Regulatory Flexibility Act affected, we also considered whether are dominated by lost camping (5 U.S.C. 601 et seq., as amended by the their activities have any Federal opportunities (64 percent) and to a Small Business Regulatory Enforcement involvement; some kinds of activities lesser extent costs to utilities (22 Fairness Act (SBREFA) of 1996), are unlikely to have any Federal percent). In the low-end estimate, 95 whenever an agency is required to involvement and so will not be affected percent of the costs are associated with publish a notice of rulemaking for any by the designation of critical habitat. Subunits 1A and 1C. In the high-end proposed or final rule, it must prepare Designation of critical habitat only estimate, Subunits 1A and 1C again and make available for public comment affects activities conducted, funded, dominate total costs, accounting for 83 a regulatory flexibility analysis that permitted, or authorized by Federal percent of total estimated impacts. describes the effects of the rule on small agencies; non-Federal activities are not entities (e.g., small businesses, small affected by the designation. Required Determinations—Amended organizations, and small government If this proposed critical habitat designation is made final, Federal Regulatory Planning and Review jurisdictions). However, no regulatory agencies must consult with us if their flexibility analysis is required if the In accordance with Executive Order activities may affect designated critical head of the agency certifies the rule will 12866, this document is a significant habitat. Consultations to avoid the not have a significant economic impact rule in that it may raise novel legal and destruction or adverse modification of on a substantial number of small policy issues. However, because the critical habitat would be incorporated entities. In our proposed rule, we draft economic analysis indicates the into the existing consultation process. potential economic impact associated withheld our determination of whether Our draft economic analysis with a designation of all habitat with this designation would result in a determined that costs involving features essential to the conservation of significant effect as defined under conservation measures for the Laguna this species would total no more than SBREFA until we completed our draft Mountains skipper would be incurred $480,000 annually, applying a 7 percent economic analysis of the proposed for activities involving (1) Grazing discount rate, we do not anticipate that designation so that we would have the activities, (2) recreational camping this final rule will have an annual effect factual basis for our determination. activities, (3) recreational hiking on the economy of $100 million or more According to the Small Business activities, (4) utility activities, (5) rural or affect the economy in a material way. Administration (SBA), small entities development, (6) other activities on Due to the time line for publication in include small organizations, such as Federal lands, and (7) Laguna the Federal Register, the Office of independent nonprofit organizations, Mountains skipper management Management and Budget (OMB) did not and small governmental jurisdictions, activities on State lands. Of these seven formally review the proposed rule. including school boards and city and categories, impacts of skipper Further, Executive Order 12866 town governments that serve fewer than conservation are not anticipated to directs Federal Agencies promulgating 50,000 residents, as well as small affect small entities in five of these regulations to evaluate regulatory businesses (13 CFR 121.201). Small categories: hiking, utilities, rural alternatives (Office of Management and businesses include manufacturing and development, other activities on Federal Budget, Circular A–4, September 17, mining concerns with fewer than 500 lands, and management activities on 2003). Pursuant to Circular A–4, once it employees, wholesale trade entities State lands. Residential development is has been determined that the Federal with fewer than 100 employees, retail unlikely to be impacted by skipper regulatory action is appropriate, the and service businesses with less than $5 conservation activities (see Chapter 6 of agency will need to consider alternative million in annual sales, general and draft economic analysis). Since neither regulatory approaches. Since the heavy construction businesses with less Federal nor State governments are determination of critical habitat is a than $27.5 million in annual business, defined as small entities by the Small statutory requirement pursuant to the special trade contractors doing less than Business Administration (SBA), the Act, we must then evaluate alternative $11.5 million in annual business, and economic impacts borne by the United regulatory approaches, where feasible, agricultural businesses with annual States Forest Service (USFS) and the when promulgating a designation of sales less than $750,000. To determine California Department of Fish and Game critical habitat. if potential economic impacts to these (CDFG) resulting from implementation In developing our designations of small entities are significant, we of skipper conservation activities or critical habitat, we consider economic considered the types of activities that modifications to activities on Federal impacts, impacts to national security, might trigger regulatory impacts under lands are not relevant to this analysis and other relevant impacts pursuant to this designation as well as types of (for further discussion see Chapters 5, 6, section 4(b)(2) of the Act. Based on the project modifications that may result. In 7, and 8 of draft economic analysis). discretion allowable under this general, the term significant economic Likewise, neither of the major utility provision, we may exclude any impact is meant to apply to a typical companies involved (SDG&E and AT&T)

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would fit the SBA definition of small areas, local establishments providing proposed designation of critical habitat entities. Accordingly, the small business services to campers may be indirectly would not result in a significant analysis focuses on economic impacts to affected by Laguna Mountains skipper economic impact on a substantial grazing and recreational camping conservation activities. Decreased number of small entities. Please refer to activities. visitation may reduce the amount of Appendix A of our draft economic The proposed designation includes money spent in the region across a analysis of the proposed designation for areas of USFS and private lands that are variety of industries, including food and a more detailed discussion of potential used for livestock grazing. On some beverage stores, food service and economic impacts to small business Federal allotments that contain Laguna drinking places, accommodations, entities. Mountains skipper habitat, meadow transportation and rental services. areas have been excluded from grazing, The draft economic analysis uses Executive Order 13211 thus reducing the carrying capacity, or regional economic modeling—in On May 18, 2001, the President issued permitted Animal Unit Months (AUMs), particular a software package called Executive Order (E.O.) 13211 on on those allotments. Historically, IMPLAN—to estimate the total regulations that significantly affect returns to cattle operations have been economic effects of the reduction in energy supply, distribution, and use. low throughout the West. In recent economic activity in camping-related E.O. 13211 requires agencies to prepare years, these returns have been lower due industries in the one county (San Diego Statements of Energy Effects when to the recent wildfires and droughts in County) associated with Laguna undertaking certain actions. This California. As a result, any reductions in Mountains skipper conservation proposed rule is considered a significant grazing effort for the Laguna Mountains activities. Commonly used by State and regulatory action under E.O. 12866 skipper may affect the sustainability of Federal agencies for policy planning because it raises novel legal and policy ranching operations in these areas. The and evaluation purposes, IMPLAN issues. On the basis of our draft analysis assumes that in the future, translates estimates of initial trip economic analysis, the proposed critical grazing efforts on proposed critical expenditures (e.g., food, lodging, and habitat designation is not expected to habitat areas will be reduced, or in the gas) into changes in demand for inputs significantly affect energy supplies, high-end estimate, eliminated on private to affected industries. Changes in output distribution, or use. Therefore, this land due to skipper concerns. Private and employment are calculated for all action is not a significant action, and no ranchers could be affected either by industries and then aggregated to Statement of Energy Effects is required. reductions in federally-permitted AUMs determine the regional economic impact Please refer to Appendix A of our draft that they hold permits to, or by of reduced recreational camping-related economic analysis of the proposed reductions on grazing efforts on private expenditures potentially associated with designation for a more detailed property to avoid adverse impacts on Laguna Mountains skipper conservation discussion of potential effects on energy Laguna Mountains skipper habitat. The activities. supply. This analysis uses the average expected reduction in AUMs is based on Unfunded Mandates Reform Act (2 expenditures reported by the 2001 an examination of historic grazing U.S.C. 1501 et seq.) levels, section 7 consultations, and National Survey of Fishing, Hunting, discussions with range managers, and Wildlife-Associated Recreation for In accordance with the Unfunded wildlife biologists, and permittees. California for fishing, hunting and Mandates Reform Act (2 U.S.C. 1501), Based on this analysis, the high-end wildlife-associated recreation, or the Service makes the following impact on grazing activities is estimated approximately $26.23 per trip. This per- findings: at an annual reduction of 1,980 AUMs, trip estimate of expenditures is then (a) This rule will not produce a of which 1,363 are Federally permitted combined with the number of camping Federal mandate. In general, a Federal and 617 are private. The majority of trips potentially lost due to Laguna mandate is a provision in legislation, these AUM reductions fall on two Mountains skipper conservation statute, or regulation that would impose ranchers: one operating in Subunit 1A activities (a 1-year loss of 5,352 trips per an enforceable duty upon State, local, and another operating in Subunit 2A. year) to estimate the regional economic Tribal governments, or the private sector Therefore, cumulatively over 20 years, impacts. When compared to the $192 and includes both ‘‘Federal two ranchers could be affected by total billion dollar regional economy of San intergovernmental mandates’’ and reductions in AUMs due to Laguna Diego County, the potential loss ‘‘Federal private sector mandates.’’ Mountains skipper conservation generated by a decrease in camping trips These terms are defined in 2 U.S.C. activities. These impacts doe not is a relatively small impact (i.e., less 658(5)–(7). ‘‘Federal intergovernmental represent a substantial number of small than 0.01 percent). Therefore based on mandate’’ includes a regulation that entities and the potential impact is not these results, this analysis determines ‘‘would impose an enforceable duty considered significant. no significant effect on camping-related upon State, local, or tribal governments’’ This analysis considers lower and industries due to Laguna Mountains with two exceptions. It excludes ‘‘a upper bounds of potential economic skipper conservation activities in San condition of federal assistance.’’ It also impact on recreational camping Diego County. excludes ‘‘a duty arising from activities. The lower bound equals no We may also exclude areas from the participation in a voluntary Federal economic impact. In the upper bound, final designation if it is determined that program,’’ unless the regulation ‘‘relates economic impacts are estimated for designation of critical habitat in to a then-existing Federal program recreational campers whose activities localized areas would have an impact to under which $500,000,000 or more is may be interrupted by Laguna a substantial number of businesses and provided annually to State, local, and Mountains skipper conservation a significant proportion of their annual tribal governments under entitlement activities resulting in a decrease in the revenues. Based on the above data, we authority,’’ if the provision would number of camping trips. This scenario have determined that this proposed ‘‘increase the stringency of conditions of concludes that camping trips may designation would not result in a assistance’’ or ‘‘place caps upon, or decrease by as many as 5,352 trips per significant economic impact on a otherwise decrease, the Federal year. If fewer camping trips were to substantial number of small entities. As Government’s responsibility to provide occur within proposed critical habitat such, we are certifying that this funding’’ and the State, local, or tribal

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governments ‘‘lack authority’’ to adjust habitat. However, the legally binding implications of proposing critical accordingly. At the time of enactment, duty to avoid destruction or adverse habitat for the Laguna Mountains these entitlement programs were: modification of critical habitat rests skipper. Critical habitat designation Medicaid; AFDC work programs; Child squarely on the Federal agency. does not affect landowner actions that Nutrition; Food Stamps; Social Services Furthermore, to the extent that non- do not require Federal funding or Block Grants; Vocational Rehabilitation Federal entities are indirectly impacted permits, nor does it preclude State Grants; Foster Care, Adoption because they receive Federal assistance development of habitat conservation Assistance, and Independent Living; or participate in a voluntary Federal aid programs or issuance of incidental take Family Support Welfare Services; and program, the Unfunded Mandates permits to permit actions that do require Child Support Enforcement. ‘‘Federal Reform Act would not apply; nor would Federal funding or permits to go private sector mandate’’ includes a critical habitat shift the costs of the large forward. In conclusion, the designation regulation that ‘‘would impose an entitlement programs listed above on to of critical habitat for the Laguna enforceable duty upon the private State governments. Mountains skipper does not pose sector, except (i) a condition of Federal (b) The draft economic analysis did significant takings implications. assistance; or (ii) a duty arising from not identify or examine small Author participation in a voluntary Federal governments that fall within proposed program.’’ critical habitat areas because there were The primary authors of this notice are the staff of the Carlsbad Fish and The designation of critical habitat no estimates of impacts to small Wildlife Office (see ADDRESSES). does not impose a legally binding duty governments. Consequently, we do not on non-Federal government entities or believe that this rule will significantly Authority or uniquely affect small governments. private parties. Under the Act, the only The authority for this action is the regulatory effect is that Federal agencies As such, a Small Government Agency Plan is not required. Endangered Species Act of 1973, as must ensure that their actions do not amended (16 U.S.C. 1531 et seq.). destroy or adversely modify critical Takings habitat under section 7. Non-Federal Dated: June 27, 2006. entities that receive Federal funding, In accordance with Executive Order Matt Hogan, assistance, permits, or otherwise require 12630 (‘‘Government Actions and Acting Assistant Secretary for Fish and approval or authorization from a Federal Interference with Constitutionally Wildlife and Parks. agency for an action, may be indirectly Protected Private Property Rights’’), we [FR Doc. E6–10577 Filed 7–6–06; 8:45 am] impacted by the designation of critical have analyzed the potential takings BILLING CODE 4310–55–P

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