[Federal Register Volume 79, Number 30 (Thursday, February 13, 2014)]
[Proposed Rules]
[Pages 8668-8677]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03120]
[[Page 8668]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2013-0080; 4500030114]
RIN 1018-AZ57
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Ivesia webberi (Webber's Ivesia)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; revision and reopening of the comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on our August 2, 2013, proposed
rule to designate critical habitat for Ivesia webberi (Webber's
ivesia). We also announce the availability of a draft economic analysis
(DEA) of the proposed designation of critical habitat for I. webberi
and an amended required determinations section of the proposal. In
addition, in this document, we are proposing revised unit boundaries
and acreages for five units described in our August 2, 2013, proposal
(78 FR 46862) based on comments we received on the proposal. These
revisions result in an increase of approximately 159 acres (65
hectares) in the proposed designation of critical habitat. We are
reopening the comment period to allow all interested parties an
opportunity to comment simultaneously on the proposed rule, the
associated DEA, the amended required determinations section, and the
unit revisions described in this document. 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
March 17, 2014. 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 associated documents of the DEA on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0080 or by mail from
the Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
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. Search for Docket No. FWS-R8-ES-2013-0080 (the
docket number for the proposed critical habitat rule).
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R8-ES-2013-0080); 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: Edward D. Koch, State Supervisor, U.S.
Fish and Wildlife Service, Nevada Fish and Wildlife Office, 1340
Financial Boulevard, Suite 234, Reno, NV 89502; by telephone 775-861-
6300; or by facsimile 775-861-6301. 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 Ivesia webberi that was published in the Federal Register on August
2, 2013 (78 FR 46862), our DEA of the proposed designation, the amended
required determinations provided in this document, and the revisions to
five of the proposed units as described 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 those threats 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 amount and distribution of Ivesia webberi habitat;
(b) The areas that are currently occupied and contain features
essential to the conservation of the species that we should include in
the designation and why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) The areas not occupied at the time of listing that are
essential for the conservation of the species and why.
(3) Land use designations and current or planned activities in the
subject areas and their probable impacts on proposed critical habitat.
(4) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, we seek information on the benefits of
including or excluding areas that exhibit these impacts.
(5) Information on the extent to which the description of economic
impacts in the DEA is a reasonable estimate of the likely economic
impacts.
(6) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the associated documents of 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.
(7) Whether any 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.
(8) 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.
If you submitted comments or information on the proposed rule (78
FR 46862) during the initial comment period from August 2, 2013, to
October 1, 2013, 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 determination. Our
final determination concerning critical habitat will take into
consideration all written comments and any additional information we
receive during both comment periods. Accordingly, the final decision
may differ from the proposed rule, as revised by this document.
[[Page 8669]]
You may submit your comments and materials concerning the proposed
rule or DEA by one of the methods listed in ADDRESSES. We request that
you send comments only by the methods described 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 listing, proposed
critical habitat, and DEA, will be available for public inspection on
http://www.regulations.gov at Docket Number FWS-R8-ES-2013-0080, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Nevada Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT). You may obtain copies of the proposed rule to
designate critical habitat and the DEA on the Internet at http://www.regulations.gov at Docket Number FWS-R8-ES-2013-0080, or by mail
from the Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT section).
Background
It is our intent to discuss only those topics directly relevant to
the proposed designation of critical habitat for Ivesia webberi (78 FR
46862) in this document. For more information on previous Federal
actions concerning the I. webberi, refer to the proposed listing rule
(78 FR 46889) that published in the Federal Register on August 2, 2013.
Both proposed rules are available online at http://www.regulations.gov
(at Docket No. FWS-R8-ES-2013-0079 for the proposed listing and Docket
No. FWS-R8-ES-2013-0080 for the proposed critical habitat designation)
or from the Nevada Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
On August 2, 2013, we published a proposed rule to designate
critical habitat for Ivesia webberi (78 FR 46862). We proposed to
designate approximately 2,011 acres (ac) (814 hectares (ha)) as
critical habitat for I. webberi in Plumas, Lassen, and Sierra Counties
in northeastern California and in Washoe and Douglas Counties in
northwestern Nevada. That proposal had an initial 60-day comment period
ending October 1, 2013. This document announces a proposed revision of
the boundaries and acreages of five units (Units 9, 10, 12, 13, and 14)
described in the August 2, 2013, proposed rule to designate critical
habitat. We anticipate submitting for publication in the Federal
Register a final critical habitat designation for I. webberi on or
before August 2014, if we finalize our proposed rule to list the
species under the Act.
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.
Revisions to Proposed Critical Habitat Designation
On August 2, 2013, we proposed as critical habitat for Ivesia
webberi 16 units (2 with subunits), consisting of approximately 2,011
ac (814 ha) in Plumas, Lassen, and Sierra Counties in northeastern
California and in Washoe and Douglas Counties in northwestern Nevada
(78 FR 46862).
We are now proposing to increase the designation by approximately
159 ac (65 ha) to a total of approximately 2,170 ac (879 ha). We
propose this increase based on new information received from the U.S.
Forest Service (Forest Service) that better defines the physical and
biological features along the boundaries of these five proposed units,
resulting in changes to the acreages for those units. The revised units
include: Unit 9 (Stateline Road 1), Unit 10 (Stateline Road 2), Unit 12
(Black Springs), Unit 13 (Raleigh Heights), and Unit 14 (Dutch Louie
Flat) (see Table 1). Apart from the acreages and ownership percentages
provided in the unit descriptions in the August 2, 2013, proposed rule,
the information in the unit descriptions in that proposal remains
unchanged.
Table 1--Revisions to Proposed Critical Habitat Units for Ivesia webberi
[Area estimates reflect all land within critical habitat boundaries]
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Change from 8/2/
Revised acres 2013 proposal
Proposed critical habitat unit Land ownership by type (hectares) (acres
(hectares))
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9. Stateline Road 1......................... Federal....................... 186 (75) +61 (+25)
State or Local Government..... 0 (0) 0 (0)
Private....................... 7 (3) 0 (0)
10. Stateline Road 2........................ Federal....................... 66 (27) +1 (+1)
State or Local Government..... 0 (0) 0 (0)
Private....................... 0 (0) 0 (0)
12. Black Springs........................... Federal....................... 133 (54) +17 (+7)
State or Local Government..... 0 (0) 0 (0)
Private....................... 30 (12) +6 (+2)
13. Raleigh Heights......................... Federal....................... 229 (93) +66 (+27)
State or Local Government..... 0 (0) 0 (0)
Private....................... 24 (10) +10 (+4)
14. Dutch Louie Flat........................ Federal....................... 13 (5) +2 (+1)
State or Local Government..... 0 (0) 0 (0)
Private....................... 41 (17) -5 (-2)
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[[Page 8670]]
Totals for Critical Habitat Units 9, 10, Federal....................... 627 (254) +148 (+61)
12, 13, and 14.
State or Local Government..... 0 (0) 0 (0)
Private....................... 102 (42) +11 (+4)
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Revised Totals for All 16 Units......... Federal....................... 1,513 (612) ................
State or Local Government..... 214 (86) ................
Private....................... 444 (180) ................
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TOTAL......................... 2,170 (879) ................
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Note: Area sizes may not sum due to rounding.
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
among other factors, the additional regulatory benefits that an area
would receive through the analysis under section 7 of the Act
addressing the destruction or adverse modification 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 identifying areas containing essential features that aid in
the recovery of the listed species, and any ancillary benefits
triggered by existing local, State or Federal laws as a result of the
critical habitat designation.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to
incentivize or result in conservation; the continuation, strengthening,
or encouragement of partnerships; and the implementation of a
management plan. In the case of Ivesia webberi, the benefits of
critical habitat include public awareness of the presence of the
species, the importance of habitat protection, and, where a Federal
nexus exists, increased habitat protection for I. webberi. 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.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. 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 for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios ``with critical
habitat'' and ``without critical habitat.'' The ``without critical
habitat'' scenario represents the baseline for the analysis, which
includes the existing regulatory and socio-economic burden imposed on
landowners, managers, or other resource users potentially affected by
the designation of critical habitat (e.g., under the Federal listing as
well as other Federal, State, and local regulations). The baseline,
therefore, represents the costs of all efforts attributable to the
listing of the species under the Act (i.e., conservation of 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 would not be expected without 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 use when
evaluating the benefits of inclusion and exclusion of particular areas
from the final designation of critical habitat should we choose to
conduct an optional 4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from the proposed designation of critical
habitat (Service 2013). The information contained in our IEM was then
used to develop a screening analysis (Industrial Economics,
Incorporated (IEc) 2013, 2014) of the probable effects of the
designation of critical habitat for Ivesia webberi. We began by
conducting a screening analysis of the proposed designation of critical
habitat in order to focus our analysis on the key factors that are
likely to result in incremental economic impacts. The purpose of the
screening analysis is to filter out the geographic areas in which the
critical habitat designation is unlikely to result in probable
incremental economic impacts. In particular, the screening analysis
considers baseline costs (i.e., absent critical habitat designation)
and includes probable economic impacts where land and water use may be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. The screening analysis
filters out particular areas of critical habitat that are already
subject to such protections and are,
[[Page 8671]]
therefore, unlikely to incur incremental economic impacts. Ultimately,
the screening analysis allows us to focus our analysis on evaluating
the specific areas or sectors that may incur probable incremental
economic impacts as a result of the designation. This screening
analysis (IEc 2013, 2014) combined with the information contained in
our IEM (Service 2013) are what we consider our DEA of the proposed
critical habitat designation for I. webberi, and the DEA is summarized
in the narrative below.
Executive Orders (E.O.s) 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. Consistent
with the E.O.s' regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly impacted entities, where practicable and reasonable. We
assess, to the extent practicable, the probable impacts, if sufficient
data are available, to both directly and indirectly impacted entities.
As part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation. In our evaluation of the probable
incremental economic impacts that may result from the proposed
designation of critical habitat for Ivesia webberi, first we
identified, in the IEM dated October 31, 2013, probable incremental
economic impacts associated with the following categories of
activities: (1) Federal lands management (Forest Service and U.S.
Bureau of Land Management (BLM)); (2) commercial or residential
development; (3) livestock grazing; (4) off-highway vehicle (OHV) and
other recreational activities; (5) wildfire; (6) vegetation management,
including fuels reduction activities and management for invasive
species; and (7) vegetation or ground-disturbing activities associated
with construction, maintenance or use of roads, trails, transmission
lines, or other infrastructure corridors (Service 2013, pp. 3-10). We
considered each industry or category individually. Additionally, we
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 Ivesia webberi is present, Federal
agencies already are required to consult with the Service 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. Therefore, disproportionate impacts to
any geographic area or sector are not likely as a result of this
critical habitat designation.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for Ivesia
webberi's critical habitat (Service 2013, pp. 12-22). Because the
designation of critical habitat for I. webberi was proposed
concurrently with the listing, it has been our experience that 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, and (2) any actions that would constitute jeopardy to I.
webberi would also likely adversely affect the essential physical and
biological features of critical habitat. The IEM outlines our rationale
concerning this limited distinction between baseline conservation
efforts and incremental impacts of the designation of critical habitat
for this species (Service 2013, pp. 12-22). This evaluation of the
incremental effects has been used as the basis to evaluate the probable
incremental economic impacts of this proposed designation of critical
habitat.
The proposed critical habitat designation for Ivesia webberi (as
proposed on August 2, 2013 (78 FR 46862)) totals approximately 2,011 ac
(814 ha), all of which are considered occupied by the species. Of the
2,011 ac (814 ha), approximately 68 percent of the total proposed
designation is located on Federal lands, 11 percent on State land, and
21 percent on private lands. Additionally, 53 percent (or 1,072 ac (434
ha) of the 2,011 ac (814 ha)) are actively managed for I. webberi
conservation through the Forest Service's Conservation Assessment and
Strategy for Ivesia Webberi (Bergstrom 2009, entire). In this notice we
are proposing revised unit boundaries and acreages for five units
described in our August 2, 2013, proposal (78 FR 46862) based on
comments we received on the proposal. These revisions, which were not
available at the time the DEA was developed, result in an increase of
approximately 159 ac (65 ha) in the proposed designation of critical
habitat (see Table 1 above). After considering the economic impacts for
the proposed areas and assessing the minimal changes to the boundaries
of the proposed areas, we expect that economic impacts will not
increase substantially. These changes will be fully analyzed and
reported in the final economic analysis. As discussed above, the
following economic activities are identified as having the potential to
impact proposed critical habitat (as well as the additional 159 ac (65
ha) that we are proposing for the revised unit boundaries): Federal
lands management (Forest Service and BLM); commercial or residential
development; livestock grazing, off-highway vehicle use, and other
recreational activities; wildfire; vegetation management, including
fuels reduction activities and management for invasive species; and
vegetation or ground-disturbing activities associated with
construction, maintenance or use of roads, trails, transmission lines,
or other infrastructure corridors.
Our DEA determined that the section 7-related costs of designating
critical habitat for Ivesia webberi are likely to be limited to the
additional administrative effort required to consider adverse
modification in a small number of consultations. This finding is based
on:
(1) All proposed units are considered occupied, providing baseline
protection resulting from the listing of the species as threatened
under the Act.
(2) Activities occurring within designated critical habitat with a
potential to affect the species' habitat are also likely to adversely
affect the species, either directly or indirectly.
(3) Project modifications requested to avoid adverse modification
are likely to be the same as those needed to avoid jeopardy in occupied
habitat.
(4) Federal agencies operating in proposed critical habitat areas
are already aware of the presence of Ivesia webberi and also are
experienced consulting with us under section 7 of the Act on other
federally listed species. Thus, in the baseline, they are likely to
consult even in buffer areas surrounding the species included in the
designation to ensure protection of pollinator habitat.
The incremental administrative burden resulting from the
designation is unlikely to reach $100 million in a given year based on
the small number of anticipated consultations (i.e., less than two
consultations per year) and per-consultation costs. Furthermore, it
[[Page 8672]]
is unlikely that the designation of critical habitat will trigger
additional requirements under State or local regulations. Costs
resulting from public perception of the effect of critical habitat, if
they occur, are unlikely to reach $100 million in a given year, based
on the small number of acres possibly affected and average land values
in the vicinity of those acres.
The results of our analysis also suggest approximately 114 ac (46
ha) of private, vacant land is available for future development in the
proposed critical habitat area (specifically, the Reno/Sparks
metropolitan area in Washoe County); however, we note that after our
analysis was completed and based on comments during the first open
comment period, our revised proposed critical habitat has resulted in a
total of approximately 138 ac (55 ha) of private, vacant land that may
be available for future development. If public perception causes the
value of critical habitat acres to be diminished, these acres are those
most likely to be affected. Due to existing data limitations regarding
the probability that such effects will occur, and the likely degree to
which property values will be affected, we are unable to estimate the
magnitude of perception-related costs that could result from the
designation if finalized. However, the cost cannot exceed the total
value of affected properties. Based on our analysis, the value of
potentially affected parcels is unlikely to exceed $100 million.
Additional information and discussion regarding our economic
analysis is available in our DEA available on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0080.
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 August 2, 2013, proposed rule (78 FR 46862), we indicated
that we would defer our determination of compliance with several
statutes and executive orders until we had evaluated the probable
effects on landowners and stakeholders and the resulting probable
economic impacts of the designation. Following our evaluation of the
probable incremental economic impacts resulting from the designation of
critical habitat for Ivesia webberi, we have amended or affirmed our
determinations below. Specifically, we affirm the information in our
proposed rule concerning Executive Orders (E.O.s) 12866 and 13563
(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 probable incremental economic impacts of the
proposed designation of critical habitat for I. webberi, we are
amending our required determinations concerning the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) and E.O. 12630 (Takings).
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 publishes 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.
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.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself, and therefore, not required to evaluate the
potential impacts to indirectly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried by the agency is not likely to adversely modify critical
habitat. Therefore, under these circumstances only Federal action
agencies are directly subject to the specific regulatory requirement
(avoiding destruction and adverse modification) imposed by critical
habitat designation. Under these circumstances, it is our position that
only Federal action agencies will be directly regulated by this
designation. Federal agencies are not small entities and to this end,
there is no requirement under RFA to evaluate the potential impacts to
entities not directly regulated. Therefore, because no small entities
are directly regulated by this rulemaking, the Service certifies that,
if promulgated, the proposed critical habitat designation will not have
a significant economic impact on a substantial number of small
entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if promulgated, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business
[[Page 8673]]
entities. Therefore, an initial regulatory flexibility analysis is not
required.
E.O. 12630 (Takings)
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for Ivesia webberi in a takings implications assessment. As
discussed above, the designation of critical habitat affects only
Federal actions. Although private parties that receive Federal funding,
assistance, or require approval or authorization from a Federal agency
for an action may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
The DEA found that no significant economic impacts are likely to result
from the designation of critical habitat for I webberi. Because the
Act's critical habitat protection requirements apply only to Federal
agency actions, few conflicts between critical habitat and private
property rights should result from this designation. Based on
information contained in the DEA and described within this document, it
is not likely that economic impacts to a property owner would be of a
sufficient magnitude to support a takings action. Therefore, the
takings implications assessment concludes that this designation of
critical habitat for I. webberi does not pose significant takings
implications for lands within or affected by the designation.
Authors
The primary authors of this notice are the staff members of the
Pacific Southwest Regional Office (Region 8), with assistance from
staff of the Nevada Fish and Wildlife Office, U.S. Fish and Wildlife
Service.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to further amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as proposed to
be amended on August 2, 2013, at 78 FR 46862, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.96(a) by revising paragraphs (5), (10), (12), and
(13) in the entry proposed for ``Family Rosaceae: ivesia webberi
(Webber's ivesia)'' at 78 FR 46862, to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Rosaceae: Ivesia webberi (Webber's ivesia)
* * * * *
(5) Index map follows:
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[GRAPHIC] [TIFF OMITTED] TP13FE14.000
* * * * *
(10) Unit 6, White Lake Overlook, Sierra County, California; Unit
7, Subunit 7a, Mules Ear Flat, Sierra County, California; Unit 7,
Subunit 7b, Three Pine Flat and Jeffery Pine Saddle, Washoe County,
Nevada; Unit 8, Ivesia Flat, Washoe County, Nevada; Unit 9, Stateline
Road 1, Washoe County, Nevada; and Unit 10, Stateline Road 2, Washoe
County, Nevada: Critical habitat for Ivesia webberi, Sierra County,
California, and Washoe County, Nevada.
(i) Unit 6 includes 109 ac (44 ha), Subunit 7a includes 65 ac (27
ha), Subunit 7b includes 68 ac (27 ha), Unit 8 includes 62 ac (25 ha),
Unit 9 includes 193 ac (78 ha), and Unit 10 includes 66 ac (27 ha).
(ii) Map of Units 6 through 10 follows:
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[GRAPHIC] [TIFF OMITTED] TP13FE14.001
* * * * *
(12) Unit 12, Black Springs and Unit 13, Raleigh Heights: Critical
habitat for Ivesia webberi, Washoe County, Nevada.
(i) Unit 12 includes 163 ac (66 ha), and Unit 13 includes 253 ac
(103 ha).
(ii) Map of Units 12 and 13 follows:
[[Page 8676]]
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(13) Unit 14, Dutch Louie Flat and Unit 15, The Pines Powerline:
Critical habitat for Ivesia webberi, Washoe County, Nevada.
(i) Unit 14 includes 54 ac (22 ha), and Unit 15 includes 32 ac (13
ha).
(ii) Map of Units 14 and 15 follows:
[[Page 8677]]
[GRAPHIC] [TIFF OMITTED] TP13FE14.003
* * * * *
Dated: February 5, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-03120 Filed 2-12-14; 8:45 am]
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