[Federal Register Volume 77, Number 144 (Thursday, July 26, 2012)]
[Proposed Rules]
[Pages 43796-43799]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18198]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2011-0097; 4500030114]
RIN 1018-AX41
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Lost River Sucker and Shortnose Sucker
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 December 7, 2011, proposed
designation of critical habitat for the Lost River sucker (Deltistes
luxatus) and shortnose sucker (Chasmistes brevirostris) 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 for Lost River sucker and shortnose
sucker and an amended required determinations section of the proposal.
DATES: We will consider all comments received or postmarked on or
before August 27, 2012. Comments submitted electronically using the
Federal eRulemaking Portal (see ADDRESSES section, below) must be
received by 11:59 p.m. Eastern Time on the closing date.
ADDRESSES: Document availability: You may obtain copies of the proposed
rule and the draft economic analysis on the Internet at http://www.regulations.gov at Docket Number FWS-R8-ES-2011-0097, or by mail
from the Klamath Falls Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Comment submission: You may submit written comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R8-ES-2010-0097,
which is the docket number for this rulemaking. Then, on the left side
of the screen, under the Document Type heading, click on the Proposed
Rules link to locate this document and submit a comment.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R8-ES-2011-0097; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. 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: Laurie R. Sada, Field Supervisor, U.S.
Fish and Wildlife Service, Klamath Falls Fish and Wildlife Office, 1936
California Avenue, Klamath Falls, OR 97601, by telephone (541-885-
8481), or by facsimile (541-885-7837). 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 Lost River sucker and shortnose sucker that was published in
the Federal Register on December 7, 2011 (76 FR 76337), 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 may not be
prudent.
(2) Specific information on:
(a) The amount and distribution of Lost River sucker and shortnose
sucker habitat;
(b) What areas that were occupied at the time of listing and
contain physical and biological features essential to the conservation
of the species should be included in the designation and why;
(c) Special management considerations or protection that may be
needed for the physical and biological features essential to the
conservation of the species in critical habitat areas we are proposing,
including managing for the potential effects of climate change; and
(d) What areas not occupied at the time of listing meet our
criteria for being essential for the conservation of the species and,
therefore, should be included in the designation and why.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the Lost River sucker and shortnose sucker, the
features essential to their conservation, and the areas proposed as
critical habitat.
(5) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act.
(6) Any probable economic, national security, environmental,
cultural, or other relevant impacts of designating as critical habitat
any area that may be included in the final designation. In particular,
we seek information on any impacts on small entities, and the benefits
of including or excluding areas that exhibit these impacts.
(7) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
(8) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the draft economic analysis, 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.
If you submitted comments or information on the proposed rule (76
FR 76337) during the initial comment period from December 7, 2011, to
February 6, 2012, 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. Our final determination
concerning revised
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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
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.
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
No. FWS-R8-ES-2011-0097, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Klamath Falls 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-R8-ES-2011-0097, or by mail
from the Klamath Falls Fish and Wildlife 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 Lost River sucker and
shortnose sucker in this document. For more information on the Lost
River sucker and shortnose sucker or their habitat, refer to the final
listing rule published in the Federal Register on July 18, 1988 (53 FR
27130), the 2007 5-year reviews completed for the Lost River sucker and
shortnose sucker (Service 2007a and 2007b), and the Draft Revised Lost
River Sucker and Shortnose Sucker Recovery Plan (Service 2011). These
documents are available on the Klamath Falls Fish and Wildlife Office
web site at http://www.fws.gov/klamathfallsfwo/, on the Environmental
Conservation Online System (http://ecos.fws.gov/ecos/indexPublic.do),
at http://www.regulations.gov (at Docket Number FWS-R8-ES-2011-0097),
or from the Klamath Falls Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Lost River sucker and shortnose sucker are members of the fish
family Catostomidae and are endemic to the upper Klamath River basin
(National Research Council of the National Academies ((NRC) 2004, pp.
184, 189). Both species predominantly inhabit lake environments but
also utilize riverine, marsh, and shoreline habitats for portions of
their life history. Lost River sucker are distributed within Upper
Klamath Lake and its tributaries (Klamath County, Oregon), Clear Lake
Reservoir and its tributaries (Modoc County, California), Tule Lake
(Siskiyou and Modoc Counties, California), Lost River (Klamath County,
Oregon, and Modoc County, California), Link River (Klamath County,
Oregon), and the Klamath River mainstem, including Keno, J.C. Boyle,
Copco, and Iron Gate Reservoirs (Klamath County, Oregon, and Siskiyou
County, California; Moyle 2002, p. 199; NRC 2004, pp. 190-192). The
distribution of shortnose sucker overlaps with that of Lost River
sucker, but shortnose sucker also occurs in Gerber Reservoir (Klamath
County, Oregon) and upper Willow Creek (Modoc County, California, and
Lake County, Oregon), a tributary to Clear Lake Reservoir (Buettner and
Scoppettone 1991, p. 18; Moyle 2002, p. 203; NRC 2004, pp. 190-192).
Previous Federal Actions
On December 7, 2011, we published a proposed rule to designate
critical habitat for the Lost River sucker and shortnose sucker (76 FR
76337). We proposed to designate approximately 146 miles (mi) (234
kilometers (km)) of streams and 117,848 acres (ac) (47,691 hectares)
(ha) of lakes and reservoirs for Lost River sucker and approximately
128 mi (207 km) of streams and 123,590 ac (50,015 ha) of lakes and
reservoirs for shortnose sucker in 2 units located in Klamath and Lake
Counties, Oregon, and Modoc County, California, as critical habitat.
That proposal was a reproposal of a proposed rule we published December
1, 1994 (59 FR 61744), and had a 60-day comment period, ending February
6, 2012. We will submit for publication in the Federal Register a final
critical habitat designation for the Lost River sucker and shortnose
sucker on or before November 30, 2012. For further discussion on
previous Federal actions please see the December 7, 2011, revised
proposed rule (76 FR 76337).
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 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 Lost River sucker and shortnose sucker, the benefits of critical
habitat include public awareness of the
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presence of the Lost River sucker and shortnose sucker and the
importance of habitat protection, and, where a Federal nexus exists,
increased habitat protection for the Lost River sucker and shortnose
sucker 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 Lost River sucker and shortnose sucker. 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 Lost River sucker and shortnose sucker (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). 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
Lost River sucker and shortnose sucker 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. 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 Lost River sucker and
shortnose sucker conservation efforts associated with the following
categories: (1) Activities affecting water supply--these activities may
include water management activities such as dam operation and
hydropower production within the reservoirs comprising critical
habitat, particularly the Klamath Project on Upper Klamath Lake; (2)
activities affecting water quality--these activities may include
agricultural activities, including livestock grazing, as well as in-
water construction activities; and (3) activities affecting fish
passage--these activities may include flood control or water diversions
that may result in entrainment or lack of access to spawning habitat.
No significant economic impacts are likely to result from the
designation of critical habitat. Incremental costs are limited to
additional administrative effort to consider potential adverse
modification of critical habitat as part of future section 7
consultations for the suckers. In total, incremental administrative
efforts are estimated at $586,000, or $51,700 on an annualized basis
(assuming a 7 percent discount rate).
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 December 7, 2011, proposed rule (76 FR 76337), 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 (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. 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 rule making.
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
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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 Lost River sucker and shortnose sucker would affect a substantial
number of small entities, we considered the number of small entities
affected within particular types of economic activities, such as water
management, grazing, transportation, herbicide and pesticide
application, forest management, or stream restoration activities. In
order to determine whether it is appropriate for our agency to certify
that this proposed 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 Lost River sucker
and shortnose sucker 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. 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 Lost River
sucker and shortnose sucker. Only the impacts which may be associated
with grazing activities are considered to be borne by small entities
and are the focus of the draft economic analysis (Industrial Economics
Incorporated (IEc) 2012, p. A-4). Across the study area, 125 businesses
are engaged in the beef cattle ranching and farming industry. Of these,
121, or 97 percent, have annual revenues at or below the small business
threshold of $750,000, and thus are considered small. A section 7
consultation on grazing activity may cover one or more grazing
allotments, and a small entity may be permitted to graze on one or more
of these allotments. Because the number of allotments and grazing
permittees varies from consultation to consultation, the economic
analysis made the simplifying assumption that 1 small entity is
affected in each of the 20 allotments adjacent to proposed critical
habitat. To estimate average annual revenues per grazing entity, the
economic analysis relied on data from the National Agricultural
Statistics Service, which provides information on the value of calf and
cattle sales as well as the number of farms. Using these data, the
economic analysis estimated a value of calf and cattle sales per farm
for all the counties in the study area. The economic analysis then
averaged this value across the counties to estimate annual revenues per
grazing entity of $132,000. The economic analysis noted that this
average is significantly below the threshold level defining a small
entity. The economic analysis estimated total annualized impacts to the
20 entities that may incur administrative costs of approximately
$24,600, or annualized impacts of $2,170. Assuming 20 affected small
business entities and that each entity has annual revenues of $132,000,
these annualized impacts per small entity are expected to comprise 0.08
percent of annual revenues. Please refer to the DEA of the proposed
critical habitat designation for a more detailed discussion of
potential economic impacts to small businesses (IEc 2012, pp. A-1-A-6).
Following our evaluation of potential effects to small business
entities from this rulemaking, we do not believe that the 20 small
business entities in the affected sector represent a substantial
number. However, we will further evaluate the potential effects to
these small businesses after we receive comments on the draft economic
analysis and as we develop our final rulemaking.
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 20 small entities that may be impacted by the proposed
critical habitat designation. However, the potential impacts on those
entities are expected to comprise only 0.08 percent of their annual
revenues. 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
Klamath Falls Fish and Wildlife Office, Region 8, 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: July 17, 2012.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-18198 Filed 7-25-12; 8:45 am]
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