[Federal Register: August 8, 2006 (Volume 71, Number 152)]
[Proposed Rules]               
[Page 44976-44980]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU46

Endangered and Threatened Wildlife and Plants; Revised 
Designation of Critical Habitat for the Endangered Alabama Beach Mouse

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Revised proposed rule; reopening of comment period, notice of 
availability of draft economic analysis, acreage corrections, and 
notice of public hearing.


SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening 
of the public comment period, a public hearing on the proposed revision 
of critical habitat for the Alabama beach mouse (Peromyscus polionotus 
ammobates) (ABM), and the availability of the draft economic analysis 
of the proposed designation of critical habitat under the Endangered 
Species Act of 1973, as amended (Act). We are also using this comment 
period to correct minor acreage calculation errors in the February 1, 
2006, proposed rule (71 FR 5516), announce the inclusion of an 
additional 6 acres (distributed among proposed critical habitat units 
1, 2, and 3), and solicit further comments on the proposed rule. The 
draft economic analysis forecasts that costs associated with 
conservation activities for the ABM would range from $18.3 million to 
$51.8 million in undiscounted dollars over the next 20 years. Adjusted 
for possible inflation, the costs would range from $16.1 million to 
$46.8 million over 20 years, or $1.1 million to $3.1 million annually 
using a 3 percent discount; or $14.2 million to $41.7 million over 20 
years, or $1.3 million to $3.9 million annually using a 7 percent 
discount. We are reopening the public comment period to allow all 
interested parties an opportunity to comment simultaneously on the 
proposed rule and the associated draft economic analysis. Comments 
previously submitted need not be resubmitted as they will be 
incorporated into the public record and fully considered in preparation 
of the final rule.

DATES: We will accept public comments until September 7, 2006. See 
Public Hearings, under SUPPLEMENTARY INFORMATION, for further details.

ADDRESSES: If you wish to comment, you may submit your comments and 
information concerning this proposal, identified by ``Attn: Alabama 
Beach Mouse Critical Habitat,'' by any one of several methods:
    (1) Mail or hand-deliver to: Field Supervisor, U.S. Fish and 
Wildlife Service, Daphne Fish and Wildlife Office, 1208-B Main Street, 
Daphne, Alabama 36526.
    (2) Send by electronic mail (e-mail) to abmcriticalhabitat@fws.gov. 
Please see the Public Comments Solicited section below for file format 
and other information about electronic filing.
    (3) Provide oral or written comments at the public hearing.
    (4) Fax your comments to: 251-441-6222.
    5. Submit comments on Federal eRulemaking portal: http://www.regulations.gov.
 Follow the instructions for submitting comments.

Public Hearings

    We have scheduled a public hearing on the proposed critical habitat 
revision and the draft economic analysis. The hearing will take place 
from 7 to 9 p.m. on August 24, 2006, at the Adult Activity Center 
located at 260 Clubhouse Drive, Gulf Shores, Alabama 36542. This will 
be preceded by a public information session from 6 to 7 p.m. at the 
same location. Maps of the proposal and other materials will be 
available for public review.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection by appointment during normal business 
hours at the Daphne Fish and Wildlife Field Office at the above 

Wildlife Service, Daphne, Alabama (telephone 251-441-5181; facsimile 


Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act, including 
whether the benefit of designation will outweigh any adverse impacts to 
the species due to designation;
    (2) Specific information on the presence of Alabama beach mouse 
habitat, particularly what areas should be included in the designations 
that were occupied at the time of listing that contain features that 
are essential for the conservation of the species and why; and what 
areas that were not occupied at listing are essential to the 
conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities;
    (5) Whether the draft economic analysis identifies all State and 
local costs attributable to the proposed critical habitat designation, 
and information on any costs that have been inadvertently overlooked;
    (6) Whether the draft economic analysis makes appropriate 
assumptions regarding current practices and likely regulatory changes 
imposed as a result of the designation of critical habitat;
    (7) Whether the draft economic analysis correctly assesses the 
effect on regional costs associated with any land use controls that may 
derive from the designation of critical habitat;
    (8) Whether the draft economic analysis appropriately identifies 

[[Page 44977]]

costs and benefits that could result from the designation; and
    (9) 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 concern and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please note that comments merely stating support or 
opposition to the actions under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) directs that 
determinations to be made ``solely on the basis of the best scientific 
and commercial data available.'' Please submit comments electronically 
to abmcriticalhabitat@fws.gov in ASCII file format and avoid the use of 
special characters or any form of encryption. Please also include 
``Attn: Alabama Beach Mouse Critical Habitat'' in your e-mail subject 
header and 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 electronic message, contact us directly by calling the Daphne Fish 
and Wildlife Office at phone number 251-441-5181. Please note that the 
e-mail address abmcriticalhabitat@fws.gov will be closed out at the 
termination of the public comment period.
    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 U.S. 
Fish and Wildlife Service Office at the above address.
    Copies of the draft economic analysis and the proposed rule for 
critical habitat designation are available on the Internet at http://www.fws.gov/daphne
 or from the Daphne Fish and Wildlife Office at the 

address and contact numbers above.
    Our final designation of critical habitat will take into 
consideration all comments and any additional information we received 
during both comment periods. Previous comments and information 
submitted during the initial comment period on the February 1, 2006, 
proposed rule (71 FR 5516) need not be resubmitted. On the basis of 
information received during the public comment period, we may during 
the development of our final critical habitat determination find that 
areas proposed are not essential, are appropriate for exclusion under 
section 4(b)(2) of the Act, or are not appropriate for exclusion. An 
area may be excluded from critical habitat if it is determined that the 
benefits of such exclusion outweigh the benefits of including a 
particular area as critical habitat, unless the failure to designate 
such area as critical habitat will result in the extinction of the 
species. We may exclude an area from designated critical habitat based 
on economic impacts, national security, or any other relevant impact.


    On February 1, 2006, we published a proposed rule to designate 
critical habitat for the ABM (71 FR 5516), revising the original 
designation for the subspecies (50 FR 23872; June 6, 1985). The 
proposed revision outlined five coastal dune areas (units), totaling 
approximately 1,298 total acres (ac) (525 hectares (ha)) in southern 
Baldwin County, Alabama, as critical habitat for the ABM. These five 
units consist of a mix of primary, secondary, and scrub sand dunes and 
interdunal swales and generally include an inland expansion of 1985 
designated units to include more scrub dune habitat. Also in our 
February 2006 rule, we proposed exclusion of approximately 1,229 ac 
(497 ha) that, following our analysis under sections 4(b)(2) and 
3(5)(A) of the Act, did not warrant designation of critical habitat 
because they are either protected by existing habitat conservation 
plans or do not require special management considerations or 
protection. The five proposed revised units, combined with these areas 
proposed for exclusion, constitute our best assessment of those areas 
essential to the conservation of the subspecies. As a result of 
revisions and corrections outlined in this revised proposed rule, these 
five units now total 1,326 ac (537 ha). We are also proposing inclusion 
of six residential lots to critical habitat (see Acreage Corrections). 
Other than the changes just described, the proposed rule of February 1, 
2006, remains intact. We will submit for publication in the Federal 
Register a final revised critical habitat designation for ABM on or 
before January 15, 2007.
    Critical habitat is defined in section 3 of the Act as the specific 
areas within the geographic 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 geographic 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, pursuant to section 7(a)(2) of 
the Act.

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 or any other 
relevant impact of specifying any particular area as critical habitat. 
We have prepared a draft economic analysis based on the February 1, 
2006, proposed rule (71 FR 5516) that revises the currently designated 
critical habitat for the ABM; subsequent corrections are included.
    The draft economic analysis estimates the foreseeable economic 
impacts of ABM conservation measures within the proposed critical 
habitat designation on government agencies and private businesses and 
individuals. The analysis measures lost economic efficiency associated 
with residential and commercial development, and public projects and 
activities, such as economic impacts on transportation projects, the 
energy industry, and State and Federal lands. It is difficult to 
separate costs attributed to the listing of a species from costs 
associated solely with a critical habitat designation. Therefore, the 
draft economic analysis considers the potential economic effects of all 
actions relating to the conservation of the ABM, including costs 
associated with sections 4, 7, and 10 of the Act, and those 
attributable to designating critical habitat. This may result in an 
overestimate of the potential economic impacts of the designation.
    The draft economic analysis forecasts that costs associated with 
conservation activities for the ABM would range from $18.3 million to 
$51.8 million in undiscounted dollars over the next 20 years. Adjusted 
for possible inflation, the costs would range from $16.1 million to 
$46.8 million over 20 years, or $1.1 million to $3.1 million annually 
using a 3 percent discount; or $14.2 million to $41.7 million over 20 

[[Page 44978]]

or $1.3 million to $3.9 million annually, using a 7 percent discount. 
Overall, the residential and commercial development industry is 
calculated to experience the highest estimated costs (99 percent).
    The draft economic analysis considers the potential economic 
effects of all actions relating to the conservation of the ABM, 
including costs coextensive with listing. It further considers the 
economic effects of protective measures taken as a result of other 
Federal, State, and local laws that aid habitat conservation for the 
ABM in proposed critical habitat areas. The draft analysis considers 
both economic efficiency and distributional effects. In the case of 
habitat conservation, efficiency effects generally reflect lost 
economic opportunities associated with restrictions on land use 
(opportunity costs). This analysis 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 small entities and the 
energy industry. This information can be used by decision makers to 
assess whether the effects of the designation might unduly burden a 
particular group or economic sector. Finally, this draft analysis looks 
retrospectively at costs that have been incurred since the date the 
subspecies was listed as endangered and considers those costs that may 
occur in the 20 years following revision of critical habitat.
    As stated earlier, we solicit data and comments from the public on 
this draft economic analysis, as well as on all aspects of the 
proposal. We may revise the proposal, or its supporting documents, to 
incorporate or address new information received during the comment 

Acreage Corrections

    By this notice, we are also advising the public of two changes to 
the February 1, 2006, proposed rule (71 FR 5516). First, we regret that 
an error was inadvertently made in the proposed rule concerning the 49 
single-family homes proposed for exclusion under section 4(b)(2) of the 
Act based upon habitat conservation plans (HCPs). Owners of six lots 
that were proposed for exclusion do not have approved HCPs. Undeveloped 
portions of these lots, totaling approximately 6 ac (2 ha) and 
distributed between Units 1 (3.3 ac), 2 (2.3 ac), and 3 (0.5 ac), 
contain both the habitat known to be occupied at the time of listing 
and the physical and biological characteristics essential to the 
conservation of the subspecies. Therefore, they are now proposed for 
inclusion in the revised designation.
    Second, there were also slight acreage discrepancies in the 
proposed rule due to an inadvertent calculation error. An 18-acre 
discrepancy in Unit 1 was identified and accounted for in the draft 
economic analysis. Table 1 contains the corrected acreage values, 
including the six additional acres proposed for inclusion discussed 
above. These acreage differences do not change the legal description 
published in the February 1, 2006, proposed rule, which are a true 
representation of the updated acreage identified in Table 1 below.

                    TABLE 1.--Areas Proposed as Critical Habitat for the Alabama Beach Mouse
                                      [Totals may not sum due to rounding]
                                                                                           Local and
                                                                    Federal      State      private      Total
           Critical Habitat Units--Alabama beach mouse               acres       acres       acres       acres
                                                                  (hectares)  (hectares)  (hectares)  (hectares)
1. Fort Morgan..................................................    44 (18)    337 (136)    66 (27)    446 (180)
2. Little Point Clear...........................................    16 (6)      82 (33)    170 (69)    268 (108)
3. Gulf Highlands...............................................    11 (4)      48 (19)    331 (134)   390 (158)
4. Pine Beach...................................................    11 (4)        0         20 (8)      31 (13)
5. Gulf State Park..............................................      0        190 (77)       0        190 (77)
    Total.......................................................    82 (32)    657 (265)   587 (238)  1326 (537)

Required Determinations--Amended

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise novel legal and policy issues. 
However, it is not anticipated to have 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) did not formally review the proposed rule.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, 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 Endangered Species Act of 1973, 
as amended (16 U.S.C. 1531 et seq.), 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 pursuant to 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 providing that the benefits of such 
exclusion outweighs the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. 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 (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (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

[[Page 44979]]

on a substantial number of small entities. In our proposed rule, we 
withheld our determination of whether this designation would result in 
a significant effect as defined under SBREFA until we completed our 
draft economic analysis of the proposed designation so that we would 
have the factual basis for our determination.
    According to the Small Business Administration, 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 the proposed ABM critical habitat designation would 
affect a substantial number of small entities, we considered the number 
of small entities affected within particular types of economic 
activities (such as residential and commercial development). 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.
    In our draft economic analysis, we evaluated the potential economic 
effects on small business entities resulting from conservation actions 
related to the listing of ABM and proposed designation of their 
critical habitat. This analysis estimated prospective economic impacts 
due to the implementation of beach mouse conservation efforts in five 
categories: Private development activities; recreation; tropical storms 
and hurricanes; species management and habitat protection activities; 
and road construction. We determined from our analysis that in four of 
these five categories, impacts of ABM conservation efforts are not 
anticipated to impact small business. The only category of small 
business entities that may be affected is private development firms. 
Costs associated with residential-commercial development comprise 99 
percent of the total quantified future impacts. Total costs of 
conservation efforts related to development activities are estimated to 
be $18.1 million to $51.2 million in undiscounted dollars over the next 
20 years, on approximately 587 acres of developable private lands. 
Adjusted for possible inflation, the costs would range from $16.1 
million to $46.8 million over 20 years, or $1.1 million to $3.1 million 
annually using a 3 percent discount; or $14.2 million to $41.7 million 
over 20 years, or $1.3 million to $3.9 million annually, using a 7 
percent discount. Conservation effort costs include land preservation 
(set asides), monitoring, and predator control that may be required of 
new development activity on private land. Assuming each parcel of land 
is owned by a unique landowner, approximately 137 landowners could be 
impacted by the ABM conservation efforts. This analysis assumes that, 
in general, landowners are private citizens and not developers. Thus, 
although 137 landowners may be affected by this designation, few are 
anticipated to be small entities. Therefore, we do not believe that the 
designation of critical habitat for the ABM will result in a 
disproportionate effect to small business entities.
    Please refer to our draft economic analysis of the proposed 
critical habitat designation for a more detailed discussion of 
potential economic impacts.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (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 because it 
raises novel legal and policy issues, but it is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant action, and no Statement of Energy 
Effects is 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. At the 
time of enactment, these entitlement programs were: Medicaid; Aid to 
Families with Dependent Children 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 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, permits, or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical

[[Page 44980]]

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) As discussed in the draft economic analysis of the proposed 
designation of critical habitat for the ABM, the impacts on nonprofits 
and small governments are expected to be negligible. It is likely that 
small governments involved with developments and infrastructure 
projects will be interested parties or involved with projects involving 
section 7 consultations for the ABM within their jurisdictional areas. 
Any costs associated with this activity are likely to represent a small 
portion of a local government's budget. Consequently, we do not believe 
that the designation of critical habitat for this subspecies will 
significantly or uniquely affect these small governmental entities. As 
such, a Small Government Agency Plan is not required.


    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 ABM. Critical habitat designation 
does not affect landowner actions that do not require Federal funding 
or permits, nor does it preclude development of habitat conservation 
programs or issuance of incidental take permits to permit actions that 
do require Federal funding or permits to go forward. In conclusion, the 
designation of critical habitat for this subspecies does not pose 
significant takings implications.


    The primary author of this notice is Rob Tawes of the Daphne Fish 
and Wildlife Office (see ADDRESSES section).
    The authority for this action is the Endangered Species Act of 1973 
(16 U.S.C. 1531 et seq.).

    Dated: July 17, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-12317 Filed 8-7-06; 8:45 am]