[Federal Register Volume 77, Number 118 (Tuesday, June 19, 2012)]
[Proposed Rules]
[Pages 36457-36460]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14733]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2009-0022; 4500030114]
RIN 1018-AX68


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Coqu[iacute] Llanero

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening 
of the public comment period on the October 12, 2011, proposed 
designation of critical habitat for the coqu[iacute] llanero 
(Eleutherodactylus juanariveroi) (a tree frog) under the Endangered 
Species Act of 1973, as amended (Act). We are reopening the comment 
period to allow all interested parties an opportunity to comment on the 
proposed rule, our evaluation of the potential economic impacts of the 
proposed designation, and the amended required determinations section. 
Comments previously submitted need not be resubmitted, as they will be 
fully considered in preparation of the final rule.

DATES: The comment period for the proposed rule that published on 
October 12, 2011, at 76 FR 63420, is reopened. We will consider 
comments received on or before July 19, 2012. 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 written comments by one of the following 
methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R4-ES-2009-0022, which 
is the docket number for this rulemaking.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R4-ES-2009-0022; Division of Policy and 
Directives Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax 
Drive, MS 2042-PDM, Arlington, VA 22203.

FOR FURTHER INFORMATION CONTACT: Marelisa Rivera, Deputy Field 
Supervisor, Caribbean Ecological Services Field Office, P.O. Box 491, 
Road 301 Km 5.1, Boquer[oacute]n, Puerto Rico 00622, by telephone 787-
851-7297, extension 206, or by facsimile 787-851-7440. 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 coqu[iacute] llanero (an endemic Puerto Rican tree frog) that 
was published in the Federal Register on October 12, 2011 (76 FR 
63420), our evaluation of potential economic impacts 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) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    (2) Any information on the biological or ecological requirements of 
the species and ongoing conservation measures for the species and its 
habitat.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and regulations that may 
be addressing those threats.
    (4) Current or planned activities in the areas occupied by the 
species and possible impacts of these activities on this species.
    (5) The reasons why areas should or should not be designated as 
critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et 
seq.), including the possible risks or benefits of designating critical 
habitat, including risks associated with publication of maps 
designating any area on which this species may be located, now or in 
the future, as critical habitat.
    (6) Specific information on:
    (a) The amount and distribution of habitat for the coqu[iacute] 
llanero;
    (b) What areas, which were occupied at the time of listing (or are 
currently occupied) and that contain the physical and biological 
features essential to the conservation of this species, should be 
included in a critical habitat designation and why;
    (c) Special management considerations or protection that may be 
needed for the essential features in critical habitat areas, including 
managing for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of this species and why.
    (7) Information on the projected and reasonably likely impacts of 
changing environmental conditions resulting from climate change on the 
species and its habitat.
    (8) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, any impacts on small entities or families, 
and the benefits of including or excluding areas that exhibit these 
impacts.
    (9) Information on the extent to which the description of probable 
economic impacts of the proposed critical habitat designation is 
complete and accurate.
    (10) Information on whether the benefits of an exclusion of any 
particular area may outweigh the benefits of its inclusion under 
section 4(b)(2) of the Act.
    (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 (76 
FR 63420) during the initial comment period from October 12, 2011, to 
December 12, 2011, please do not resubmit them. We have incorporated 
them into the public record, and we will fully consider them in the 
preparation of our final determination, which 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 by one of the methods 
listed in the ADDRESSES section. We request that you send comments only 
by the methods described in the ADDRESSES section.
    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.

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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 our evaluation 
of probable economic impacts of the proposed designation, will be 
available for public inspection on http://www.regulations.gov at Docket 
No. FWS-R4-ES-2009-0022, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Caribbean Ecological 
Services Field Office (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 coqu[iacute] llanero in 
this document. For more information on previous Federal actions 
concerning the coqu[iacute] llanero, refer to the joint 12-month 
petition finding, proposed listing of the species as endangered, and 
the proposed designation of critical habitat published in the Federal 
Register on October 12, 2011 (76 FR 63420, which is available online at 
http://www.regulations.gov at Docket Number FWS-R4-ES-2009-0022) or 
from the Caribbean Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Previous Federal Actions

    On October 12, 2011, we published a proposed rule to list the 
coqu[iacute] llanero as endangered and to designate critical habitat 
(76 FR 63420). We proposed to designate approximately 615 acres (ac) 
(249 hectares (ha)) in one unit located in Sabana Seca Ward, Toa Baja, 
Puerto Rico, as critical habitat. That proposal had a 60-day comment 
period, ending December 12, 2011. We will submit for publication in the 
Federal Register a final critical habitat designation for the 
coqu[iacute] llanero on or before October 12, 2012. We received no 
requests for a public hearing, and, therefore, we will not hold any 
public hearings as part of this rulemaking.

Critical Habitat

    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 of critical habitat 
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 coqu[iacute] llanero, the benefits of critical habitat include 
public awareness of the presence of the coqu[iacute] llanero and the 
importance of habitat protection, and, where a Federal nexus exists, 
increased habitat protection for the coqu[iacute] llanero 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 potential economic impact of designation. 
Accordingly, we have evaluated the potential economic impact of the 
proposed critical habitat designation. A discussion of the potential 
economic impacts follows.

Evaluation of Potential Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we evaluate the probable economic impacts that may result from a 
designation of critical habitat, and to take into consideration these 
impacts when evaluating whether to exclude any particular area from a 
final critical habitat designation. To assess the potential economic 
impacts of a designation, we must first evaluate the impacts of 
restricting or modifying specific land uses or activities for the 
benefit of the species and its habitat within the proposed critical 
habitat area. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat. The economic 
impact of a 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 as 
well as other Federal, State, and local regulations). The baseline, 
therefore, represents the costs of all efforts to conserve the species 
and its habitat 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.
    In our evaluation of the potential economic impacts that may result 
from the proposed designation of critical habitat for the coqu[iacute] 
llanero, first we identified, in an Incremental Effects Memorandum 
dated October 12, 2011, potential incremental costs associated with the 
following categories of activity:
    (1) Species and habitat management; (2) residential, commercial, or 
industrial

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development; (3) agriculture; (4) construction of new, or maintenance 
of, roads and highways; (5) maintenance (including vegetation removal 
or alteration) of drainage ditches; (6) construction or maintenance of 
recreational facilities; (7) construction and maintenance of 
telecommunication towers; (8) renewable wind power energy; (9) gas 
pipeline; (10) closure of landfill; and (11) transfer of Federal lands 
(Navy).
    In this memorandum, the Service attempted to clarify the difference 
between the jeopardy and adverse modification standards for the 
coqu[iacute] llanero critical habitat. Because the designation of 
critical habitat for coqu[iacute] llanero is being proposed 
concurrently with the listing, it is more difficult to discern which 
conservation efforts are attributable to the species being listed and 
those which will result solely from the designation of critical 
habitat. However, the following specific circumstances in this case 
help to inform our evaluation: (1) The essential physical and 
biological features identified for critical habitat are the same 
features essential for the life requisites of the species, (2) the 
current range of the coqu[iacute] llanero is limited to the specific 
area identified as critical habitat, and (3) any actions that may 
affect the species or its habitat would also affect designated critical 
habitat. The Incremental Effects Memorandum outlines our rationale 
concerning this limited distinction between baseline conservation 
efforts and incremental impacts of the designation of critical habitat 
for this species. This evaluation of the incremental effects has been 
used as the basis to evaluate the potential incremental economic 
impacts of this proposed designation of critical habitat.
    On the basis of our evaluation of the potential incremental 
effects, we have determined that almost all conservation-related 
efforts and activities will result from the protections afforded the 
species through State and Federal law once the species is federally 
listed. In other words, specific actions or efforts, or project 
modifications that may be recommended to conserve the species or its 
habitat, would be recommended because the species is protected under 
both State and Federal law. While it has been suggested (Vermont Law 
School, 2012) that the proposed Via Verde pipeline would adversely 
affect the coqu[iacute] llanero and its proposed critical habitat, at 
this time the proposed alignment is not anticipated to cross or affect 
the habitat of the coqu[iacute] llanero. Only in those cases where an 
action may affect the designated critical habitat and there is a 
Federal nexus (i.e., a Federal agency that is authorizing, funding, or 
permitting the action) would there be the additional requirement that 
the Federal action agency evaluate whether the action may adversely 
modify the designated critical habitat. This additional analysis by the 
Federal action agency is considered to be an incremental effect of the 
designation. While this additional analysis will require time and 
resources by both the Federal action agency and the Service, it is 
believed that, in most circumstances, these costs would predominantly 
be administrative in nature and also would not be significant. Because, 
in this circumstance, we believe that the incremental impacts of the 
designation, and therefore the potential economic impacts, would be 
limited to these administrative actions, we have determined that this 
rule will not result in a significant economic impact in any given year 
or result in a disproportionate economic impact to any particular 
sector.

Required Determinations--Amended

    In our October 12, 2011, proposed rule (76 FR 63420), we indicated 
that we would defer our determination of compliance with several 
statutes and executive orders until we had evaluated the potential 
economic impacts of the designation and potential effects on landowners 
and stakeholders. Following our evaluation of the potential incremental 
economic impacts resulting from the designation of critical habitat for 
the coqu[iacute] llanero, we have amended or affirmed our 
determinations below. Specifically, 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), 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 
our evaluation of the potential economic impacts of the proposed 
designation of critical habitat for coqu[iacute] llanero, we are 
amending our required determination concerning the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).

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 of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 effects 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 the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    When evaluating the potential effects of a proposed rulemaking on 
small entities, the RFA only requires that the agency analyze the 
potential impacts to directly affected entities. However, where 
practicable, the RFA recommends also evaluating the potential impacts 
to indirectly affected entities as well. To determine if the proposed 
designation of critical habitat for the coqu[iacute] llanero would 
affect a substantial number of small entities, we must first evaluate 
whether any small entities may be directly affected by the designation.
    The designation of critical habitat for an endangered or threatened 
species only has a regulatory effect under section 7 of the Act where a 
Federal action agency is involved in a particular action that may 
affect the designated critical habitat. Under these circumstances, only 
the Federal action agency is directly affected by the designation, and, 
therefore, the requirements of the RFA allow for the Service to limit 
its evaluation of the potential impacts to only the Federal action 
agencies. There is no further requirement under the RFA to evaluate the 
potential impacts to indirectly affected entities, such as small 
businesses, organizations, or governments. As a consequence, we have 
determined that the proposed designation of critical habitat for the 
coqu[iacute] llanero would not directly affect small entities.
    Based on this determination, we certify that, if promulgated, the 
proposed critical habitat designation would not have a significant 
economic impact on a substantial number of small

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business entities. Therefore, an initial regulatory flexibility 
analysis is not required.

Authors

    The primary authors of this notice are the staff members of the 
Caribbean Ecological Services Field 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: June 6, 2012.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-14733 Filed 6-18-12; 8:45 am]
BILLING CODE 4310-55-P