[Federal Register: November 12, 2008 (Volume 73, Number 219)]
[Proposed Rules]
[Page 66831-66834]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12no08-30]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AV52
[FWS-R4-ES-2008-0047]
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Louisiana Black Bear
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period, notice of
availability of draft economic analysis, and amended required
determinations.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on the proposed designation of
critical habitat for the Louisiana black bear (Ursus americanus
luteolus) under the Endangered Species Act of 1973, as amended (Act).
We also announce the availability of a draft economic analysis (DEA)
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 revised proposed rule, the
associated DEA, and the amended required determinations section. If you
submitted comments previously, you do not need to resubmit them because
we have already incorporated them into the public record and will fully
consider them in preparation of the final rule.
DATES: We will consider comments received on or before December 12,
2008.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R4-ES-2008-0047; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. 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: Jim Boggs, Supervisor, U.S. Fish and
Wildlife Service, Louisiana Field Office, 646 Cajundome Blvd., Suite
400, Lafayette, LA 70506; telephone: 337-291-3100; facsimile: 337-291-
3139. If you use a telecommunications device for the deaf (TDD), call
the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written comments and information during this
reopened comment period on our proposed designation of critical habitat
for the Louisiana black bear that was published in the Federal Register
on May 6, 2008 (73 FR 25354), our draft economic analysis 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.).
(2) Specific information on:
(a) The distribution of the Louisiana black bear;
(b) The amount and distribution of Louisiana black bear habitat;
and
(c) Which habitat contains the features essential for the
conservation of the species and why.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Any foreseeable economic, national security, or other relevant
impacts that may result 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 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;
(6) Whether the benefits of excluding any particular area from
critical habitat outweigh the benefits of including that area as
critical habitat under section 4(b)(2) of the Act, after considering
the potential impacts and benefits of the proposed critical habitat
designation, and more specifically, whether U.S. Department of
Agriculture (USDA) Wetland Reserve Program permanent easements on
privately owned lands provide sufficient protection and management to
justify their exclusion from critical habitat on that basis.
(7) Information on the extent to which the description of economic
impacts in the DEA is complete and accurate.
(8) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the DEA, and how the consequences
of such reactions, if likely to occur, would relate to the conservation
and regulatory benefits of the proposed critical habitat designation.
You may submit your comments and materials concerning the proposed
rule or DEA by one of the methods listed in the ADDRESSES section. We
will not consider comments sent by e-mail or fax or to an address not
listed 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. 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. We will post all
hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule and draft
economic analysis, will be available for public inspection on http://
www.regulations.gov, or by appointment, during normal business hours,
at the U.S. Fish and Wildlife Service, Louisiana Field Office (see FOR
FURTHER INFORMATION CONTACT). You may obtain copies of the proposed
rule and the DEA on the Internet at http://
[[Page 66832]]
www.regulations.gov at Docket Number FWS-R4-ES-2008-0047, or by mail
from the Louisiana Field Office (see FOR FURTHER INFORMATION CONTACT
section).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat. For more information on previous
Federal actions concerning the Louisiana black bear, refer to the
proposed designation of critical habitat published in the Federal
Register on May 6, 2008 (73 FR 25354). On December 2, 1993, we proposed
critical habitat for the Louisiana black bear (58 FR 63560). That
proposal had a 90-day comment period, ending March 2, 1994. We then
reopened the public comment period from March 7, 1994 (59 FR 10607)
through April 4, 1994. During that reopened comment period, we held a
public hearing in New Iberia, Louisiana, on March 23, 1994. On April 1,
1994, we extended the reopened comment period through May 25, 1994, and
announced two more public hearings (May 10, 1994, in West Monroe,
Louisiana, and May 11, 1994, in New Iberia, Louisiana) (59 FR 15366).
We never published a final rule designating critical habitat.
On September 6, 2005, Mr. Harold Schoeffler and Louisiana Crawfish
Producers Association-West filed suit in U.S. District Court for the
Western District of Louisiana (Civil Action No. CV05-1573 (W.D. La.))
challenging the Service's failure to designate critical habitat for the
Louisiana black bear. On June 26, 2007, the District Court ordered the
Service to withdraw the December 2, 1993, proposed critical habitat
rule and create a new proposed critical habitat designation by no later
than 4 months from the date of the judgment and to publish a final
designation by no later than 8 months from the date of the proposed or
new rule. On September 5, 2007, following a settlement agreement, the
Court revised its order to require the Service to: (1) Withdraw the
December 2, 1993, proposed rule and submit a prudency determination
and, if prudent, a new proposed critical habitat designation to the
Office of the Federal Register by April 26, 2008; and (2) submit a
final critical habitat determination, if applicable, to the Office of
the Federal Register by February 26, 2009. On May 6, 2008, we published
our proposed rule to designate critical habitat for the Louisiana black
bear (73 FR 25394) in accordance with section 4(b)(2) of the Act. We
concurrently withdrew the 1993 proposal and made a new prudency
determination. In total, we proposed approximately 1,330,000 acres
(538,894 hectares (ha)) of critical habitat located in Avoyelles, East
Carroll, Catahoula, Concordia, Franklin, Iberia, Iberville, Madison,
Pointe Coupee, Richland, St. Martin, St. Mary, Tensas, West Carroll,
and West Feliciana Parishes, Louisiana. For more information on the
threatened Louisiana black bear or its habitat, refer to the final
listing rule published in the Federal Register on January 7, 1992 (57
FR 588), and to our 1995 final recovery plan for the bear, which is
available online at http://www.regulations.gov (at Docket Number FWS-
R4-ES-2008-0047) or from the Louisiana Field Office (see FOR FURTHER
INFORMATION CONTACT).
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.
Draft Economic Analysis
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific and commercial 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 have prepared a DEA of our May
6, 2008 (73 FR 25354), proposed rule to designate critical habitat for
the Louisiana black bear.
The intent of the DEA is to identify and analyze the potential
economic impacts associated with the proposed critical habitat
designation for the Louisiana black bear. The DEA quantifies the
economic impacts of all potential conservation efforts for the
Louisiana black bear; some of these costs will likely be incurred
regardless of whether we designate critical habitat. The economic
impact of the proposed critical habitat designation is analyzed by
comparing scenarios both ``with critical habitat'' and ``without
critical habitat.'' The ``without critical habitat'' scenario
represents the baseline for the analysis, considering protections
already in place for the species (e.g., under the Federal listing and
other Federal, State, and local regulations). The baseline, therefore,
represents the costs 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 not expected to occur absent 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 may consider in the final designation of critical habitat. The
analysis looks retrospectively at baseline impacts incurred since the
species was listed, and forecasts both baseline and incremental impacts
likely to occur if we finalize the proposed critical habitat.
The DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed critical habitat designation for the
bear over the next 20 years, which was determined to be the appropriate
period for analysis because limited planning information was available
for most activities to forecast activity levels for projects beyond a
20-year timeframe. It identifies potential incremental costs as a
result of the proposed critical habitat designation; these are those
costs attributed to critical habitat over and above those baseline
costs attributed to listing. The DEA quantifies economic impacts of
Louisiana black bear conservation efforts associated with the following
categories of activity: (1) Oil and gas exploration and development;
(2) species/habitat management; (3) recreational and residential
development; (4) agriculture; (5) transportation; and (6) forestry. Due
to uncertainty in the amount of oil and gas development over the next
20 years, cost estimates were calculated for a low scenario of oil and
gas development (one-third of the historical rate) and a high scenario
(continuation of the historical rate).
The pre-designation (1992 to 2008) impacts associated with species
conservation activities for the Louisiana black bear in areas proposed
as critical habitat are approximately $68.4 to $76.6 million applying a
3 percent discount rate, and $84.9 to $97.0 million applying a 7
percent discount rate. The post-designation (2009 to 2028) baseline
impacts (those estimated to occur
[[Page 66833]]
regardless of the critical habitat designation) associated with species
conservation were estimated to range from $9.0 million to $19.0 million
applying a 3 percent discount rate, or $6.7 million to $14 million
applying a 7 percent discount rate). Under a low oil and gas
development scenario, over 50 percent of post-designation baseline
economic impacts are related to species management and 28 percent are
related to oil and gas development. Under the high scenario, oil and
gas exploration and development accounted for 65 percent of post-
designation baseline economic impacts and species management accounted
for 25 percent. Development and agriculture related impacts comprise
approximately 20 to 11 percent of the impacts, under the low and high
scenarios, respectively.
All incremental impacts attributed to the proposed critical habitat
designation are expected to be associated with oil and gas activities.
The DEA estimates the post-designation incremental economic impacts for
the next 20 years to range from $1.5 million to 8.6 million, applying a
3 percent discount rate, or $1.1 million to $6.3 million applying a 7
percent discount rate. The range in values of incremental costs is a
result of the uncertainty in forecasting the number of new wells that
are likely to be drilled in the next 20 years. Incremental impacts are
not anticipated for other activities (including areas considered for
exclusion) potentially affected by the critical habitat designation.
Post-designation baseline impacts for areas proposed for exclusion
were calculated separately from areas proposed as critical habitat.
Those impacts are related to the purchase of Wetlands Reserve Program
easements and associated habitat management practices by the USDA
Natural Resources Conservation Service, and are estimated to be
approximately $98.7, million applying a 3 percent discount rate, and
$73.0 million, applying a 7 percent discount rate.
Only the incremental costs that may result from the designation of
critical habitat, over and above the costs associated with species
protection under the Act more generally, may be considered in
designating critical habitat; therefore, the methodology for
distinguishing these two categories of costs is important. In the
absence of critical habitat, Federal agencies must ensure that any
actions they authorize, fund, or carry out are not likely to jeopardize
the continued existence of any endangered species or threatened
species--costs associated with such actions are considered baseline
costs. Once an area is designated as critical habitat, proposed actions
that have a Federal nexus in this area also will require consultation
and potential modification to ensure that the action does not result in
the destruction or adverse modification of designated critical
habitat--costs associated with these actions are considered incremental
costs. Incremental consultation that takes place as a result of
critical habitat designation may fall into one of three categories: (1)
Additional effort to address adverse modification in a new
consultation; (2) re-initiation of consultation to address effects to
critical habitat; and (3) incremental consultation resulting entirely
from critical habitat designation (i.e., where a proposed action may
affect unoccupied critical habitat). However, because no unoccupied
habitat is being proposed for designation, no consultations in category
3 are projected.
As 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
exclusions will not result in the extinction of this species.
Required Determinations--Amended
In our May 6, 2008, proposed rule (73 FR 25354), we indicated that
we would defer our determination of compliance with several statutes
and Executive Orders until the information concerning potential
economic impacts of the designation and potential effects on landowners
and stakeholders became available in the DEA. We have now made use of
the DEA data in making these determinations. In this document, we
affirm the information in our proposed rule concerning Executive Order
(E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings),
E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211
(Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform
Act, the Paperwork Reduction Act, the National Environmental Policy
Act, and the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR
22951). However, based on the DEA data, we revise our required
determination concerning the Regulatory Flexibility Act.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
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 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 effect 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
an agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. Based on our DEA of
the proposed designation, we provide our analysis for determining
whether the proposed rule would result in a significant economic impact
on a substantial number of small entities. Based on comments we
receive, we may revise this determination as part of our final rule
making.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations, 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 critical habitat for
the Louisiana black bear would affect a substantial number of small
entities, we considered the number of small entities affected within
particular types of economic activities, such as oil and gas
[[Page 66834]]
exploration and development, species management, residential
development, forestry, agriculture, and transportation. In order to
determine whether it is appropriate for our agency to certify that this
rule would not have a significant economic impact on a substantial
number of small entities, we considered each industry or category
individually. In estimating the numbers of small entities potentially
affected, we also considered whether their activities have any Federal
involvement. Critical habitat designation will not affect activities
that do not have any Federal involvement; designation of critical
habitat affects activities conducted, funded, permitted, or authorized
by Federal agencies.
If we finalize this proposed critical habitat designation, Federal
agencies must consult with us under section 7 of the Act if their
activities may affect designated critical habitat. Consultations to
avoid the destruction or adverse modification of critical habitat would
be incorporated into the existing consultation process.
In the DEA, we evaluated the potential economic effects on small
entities resulting from implementation of conservation actions related
to the proposed designation of critical habitat for the Louisiana black
bear. Based on that analysis, only small business entities that rely on
oil and gas exploration and development were identified as entities
that could be affected by the incremental impacts from the proposed
rule. Impacts described in Appendix A of the DEA are predominantly
associated with crude petroleum and natural gas extraction; liquid
natural gas exploration; and oil and gas well drilling activities in
areas proposed for final critical habitat for the Louisiana black bear.
These impacts would be expected to be borne by 45 small businesses that
operate in the oil and gas exploration and development industry at the
time of final critical habitat designation. The average cost to a small
business over the next 20 years is estimated to range from $25,000 to
$141,000, discounted at 7 percent. Please refer to our Draft Economic
Analysis of the proposed critical habitat designation for a more
detailed discussion of potential economic impacts.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. We have identified 45 small entities that may be
impacted by the proposed critical habitat designation. For the above
reasons and based on currently available information, we certify that
if promulgated, the proposed designation would not have a significant
economic impact on a substantial number of small business entities.
Therefore, an initial regulatory flexibility analysis is not required.
Authors
The primary authors of this notice are the staff members of the
Louisiana Field Office, Southeast Region, U.S. Fish and Wildlife
Service.
Authority
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: October 30, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-26733 Filed 11-10-08; 8:45 am]
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