[Federal Register: December 14, 2010 (Volume 75, Number 239)]
[Proposed Rules]
[Page 77817-77820]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14de10-18]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2010-0024; MO 92210-0-0009-B4]
RIN 1018-AW89
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Mississippi Gopher Frog
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period, availability of
draft economic analysis, and amended required determinations.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
availability of the draft economic analysis (DEA) for the June 3, 2010,
proposed designation of critical habitat for the Mississippi gopher
frog (Rana sevosa) [= Rana capito sevosa] under the Endangered Species
Act of 1973, as amended (Act). We also announce the reopening of the
comment period and an amended required determinations section of the
proposal. We are reopening the comment period for an additional 30 days
to allow all interested parties an opportunity to comment
simultaneously on the proposed critical habitat designation, the
associated DEA, and the amended required determinations section.
Comments previously submitted need not be resubmitted and will be fully
considered in preparation of the final rule.
DATES: We will consider public comments received on or before January
13, 2011. Comments must be received by 11:59 p.m. Eastern Time on the
closing date. Any comments that we receive after the closing date may
not be considered in the final decision on this action.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://
www.regulations.gov. Follow the instructions for submitting comments to
Docket No. FWS-R4-ES-2010-0024.
U.S. mail or hand-delivery: Public Comments
Processing, Attn: FWS-R4-ES-2010-0024; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, Suite 222; Arlington, VA 22203.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor,
Mississippi Fish and Wildlife Office, 6578 Dogwood View Parkway,
Jackson, MS 39213; by telephone (601-321-1122); or by facsimile (601-
965-4340). Persons who use a telecommunications device for the deaf
(TDD) may call the Federal Information Relay Service (FIRS) at 800-877-
8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written comments and information during this
reopened comment period on our proposed designation of critical habitat
for the Mississippi gopher frog that was published in the Federal
Register on June 3, 2010 (75 FR 31387), the DEA of the proposed
designation of critical habitat for the Mississippi gopher frog, and
the amended required determinations provided in this document. We will
consider information and recommendations from all interested parties.
We are particularly interested in comments concerning:
(1) The reasons why we should or should not designate areas as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the Mississippi gopher
frog from human activity, the degree of which can be expected to
[[Page 77818]]
increase due to the designation, and whether that increase in threat
outweighs the benefit of designation, such that the designation of
critical habitat is prudent.
(2) Specific information on:
(a) The amount and distribution of Mississippi gopher frog habitat;
(b) What areas occupied by the species at the time of listing that
contain features essential for the conservation of the species we
should include in the designation and why;
(c) Special management considerations or protection for the
physical and biological features essential to Mississippi gopher frog
conservation that have been identified in the proposed rule that may be
needed, including managing for the potential effects of climate change;
and
(d) What areas not occupied by the species at the time of listing
are essential to the conservation of the species and why.
(3) Specific information on the Mississippi gopher frog and the
physical and biological features essential to the conservation of the
species.
(4) Any information on the biological or ecological requirements of
the species.
(5) Land-use designations and current or planned activities in the
subject areas and their possible impacts on the species and the
proposed critical habitat.
(6) Any foreseeable economic, national security, or other relevant
impacts that may result from designating any area that may be included
in the final designation. We are particularly interested in any impacts
on small entities and the benefits of including or excluding areas from
the proposed designation that are subject to these impacts.
(7) Whether the benefits of excluding any particular area from
critical habitat outweigh the benefits of including that area as
critical habitat under section 4(b)(2) of the Act, after considering
the potential impacts and benefits of the proposed critical habitat
designation.
(8) Information on the extent to which the description of economic
impacts in the DEA is complete and accurate.
(9) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the DEA, and how the consequences
of such reactions, if likely to occur, would relate to the conservation
and regulatory benefits of the proposed critical habitat designation.
(10) The appropriateness of the taxonomic name change of the
Mississippi gopher frog from Rana capito sevosa to Rana sevosa.
(11) Whether our approach to designating critical habitat 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.
If you submitted comments or information on the proposed rule (75
FR 31387) during the initial comment period from June 3, 2010, to
August 2, 2010, please do not resubmit them. We will incorporate them
into the public record as part of this comment period, and we will
fully consider them in the preparation of our final determination. Our
final determination concerning revised critical habitat will take into
consideration all written comments and any additional information we
receive during both comment periods. On the basis of public comments,
we may, during the development of our final 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.
You may submit your comments and materials concerning the proposed
rule or DEA by one of the methods listed in the ADDRESSES section. We
will not consider comments sent by e-mail or fax or to an address not
listed in the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including your personal identifying information--will be
posted on the Web site. We will post all hard copy comments on http://
www.regulations.gov as well. If you submit a hard copy comment that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so. Please
include sufficient information with your comments to allow us to verify
any scientific or commercial information you include.
Comments and materials we receive, as well as supporting
documentation used in preparing the proposed rule and DEA, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Mississippi Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT). You may obtain copies of the proposed rule and
the DEA on the Internet at http://www.regulations.gov at Docket Number
FWS-R4-ES-2010-0024 or by mail from the Mississippi Field Office (see
FOR FURTHER INFORMATION CONTACT section).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for Mississippi gopher frog in this
document. For more information on previous Federal actions concerning
the Mississippi gopher frog, refer to the proposed designation of
critical habitat published in the Federal Register on June 3, 2010 (75
FR 31387). For more information on the Mississippi gopher frog or its
habitat, refer to the final listing rule published in the Federal
Register on December 4, 2001 (66 FR 62993), which is available online
at http://www.regulations.gov (at Docket Number FWS-R4-ES-2010-0024) or
from the Mississippi Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
On June 3, 2010, we published a proposed rule to designate critical
habitat for the Mississippi gopher frog (75 FR 31387). We proposed to
designate as critical habitat a total of 792 hectares (1,957 acres) in
11 units within Forrest, Harrison, Jackson, and Perry Counties,
Mississippi. That proposal had a 30-day comment period, ending August
2, 2010. We will submit for publication in the Federal Register a final
critical habitat designation on or before May 30, 2011.
Section 3 of the Act defines critical habitat as the specific areas
within the geographical 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 geographical 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 critical habitat are required to consult with us on the
effects of their proposed actions, under section 7(a)(2) of the Act.
Consideration of Impacts Under Section 4(b)(2) of the Act
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 impact, impact on
[[Page 77819]]
national security, or any other relevant impact of specifying any
particular area as critical habitat. 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.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus (activities conducted, funded, permitted,
or authorized by Federal agencies), the educational benefits of mapping
areas containing essential features that aid in the recovery of the
listed species, and any benefits that may result from designation due
to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan. In the case of
Mississippi gopher frog, the benefits of critical habitat include
public awareness of the presence of the Mississippi gopher frog and the
importance of habitat protection, and, where a Federal nexus exists,
increased habitat protection for Mississippi gopher frog due to
protection from adverse modification or destruction of critical
habitat. In practice, situations with a Federal nexus exist primarily
on Federal lands or for projects undertaken by Federal agencies.
We have not proposed to exclude any areas from critical habitat.
However, the final decision on whether to exclude any areas will be
based on the best scientific data available at the time of the final
designation, including information obtained during the comment period
and information about the economic impact of designation. Accordingly,
we have prepared a draft economic analysis concerning the proposed
critical habitat designation (DEA), which is available for review and
comment (see ADDRESSES section).
Draft Economic Analysis
The purpose of the DEA is to identify and analyze the potential
economic impacts associated with the proposed critical habitat
designation for the Mississippi gopher frog that we published in the
Federal Register on June 3, 2010 (75 FR 31387). The DEA separates
conservation measures into two distinct categories according to
``without critical habitat'' and ``with critical habitat'' scenarios.
The ``without critical habitat'' scenario represents the baseline for
the analysis, considering protections otherwise afforded to the gopher
frog (e.g., under the Federal listing and other Federal, State, and
local regulations). The ``with critical habitat'' scenario describes
the incremental impacts specifically due to designation of critical
habitat for the species. In other words, these incremental conservation
measures and associated economic impacts would not occur but for the
designation. Conservation measures implemented under the baseline
(without critical habitat) scenario are described qualitatively within
the DEA, but economic impacts associated with these measures are not
quantified. Economic impacts are only quantified for conservation
measures implemented specifically due to the designation of critical
habitat (i.e., incremental impacts).
The DEA describes economic impacts associated with designation of
critical habitat for the Mississippi gopher frog based on the following
categories: (1) Costs associated with economic activities, including
development and forestry; (2) costs associated with military
activities; and (3) costs associated with active species management.
The DEA provides estimated costs of the foreseeable potential economic
impacts of the proposed critical habitat designation for the
Mississippi gopher frog over the next 20 years, which was determined to
be the appropriate period for analysis because limited planning
information is available for most activities to forecast activity
levels for projects beyond a 20-year timeframe. These incremental costs
are the costs we may consider in the final designation of critical
habitat when evaluating the benefits of excluding particular areas
under section 4(b)(2) of the Act. For a further description of the
methodology of the analysis, see Chapter 2 (``Framework for the
Analysis'') of the DEA.
The DEA estimates the incremental impacts of conservation
activities for the Mississippi gopher frog to be $102,000 over the next
20 years ($9,610 in annualized impacts, assuming a 7 percent discount
rate). All of these impacts stem from the administrative cost of
addressing adverse modification of critical habitat during section 7
consultations. Parties involved in section 7 consultations include the
Service, the action agency, and in some cases, a private entity
involved in the project or land use activity. Incremental impacts
stemming from additional gopher frog conservation measures requested by
the Service during section 7 consultation are not expected in occupied
areas because project modifications that may be needed to minimize
impacts to the species would coincidentally minimize impacts to
critical habitat. In unoccupied areas, project modifications resulting
from consultation would be considered incremental impacts of the
critical habitat designation.
The DEA also discusses the potential economic benefits associated
with the designation of critical habitat. However, because the Service
believes that the direct benefits of the designation are best expressed
in biological terms, this analysis does not quantify or monetize
benefits; only a qualitative discussion of economic benefits is
provided.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of the proposed rule and our
amended required determinations. We may revise the proposed rule or
supporting documents to incorporate or address information we receive
during the public 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, provided the
exclusion will not result in the extinction of this species.
Required Determinations--Amended
In our June 3, 2010, proposed rule (75 FR 31387), we indicated that
we would defer 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 became available in the DEA. We have now made use of
the DEA data in making these determinations. In this document, we
affirm the information in our proposed rule concerning Executive Order
(E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings),
E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211
(Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform
Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.), the National Environmental Policy Act (42 U.S.C.
4321 et seq.), and the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951). However, based on the DEA data, we are
amending our required determinations concerning the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
[[Page 77820]]
Regulatory Flexibility Act
Under the Regulatory Flexibility Act, as amended by the Small
Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)),
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), as described below.
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 on our DEA of
the proposed designation, we provide our analysis for determining
whether the proposed rule would result in a significant economic impact
on a substantial number of small entities. Based on comments we
receive, we may revise this determination as part of a final
rulemaking.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and 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
the Mississippi gopher frog would affect a substantial number of small
entities, we considered the number of small entities affected within
particular types of economic activities, such as timber operations, and
residential and commercial development along with the accompanying
infrastructure associated with such projects including road, storm
water drainage, bridge and culvert construction and maintenance. In
order to determine whether it is appropriate for our agency to certify
that this rule would not have a significant economic impact on a
substantial number of small entities, we considered each industry or
category individually. In estimating the numbers of small entities
potentially affected, we also considered whether their activities have
any Federal involvement. Critical habitat designation will not affect
activities that do not have any Federal involvement; designation of
critical habitat only affects activities conducted, funded, permitted,
or authorized by Federal agencies. In areas where the Mississippi
gopher frog is present, Federal agencies already are required to
consult with us under section 7 of the Act on activities they fund,
permit, or implement that may affect the species, due to the endangered
status of the species. If we finalize this proposed critical habitat
designation, consultations to avoid the destruction or adverse
modification of critical habitat would be incorporated into the
existing consultation process.
In the DEA, we evaluated the potential economic effects on small
entities resulting from implementation of conservation actions related
to the proposed designation of critical habitat for the Mississippi
gopher frog. As discussed in the DEA, the Service and any Federal
action agency are the only entities with direct compliance costs
associated with the proposed critical habitat designation. These
Federal agencies are not considered small business entities under the
Regulatory Flexibility Act. As a consequence, this rule will not result
in a significant impact on small entities. Please refer to the DEA of
the proposed critical habitat designation for a more detailed
discussion of potential impacts.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. Information for this analysis was gathered from the
Small Business Administration, stakeholders, and the Service. For the
reasons discussed above, and based on currently available information,
we certify that if promulgated, the proposed designation would not have
a significant economic impact on a substantial number of small business
entities. Therefore, an initial regulatory flexibility analysis is not
required.
Authors
The primary authors of this notice are the staff members of the
Mississippi Fish and Wildlife Office, Southeast Region, U.S. Fish and
Wildlife Service.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: December 6, 2010.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-31227 Filed 12-13-10; 8:45 am]
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