2011 Federal Register, 76 FR 27629; Centralized Library: U.S. Fish and Wildlife Service - Federal Register, Volume 76 Issue 92 (Thursday, May 12, 2011)

[Federal Register Volume 76, Number 92 (Thursday, May 12, 2011)]
[Proposed Rules]
[Pages 27629-27632]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-11607]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2008-0107; MO 92210-0-0009-B2]
RIN 1018-AV88

Endangered and Threatened Wildlife and Plants; Listing of the
Altamaha Spinymussel 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, announce the reopening
of the public comment period on the October 6, 2010, proposed
designation of critical habitat for the Altamaha spinymussel (Elliptio
spinosa) under the Endangered Species Act of 1973, as amended (Act). We
also announce the availability of a draft economic analysis (DEA) of
the proposed designation of critical habitat and an amended required
determinations section of the proposal. We are reopening the comment
period to allow all interested parties an opportunity to comment
simultaneously on the proposed rule, 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 comments received on or before June 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-2008-0107.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: Docket No. FWS-R4-ES-2008-0107; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS
2042-PDM; 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: Sandra Tucker, Field Supervisor, U.S.
Fish and Wildlife Service, Georgia Ecological Services Office, 105
Westpark Dr., Suite D, Athens, GA 30606; telephone 706-613-9493;
facsimile 706-613-6059. 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 listing and designation of
critical habitat for the Altamaha spinymussel that was published in the
Federal Register on October 6, 2010 (75 FR 61664), our DEA of the
proposed designation, 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 habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the species 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.
(2) Specific information on:
(a) The distribution of the Altamaha spinymussel;
(b) The amount and distribution of Altamaha spinymussel habitat;
and
(c) 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; and
(d) What areas not occupied at the time of 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 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.
(5) 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.
(6) Information on the extent to which the description of economic
impacts in the DEA is complete and accurate.
(7) 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.
(8) Which areas would be appropriate as critical habitat for the
species.

[[Page 27630]]

(9) Comments or information that may assist us in identifying or
clarifying the primary constituent elements.
(10) Whether any specific areas we are proposing as critical
habitat should be considered for exclusion under section 4(b)(2) of the
Act, and whether benefits of potentially excluding any specific area
outweigh the benefits of including that area under section 4(b)(2) of
the Act.
(11) Information on the projected and reasonably likely impacts of
climate change on the Altamaha spinymussel, and any special management
needs or protections that may be needed in critical habitat areas we
are proposing.
If you submitted comments or information on the proposed rule (75
FR 61664) during the initial comment period from October 6, 2010, to
December 6, 2010, please do not resubmit them. 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 to the conservation of the species, 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 ADDRESSES. We will not
consider comments sent by e-mail or fax or to an address not listed in
ADDRESSES.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy 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.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule and DEA, will be
available for public inspection on http://www.regulations.gov at Docket
Number FWS-R4-ES-2008-0107, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Georgia Ecological
Services Office, Athens, Georgia (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-2008-0107, or
by mail from the U.S. Fish and Wildlife Service, Georgia Ecological
Services Office, Athens, Georgia (see FOR FURTHER INFORMATION CONTACT).

Background

It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for the Altamaha spinymussel in
this document. For more information on previous Federal actions
concerning the Altamaha spinymussel or its habitat, refer to the
proposed listing and critical habitat rule published in the Federal
Register on October 6, 2010 (75 FR 61664), which is available online at
http://www.regulations.gov (at Docket Number FWS-R4-ES-2008-0107) or
from the U.S. Fish and Wildlife Service, Georgia Ecological Services
Office, Athens, Georgia (see FOR FURTHER INFORMATION CONTACT).
On October 6, 2010, we published a proposed rule to designate
critical habitat for the Altamaha spinymussel (75 FR 61664). We
proposed to designate approximately 240 kilometers (149 miles) of
mainstem river channel in four units as critical habitat in Appling,
Ben Hill, Coffee, Jeff Davis, Long, Montgomery, Tattnall, Telfair,
Toombs, Wayne, and Wheeler Counties, Georgia. That proposal had a 60-
day comment period, ending December 6, 2010.
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 must 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 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
the Altamaha spinymussel, the potential benefits of critical habitat
include public awareness of the presence of the Altamaha spinymussel
and the importance of habitat protection, and, where a Federal nexus
exists, increased habitat protection for the Altamaha spinymussel 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, funded, or authorized by
Federal agencies.
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).

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 Altamaha spinymussel. The DEA describes the
economic impacts of all potential conservation efforts for the Altamaha
spinymussel; some of these costs will likely be incurred regardless of
whether we designate critical habitat.

[[Page 27631]]

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
already in place for the species (e.g., under the Federal listing 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
designation of critical habitat for the species. In other words, the
incremental costs are those attributable solely to the designation of
critical habitat, above and beyond the baseline costs; these 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. The analysis looks retrospectively at baseline
impacts incurred since the species was listed, and forecasts both
baseline and incremental impacts likely to occur if we finalize the
proposed critical habitat designation. For a further description of the
methodology of the analysis, see Chapter 2, ``Framework for the
Analysis,'' of the DEA.
The DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed critical habitat designation for the
Altamaha spinymussel over the next 30 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 30-year timeframe. It identifies potential
incremental costs as a result of the proposed critical habitat
designation; these are those costs attributed to critical habitat over
and above those baseline costs attributed to listing. The DEA
quantifies economic impacts of Altamaha spinymussel conservation
efforts associated with the following categories of activity: Electric
power generation and transmission, transportation, and recreation.
Applying a seven percent discount rate, electric power generation and
transmission is estimated to incur the largest impact at $26,700 over
the next 30 years (2011-2040); overall incremental impacts associated
with the designation are estimated at $37,100 over the same time
period.
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 October 6, 2010, proposed rule (75 FR 61664), 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 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.
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 determination concerning the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

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). 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 our 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 Altamaha spinymussel would affect a substantial number of small
entities, we considered the number of small entities affected within
particular types of economic activities, such as transportation,
electric power generation and transmission, and recreation. 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 Altamaha spinymussel
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.

[[Page 27632]]

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 Altamaha
spinymussel. Only the transportation industry included small entities
likely to incur incremental costs associated with the designation and
these costs, which are largely associated with formal consultation
under section 7 of the Act, are expected to result in less than 0.01
percent of the annual revenue threshold that small transportation
entities must meet. Please refer to the DEA of the proposed critical
habitat designation for a more detailed discussion of potential
economic 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. We have
identified one category of small entity that may be impacted by the
proposed critical habitat designation. For the above reasons and based
on currently available information, we certify that, if promulgated,
the proposed critical habitat 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
U.S. Fish and Wildlife Service, Athens, Georgia Ecological Services
Office.

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

Dated: May 2, 2011.
Will Shafroth,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-11607 Filed 5-11-11; 8:45 am]
BILLING CODE 4310-55-P