[Federal Register Volume 78, Number 61 (Friday, March 29, 2013)]
[Proposed Rules]
[Pages 19172-19176]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07306]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R5-ES-2012-0045; 4500030113]
RIN 1018-AY12
Endangered and Threatened Wildlife and Plants; Endangered Status
for the Diamond Darter and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period and availability of
draft economic analysis.
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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening
of the public comment period on our July 26, 2012, proposed listing and
designation of critical habitat for the diamond darter (Crystallaria
cincotta) 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 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, associated DEA, and amended
required determinations section. Comments previously submitted on the
proposed rule need not be resubmitted, as they will be fully considered
in preparation of the final rule.
DATES: We will consider all comments received or postmarked on or
before April 29, 2013. Comments submitted electronically using the
Federal eRulemaking Portal (see ADDRESSES, below) must be received by
11:59 p.m. Eastern Time on the closing date.
ADDRESSES: Document availability: You may obtain copies of the proposed
rule and the draft economic analysis on the Internet at http://www.regulations.gov at Docket Number FWS-R5-ES-2012-0045, or by mail
from the West Virginia 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-R5-ES-2012-0045, 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-R5-ES-2012-0045; 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: John Schmidt, Acting Field Office
Supervisor, U.S. Fish and Wildlife Service, West Virginia Field Office,
694 Beverly Pike, Elkins, WV 26241; by telephone (304) 636-6586; or by
facsimile (304) 636-7824. Any person who uses 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 listing and designation of
critical habitat for the diamond darter (Crystallaria cincotta) that
was published in the Federal Register on July 26, 2012 (77 FR 43906),
our DEA, and the amended required determinations provided in this
document. We will consider information and recommendations from all
interested parties.
We are also notifying the public that we will publish two separate
rules for the final listing determination and the final critical
habitat determination for the diamond darter. The final listing rule
will publish under the existing docket number, FWS-R5-ES-2012-0045, and
the final critical habitat designation will publish under new docket
number FWS-R5-ES-2013-0019.
We will consider information and recommendations from all
interested parties as to both determinations. As to the proposed
listing determination, we are particularly interested in comments
concerning:
[[Page 19173]]
(1) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and regulations that may
be addressing those threats.
(2) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(3) Any information on the biological or ecological requirements of
the species, and ongoing conservation measures for the species and its
habitat.
(4) Current or planned activities in the areas occupied by the
species and possible impacts of these activities on this species.
As to the proposed critical habitat determination, we are
particularly interested in comments concerning:
(5) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act, 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.
(6) Specific information on:
(a) The amount and distribution of the species' habitat;
(b) 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;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential to
the conservation of the species and why.
(7) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(8) 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.
(9) Information on the extent to which the description of economic
impacts in the DEA is complete and accurate.
(10) 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.
(11) 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 submitted comments or information on the proposed rule (77
FR 43906) during the initial comment period from July 26, 2012, to
September 24, 2012, please do not resubmit them. We have incorporated
them into the public record as part of the original comment period, and
we will fully consider them in the preparation of our final
determination.
You may submit your comments and materials concerning the proposed
rule or DEA by one of the methods listed in ADDRESSES. We request that
you send comments only by the methods described in ADDRESSES.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule and DEA, will be
available for public inspection on http://www.regulations.gov at Docket
No. FWS-R5-ES-2012-0045 for the proposed listing action and at Docket
No. FWS-R5-ES-2013-0019 for the proposed critical habitat designation,
or by appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, West Virginia Field Office (see FOR FURTHER
INFORMATION CONTACT).
Background
It is our intent to discuss in this document only those topics
directly relevant to the designation of critical habitat for the
diamond darter. For more information on the diamond darter, its
habitat, or previous Federal actions, refer to the proposed listing and
designation of critical habitat published in the Federal Register on
July 26, 2012 (77 FR 43906), which is available online at http://www.regulations.gov (at Docket Number FWS-R5-ES-2012-0045) or from the
West Virginia Field Office (see FOR FURTHER INFORMATION CONTACT).
Previous Federal Actions
On July 26, 2012, we published a proposed rule to list the diamond
darter as endangered and to designate critical habitat (77 FR 43906).
We proposed to designate a total of approximately 123 river miles of
critical habitat in Kanawha and Clay Counties, West Virginia, and
Edmonson, Hart, and Green Counties, Kentucky. That proposal had a 60-
day comment period, ending September 24, 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 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 things, 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
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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, 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 the diamond darter, the benefits of critical habitat
include public awareness of the presence of the fish and the importance
of habitat protection, and, where a Federal nexus exists, increased
habitat protection for the diamond darter 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,
our DEA concerning the proposed critical habitat designation is
available for review and comment (see ADDRESSES).
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 the diamond darter. 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 diamond darter
(including listing under the Act, as well as other Federal, State, and
local regulations). The ``with critical habitat'' scenario describes
the incremental impacts specifically due to designation of critical
habitat for the 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
methodology of the analysis, see Chapter 2, ``Framework for the
analysis,'' of the DEA.
The DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed critical habitat designation for the
diamond darter 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. The DEA 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 the diamond darter conservation efforts associated with the
following categories of activity: (1) Resource extraction (coal,
gravel, and rock mining, and oil and natural gas exploration) and
utilities; (2) timber management, agriculture, and grazing; (3) other
in-stream work; (4) transportation (roads, highways, bridges); and (5)
water quality/sewage management.
The DEA concludes that the types of conservation efforts requested
by the Service during section 7 consultation regarding the diamond
darter are not expected to change due to critical habitat designation.
The Service believes that results of consultation under the adverse
modification and jeopardy standards are likely to be similar because:
(1) The primary constituent elements that define critical habitat are
also essential for the survival of the diamond darter; (2) the diamond
darter is limited in its range; and (3) the number of individuals in
the surviving population is very small. In addition, although one of
the proposed critical habitat units for the diamond darter is
unoccupied, incremental impacts of the critical habitat designation
will be limited for the following reasons: (1) The unit is currently
occupied by nine federally listed endangered mussel species: northern
riffleshell (Epioblasma torulosa rangiana), snuffbox (E. triquetra),
pink mucket (Lampsilis abrupta), ring pink (Obovaria retusa), rough
pigtoe (Pleurobema plenum), clubshell (P. clava), fanshell (Cyprogenia
stegaria), spectaclecase (Cumberlandia monodonta), and sheepnose
(Plethobasus cyphyus); and (2) the unit is situated at least partially
within the Mammoth Cave National Park, which is managed according to a
land and resource management plan that includes specific measures to
protect sensitive species.
The DEA concludes that incremental impacts of critical habitat
designation are limited to additional administrative costs of
consultations and that indirect incremental impacts are unlikely to
result from the designation of critical habitat for the diamond darter.
The present value of the total direct (administrative) incremental cost
of critical habitat designation is $800,000 over the next 20 years
assuming a 7 percent discount rate, or $70,000 on an annualized basis.
Transportation activities are likely to be subject to the greatest
incremental impacts at $320,000 over the next 20 years, followed by
timber management, agriculture, and grazing at $260,000; resource
extraction at $150,000; other in-stream work at $50,000; and water
quality/sewage management at $18,000 (present values over 20 years
assuming a 7 percent discount rate).
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.
Required Determinations--Amended
In our July 26, 2012, proposed rule (77 FR 43906), 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 Orders (E.O.) 12866 and 13563 (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 (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.).
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.),
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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.
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
the diamond darter would affect a substantial number of small entities,
we considered the number of small entities affected within particular
types of economic activities, such as resource extraction; timber
management, agriculture, and grazing; other in-stream activities;
transportation; and water quality/sewer management. In order to
determine whether it is appropriate for our agency to certify that this
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. If we finalize the proposed listing
for this species, in areas where the diamond darter are present,
Federal agencies will be required to consult with us under section 7 of
the Act on activities they fund, permit, or implement that may affect
the species. If we finalize the proposed critical habitat designation,
consultations to avoid the destruction or adverse modification of
critical habitat would be incorporated into the existing consultation
process.
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 diamond darter.
We do not expect the critical habitat designation to result in impacts
to small entities for transportation and water quality/sewer management
activities, as consultations considering these activities do not
involve third parties. We anticipate 12 small entities over 20 years,
or less than 1 entity in a single year, could be affected by other in-
stream work at a cost of $875 to $8,800 each, representing less than 1
percent of annual revenues. In the resource extraction category, 50
small entities over 20 years, or 3 entities in a single year, could be
affected by utility pipeline installation at a cost of $875 to $8,800
each, representing less than 1 percent of annual revenues, and 6 small
entities could be affected by bituminous coal and lignite surface
mining within a single year, at a cost of $875 to $5,300 each,
representing less than 1 percent of annual revenues. One hundred and
ninety small entities could be affected by timber management,
agriculture, and grazing within a single year, at a cost of $880 to
$22,000 each, representing less than 1 percent of annual revenues.
Please refer to the DEA of the proposed critical habitat designation
for a more detailed discussion of potential economic impacts.
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species only has a regulatory
effect where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated, such as small businesses. However, Executive Orders
12866 and 13563 direct Federal agencies to assess costs and benefits of
available regulatory alternatives in quantitative (to the extent
feasible) and qualitative terms. Consequently, it is the current
practice of the Service to assess to the extent practicable these
potential impacts, if sufficient data are available, whether or not
this analysis is believed by the Service to be strictly required by the
RFA. In other words, while the effects analysis required under the RFA
is limited to entities directly regulated by the rulemaking, the
effects analysis under the Act, consistent with the EO regulatory
analysis requirements, can take into consideration impacts to both
directly and indirectly impacted entities, where practicable and
reasonable.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if promulgated, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Authors
The primary authors of this notice are the staff members of the
West Virginia Field Office (see FOR FURTHER INFORMATION CONTACT).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
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Dated: March 14, 2013.
Rachel Jacobson,
Principal Deputy, Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-07306 Filed 3-28-13; 8:45 am]
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