[Federal Register Volume 77, Number 59 (Tuesday, March 27, 2012)]
[Proposed Rules]
[Pages 18173-18176]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7200]
[[Page 18173]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2011-0050; 4500030114]
RIN 1018-AW92
Endangered and Threatened Wildlife and Plants; Endangered Status
for the Alabama Pearlshell, Round Ebonyshell, Southern Sandshell,
Southern Kidneyshell, and Choctaw Bean, and Threatened Status for the
Tapered Pigtoe, Narrow Pigtoe, and Fuzzy Pigtoe; With Critical Habitat
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, announce the reopening
of the public comment period on the October 4, 2011, rule proposing
endangered status for the Alabama pearlshell (Margaritifera marrianae),
round ebonyshell (Fusconaia rotulata), southern sandshell (Hamiota
australis), southern kidneyshell (Ptychobranchus jonesi), and Choctaw
bean (Villosa choctawensis), and threatened status for the tapered
pigtoe (Fusconaia burkei), narrow pigtoe (Fusconaia escambia), and
fuzzy pigtoe (Pleurobema strodeanum), and designation of their critical
habitat, under the Endangered Species Act of 1973, as amended (Act). We
also announce the availability of a draft economic analysis (DEA) of
the proposed designation of critical habitat for these eight species
and an amended required determinations section of the proposal. We are
reopening the comment period to allow all interested parties an
opportunity to comment simultaneously on the proposed rule, the
associated DEA, and the amended required determinations section.
Comments previously submitted need not be resubmitted, as they will be
fully considered in preparation of the final rule.
DATES: We will consider comments received or postmarked on or before
April 26, 2012. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES section, below) must be received by
11:59 p.m. Eastern Time on the closing date.
ADDRESSES: Document availability: You may obtain copies of the proposed
rule and draft economic analysis on the Internet at http://www.regulations.gov at Docket Number FWS-R4-ES-2011-0050, or by mail
from the Panama City Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Comment submission: You may submit written comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R4-ES-2011-0050, which
is the docket number for this rulemaking.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R4-ES-2011-0050; 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: Don Imm, Field Supervisor, U.S. Fish
and Wildlife Service, Panama City Ecological Services Field Office,
1601 Balboa Avenue, Panama City, FL 32405; telephone 850-769-0552;
facsimile 850-763-2177. 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 these eight mussels that was published in the Federal Register on
October 4, 2011 (76 FR 61482), our DEA 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 eight mussels;
(b) The amount and distribution of habitat for these eight mussels;
and
(c) What areas occupied by these species at the time of listing
contain features essential for the conservation of the species that 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 these 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 designating any area that may be included
in the final designation. We are particularly interested in any impacts
on small entities, and the benefits of including or excluding areas
from the proposed designation that are subject to these impacts.
(5) The projected and reasonably likely impacts of climate change
on these eight mussels and on the critical habitat we are proposing.
(6) 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.
(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.
If you submitted comments or information on the proposed rule (76
FR 61482) during the initial comment period from October 4, 2011, to
December 5, 2011, please do not resubmit them. We will incorporate them
into the public record as part of this comment period, and we will
fully consider them in the preparation of our final determination. Our
final determination concerning designation of critical habitat will
take into consideration all written comments and any additional
information we receive during both comment periods. On the basis of
public comments, 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.
You may submit your comments and materials concerning the proposed
rule or DEA by one of the methods listed in
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the ADDRESSES section. We request that you send comments only by the
methods described in the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule and DEA, will be
available for public inspection on http://www.regulations.gov at Docket
No. FWS-R4-ES-2011-0050, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Panama City Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT section,
above). You may obtain copies of the proposed rule and the DEA on the
Internet at http://www.regulations.gov at Docket Number FWS-R4-ES-2011-
0050, or by mail from the Panama City Ecological Services Field Office
(see FOR FURTHER INFORMATION CONTACT section, above).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for the Alabama pearlshell, round
ebonyshell, southern sandshell, southern kidneyshell, Choctaw bean,
tapered pigtoe, narrow pigtoe, and fuzzy pigtoe in this document. For
more information on previous Federal actions concerning these eight
species, or their biology and habitat needs, refer to the proposed
listing and designation of critical habitat published in the Federal
Register on October 4, 2011 (76 FR 61482). This document is available
online at http://www.regulations.gov (at Docket Number FWS-R4-ES-2011-
0050) or from the Panama City Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT section, above).
Previous Federal Actions
On October 4, 2011, we published a proposed rule to list and
designate critical habitat for these species (76 FR 61482). We proposed
to designate approximately 2,406 kilometers (km) (1,495 miles (mi)) of
stream and river channels within Bay, Escambia, Holmes, Jackson,
Okaloosa, Santa Rosa, Walton, and Washington Counties, Florida; and
Barbour, Bullock, Butler, Coffee, Conecuh, Covington, Crenshaw, Dale,
Escambia, Geneva, Henry, Houston, Monroe, and Pike Counties, Alabama.
We will submit for publication in the Federal Register a final critical
habitat designation for these eight species on or before October 4,
2012.
Critical Habitat
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed rule is
made final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting critical habitat must consult with us on the effects of their
proposed actions, under section 7(a)(2) of the Act.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific data available, after
taking into consideration the economic impact, impact on national
security, or any other relevant impact of specifying any particular
area as critical habitat. We may exclude an area from critical habitat
if we determine that the benefits of excluding the area outweigh the
benefits of including the area as critical habitat, provided such
exclusion will not result in the extinction of these species.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus (activities conducted, funded, permitted,
or authorized by Federal agencies), the educational benefits of mapping
areas containing essential features that aid in the recovery of the
listed species, and any benefits that may result from designation due
to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, the economic impacts of designation; whether exclusion of
a specific area is likely to result in conservation; the continuation,
strengthening, or encouragement of partnerships; or implementation of a
management plan. In the case of these eight mussels, the benefits of
critical habitat include public awareness of the presence of these
species and the importance of habitat protection, and, where a Federal
nexus exists, increased habitat protection for these species due to
protection from adverse modification or destruction of critical
habitat. In practice, situations with a Federal nexus exist primarily
on Federal lands or for projects undertaken by Federal agencies.
We have not proposed to exclude any areas from critical habitat.
However, the final decision on whether to exclude any areas will be
based on the best scientific 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 draft economic analysis concerning the proposed
critical habitat designation (DEA), which is available for review and
comment (see ADDRESSES section, above).
Draft Economic Analysis
The purpose of the DEA is to identify and analyze the potential
economic impacts associated with the proposed critical habitat
designation for these eight mussels. The DEA separates conservation
measures into two distinct categories according to ``without critical
habitat'' and ``with critical habitat'' scenarios. The ``without
critical habitat'' scenario represents the baseline for the analysis,
considering protections otherwise afforded to the eight mussels (e.g.,
under the Federal listing and other Federal, State, and local
regulations). The ``with critical habitat'' scenario describes the
incremental impacts specifically due to designation of critical habitat
for these species. In other words, these incremental conservation
measures and associated economic impacts would not occur but for the
designation. Conservation measures implemented under the baseline
(without critical habitat) scenario are described qualitatively within
the DEA, but economic impacts associated with these measures are not
quantified. Economic impacts are only quantified for conservation
measures implemented specifically due to the designation of critical
habitat (i.e., incremental impacts). For a further description of the
methods of the analysis, see Chapter 2, ``Framework for the Analysis,''
of the DEA.
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The DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed critical habitat designation for these
eight mussels over the next 20 years, which was determined to be the
appropriate period for analysis because limited planning information is
available for most activities to forecast activity levels for projects
beyond a 20-year timeframe. It identifies potential incremental costs
as a result of the proposed critical habitat designation; these are
those costs attributed to critical habitat over and above those
baseline costs attributed to listing. The DEA quantifies economic
impacts of mussel conservation efforts associated with the following
categories of activity: (1) Impoundments, dams, and diversions; (2)
dredging, channelization, and in-stream mining; (3) transportation and
utilities; (4) residential and commercial development; (5) timber
management, agriculture, and grazing; and (6) oil wells/drilling.
Based on discussions with State and local regulatory authorities,
including Alabama Department of Environmental Management, Florida
Department of Environmental Protection, and Northwest Florida Water
Management District, land and water management practices are not
expected to change due to the designation of critical habitat.
The present value of the total incremental cost of critical habitat
designation is estimated at $1.41 million over 20 years assuming a 7
percent discount rate, or $125,000 on an annualized basis.
Transportation and utility activities are likely to be subject to the
greatest incremental impacts at $1.02 million over 20 years, followed
by development at $62,300; timber management, agriculture, and grazing
activities at $56,600; and impoundments, dams, and diversions at
$13,100 (present values over 20 years assuming a 7 percent discount
rate). No incremental impacts to dredging, channelization, and in-
stream mining are anticipated because these activities are not expected
to occur within proposed critical habitat boundaries. No incremental
impacts to oil wells or drilling operations are anticipated because
there is no Federal nexus for these activities that would require
section 7 consultation. Please refer to the DEA of the proposed
critical habitat designation for a more detailed discussion of
potential economic impacts.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of the proposed rule and our
amended required determinations. We may revise the proposed rule or
supporting documents to incorporate or address information we receive
during the public comment period. In particular, we may exclude an area
from critical habitat if we determine that the benefits of excluding
the area outweigh the benefits of including the area, provided the
exclusion will not result in the extinction of these species.
Required Determinations--Amended
In our October 4, 2011, proposed rule (76 FR 61482), we indicated
that we would defer our determination of compliance with several
statutes and executive orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the DEA. We have now
made use of the DEA data to make these determinations. In this
document, we affirm the information in our proposed rule concerning
Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice
Reform), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National
Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's
memorandum of April 29, 1994, ``Government-to-Government Relations with
Native American Tribal Governments'' (59 FR 22951). However, based on
the DEA data, we are amending our required determinations concerning
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211
(Energy, Supply, Distribution, or Use), and the Unfunded Mandates
Reform Act (2 U.S.C. 1501 et seq.).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities. Based on our DEA of the proposed designation,
we provide our analysis for determining whether the proposed rule would
result in a significant economic impact on a substantial number of
small entities. Based on comments we receive, we may revise this
determination as part of our final rule making.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
To determine if the proposed designation of critical habitat for
these species 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 or commercial
development entities. In order to determine whether it is appropriate
for our agency to certify that the proposed rule would not have a
significant economic impact on a substantial number of small entities,
we considered each industry or category individually. In estimating the
numbers of small entities potentially affected, we also considered
whether their activities have any Federal involvement. Critical habitat
designation will not affect activities that do not have any Federal
involvement; designation of critical habitat only affects activities
conducted, funded, permitted, or authorized by Federal agencies. In
areas where the these eight mussels are present, Federal agencies
already are required to consult with us under section 7 of the Act on
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activities they fund, permit, or implement that may affect these
species. If we finalize the proposed critical habitat designation,
consultations to avoid the destruction or adverse modification of
critical habitat would be incorporated into the existing consultation
process.
In the DEA, we evaluated the potential economic effects on small
entities resulting from implementation of conservation actions related
to the proposed designation of critical habitat for the eight mussels.
This analysis estimates that six small governments (counties) may be
affected by the rule. The affected counties represent 9 percent of
small counties in Alabama and Florida. We anticipate approximately
three to four counties could be affected each year, with an impact of
approximately $875 per county. Assuming annual county tax revenues of
at least $1 million, per county impacts represent approximately 0.02
percent of annual revenues. Approximately 20 small development-related
entities are likely to incur administrative costs associated with
section 7 consultations. Assuming that all of these entities are small,
they represent approximately 0.04, or less than one, percent of all
small developers and homebuilders in the affected counties. Annualized
impacts per entity are approximately $48, which represents less than
one percent of annual, per entity revenues. Please refer to the DEA of
the proposed critical habitat designation for a more detailed
discussion of potential economic impacts to small businesses.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. Information for this analysis was gathered from the
Small Business Administration, stakeholders, and the Service. For the
above reasons and based on currently available information, we certify
that, if promulgated, the proposed critical habitat designation would
not have a significant economic impact on a substantial number of small
business entities. Therefore, an initial regulatory flexibility
analysis is not required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
As outlined in the DEA and in the amended RFA determination above,
we do not believe that this rule will significantly or uniquely affect
small governments. It will not produce a Federal mandate of $100
million or greater in any year, and therefore is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act. The
designation of critical habitat imposes no obligations on state or
local governments. By definition, Federal agencies are not considered
small entities, although the activities they fund or permit may be
proposed or carried out by small entities. After careful review of the
DEA we have determined that a Small Government Agency Plan is not
required.
Energy, Supply, Distribution, or Use
On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
The Office of Management and Budget provides guidance for implementing
this executive order, and outlines the situations that are considered
to have a ``significant energy effect'' when compared with the
regulatory action under consideration. As outlined in the DEA, we do
not anticipate impacts to oil wells and drilling activities in the
study area (critical habitat reaches and associated watersheds). Thus,
we do not anticipate a ``significant energy effect'' from this
rulemaking.
Authors
The primary authors of this notice are the staff members of the
Panama City Ecological Services Field Office.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: March 16, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-7200 Filed 3-26-12; 8:45 am]
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