[Federal Register: March 14, 2007 (Volume 72, Number 49)]
[Proposed Rules]               
[Page 11819-11822]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU76

Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Catesbaea melanocarpa

AGENCY: Fish and Wildlife Service, Interior.

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


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on the proposed designation of critical 
habitat for the plant Catesbaea melanocarpa (no common name) 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). The draft economic analysis identifies potential costs 
of approximately $132,300 to $441,000 over a 20-year period as a result 
of the proposed designation of critical habitat, including those costs 
coextensive with listing. We are reopening the comment period to allow 
all interested parties an opportunity to comment simultaneously on the 
proposed rule and the associated draft economic analysis. If you 
previously submitted comments on the proposed rule, you need not 
resubmit them, because we have incorporated them into the public record 
and will fully considered them in preparation of our final rule.

DATES: We will accept public comments on this document and the proposed 
rule published at 71 FR 48883, Aug. 22, 2006 until April 13, 2007.

ADDRESSES: If you wish to comment, you may submit your comments and 
information concerning this proposal by any one of several methods:
    1. Mail or hand-deliver to Edwin E. Mu[ntilde]iz, Field Supervisor, 
U.S. Fish and Wildlife Service, Caribbean Fish and Wildlife Office, 
Road 301 Km. 5.1, P.O. Box 491, Boquer[oacute]n, PR 00622.
    2. Send by electronic mail (e-mail) to marelisa_rivera@fws.gov. 
Please see the ``Public Comments Solicited'' section below for file 
format and other information about electronic filing.
    3. Fax to 787-851-7440.
    4. Submit comments on the Federal E-Rulemaking Portal at http://www.regulations.gov.
 Follow the instructions for submitting comments.

    Comments and materials we receive, as well as supporting 
documentation we used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Caribbean Fish and Wildlife Office at the above address.

FOR FURTHER INFORMATION CONTACT: Marelisa Rivera, Caribbean Fish and 
Wildlife Office (see ADDRESSES); telephone, 787-851-7297, extension 
231; facsimile, 787-851-7440. If you use a telecommunications device 
for the deaf (TDD), you may call the Federal Information Relay Service 
(FIRS) at 800-877-8339.


Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we hereby 
solicit comments or suggestions from the public, other concerned 
governmental agencies, the scientific community, industry, or any other 
interested party concerning this proposed rule and the draft economic 
analysis. We particularly seek comments concerning:
    (1) The reasons we should or should not determine any habitat to be 
critical habitat as provided by section 4 of the Act;
    (2) Specific information on the presence of Catesbaea melanocarpa, 
particularly: of the areas that were occupied at the time of listing 
and contain features that are essential for the conservation of the 
species, which areas we should include in the designations, and why; 
and, of the areas that were not occupied at listing, which 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 we may have 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) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, and in particular, any 
impacts on small entities or families; and other information that would 
indicate that the designation of critical habitat would or would not 
have any impacts on small entities or families;
    (9) Whether the draft economic analysis appropriately identifies 
all costs and benefits that could result from the designation;
    (10) Whether we could improve or modify our approach to critical 
habitat designation in any way, to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concern and comments; and
    (11) Whether the benefits of exclusion in any particular area 
outweigh the benefits of inclusion.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES). 
Please submit comments electronically to marelisa_rivera@fws.gov. 
Please also include ``Attn: Catesbaea melanocarpa'' 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 Caribbean Fish and Wildlife Service Office at 787-851-7297.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their names and home addresses, etc., but if you wish us to consider 
withholding this information, you must state this prominently at the 
beginning of your comments. In

[[Page 11820]]

addition, you must present rationale for withholding this information. 
This rationale must demonstrate that disclosure would constitute a 
clearly unwarranted invasion of privacy. Unsupported assertions will 
not meet this burden. In the absence of exceptional, documentable 
circumstances, we will release this information. We will always make 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials we receive will be available for public 
inspection, by appointment, during normal business hours at the 
Caribbean Fish and Wildlife Office (see ADDRESSES).
    You may obtain copies of the proposed rule and draft economic 
analysis for critical habitat designation by mail from the Caribbean 
Fish and Wildlife Office at the address listed under ADDRESSES or on 
the Internet at http://www.fws.gov/southeast.

    Our final designation of critical habitat will take into 
consideration all comments and any additional information we receive 
during both comment periods. On the basis of public comment on this 
analysis and on the critical habitat proposal, and the final economic 
analysis, we may, during the development of our final determination, 
find that areas we proposed are not essential, are appropriate for 
exclusion under section 4(b)(2) of the Endangered Species Act of 1973 
(16 U.S.C. 1531 et seq.) (Act), or not appropriate for exclusion. An 
area may be excluded from critical habitat if we determine 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 August 22, 2006, we published a proposed rule to designate 
critical habitat for Catesbaea melanocarpa (71 FR 48883). We proposed 
to designate approximately 50 acres (ac) (20 hectares (ha)) in one unit 
located in Christiansted, St. Croix, U.S. Virgin Islands, as critical 
habitat for C. melanocarpa. We will submit for publication in the 
Federal Register a final critical habitat designation for C. 
melanocarpa on or before August 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 we make our proposed rule 
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 we have 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 data available, after 
taking into consideration the economic or any other relevant impact of 
specifying any particular area as critical habitat. Based on the August 
22, 2006, proposed rule (71 FR 48883) to designate critical habitat for 
Catesbaea melanocarpa, we have prepared a draft economic analysis of 
the proposed critical habitat designation.
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of Catesbaea 
melanocarpa, including costs associated with sections 4, 7, and 10 of 
the Act, and including those attributable to designating critical 
habitat. 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 C. melanocarpa in the critical habitat 
area. The draft analysis considers both economic efficiency and 
distributional effects. In the case of habitat conservation, efficiency 
effects generally reflect the ``opportunity costs'' associated with the 
commitment of resources to comply with habitat protection measures 
(such as lost economic opportunities associated with restrictions on 
land use). 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. 
Decision-makers can use this information 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 
incurred since the date we listed the species as endangered (64 FR 
13116, March 17, 1999) and considers those costs that may occur in the 
20 years following a designation of critical habitat.
    The draft economic analysis estimates the foreseeable economic 
impacts of the proposed critical habitat designation on government 
agencies and private businesses and individuals. The draft economic 
analysis identifies potential costs of approximately $132,300 to 
$441,000 to the private landowners over a 20-year period as a result of 
the proposed designation of critical habitat, including those costs 
coextensive with listing. The analysis measures lost economic 
efficiency associated with residential and commercial development, and 
public projects and activities. Overall, the analysis does not 
anticipate a decrease in the amount of construction activity on St. 
Croix as a result of the proposed rule. As a result, we do not 
anticipate small developers and construction firms to be affected.
    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 we receive during the comment 

Required Determinations--Amended

    In our August 22, 2006, proposed rule (71 FR 48883), we indicated 
that we would be deferring our determination of compliance with several 
statutes and Executive Orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders was available in the draft economic 
analysis. Those data are now available for our use in making these 
determinations. In this notice, we are affirming the information 
contained in the proposed rule concerning Executive Order 13132 and 
Executive Order 12988; the Paperwork Reduction 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 
information made available to us in the draft economic analysis, we are 
amending our Required Determinations, as provided below, concerning 
Executive Order 12866 and the Regulatory Flexibility Act, Executive 
Order 13211, Executive Order 12630,

[[Page 11821]]

and the Unfunded Mandates Reform Act.

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. 
Based on our draft economic analysis of the proposed designation of 
critical habitat for Catesbaea melanocarpa, we estimate costs related 
to conservation activities for C. melanocarpa pursuant sections 4, 7, 
and 10 of the Act to range from $132,300 to $441,000 over a 20-year 
period. Therefore, based on our draft economic analysis, we do not 
anticipate that the proposed designation of critical habitat 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 did not formally review the proposed rule or accompanying draft 
economic analysis.
    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 an agency has 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 under 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 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 outweigh 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

    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 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 (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 the proposed designation of critical habitat for C. 
melanocarpa 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; non-Federal activities are not affected by the 
    In our draft economic analysis of the proposed critical habitat 
designation, we evaluated the potential economic effects on small 
business entities resulting from conservation actions related to the 
listing of Catesbaea melanocarpa and proposed designation of critical 
habitat. The property proposed for designation is managed by the Virgin 
Islands Title and Trust Company on behalf of several individual 
landowners. This analysis estimates that these landowners could lose 
from $132,300 to $441,000 over a 20-year period. However, private 
landowners are generally not considered to be small entities. 
Furthermore, this analysis does not anticipate a decrease in the amount 
of construction activity on St. Croix as a result of the proposed rule. 
As a result, we do not anticipate that small developers and 
construction firms would be affected. 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--Energy Supply, Distribution, and Use

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This proposed 
designation of critical habitat for Catesbaea melanocarpa is considered 
a significant regulatory action under Executive Order 12866 due to its 
potential raising of novel legal and policy issues. The Office of 
Management and Budget 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, based on the 
information in the draft economic analysis, we do not expect energy-
related impacts associated with C. melanocarpa conservation activities 
within proposed critical habitat. As such, we do not expect the 
proposed designation of critical habitat to significantly affect energy 
supplies, distribution, or use. A Statement of Energy Effects is not 

[[Page 11822]]

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make 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 of the Act. Non-Federal entities that receive 
Federal funding, assistance, or permits, or 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 onto State governments.
    (b) As discussed in the draft economic analysis of the proposed 
designation of critical habitat for Catesbaea melanocarpa, we expect 
the impacts on nonprofits and small governments to be negligible. There 
is no record of consultations between us and any of these governments 
since we listed C. melanocarpa as endangered on March 17, 1999 (64 FR 
13116). It is likely that small governments involved with developments 
and infrastructure projects will be interested parties or involved with 
projects involving section 7 (of the Act) consultations for C. 
melanocarpa 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 C. melanocarpa will significantly 
or uniquely affect these small governmental entities. As such, a Small 
Government Agency Plan is not required.

Executive Order 12630--Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing critical habitat for Catesbaea melanocarpa. 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 C. melanocarpa does 
not pose significant takings implications.


    The primary authors of this notice are the staff of the Caribbean 
Fish and Wildlife Service Office.


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

    Dated: March 5, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E7-4542 Filed 3-13-07; 8:45 am]