[Federal Register: August 17, 2007 (Volume 72, Number 159)]
[Proposed Rules]               
[Page 46189-46193]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU79

Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Cape Sable Seaside Sparrow

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, availability of 
draft economic analysis, announcement of public hearing, and amended 
required determinations.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
reopening the comment period on our October 31, 2006, proposed revision 
of critical habitat for the Cape Sable seaside sparrow (Ammodramus 
maritimus mirabilis under the Endangered Species Act of 1973, as 
amended (Act). We also announce the availability of the draft economic 
analysis for the proposed critical habitat revision and provide amended 
required determinations for the proposal. The draft economic analysis 
estimated potential future impacts associated with conservation efforts 
for the sparrow in areas proposed for designation to be $32.2 million 
over the next 20 years (undiscounted). The present value of these 
impacts is $26.9 million, using a discount rate of 3 percent, or $22.2 
million, using a discount rate of 7 percent. The annualized value of 
these impacts is $1.8 million, using a discount rate of 3 percent, or 
$2.1 million, using a discount rate of 7 percent. Finally, we announce 
a public hearing during the reopening of the comment period. We are 
taking these actions to allow all interested parties an opportunity to 
comment simultaneously on the original proposal rule and the newly 
available associated draft economic analysis. Previously submitted 
comments need not be resubmitted; they are already part of the public 
record that we will consider in preparing our final rule determination.

DATES: We will accept public comments until September 17, 2007. We will 
hold one public hearing on August 29, 2007, on the proposed critical 
habitat designation and the draft economic analysis. See ``Public 
Hearing'' under SUPPLEMENTARY INFORMATION for details.

ADDRESSES: Written comments: If you wish to comment, you may submit 
your comments and information concerning

[[Page 46190]]

this proposal by any one of the following methods:
    1. Mail or hand-deliver written comments and information to Tylan 
Dean, U.S. Fish and Wildlife Service, South Florida Ecological Services 
Office, 1339 20th Street, Vero Beach, FL 32960-3559.
    2. E-mail your comments to Tylan_Dean@fws.gov. Please see the 
``Public Comments Solicited'' under SUPPLEMENTARY INFORMATION for 
additional information about this method.
    3. Fax your comments to 772-562-4288.
    4. Submit comments via the Federal Rulemaking portal at http://www.regulations.gov.
 Follow the instructions on the site.

    Please see the ``Public Comments Solicited'' section below for more 
information about submitting comments or viewing our received 
    Public Hearing: We will hold a public hearing on August 29, 2007 at 
the John D. Campbell Agricultural Center, 18710 S.W. 288th Street, 
Miami, FL. An information session will be held between 5 p.m. and 6:30 
p.m. and the meeting will be held between 6:30 and 8:30 p.m. You may 
provide oral or written comments at the public hearing.

FOR FURTHER INFORMATION CONTACT: Tylan Dean, South Florida Ecological 
Services office (see ADDRESSES); telephone 772-562-3909; 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-


Public Hearing

    On August 29, 2007, we will hold a public hearing on the proposed 
critical habitat designation and the draft economic analysis. An 
information session will be held from 5 p.m. to 6:30 p.m. and will 
precede the hearing. The public hearing will run from 6:30 p.m. to 8:30 
p.m. See the ADDRESSES section for the location of the public hearing. 
Persons needing reasonable accommodations to attend and participate in 
the public hearing should contact the person listed in FOR FURTHER 
INFORMATION CONTACT as soon as possible. To allow sufficient time to 
process requests, please call no later than one week before the hearing 
date. Information regarding the proposal is available in alternative 
formats upon request.

Public Comments Solicited

    We intend that any final action resulting from the proposal be as 
accurate and as effective as possible. Therefore, we solicit comments 
or suggestions from the public, other concerned governmental agencies, 
the scientific community, industry, or any other interested party 
concerning the proposed rule. We particularly seek comments concerning:
    (1) The reasons why any habitat should or should not be designated 
as critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 
et seq.), including whether designation of critical habitat is prudent 
in that (a) the degree of any threat to the species due to the 
designation of critical habitat is not increased by identification of 
critical habitat; and (b) designation would benefit the species;
    (2) Specific information on the amount and distribution of Cape 
Sable seaside sparrow habitat, including areas occupied by Cape Sable 
seaside sparrows, areas containing features essential to the 
conservation of the species, and areas that are essential to the 
conservation of the species;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed revised critical 
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities, and the benefits of including or excluding 
areas that exhibit these impacts;
    (5) Whether the draft economic analysis identifies all State and 
local costs attributable to the proposed revised critical habitat 
designation, and information on any costs that we could have 
inadvertently overlooked;
    (6) Whether the draft economic analysis makes appropriate 
assumptions regarding current practices and likely regulatory changes 
imposed as a result of the designation of critical habitat;
    (7) Whether the draft economic analysis correctly assesses the 
effect on regional costs associated with any land use controls that may 
derive from the revised designation of critical habitat;
    (8) Any foreseeable economic or other impacts resulting from the 
proposed designation of revised critical habitat, and in particular, 
any impacts on small entities or families; and other information that 
would indicate that the revision of critical habitat would or would not 
have any impacts on small entities or families;
    (9) Whether the draft economic analysis appropriately identifies 
all costs and benefits that could result from the designation;
    (10) Whether the benefits of exclusion of any particular area from 
critical habitat would outweigh the benefits of inclusion under section 
4(b)(2) of the Act;
    (11) Economic data on the incremental effects that would result 
from designating any particular area as revised critical habitat, since 
it is our intent to include the incremental costs attributed to the 
revised critical habitat designation in the final economic analysis; 
    (12) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES). 
Please submit comments electronically to Tylan_Dean@fws.gov. Please 
also include ``Attn: Cape Sable seaside sparrow critical habitat'' in 
your e-mail subject header and your name and return address in the body 
of your message.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.
    Copies of the draft economic analysis and the proposed rule for 
critical habitat designation are available on the Internet at http://www.fws.gov/verobeach/
 or from the South Florida Ecological Services 

Office (see ADDRESSES).
    Our final designation of critical habitat will take into 
consideration all comments and any additional information we received 
during both comment periods, including those provided at the public 
hearing. If you submit previous comments and information during the 
initial comment period on the October 31, 2006, proposed rule (71 FR 
63980), you need to resubmit them, because they are currently part of 
our record and we will consider them in developing our final rule 
determination. On the basis of public comment on this analysis, the 
critical habitat proposal, and the final economic analysis, we may, 
during the development of our final determination, find that areas 
proposed are not essential, are appropriate for exclusion under section 
4(b)(2) of the Act, or are not appropriate for exclusion. We may

[[Page 46191]]

exclude an area from critical habitat if we determined that the 
benefits of such exclusion outweigh the benefits of including a 
particular area as critical habitat, unless the failure to designate 
such area is critical habitat would result in the extinction of the 
species. We may exclude an area from designated critical habitat based 
on economic impacts, national security, or any other relevant impact.


    We originally designated critical habitat for the Cape Sable 
seaside sparrow on August 11, 1977 (42 FR 40685) and published a 
correction on September 22, 1977 (42 FR 47840). For a description of 
the sparrow, its habitat, and Federal Actions that occurred prior to 
our October 31, 2006, proposed rule to revise critical habitat (71 FR 
63980), please refer to the original proposed rule published on July 
14, 1976 (41 FR 28978); the August 11, 1977, final rule (42 FR 40685); 
and the September 22, 1977, correction (42 FR 47840). On October 31, 
2006, we published a proposed rule to revise the critical habitat 
designated for the sparrow in Miami-Dade and Monroe Counties, Florida 
(71 FR 63980). The proposed revision identifies seven units that 
encompass a total area of approximately 156,350 acres (52,291 
hectares), which represents a reduction in the acreage of designated 
critical habitat by approximately 40,910 acres (13,682 hectares). In 
accordance with a settlement agreement, we will submit for publication 
in the Federal Register a final critical habitat designation for the 
Cape Sable seaside sparrow on or before October 24, 2007.
    Critical habitat is defined in section 2 of the Act 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. Federal 
agencies proposing actions affecting areas designated as critical 
habitat must consult with us on the effects of their proposed actions, 
under section 7(a)(2) of the Act.

Summary of Draft Economic Analysis

    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 or any other relevant impact of 
specifying any particular area as critical habitat. We will continue to 
review any conservation or management plans that address the species 
within the areas we have proposed for revised designation, under to 
section 4(b)(2) and based on the definition of critical habitat 
provided in section 3(5)(A) of the Act.
    Based on the October 31, 2006, proposed rule (71 FR 63980), we 
prepared a draft economic analysis of the proposed revised critical 
habitat designation (see ``Public Comments Solicited'' for how to 
obtain a copy). The draft economic analysis considers the potential 
economic effects of actions relating to the conservation of the 
sparrow, including costs associated with sections 4, 7, and 10 of the 
Act, which would include costs attributable to designating critical 
habitat. It further considers the economic effects of protective 
measures taken as a result of other Federal, State, and local laws that 
aid habitat conservation for the sparrow in critical habitat areas. The 
draft analysis considers both economic efficiency and distributional 
effects. Economic efficiency effects generally reflect ``opportunity 
costs'' associated with the commitment of resources required to 
accomplish species and habitat conservation and comply with habitat 
protection measures (such as lost economic opportunities associated 
with restrictions on land use). This analysis also addresses how 
potential economic impacts are likely to be distributed, including an 
assessment of any local or regional impacts of habitat conservation and 
the potential effects of conservation activities on small entities and 
the energy industry. Decision-makers can use this information to assess 
whether the effects of the revised designation might unduly burden a 
particular group or economic sector. The anticipated economic effects 
associated with the proposed revision of critical habitat are estimated 
based on activities that are ``reasonably foreseeable,'' including, but 
not limited to, activities that are currently authorized, permitted, or 
funded, or for which proposed plans are currently available to the 
public. The analysis summarizes costs associated with past species 
conservation efforts for the sparrow and then forecasts projected 
future impacts for the 20-year period from 2007 (the year of the 
species' final critical habitat designation) to 2026. Forecasts of 
economic conditions and other factors beyond the next 20 years would be 
    The draft economic analysis is intended to quantify the economic 
impacts of all potential conservation efforts for the Cape Sable 
seaside sparrow. All dollar amounts include those costs coextensive 
with listing; some of these costs will likely be incurred under the 
existing critical habitat designation and other existing regulatory 
mechanisms regardless of whether critical habitat is revised. The 
analysis estimates potential future impacts associated with 
conservation efforts for the sparrow in areas proposed for designation 
to be $32.2 million over the next 20 years (undiscounted). However, 
because it is uncertain whether incremental conservation measures 
implemented for sparrow conservation will represent a constraint on 
overall water management activities due to future actions for the 
Everglades Restoration program, costs from this proposal associated 
with water management activities are calculated for only the next 5 
    The present value of these impacts is $26.9 million, using a 
discount rate of 3 percent, or $22.2 million, using a discount rate of 
7 percent. The annualized value of these impacts is $1.8 million, using 
a discount rate of 3 percent, or $2.1 million, using a discount rate of 
7 percent. The majority (58 percent) of the total potential impacts 
estimated in this report are associated with potential species 
management efforts (such as surveying, monitoring, research, and exotic 
vegetation control). The remaining impacts are associated with 
potential water management changes to conserve the sparrow (33 
percent), fire management (7 percent) and administrative costs of 
consultation (2 percent).
    As stated earlier, we solicit data and comments from the public on 
this draft economic analysis, as well as on all aspects of our 
proposal. We may revise the proposal, or its supporting documents, to 
incorporate or address new information we receive during this comment 

Required Determinations--Amended

    In our October 31, 2006, proposed rule (71 FR 63980), we indicated 
that we would be deferring 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 was available in the draft economic 
analysis. Those data are now available for our use in making these 
determinations. We now affirm the information contained in original 
proposed rule concerning Executive Order (E.O.) 13132 (Federalism); 
E.O. 12988 (Civil Justice

[[Page 46192]]

Reform) E.O. 13211 (Energy Supply, Distribution, or Use); the Paperwork 
Reduction Act; the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951); and the National Environmental Policy Act 
(42 U.S.C. 4321 et seq.). Based on the information made available to us 
in the draft economic analysis, we are amending our Required 
Determinations, as provided below, concerning E.O. 12866 and the 
Regulatory Flexibility Act, E.O. 12630 (Takings), and the Unfunded 
Mandates Reform Act.

Regulatory Planning and Review

    In accordance with E.O. 12866, this document is a significant rule, 
because it may raise novel legal and policy issues. However, we do not 
anticipate that it will have an annual effect on the economy of $100 
million or more or affect the economy in a material way. Due to the 
timeline for publication in the Federal Register the Office of 
Management and Budget (OMB) did not formally review the proposed rule.
    Further, E.O. 12866 directs Federal agencies promulgating 
regulations to evaluate regulatory alternatives (OMB, Circular A-4, 
September 17, 2003). Pursuant to Circular A-4, if the agency determines 
that a Federal regulatory action is appropriate, the agency will need 
to consider alternative regulatory approaches. Since the determination 
of critical habitat is a statutory requirement pursuant to the Act, we 
must then evaluate alternative regulatory approaches, where feasible, 
when promulgating a designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat, providing that the benefits of 
such exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. We believe that the evaluation of the inclusion or 
exclusion of particular areas, or combination thereof, in a designation 
constitutes our regulatory alternative analysis.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996, whenever an agency is required to publish a proposed 
or final rule, it must prepare and make available for public comment a 
regulatory flexibility analysis that describes the effect of the rule 
on small entities (small businesses, small organizations, and small 
government jurisdictions). However, no regulatory flexibility analysis 
is required if the head of an agency certifies that the rule will not 
have a significant economic impact on a substantial number of small 
entities. In our proposal rule, we withheld our determination of 
whether this designation would result in a significant effect as 
defined under SBREFA until we completed our draft economic analysis of 
the proposed revised designation so that we would have the factual 
basis for our determination.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as 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 revised critical 
habitat for the Cape Sable seaside sparrow would affect a substantial 
number of small entities, we considered the number of small entities 
affected within particular types of economic activities (such as 
residential and commercial development). We considered each industry or 
category individually to determine if certification is appropriate. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement; some 
kinds of activities are unlikely to have any Federal involvement and so 
will not be affected by the revised designation of critical habitat. 
Designation of critical habitat only affects activities conducted, 
funded, permitted, or authorized by Federal agencies; non-Federal 
activities are not affected by the designation.
    In our draft economic analysis of the proposed critical habitat 
designation, we evaluated the potential economic effects on small 
business entities resulting from conservation actions related to the 
proposed revision of Cape Sable seaside sparrow critical habitat. The 
economic impacts of conservation efforts for the sparrow are expected 
to be borne primarily by State and Federal agencies, including the 
Service, U.S. Army Corps of Engineers, National Park Service, South 
Florida Water Management District, and Florida Fish and Wildlife 
Conservation Commission. None of these agencies is defined as a small 
entity by the Small Business Administration (SBA). Consequently, the 
designation of revised critical habitat for the sparrow is not expected 
to impact small entities. Based on currently available information, the 
Service certifies that this action would not have a significant 
economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), we make the following findings:
    (a) This rule would not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and Tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding'' and the State, local, 
or Tribal governments ``lack authority'' to adjust accordingly. At the 
time of enactment, these entitlement programs were: Medicaid; Aid to 
Families with

[[Page 46193]]

Dependent Children work programs; Child Nutrition; Food Stamps; Social 
Services Block Grants; Vocational Rehabilitation State Grants; Foster 
Care, Adoption Assistance, and Independent Living; Family Support 
Welfare Services; and Child Support Enforcement. ``Federal private 
sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance; or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. Non-Federal entities that receive Federal 
funding, assistance, or permits, or that otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat. However, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (b) As discussed in the draft economic analysis of the proposed 
designation of revised critical habitat for the Cape Sable seaside 
sparrow, we expect the impacts on nonprofits and small governments to 
be primarily those impacts related to changes in environmental and 
ecological conditions. It is likely that small governments involved 
with developments and infrastructure projects would be interested 
parties or involved with projects involving section 7 consultations for 
the Cape Sable seaside sparrow within their jurisdictional areas. Any 
costs associated with this activity are likely to represent a small 
portion of a local government's budget. Consequently, we do not believe 
that the designation of revised critical habitat for the Cape Sable 
seaside sparrow would significantly or uniquely affect these small 
governmental entities. As such, a Small Government Agency Plan is not 


    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of proposing revised 
critical habitat for the Cape Sable seaside sparrow in a takings 
implications assessment. The takings implications assessment concludes 
that this proposed revised designation of critical habitat for the Cape 
Sable seaside sparrow does not pose significant takings implications.


    The primary author of this notice is the South Florida Ecological 
Services Office of the U.S. Fish and Wildlife Service.


    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: August 10, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-4030 Filed 8-14-07; 12:45 pm]