[Federal Register Volume 79, Number 119 (Friday, June 20, 2014)]
[Proposed Rules]
[Pages 35303-35309]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-14400]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2013-0101: 4500030114]
RIN 1018-AZ77
Endangered and Threatened Wildlife and Plants; Revised
Designation of Critical Habitat for the Contiguous U.S. Distinct
Population Segment of the Canada Lynx and Revised Distinct Population
Segment Boundary
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 (Service), announce the
reopening of the public comment period on the September 26, 2013,
proposed revised designation of critical habitat for the contiguous
U.S. distinct population segment (DPS) of the Canada lynx (Lynx
canadensis) under the Endangered Species Act of 1973, as amended (Act).
We also announce the availability of a draft economic analysis (DEA)
and a draft environmental assessment of the proposed revised
designation of critical habitat for the contiguous U.S. DPS of the
Canada lynx, 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, the draft environmental assessment, 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: In order to fully consider and incorporate public comment, the
Service requests submittal of comments by close of business on July 21,
2014. Comments submitted electronically using the Federal eRulemaking
Portal
[[Page 35304]]
(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 its associated documents of the draft economic analysis and the
draft environmental assessment on the Internet at http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0101 or by mail from
the Montana Ecological Services Field 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. Submit comments on the critical habitat proposal
and associated DEA and draft environmental assessment by searching for
Docket No. FWS-R6-ES-2013-0101, which is the docket number for this
rulemaking.
(2) By hard copy: Submit comments on the critical habitat proposal
and associated DEA and draft environmental assessment by U.S. mail or
hand-delivery to: Public Comments Processing, Attn: FWS-R6-ES-2013-
0101; 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: Jodi Bush, Field Supervisor, U.S. Fish
and Wildlife Service, Montana Ecological Services Field Office, 585
Shepard Way, Suite 1, Helena, MT 59601; telephone (406-449-5225); or
facsimile (406-449-5339). 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 revised designation of critical
habitat for the contiguous U.S. DPS of the Canada lynx (which we refer
to as the Canada lynx DPS in the remainder of this document) that was
published in the Federal Register on September 26, 2013 (78 FR 59430),
our DEA and draft environmental assessment of the proposed designation,
and the amended required determinations provided in this document. We
will consider information and recommendations from all interested
parties. We are particularly interested in comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat is not
prudent.
(2) Specific information on:
(a) The distribution of the Canada lynx in the contiguous United
States;
(b) The amount and distribution of Canada lynx habitat in the
contiguous United States;
(c) What areas occupied by the species at the time of listing that
contain features essential for the conservation of the species we
should include in the designation and why; and
(d) What areas not occupied at the time of listing are essential to
the conservation of the species and why.
(3) Land use designations and current or planned activities in the
subject areas and their probable impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the Canada lynx and proposed critical habitat.
(5) 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.
(6) Information on the extent to which the description of economic
impacts in the DEA is a reasonable estimate of the likely economic
impacts and the description of the environmental impacts in the draft
environmental assessment is complete and accurate.
(7) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the associated documents of 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.
(8) 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.
(9) 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 59430) during the initial comment period from September 26, 2013, to
December 26, 2013, please do not resubmit them. Any such comments are
incorporated as part of the public record of this rulemaking, 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. The final decision may differ from
the proposed rule, based on our review of all information we receive
during the comment periods.
You may submit your comments and materials concerning the proposed
rule, DEA, or draft environmental assessment 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-R6-ES-2013-0101, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Montana Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may
obtain copies of the proposed rule, the DEA, and the draft
environmental assessment on the Internet at http://www.regulations.gov
at Docket No. FWS-R6-ES-2013-0101, or by mail from the Montana
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT
section).
[[Page 35305]]
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for the Canada lynx DPS in this
document. For more information on previous Federal actions concerning
the Canada lynx DPS, refer to the proposed revised designation of
critical habitat published in the Federal Register on September 26,
2013 (78 FR 59430). For more information on the Canada lynx DPS or its
habitat, refer to the final listing rule published in the Federal
Register on March 24, 2000 (65 FR 16052), the clarification of findings
published in the Federal Register on July 3, 2003 (68 FR 40076), and
the Recovery Outline for the Contiguous United States DPS of Canada
Lynx, all of which are available online at the Service's Species
Profile Web site (http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=A073) or from the Montana Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Previous Federal Actions
On March 24, 2000, the Service published a final rule in the
Federal Register designating Canada lynx in the contiguous United
States as a distinct population segment (DPS) and listing the Canada
lynx DPS as threatened under the Act (65 FR 16052). On July 3, 2003, we
published a clarification of findings affirming the status of the DPS
as threatened under the Act (68 FR 40076). On November 9, 2006, we
published a final rule designating critical habitat for the Canada lynx
DPS (71 FR 66008). On February 25, 2009, we published a final rule
revising the designation of critical habitat for the Canada lynx DPS
(74 FR 8616). On December 17, 2009, we published a 12-month warranted-
but-precluded finding on a petition to change the final listing of the
Canada lynx DPS to include New Mexico (74 FR 66937). These documents
and others addressing the status and conservation of Canada lynx in the
contiguous United States may be viewed and downloaded from the
Service's Web site at: http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=A073 or http://www.fws.gov/mountain-prairie/species/mammals/lynx/index.htm.
On September 26, 2013, we published a proposed rule to revise the
designation of critical habitat for the Canada lynx DPS (78 FR 59430).
We proposed to designate approximately 41,547 square miles (mi\2\)
(107,607 square kilometers (km\2\)) of critical habitat in five units
located in northern Maine (Unit 1), northeastern Minnesota (Unit 2),
northwestern Montana and northeastern Idaho (Unit 3), north-central
Washington (Unit 4), and southwestern Montana and northwestern Wyoming
(Unit 5). That proposal had a 90-day comment period, ending December
26, 2013. We will publish in the Federal Register a final revised
critical habitat designation for the Canada lynx DPS on or before
September 1, 2014.
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.
Changes From Previously Proposed Critical Habitat
As we indicated in our September 26, 2013, proposed rule (78 FR
59430), we are evaluating information from several national forests in
Montana that have refined their mapped Canada lynx habitat. These
refinements may result in changes (reductions, additions, or both) to
the critical habitat boundaries designated in the final rule for units
3 and 5. Additionally, the Service continues to work with the Bureau of
Land Management (BLM) in Wyoming to determine the most appropriate
boundary for the southern and southeastern critical habitat additions
to Unit 5 that we described in the proposed rule. In the final rule, we
anticipate some changes to units 3 and 5 because of these refinements,
which are based on the best available habitat mapping information.
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; or implementation of a management
plan. In the case of Canada lynx, the benefits of critical habitat
include public awareness of the species' presence and the importance of
habitat protection, and, where a Federal nexus exists, increased
protection of Canada lynx habitat due to protection from adverse
modification or destruction of critical habitat. In practice, actions
with a Federal nexus exist primarily on Federal lands or for projects
undertaken, authorized, funded, or otherwise permitted by Federal
agencies.
The final decision on whether to exclude any areas in accordance
with section 4(b)(2) of the Act 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 DEA
concerning the proposed revised critical habitat designation, which is
available for review and comment (see ADDRESSES).
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 proposed for critical habitat
[[Page 35306]]
designation. 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 are those that would not be expected to occur in
the absence of a critical habitat designation 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
arising from the species' listing under the Act. 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 section 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 this proposed revised designation of
critical habitat. The information contained in our IEM was then used to
develop a screening analysis of the probable effects of the designation
of critical habitat for the Canada lynx DPS (Industrial Economics, Inc.
2014). We began by conducting a screening analysis of the proposed
revised designation of critical habitat 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, 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. The screening analysis also assesses whether
proposed critical habitat units are unoccupied by the species, may
require additional management or conservation efforts as a result of
the critical habitat designation, and may incur incremental economic
impacts. This screening analysis and the information contained in our
IEM are what we consider our DEA of the proposed revised critical
habitat designation for the Canada lynx DPS, which is summarized in the
narrative below.
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. Consistent
with the Executive Orders' regulatory analysis requirements, our
effects analysis under the Act may take into consideration both direct
and indirect impacts to affected entities, where practicable and
reasonable. If sufficient data are available, we assess, to the extent
practicable, the probable impacts to both directly and indirectly
affected entities. As part of our screening analysis, we considered the
types of economic activities that are likely to occur within the areas
proposed for revised critical habitat designation. In our evaluation of
the probable incremental economic impacts that may result from the
proposed designation of critical habitat for the Canada lynx DPS, we
first identified, in the IEM dated April 18, 2014, probable incremental
economic impacts associated with the following categories of
activities: Agriculture, Border Protection, Conservation/Restoration,
Development, Fire Management, Forest Management, Mining, Oil and Gas,
Recreation, Renewable Energy, Silviculture/Timber, Transportation,
Tribes, and Utilities. 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; it only affects
activities conducted, funded, permitted, or authorized by Federal
agencies.
Because the Canada lynx DPS has been listed as threatened under the
Act since 2000, Federal agencies already are required to consult with
the Service under section 7 of the Act on activities they fund, permit,
or implement in areas where Canada lynx may be present and that may
affect the species. If we finalize this proposed revised critical
habitat designation, consultations to avoid the destruction or adverse
modification of critical habitat would be incorporated into the
existing consultation process that already considers jeopardy to the
listed DPS. Because all of the areas proposed as revised critical
habitat are currently occupied by Canada lynx populations, their
designation will not result in new areas in which section 7
consultations would be required. Therefore, disproportionate impacts to
any geographic area or sector are not likely as a result of the
critical habitat designation.
In our IEM, we attempted to clarify the distinction between the
effects attributable to the Canada lynx DPS being listed and those
likely to result from critical habitat designation (i.e., the
difference between the jeopardy and adverse modification standards).
Because the designation of critical habitat for the Canada lynx DPS was
not proposed concurrently with the listing, we are better able to
discern, based on a comparison of the history of section 7
consultations in the absence of critical habitat and consultations
since the previous designation in 2009, which impacts are attributable
to the DPS's listing and which are likely to result solely from the
revised critical habitat designation currently proposed. Additionally,
the following specific circumstances in this case help to inform our
evaluation: (1) The essential physical and biological features
identified for critical habitat are the same features essential for the
life requisites of the species; (2) all areas proposed for revised
designation of critical habitat are currently occupied by Canada lynx
populations; (3) 89 percent of the area currently proposed for
designation has been designated as Canada lynx critical habitat since
March 2009, and another 4.8 percent was designated lynx critical
habitat from
[[Page 35307]]
March 2009 until September 2010, when critical habitat in Washington
State was enjoined by the U.S. District Court for the District of
Wyoming; and (4) any actions that would result in sufficient harm or
harassment to constitute jeopardy to the Canada lynx DPS 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 and incremental impacts of
critical habitat designation for this DPS. This evaluation of the
incremental effects has been used as the basis to evaluate the probable
incremental economic impacts of this proposed revised critical habitat
designation.
The proposed revised critical habitat designation for the Canada
lynx DPS includes approximately 41,547 mi\2\ (107,607 km\2\) of
Federal, State, Tribal, and private lands in five units located in
northern Maine (Unit 1), northeastern Minnesota (Unit 2), northwestern
Montana and northeastern Idaho (Unit 3), north-central Washington (Unit
4), and southwestern Montana and northwestern Wyoming (Unit 5). All of
the areas proposed as revised designated critical habitat were occupied
by Canada lynx at the time of listing and currently support persistent
Canada lynx populations.
Unit 1 includes 11,162 mi\2\ located in northern Maine in portions
of Aroostook, Franklin, Penobscot, Piscataquis, and Somerset Counties.
Land ownership within Unit 1 is 91.7 percent private, 7.4 percent
State, and 0.8 percent Tribal; there are no Federal lands. Unit 2
includes 8,147 mi\2\ located in northeastern Minnesota in portions of
Cook, Koochiching, Lake, and St. Louis Counties, and the Superior
National Forest. Land ownership within Unit 2 is 47.4 percent Federal,
33.5 percent State, 18.1 percent private, and 1.0 percent Tribal. Unit
3 includes 10,474 mi\2\ located in northwestern Montana and a small
portion of northeastern Idaho in portions of Boundary County in Idaho
and Flathead, Glacier, Granite, Lake, Lewis and Clark, Lincoln,
Missoula, Pondera, Powell, and Teton Counties in Montana. Land
ownership within Unit 3 is 82.6 percent Federal, 3.6 percent State,
10.2 percent private, and 3.5 percent Tribal. Unit 4 includes 1,999
mi\2\ located in north-central Washington in portions of Chelan and
Okanogan Counties and includes mostly Okanogan-Wenatchee National
Forest lands as well as BLM lands in the Spokane District and Loomis
State Forest lands. Land ownership within Unit 4 is 91.5 percent
Federal, 8.2 percent State, and 0.2 percent private; there are no
Tribal lands. Unit 5 includes 9,766 mi\2\ located in Yellowstone
National Park and surrounding lands of the Greater Yellowstone Area in
southwestern Montana and northwestern Wyoming. Proposed critical
habitat in this unit is located in Carbon, Gallatin, Park, Stillwater,
and Sweetgrass Counties in Montana; and Fremont, Lincoln, Park,
Sublette, and Teton Counties in Wyoming. Land ownership within Unit 5
is 96.9 percent Federal, 0.3 percent State, and 2.8 percent private;
there are no Tribal lands.
Because all the areas proposed as revised designated Canada lynx
critical habitat are occupied by Canada lynx, consultation under
section 7 of the Act is already required for projects in these areas
that may affect Canada lynx. These consultations normally focus on
potential impacts to Canada lynx foraging habitat, in particular winter
snowshoe hare habitats. In these areas, any actions that may affect the
Canada lynx or its habitat would also affect designated critical
habitat. It is unlikely that any additional conservation efforts would
be recommended to address the adverse modification standard over and
above those recommended as necessary to avoid jeopardizing the
continued existence of the Canada lynx DPS. Further, because most (89
percent) of the proposed area has been designated as critical habitat
for Canada lynx since 2009, consultations in these areas already must
address the adverse modification standard, and no additional
conservation measures or associated administrative or other costs are
expected. Therefore, additional administrative costs are only expected
in the 11 percent of the proposed critical habitat that is not already
designated. While the additional analysis necessary to address adverse
modification in these areas will require time and resources by both the
Federal action agency and the Service, we believe that, in most
circumstances, these costs would be predominantly administrative in
nature and would not be significant.
Areas proposed for designation that are not currently designated
include: (1) All of Unit 4 (1,999 mi\2\ of predominantly Federal [U.S.
Forest Service] lands in northern Washington); (2) an additional 521
mi\2\ of mostly private commercial timber lands in Unit 1 (northern
Maine); and (3) an additional 259 mi\2\ of mostly Federal (BLM and
National Park Service) lands in Unit 5 (northwestern Wyoming). The
entities most likely to incur incremental costs are parties to section
7 consultations, including Federal action agencies and, in some cases,
third parties, most frequently State agencies or municipalities.
Activities we expect will be subject to consultations that may involve
private entities as third parties are residential and commercial
development that may occur on private lands. However, the cost to
private entities within these sectors is expected to be relatively
minor and, therefore, not significant.
The annual administrative burden to address adverse modification in
areas proposed but not currently designated as critical habitat is
unlikely to reach $100 million. Therefore, future probable incremental
economic impacts are not likely to exceed $100 million in any single
year and disproportionate impacts to any geographic area or sector are
not likely as a result of the proposed revised critical habitat
designation.
As we stated above, we are soliciting data and comments from the
public on the DEA and the draft environmental assessment, 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 areas from critical
habitat if we determine that the benefits of excluding the areas
outweigh the benefits of including the areas, provided the exclusions
will not result in the extinction of this DPS.
Required Determinations--Amended
In our September 26, 2013, proposed rule (78 FR 59430), 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 the Canada lynx DPS, we have
affirmed or amended 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, 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.), 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
[[Page 35308]]
incremental economic impacts of the proposed revised designation of
critical habitat for the Canada lynx DPS, we are amending our required
determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601
et seq.), E.O. 12630 (Takings), and the National Environmental Policy
Act (42 U.S.C. 4321 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.
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, are 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 out by the agency is not likely to destroy or adversely modify
critical habitat. Therefore, under section 7 only Federal action
agencies are directly subject to the specific regulatory requirement
(avoiding destruction and adverse modification) imposed by critical
habitat designation. Consequently, it is our position that only Federal
action agencies will be directly regulated by this designation. There
is no requirement under the RFA to evaluate the potential impacts to
entities not directly regulated. Moreover, Federal agencies are not
small entities. Therefore, because no small entities are directly
regulated by this rulemaking, the Service certifies that, if
promulgated, the proposed revised 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 revised
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 revised critical habitat designation would not have a
significant economic impact on a substantial number of small business
entities. Therefore, an initial RFA 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 the Canada lynx DPS in a takings implications assessment.
As discussed above, the designation of critical habitat affects only
Federal actions. Although private parties that receive Federal funding
or assistance or that 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 economic analysis found that no significant economic
impacts are likely to result from the designation of critical habitat
for the Canada lynx DPS. Because the Act's critical habitat protection
requirements apply only to Federal agency actions, few conflicts
between critical habitat and private property rights are anticipated
from this designation. Based on information contained in the economic
analysis assessment 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 the Canada lynx DPS would not pose significant
takings implications for lands within or affected by the revised
designation.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
When the range of a species includes States within the jurisdiction
of the U.S. Court of Appeals for the Tenth Circuit, pursuant to that
court's ruling in Catron County Board of Commissioners v. U.S. Fish and
Wildlife Service, 75 F .3d 1429 (10th Cir. 1996), we complete an
analysis on proposed critical habitat designations pursuant to the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)
(NEPA). The range of the Canada lynx DPS is partially within the States
of Colorado, New Mexico, Utah, and Wyoming, which are within the Tenth
Circuit. Accordingly, we have prepared a draft environmental assessment
to identify and disclose the environmental consequences resulting from
the proposed revised designation of critical habitat for the Canada
lynx DPS.
The draft environmental assessment presents the purpose of and need
for critical habitat designation; the proposed action and alternatives;
and an evaluation of the direct, indirect, and cumulative effects of
the alternatives under the requirements of NEPA as implemented by the
Council on Environmental Quality regulations (40 CFR part 1500 et seq.)
and according to the Department of the Interior's NEPA procedures.
The draft environmental assessment will be used by the Service to
decide whether or not critical habitat will be designated as proposed;
if the proposed action requires refinement, or if another alternative
is appropriate; or if further analyses are needed through preparation
of an environmental impact statement. If the proposed action is
selected as
[[Page 35309]]
described (or is changed minimally) and no further environmental
analyses are needed, then a finding of no significant impact (FONSI)
would be the appropriate conclusion of this process. A FONSI would then
be prepared for the environmental assessment. We are seeking data and
comments from the public on the draft environmental assessment.
Comments may be submitted by one of the methods listed in the ADDRESSES
section.
Authors
The primary authors of this notice are the staff members of the
Montana Ecological Services Field Office, Region 6, U.S. Fish and
Wildlife Service.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: June 13, 2014.
Rachel Jacobsen,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-14400 Filed 6-19-14; 8:45 am]
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