[Federal Register Volume 78, Number 130 (Monday, July 8, 2013)]
[Proposed Rules]
[Pages 40669-40673]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16239]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket Nos. FWS-R4-ES-2012-0076 and FWS-R4-ES-2013-0029; 4500030113]
RIN 1018-AY08; 1018-AZ51
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Cape Sable Thoroughwort, Florida Semaphore Cactus, and
Aboriginal Prickly-Apple, and Designation of Critical Habitat for Cape
Sable Thoroughwort
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period; availability of
draft economic analysis.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on the October 11, 2012,
proposed rule to list Chromolaena frustrata (Cape Sable thoroughwort),
Consolea corallicola (Florida semaphore cactus), and Harrisia
aboriginum (aboriginal prickly-apple) as endangered species under the
Endangered Species Act of 1973, as amended (Act), and to designate
critical habitat for Chromolaena frustrata under the Act. We also
announce the availability of a draft economic analysis (DEA) of the
proposed designation of critical habitat for Chromolaena frustrata 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, as they will be
fully considered in preparation of the final rule.
DATES: We will consider comments received or postmarked on or before
August 7, 2013. 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. Any comments that we
receive after the closing date may not be considered in the final
decisions on these actions.
ADDRESSES: Document availability: You may obtain copies of the October
11, 2012, proposed rule on the internet at http://www.regulations.gov
at Docket No. FWS-R4-ES-2012-0076 or by mail from the South Florida
Ecological Services Office (see FOR FURTHER INFORMATION CONTACT). You
may obtain a copy of the draft economic analysis at Docket No. FWS-R4-
ES-2013-0029.
Written Comments: You may submit written comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the listing proposal to Docket
No. FWS-R4-ES-2012-0076, and submit comments on the critical habitat
proposal and the associated draft economic analysis to Docket No. FWS-
R4-ES-2013-0029. See SUPPLEMENTARY INFORMATION for an explanation of
the two dockets.
(2) By hard copy: Submit comment on the listing proposal by U.S.
mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-
2012-0076; Division of Policy and Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA
22203. Submit comment on the critical habitat proposal and draft
economic analysis by U.S. mail or hand-delivery to: Public Comments
Processing, Attn: FWS-R4-ES-2013-0029; 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: Larry Williams, Field Supervisor, U.S.
Fish and Wildlife Service, South Florida Ecological Services Office,
1339 20th Street, Vero Beach, FL 32960; by telephone 772-562-3909; or
by facsimile 772-562-4288. 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 are reopening the comment period for our proposed listing
determination for Chromolaena frustrata, Consolea corallicola, and
Harrisia aboriginum and our proposed critical habitat designation for
Chromolaena frustrata that was published in the Federal Register on
October 11, 2012 (77 FR 61836). We are also specifically seeking
comments on the draft economic analysis, which is now available, for
the critical habitat designation. We will consider information and
recommendations from all interested parties. See ADDRESSES for
information on where to send your comments.
We are also notifying the public that we will publish two separate
rules, one for the final listing determination for Chromolaena
frustrata, Consolea corallicola, and Harrisia aboriginum and another
for the final critical habitat determination for Chromolaena frustrata.
The final listing rule will publish under the existing docket number,
FWS-R4-ES-2012-0076, and the final critical habitat designation will
publish under docket number FWS-R4-ES-2013-0029.
We request that you provide comments that are specifically on our
listing determination under the existing docket number FWS-R4-ES-2012-
0076. We are particularly interested in comments concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to these species and regulations that may
be addressing those threats.
(2) Additional information concerning the historical and current
status, range, distribution, and population size of these species,
including the locations of any additional populations of these species.
(3) Any information on the biological or ecological requirements of
these species and ongoing conservation measures for these species and
their habitats.
(4) Current or planned activities in the areas occupied by these
species and possible impacts of these activities on these species.
We request that you provide comments that are specifically on the
critical habitat determination and draft economic analysis under docket
number FWS-R4-ES-2013-0029. We are particularly interested in comments
concerning:
(5) 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
[[Page 40670]]
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.
(6) Specific information on:
(a) The amount and distribution of Chromolaena frustrata habitat;
(b) What areas occupied by the species at the time of listing that
contain features essential for the conservation of the species we
should include in the designation and why; and
(c) What areas not occupied at the time of listing are essential
for the conservation of the species and why.
(7) Land use designations and current or planned activities in the
subject areas occupied by Chromolaena frustrata or proposed to be
designated as critical habitat, and possible impacts of these
activities on these species and proposed critical habitat.
(8) Information on the projected and reasonably likely impacts of
climate change on Chromolaena frustrata and proposed critical habitat.
(9) Any probable 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.
(10) 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.
(11) Information on the extent to which the description of economic
impacts in the DEA is complete and accurate.
(12) 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.
(13) 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.
If you submitted comments or information on the proposed rule (77
FR 61836) during the initial comment period from October 11, 2012, to
December 10, 2012, please do not resubmit them. We will incorporate
them into the public record as part of this comment period, and we will
fully consider them in the preparation of our final determinations. Our
final determinations will take into consideration all written comments
and any additional information we receive during both comment periods.
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-R4-ES-2012-0076 (for the proposed listings), and at Docket No.
FWS-R4-ES-2013-0029 (for the proposed critical habitat and draft
economic analysis) or by appointment, during normal business hours, at
the U.S. Fish and Wildlife Service, South Florida Ecological Services
Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of
the proposed rule on the Internet at http://www.regulations.gov at
Docket Number FWS-R4-ES-2012-0076 and the draft economic analysis at
Docket No. FWS-R4-ES-2013-0029, or by mail from the South Florida
Ecological Services Office (see FOR FURTHER INFORMATION CONTACT
section).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for Chromolaena frustrata in this
document. For more information on previous Federal actions concerning
C. frustrata, the species, or its habitat, refer to the proposed
listing rule and proposed designation of critical habitat published in
the Federal Register on October 11, 2012 (77 FR 61836), which is
available online at http://www.regulations.gov (at Docket Number FWS-
R4-ES-2012-0076) or from the South Florida Ecological Services Office
(see FOR FURTHER INFORMATION CONTACT).
On October 11, 2012, we published a proposed rule to designate
critical habitat for Chromolaena frustrata (77 FR 61836). We proposed
to designate approximately 3,466 hectares (8,565 acres) in nine units
located in Miami-Dade and Monroe Counties, Florida, as critical
habitat. That proposal had a 60-day comment period, ending December 10,
2012.
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
[[Page 40671]]
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
Chromolaena frustrata, the benefits of critical habitat include public
awareness of the presence of C. frustrata and the importance of habitat
protection, and, where a Federal nexus exists, increased habitat
protection for C. frustrata 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 and commercial 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 DEA concerning the
proposed critical habitat designation, 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 Chromolaena frustrata. 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 Chromolaena frustrata
(e.g., under the Federal listing, if adopted, and under 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,
``METHODOLOGY,'' of the DEA.
The DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed critical habitat designation for
Chromolaena frustrata 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 attributable to listing.
The DEA provides estimated costs of the probable economic impacts
of the proposed critical habitat designation of Chromolaena frustrata
associated with the following categories of activity: Commercial,
residential and recreational development; Federal land management; and
restoration and conservation.
The DEA estimates that approximately $578,000 in direct incremental
costs would result from the critical habitat designation over the next
20 years (at a 7 percent discount rate). The DEA estimates 93 percent
of the costs would be attributable to consultations regarding Federal
land management and restoration and conservation activities, with the
remaining 7 percent attributable to development in the area. Over half
of the estimated incremental costs are expected to result from actions
occurring with the Key Largo unit, in Monroe County, Florida.
Overall, 92 percent of the area proposed as critical habitat is
located within Federal, State, or local conservation areas. The DEA
estimates that the administrative cost of consultations for Federal
land management to be $61,474 for formal consultations and $1,138 for
informal consultations. It estimates that the incremental costs of the
proposed critical habitat designation on Federal land management would
be approximately $299,000 over the next 20 years (7 percent discount
rate). Over half of these costs are expected to occur within the
Everglades National Park unit.
The DEA estimates the administrative cost of consultations for
commercial, residential, and recreational development to be $5,387 per
formal consultation and $2,412 per informal consultation. It is
estimated that the incremental costs of the proposed critical habitat
designation on commercial, residential, and recreational development
would be approximately $39,000 over the next 20 years (7 percent
discount rate). The DEA provides an estimate that consultations in the
Key Largo unit would account for 77 percent of these costs.
The DEA estimates the administrative cost of consultations for
restoration and conservation to be $22,437 for formal consultations and
$7,492 for informal consultations. It is estimated that the incremental
costs of the proposed critical habitat designation on restoration and
conservation projects to be approximately $240,000 over the next 20
years (7 percent discount rate). The majority, 91 percent, of these
costs are estimated to occur within the Key Largo unit. Given the
presence of other listed species that may trigger consultation
requirements related to restoration and conservation projects, these
costs for C. frustrata are likely overestimates of the incremental cost
of the proposed critical habitat designation on restoration and
conservation projects.
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 11, 2012, proposed rule (77 FR 61836), 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 Orders (E.O.s) 12866 and 13563 (Regulatory Planning and
Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988
(Civil Justice Reform), E.O. 13211 (Energy Supply, Distribution, or
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
[[Page 40672]]
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 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
Chromolaena frustrata would affect a substantial number of small
entities, we considered the number of small entities affected within
particular types of economic activities, such as commercial,
residential, and recreational development; Federal land management; and
restoration and conservation. In order to determine whether it is
appropriate for our agency to certify that the 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 a listed species 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 the 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 Chromolaena
frustrata. Based upon the results of the DEA, we do not anticipate
significant adverse impacts to small entities as a result of the
proposed critical habitat designation. Please refer to the DEA of the
proposed critical habitat designation for a more detailed discussion of
potential economic impacts.
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species only has a regulatory
effect 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 regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate potential impacts to entities not directly
regulated, such as small businesses. However, Executive Orders 12866
and 13563 direct Federal agencies to assess the costs and benefits of
available regulatory alternatives in quantitative (to the extent
feasible) and qualitative terms. Consequently, it is the current
practice of the Service to assess to the extent practicable these
potential impacts, if sufficient data are available, whether or not
this analysis is believed by the Service to be strictly required by the
RFA. In other words, while the effects analysis required under the RFA
is limited to entities directly regulated by the rulemaking, the
effects analysis under the Act, consistent with the E.O. regulatory
analysis requirements, can take into consideration impacts to both
directly and indirectly impacted entities, where practicable and
reasonable.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. Information for this analysis was gathered from the
Small Business Administration, stakeholders, and the Service. For the
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
South Florida Ecological Services Office, Region 4, 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.).
[[Page 40673]]
Dated: June 20, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-16239 Filed 7-5-13; 8:45 am]
BILLING CODE 4310-55-P