[Federal Register: March 31, 2010 (Volume 75, Number 61)]
[Proposed Rules]
[Page 16046-16049]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr10-23]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2009-0019]
[MO 92210-0-0008 B2]
RIN 1018-AV91
Endangered and Threatened Wildlife and Plants; Listing Casey's
June Beetle as Endangered and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period, notice of
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
reopening of the comment period on our July 9, 2009, proposed listing
and critical habitat designation for Casey's June beetle (Dinacoma
caseyi) under the Endangered Species Act of 1973, as amended (Act). We
also announce the availability of the draft economic analysis (DEA),
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 listing and critical habitat designation, the DEA, and the
amended required determinations section. If you submitted comments
previously, you do not need to resubmit them because we have already
incorporated them into the public record and will fully consider them
in preparation of the final rule.
DATES: We will consider comments that we receive on or before April 30,
2010.
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-R8-
ES-2009-0019.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R8-ES-2009-0019; 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: Jim Bartel, Field Supervisor, U.S.
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010
Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone (760) 431-
9440; facsimile (760) 431-5901. If you use a telecommunications device
for the deaf (TDD), call the Federal Information Relay Service (FIRS)
at (800) 877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that any final action resulting from the proposed rule
will be based on the best scientific data available and will be as
accurate and as effective as possible. Therefore, we request comments
or information from the public, other concerned government agencies,
the scientific community, industry, or other interested party during
this reopened comment period on the proposed rule to list the Casey's
June beetle (Dinacoma caseyi) with critical habitat that was published
in the Federal Register on July 9, 2009 (74 FR 32857), including the
DEA of the proposed critical habitat designation and the amended
required determinations section provided in this document. We are
particularly interested in comments concerning:
(1) Any available information on known or suspected threats and
proposed or ongoing projects with the potential to threaten Casey's
June beetle, specifically:
(a) The present or threatened destruction, modification or
curtailment of its habitat or range;
(b) Overutilization for commercial, recreational, scientific, or
educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; and
(e) Other natural or manmade factors affecting its continued
existence.
(2) Additional information concerning the range, distribution, and
population size of this species, including the locations of any
additional populations of this species.
(3) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Endangered Species Act of
1973, as amended (Act; 16 U.S.C. 1531 et seq.), including whether there
are threats to Casey's June beetle from human activity, the degree of
which can be expected to increase due to the designation, and whether
that increase in threat outweighs the benefit of designation, such that
the designation of critical habitat is not prudent.
(4) Specific information on areas that provide habitat for Casey's
June beetle that we did not discuss in the proposed rule, whether such
areas contain the physical and biological features essential to the
conservation of Casey's June beetle, and what special management
considerations or protections may be required to maintain or enhance
the essential features.
(5) Land-use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(6) Any foreseeable economic, national security, or other relevant
impact that may result from designating particular areas as critical
habitat, and, in particular, any impacts to small entities (such as
small businesses or small governments), and the benefits of including
or excluding areas from the proposed designation that exhibit these
impacts.
(7) Whether any particular area being proposed as critical habitat
should be excluded under section 4(b)(2) of the Act, and whether the
benefits of potentially excluding any particular area outweigh the
benefits of including that area under section 4(b)(2) of the Act.
(8) Whether inclusion of tribal lands of the Agua Caliente Band of
Cahuilla Indians of the Agua Caliente Indian Reservation, California
(preferred name ``Agua Caliente Band of Cahuilla Indians''), in
Riverside County is appropriate and why.
(9) The likelihood of adverse social reactions to the designation
of critical habitat, and how the consequences of such reactions, if
they occur, would relate to the conservation of the species and
regulatory benefits of the proposed critical habitat designation.
(10) Information on the extent to which the description of
potential economic impacts in the DEA is complete and accurate.
(11) The potential effects of climate change on this species and
its habitat and whether the critical habitat may adequately account for
these potential effects.
(12) Whether our approach to designating critical habitat could be
improved or modified in any way to provide an opportunity 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 (74
FR 32857) during the initial comment period from July 9, 2009, to
September 8, 2009, please do not resubmit them. These comments are
included in the public record for this rulemaking, and
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we will fully consider them in the preparation of our final
determination. Our final determination concerning listing the Casey's
June beetle as an endangered species and designating 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 within the proposed critical habitat
designation do not meet the definition of critical habitat, that some
modifications to the described boundaries are appropriate, or that
areas may or may not be appropriate for exclusion under section 4(b)(2)
of the Act.
You may submit your comments and materials concerning the proposed
rule and the DEA associated with the proposed critical habitat
designation by one of the methods listed in the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
submission--including any personal identifying information--will be
posted on the website. If your submission is made via hard copy 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. We will
post all hardcopy comments on http://www.regulations.gov. 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 to prepare this notice, 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, Carlsbad
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). You may
obtain copies of the proposed listing and proposed critical habitat (74
FR 32857) and the DEA on the Internet at http://www.regulations.gov at
Docket No. FWS-R8-ES-2009-0019, or by mail from the Carlsbad Fish and
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Background
It is our intent to discuss only those topics directly relevant to
the proposed designation of critical habitat for Casey's June beetle in
this document. For more detailed information on the taxonomy, biology,
and ecology of Casey's June beetle, please refer to the 90-day finding
on the petition to list the species under the Act, published in the
Federal Register on August 8, 2006 (71 FR 44960); the 12-month finding,
published in the Federal Register on July 5, 2007 (72 FR 36635); or the
proposed listing and designation of critical habitat rule, published in
the Federal Register on July 9, 2009 (74 FR 32857). Alternatively, you
may contact the Carlsbad Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Section 3 of the Act defines critical habitat as ``(i) the specific
areas within the geographical area occupied by the species, at the time
it is listed in accordance with... [the Act], on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) which may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed . .
. upon a determination by the Secretary that such areas are essential
for the conservation of the species'' (16 USC 1532(5)(A)). 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 that may affect critical habitat must
consult with us on the effects of their proposed actions, under section
7(a)(2) of the Act.
Draft Economic Analysis
Section 4(b)(2) of the Act requires that we designate critical
habitat based upon the best scientific and commercial data available,
after taking into consideration the economic impact, impact on national
security, or any other relevant impact of specifying any particular
area as critical habitat.
We prepared a DEA (Industrial Economics Inc. 2010) that identifies
and analyzes the potential impacts associated with the proposed
designation of critical habitat for Casey's June beetle that we
published in the Federal Register on July 9, 2009 (74 FR 32857). The
DEA quantifies the economic impacts of all potential conservation
efforts for Casey's June beetle; some of these costs will likely be
incurred regardless of whether or not we finalize the critical habitat.
The economic impact of the proposed critical habitat designation is
analyzed by comparing scenarios both ``with critical habitat'' and
``without critical habitat.'' The ``without critical habitat'' scenario
represents the baseline for the analysis, considering protections that
are already in place for the species or that will be in place for the
species upon listing (such as protections under the Act and other
Federal, State, and local regulations). The baseline, therefore,
represents the costs incurred regardless of whether critical habitat is
designated. The ``with critical habitat'' scenario describes the
incremental impacts associated specifically with the designation of
critical habitat for the species. The incremental conservation efforts
and associated impacts are those not expected to occur absent the
critical habitat designation for Casey's June beetle. In other words,
the incremental costs are those attributable solely to the designation
of critical habitat above and beyond the baseline costs. The DEA also
discusses the potential benefits associated with the designation of
critical habitat, but does not monetize these benefits. The incremental
impacts are the impacts we may consider in the final designation of
critical habitat when evaluating the benefit of excluding particular
areas under section 4(b)(2) of the Act. The analysis forecasts both
baseline and incremental impacts likely to occur if we finalize the
proposed designation of critical habitat.
The primary intended benefit of critical habitat is to support the
conservation of endangered and threatened species, such as the Casey's
June beetle. Thus, attempts to develop monetary estimates of the
benefits of this proposed critical habitat designation would focus on
the public's willingness to pay to achieve the conservation benefits to
the beetle resulting from this designation. Quantification and
monetization of species conservation benefits requires information on
the incremental change in the probability of Casey's June beetle
conservation that is expected to result from the designation. No
studies exist that provide such information for this species. Even if
this information existed, the published valuation literature does not
support monetization of incremental changes in conservation probability
for this species. Because it is not possible to determine the
probability that benefits will occur in this instance, the Service has
decided not to include such estimates in the DEA. Rather than rely on
economic measures, the Service believes that the direct benefits of the
proposed rule are best expressed in biological terms that can be
weighed against the expected cost impacts of the rulemaking.
The DEA (made available with the publication of this notice and
referred to throughout this document unless otherwise noted) estimates
the foreseeable economic impacts of the proposed critical habitat
designation for Casey's June beetle. The economic analysis identifies
potential incremental
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costs as a result of the proposed critical habitat designation, which
are those costs attributed to critical habitat over and above those
baseline costs associated solely with the listing. It also discusses
the potential economic benefits of the proposed designation. The DEA
describes economic impacts of Casey's June beetle conservation efforts
associated with the following categories of activity: (1) residential
and commercial development, (2) tribal activities, (3) flood control
activities, and (4) recreational activities.
Baseline economic impacts are those impacts that result from
listing and other conservation efforts for Casey's June beetle.
Conservation efforts related to development activities constitute the
majority of total baseline costs (approximately 80 percent) in areas of
proposed critical habitat. Impacts to flood control activities comprise
the remaining approximately 20 percent of impacts. Total future
baseline impacts are estimated to be $12,703,600 ($1,182,600
annualized) in present value terms using a 7 percent discount rate over
the next 20 years (2010 to 2029) in areas proposed as critical habitat
(Industrial Economics Inc. 2010, pp. ES-7).
Almost all incremental impacts attributed to the proposed critical
habitat designation are expected to be related to development
activities (approximately 100 percent). The DEA estimates total
potential incremental economic impacts in areas proposed as critical
habitat over the next 20 years (2010 to 2029) to be $9,792,270
($924,131 annualized) in present value terms using a 7 percent discount
rate (Industrial Economics Inc. 2010, p. ES-8). This value is based on
an assumption of total avoidance of designated areas and thus
represents the upper-bound potential cost for each project. As such, it
likely overstates the expected absolute cost of future actions to
protect critical habitat.
The DEA 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). The DEA 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 government agencies, private businesses, and
individuals. The DEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the critical habitat designation might unduly burden a
particular group or economic sector.
Required Determinations--Amended
In our proposed rule that published in the Federal Register on July
9, 2009 (74 FR 32857), we indicated 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 to make 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. 13132 (Federalism), E.O. 12988 (Civil
Justice Reform), the Paperwork Reduction Act, the National
Environmental Policy Act, the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), and E.O. 12630 (Takings). However, based
on the DEA data, we revised our required determinations concerning the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et seq.), and E.O. 13211 (Energy
Supply, Distribution, or Use).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act (5
U.S.C. 802(2)), 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 critical habitat designation, we
provide our analysis for determining whether the proposed designation
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 the
proposed 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
Casey's June beetle would affect a substantial number of small
entities, we consider the number of small entities affected within
particular types of economic activities, such as residential and
commercial development. 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. If we finalize this
proposed listing and proposed critical habitat designation, Federal
agencies must consult with us under section 7 of the Act if their
activities may affect the species or the designated critical habitat.
Incremental impacts to small entities may occur as a direct result of a
required consultation under section 7 of the Act. Additionally, even in
the absence of a Federal nexus, indirect incremental impacts may still
result because, for example, a city may request project modifications
due to the designation of critical habitat via its review under the
California Environmental Quality Act (CEQA).
In the DEA of the proposed critical habitat designation, we
evaluate the
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potential economic effects on small business entities resulting from
implementation of conservation actions related to the proposed critical
habitat for Casey's June beetle. The DEA identifies the estimated
incremental impacts associated with the proposed rulemaking as
described in Appendix A of the DEA, and evaluates the potential for
economic impacts related to activity categories including residential
and commercial development, tribal activities, flood control
activities, and recreational activities (Industrial Economics, Inc.
2010). The DEA concludes that the incremental impacts resulting from
this rulemaking that may be borne by small businesses will be
associated only with development. Incremental impacts are either not
expected for the other types of activities considered or, if expected,
will not be borne by small entities.
As discussed in Appendix A of the DEA, the only impacts of the
proposed rule on small businesses would potentially result from lost
land values associated with the identified development projects. In the
20-year timeframe for the analysis, three developers may experience
impacts. The potential incremental costs are expected to vary by
project, depending on the size and the value of the land. The total
annualized incremental impacts are forecast at approximately $965,000
(discounted at 7 percent). The SBREFA analysis estimates that three
small businesses may be affected by the designation of critical habitat
(Industrial Economics, Inc. 2010, pp. A-3-A-6). Because only three
small businesses may be affected, we do not find that the number of
small entities that would be significantly affected is substantial.
In summary, we considered whether the proposed rule would result in
a significant economic impact on a substantial number of small
entities. For the above reasons and based on currently available
information, we certify that, if adopted, the proposed critical habitat
would not have a significant economic impact on a substantial number of
small entities. Therefore, an initial regulatory flexibility analysis
is not 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), we make the following findings:
(a) This rule would 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.
``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. Designation of critical habitat may indirectly
impact non-Federal entities that receive Federal funding, assistance,
or permits, or that otherwise require approval or authorization from a
Federal agency for an action may be indirectly impacted by the
designation of critical habitat. However, the legally binding duty to
avoid destruction or adverse modification of critical habitat rests
squarely on the Federal agency. Furthermore, to the extent that non-
Federal entities are indirectly impacted because they receive Federal
assistance or participate in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would not apply, nor would critical
habitat shift the costs of the large entitlement programs listed above
on to State governments.
(b) As discussed in the DEA of the proposed designation of critical
habitat for Casey's June beetle, we do not believe that the rule would
significantly or uniquely affect small governments because it would not
produce a Federal mandate of $100 million or greater in any year; that
is, it is not a ``significant regulatory action'' under the Unfunded
Mandates Reform Act. The DEA concludes incremental impacts may occur
due to project modifications that may need to be made for development
and flood control activities; however, these are not expected to affect
small governments. Incremental impacts stemming from various species
conservation and development controls are expected to be borne by the
Riverside County Flood Control and Water Conservation District (FCWCD),
which is not considered a small government based on the county's
population. Consequently, we do not believe that the critical habitat
designation would significantly or uniquely affect small government
entities. As such, a Small Government Agency Plan is not required.
Executive Order 13211--Energy Supply, Distribution, and Use
On May 18, 2001, the President issued E.O. 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. The OMB's guidance for
implementing this Executive Order outlines nine outcomes that may
constitute ``a significant adverse effect'' when compared to no
regulatory action. As discussed in Appendix A, the DEA finds that none
of these criteria are relevant to this analysis. The DEA identified no
potentially affected entities involved in the production of energy, and
a Statement of Energy Effects is therefore not required.
References Cited
A complete list of all references we cited in the proposed rule and
in this document is available on the Internet at http://
www.regulations.gov or by contacting the Carlsbad Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT section).
Author
The primary authors of this notice are the staff members of the
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Authority
The authority for this action is the Endangered Species Act of 1973
as amended (16 U.S.C. 1531 et seq.).
Dated: March 23, 2010
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-7131 Filed 3-30-10; 8:45 am]
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