[Federal Register Volume 78, Number 87 (Monday, May 6, 2013)]
[Proposed Rules]
[Pages 26308-26315]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10568]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2012-0053; Docket No. FWS-R6-ES-2013-0020;
4500030114]
RIN 1018-AY11; 1018-AZ39
Endangered and Threatened Wildlife and Plants; Proposed
Threatened Status for Coral Pink Sand Dunes Tiger Beetle and
Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of the comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening
of the public comment period on our October 2, 2012, proposed listing
decision and proposed designation of critical habitat for Coral Pink
Sand Dunes tiger beetle under the Endangered Species Act of 1973, as
amended. We announce the availability of a draft economic analysis
(DEA), a draft environmental assessment (EA), an amendment to the 2009
Conservation Agreement and Strategy for the Coral Pink Sand Dunes tiger
beetle, and an amended required determinations section of the proposal.
We also announce the availability of 2012 Coral Pink Sand Dunes tiger
beetle survey results that were not available when the proposed rule
was being written. We are reopening the comment period to allow all
interested parties an opportunity to comment simultaneously on the
proposed rule, the associated DEA, the Draft EA, the Conservation
Agreement amendment, and the amended required determinations section.
We also announce a public hearing to be held in Kanab, Utah.
DATES: Written Comments: We will consider all comments received or
postmarked on or before June 5, 2013. 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.
Public Information Meeting: We will hold a public information
meeting in Kanab, Utah, on May 22, 2013, from 4 p.m. to 6 p.m. (see
ADDRESSES section, below).
Public Hearing: We will hold a public hearing in Kanab, Utah, on
May 22, 2013, from 7 p.m. to 9 p.m. (see ADDRESSES section, below).
ADDRESSES: Document Availability: You may obtain copies of the proposed
rule on the Internet at http://www.regulations.gov at Docket No. FWS-
R6-ES-2012-0053 or by contacting the U.S. Fish and Wildlife Service,
Utah Field Office, Ecological Services Field Office directly (see FOR
FURTHER INFORMATION CONTACT). You may obtain a copy of the draft
economic analysis (DEA), the draft environmental assessment (Draft EA),
the 2009 Conservation Agreement and Strategy for the Coral Pink Sand
Dunes tiger beetle (Conservation Agreement) amendment, and the 2012
Coral Pink Sand Dunes tiger beetle survey results at
[[Page 26309]]
http://www.regulations.gov at Docket Number FWS-R6-ES-2013-0020, or by
contacting the U.S. Fish and Wildlife Service, Utah Field Office,
Ecological Services Field Office directly (see FOR FURTHER INFORMATION
CONTACT).
Written Comments: You may submit comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the listing proposal to Docket
No. FWS-R6-ES-2012-0053, and submit comments on the critical habitat
proposal and associated DEA and Draft EA to Docket No. FWS-R6-ES-2013-
0020. See SUPPLEMENTARY INFORMATION for an explanation of the two
dockets.
(2) By hard copy: Submit comments on the listing proposal by U.S.
mail or hand-delivery to: Public Comments Processing, Attn: FWS-R6-ES-
2012-0053; Division of Policy and Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA
22203. Submit comments on the critical habitat proposal, DEA, and Draft
EA by U.S. mail or hand-delivery to: Public Comments Processing, Attn:
FWS-R6-ES-2013-0020; Division of Policy and Directives Management; U.S.
Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM;
Arlington, VA 22203.
(3) Public Information Meeting and Public Hearing: Both the public
information meeting and the public hearing will be held at the Kanab
City Library, 374 North Main, Kanab, Utah 84741.
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: Larry Crist, Field Supervisor, U.S.
Fish and Wildlife Service, Utah Field Office, Ecological Services Field
Office, 2369 West Orton Circle, Suite 50, West Valley City, Utah 84119;
telephone 801-975-3330; or facsimile 801-975-3331. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written comments and information during this
reopened comment period on: (1) Our proposed listing as threatened and
proposed critical habitat designation for Coral Pink Sand Dunes tiger
beetle that was published in the Federal Register on October 2, 2012
(77 FR 60208); (2) our DEA of the proposed designation; (3) our Draft
EA; (4) the Conservation Agreement amendment; (5) 2012 Coral Pink Sand
Dunes tiger beetle surveys and how this information should be
considered in the designation of critical habitat; and (6) our
amendment of required determinations. 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
Coral Pink Sand Dunes tiger beetle. The final listing rule will publish
under the existing Docket No. FWS-R6-ES-2012-0053, and the final
critical habitat designation will publish under Docket No. FWS-R6-ES-
2013-0020.
We request that you provide comments specifically on our listing
determination under Docket No. FWS-R6-ES-2012-0053.
We request that you provide comments specifically on the critical
habitat determination and related DEA and Draft EA under Docket No.
FWS-R6-ES-2013-0020. 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 these 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 may not be
prudent;
(2) Specific information on:
(a) The amount and distribution of Coral Pink Sand Dunes tiger
beetle habitat;
(b) What areas that are occupied and that contain features
essential to the conservation of this species should be included in the
designation and why;
(c) Special management considerations or protection that may be
needed in the critical habitat area we are proposing, including
managing for the potential effects of climate change;
(d) What areas not occupied at the time of listing are essential
for the conservation of these species and why; and
(e) Means to quantify the amount of natural and human-caused
disturbance this species prefers or can tolerate.
(3) Land use designations and current or planned activities in the
subject area and their possible impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the Coral Pink Sand Dunes tiger beetle and proposed
critical habitat.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, any impacts on small entities or families,
and the benefits of including or excluding areas that exhibit these
impacts.
(6) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act.
(7) 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 better accommodate public
concerns and comments.
(8) Information on the extent to which the description of potential
economic impacts in the DEA is complete and accurate.
(9) Whether the DEA makes appropriate assumptions regarding current
practices and any regulatory changes that will likely occur if we
designate critical habitat.
(10) Whether the DEA correctly assesses the effect of regional
costs associated with land use controls that may result from the
designation of critical habitat.
(11) Whether the DEA identifies all Federal, State, and local costs
and benefits attributable to the proposed designation of critical
habitat, and information on any costs that have been inadvertently
overlooked.
(12) Whether the Draft EA adequately presents the purpose of and
need for the proposed action, the proposed action and alternatives, and
the evaluation of the direct, indirect, and cumulative effects of the
alternatives.
(13) Whether the amended Conservation Agreement for the Coral Pink
Sand Dunes tiger beetle provides sufficient conservation measures to
reduce threats to the species.
You may submit your comments and materials concerning our proposed
rule or the associated DEA and draft EA by one of the methods listed in
ADDRESSES.
If you submit a comment via http://www.regulations.gov, your entire
comment--including your personal identifying information--will be
posted on the Web site. If you submit a hardcopy comment that includes
[[Page 26310]]
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, DEA, and Draft
EA, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R6-ES-2012-0053 and Docket No.
FWS-R6-ES-2013-0020, or by appointment, during normal business hours,
at the U.S. Fish and Wildlife Service, Utah Ecological Services Office
(see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the
proposed critical habitat, the DEA, the Conservation Agreement
amendment, and the Draft EA on the Internet at http://www.regulations.gov at Docket No. FWS-R6-ES-2012-0053 and Docket No.
FWS-R6-ES-2013-0020, or at http://www.fws.gov/mountain-prairie/species/invertebrates/CoralPinkSandDunesTigerBeetle/index.html, or by mail from
the Utah Ecological Services Office (see FOR FURTHER INFORMATION
CONTACT).
Background
Previous Federal Actions
It is our intent to discuss only those topics directly relevant to
the proposed designation of critical habitat for the Coral Pink Sand
Dunes tiger beetle and our consideration of the Conservation Agreement
amendment relative to the proposed listing rule. For more information
on previous Federal actions and the biology of the Coral Pink Sand
Dunes tiger beetle, refer to the proposed listing rule and proposed
designation of critical habitat published in the Federal Register on
October 2, 2012 (77 FR 60208), which is available online at http://www.regulations.gov (at Docket No. FWS-R6-ES-2012-0053 or Docket No.
FWS-R6-ES-2013-0020).
In total, we proposed approximately 921 hectares (ha) (2,276 acres
(ac)) in Kane County, Utah, for designation as critical habitat in our
October 2, 2012, proposed rule. However, the 2012 Coral Pink Sand Dunes
tiger beetle surveys found beetle adults and larvae in habitat adjacent
to the proposed critical habitat area (Knisley and Gowan 2013, pp. 12-
13). Therefore, based on the availability of this new information, we
request that the public review this data and provide input on how it
might be considered for the designation of critical habitat (see 2012
Survey Information, below).
The original proposal had a 60-day public comment period, ending
November 16, 2012. We will publish in the Federal Register a final
listing decision and final critical habitat designation for the Coral
Pink Sand Dunes tiger beetle on or before the statutory deadline of
October 2, 2013.
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by the 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 the 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
that affect critical habitat must consult with us on the effects of
their proposed actions, under section 7(a)(2) of the Act.
Our October 2, 2012, proposed rule evaluated the 2009 Conservation
Agreement for the Coral Pink Sand Dunes tiger beetle. The 2009
Conservation Agreement resulted in the establishment of two
Conservation Areas that protect the Coral Pink Sand Dunes tiger beetle
from off-road vehicle use. Based on new survey information, we have
worked with the State of Utah and Bureau of Land Management to amend
the 2009 Conservation Agreement and expand the protected habitats for
the species (see Conservation Agreement Amendment, below). We are
seeking public comment on this amendment, including whether it provides
sufficient conservation measures to reduce threats to the species to
the point it does not meet the definition of threatened or endangered
under 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 the species.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits that the 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 the 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 Coral Pink Sand Dunes tiger beetle, the benefits
of critical habitat designation include public awareness of the
presence of these species and the importance of habitat protection,
and, where a Federal action exists, increased habitat protection for
these species due to protection from adverse modification or
destruction of critical habitat. In practice, situations with a Federal
action occur primarily on Federal lands or for projects implemented,
funded, or permitted by Federal agencies.
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 DEA concerning the economic effects of the proposed
critical habitat designation, which 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 Coral Pink Sand Dunes tiger beetle. The DEA also
describes the economic impacts of all potential conservation efforts
for the Coral Pink Sand Dunes tiger beetle. Some of these costs will
likely be incurred regardless of whether or not 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
[[Page 26311]]
analysis, considering protections already in place for the species
(e.g., under the Federal listing and other Federal, State, and local
regulations). Therefore, the baseline 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 at baseline impacts incurred as a result of the species listing,
and forecasts both baseline and incremental impacts likely to occur if
we finalize the proposed critical habitat designation.
In light of the 10th Circuit U.S. Court of Appeals ruling in New
Mexico Cattle Growers Association v. United States Fish and Wildlife
Service, the DEA also considers the coextensive cost impacts of the
critical habitat's protection. Coextensive impacts include the baseline
impacts, which are a result of the listing, and incremental impacts,
which are solely attributable to the designation of critical habitat.
The DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed critical habitat designation for the
Coral Pink Sand Dunes tiger beetle over the next 20 years, which was
determined to be the appropriate period for analysis because planning
information was available for most activities to reasonably forecast
activity levels for projects for a 20-year timeframe. The DEA
identifies potential incremental costs as a result of the proposed
critical habitat designation; these are the costs attributed to
critical habitat over and above those baseline costs attributed to
listing. The DEA quantifies economic impacts of conservation efforts
for the Coral Pink Sand Dunes tiger beetle associated with the
following categories of activity: (1) Bureau of Land Management Kanab
Field Office Resource Management Plan administration; (2) off-road
vehicle (ORV) related consumer surplus losses (i.e., economic measure
of consumer satisfaction--ORV restrictions might result in some
consumers feeling like they were not receiving sufficient recreational
enjoyment for the expenses of traveling to and staying in the area);
(3) consultation on a Coral Pink Sand Dunes State Park incidental take
permit; (4) other management activities; and (5) conservation
activities.
The proposed critical habitat designation for the Coral Pink Sand
Dunes tiger beetle will result in minimal incremental costs because the
proposed critical habitat is occupied by the species or likely used as
a dispersal corridor between occupied habitats and we would expect
costs beyond those attributable to the species listing (baseline costs)
to be minimal (see discussion below). Furthermore, the baseline
protections afforded by existing conservation activities partially
address ORV use, which is one of the primary threats to the species and
its habitat (77 FR 60208). Table 1 summarizes the coextensive economic
impacts of the proposed listing and critical habitat.
Coextensive impacts to economic activities are anticipated to be
associated primarily with the administrative costs of Section 7
consultations, development of incidental take permits, and consumer
surplus losses from anticipated ORV restrictions in the Coral Pink Sand
Dunes State Park. The cost of these impacts is estimated to be
approximately $225,298 over the next 20 years, at an annualized cost of
$13,416. Costs associated with conservation activities that are
indirectly attributable to the listing are projected to be $538,441
(Table 1). In addition, ORV visitors to BLM land adjacent to the State
Park would potentially lose consumer surplus, but these costs are
unquantified because of a lack of reliable visitation data. Additional
information can be found in the DEA, which is available at http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0020 and at http://www.fws.gov/mountain-prairie/species/invertebrates/CoralPinkSandDunesTigerBeetle/index.html.
Table 1--Summary of Coextensive Impacts to Economic Activities Over the Next 20 Years (Including a 7 Percent Discount Rate) Pertaining to Critical
Habitat Designation for the Coral Pink Sand Dunes Tiger Beetle
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Economic activities
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OHV-Related State park Other Conservation Total
Reinitiation consumer incidental management activities coextensive
of BLM RMP surplus losses take permit activities
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Undiscounted............................................ $29,655 $275,698 $2,263 $73,000 $950,000 $1,330,616
Net Present Vaule @ 7%.................................. 25,400 156,260 a 2,263 41,375 538,441 763,738
Average Annual Discounted Cost.......................... 1,270 7,813 a 2,263 2,069 26,922 40,337
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a Undiscounted because the action is expected to take place in 2013.
Incremental costs associated with the designation of critical
habitat are expected to be minimal. Designation of critical habitat for
the Coral Pink Sand Dunes tiger beetle is not likely to result in
additional consultations since the proposed designated critical habitat
unit is occupied. Therefore, actions that would affect critical habitat
would also affect the species present in the occupied Unit of critical
habitat. However, the designation of critical habitat would result in
direct incremental administrative costs to address adverse modification
analyses, although these would be minimal. With no critical habitat
designated outside the Coral Pink Sand Dunes habitat range, all
indirect conservation costs or benefits are considered part of the
baseline. No additional project modifications are expected relative to
the baseline. Costs associated with reinitiating consultations will
also be considered part of the baseline.
We are seeking data and comments from the public on the DEA. 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
[[Page 26312]]
the exclusion will not result in the extinction of the species.
Draft Environmental Assessment; National Environmental Policy Act
When the range of a species includes States within the U.S. Tenth
Circuit Court of Appeals, pursuant to the ruling in Catron County Board
of Commissioners v. U.S. Fish and Wildlife Service, 75 F .3d 1429 (10th
Cir. 1996), we will complete an analysis under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (NEPA) on
critical habitat designations. The range of Coral Pink Sand Dunes tiger
beetle is entirely within the State of Utah, which is within the Tenth
Circuit.
The Draft EA presents the purpose of and need for critical habitat
designation, the proposed action and alternatives, and an evaluation of
the direct, indirect, and cumulative effects of the alternatives under
the requirements of NEPA as implemented by the Council on Environmental
Quality regulations (40 CFR 1500 through 1518) and according to the
Department of the Interior's NEPA procedures.
The Draft EA will be used by the Service to decide whether or not
critical habitat will be designated as proposed; if the proposed action
requires refinement, or if another alternative is appropriate; or if
further analyses are needed through preparation of an environmental
impact statement. If the proposed action is selected as described (or
is changed minimally) and no further environmental analyses are needed,
then a Finding of No Significant Impact (FONSI) would be the
appropriate conclusion of this process. A FONSI would then be prepared
for the environmental assessment. We are seeking data and comments from
the public on the draft EA, which is available at http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0020 and at http://www.fws.gov/mountain-prairie/species/invertebrates/CoralPinkSandDunesTigerBeetle/index.html.
2012 Survey Information
A survey for Coral Pink Sand Dunes tiger beetle was conducted south
of Conservation Area A in 2012, and we request that the public review
this data and provide input on how it is considered for the designation
of critical habitat (Knisley and Gowan 2013, entire). Researchers found
a total of 16 adults and 13 larvae singly or in small numbers
throughout the area directly south of Conservation Area A (Knisley and
Gowan 2013, pp. 12-13). Large numbers of adult tiger beetles were also
found in this area in earlier years (1998-2000) (Knisley and Gowan
2013, pp. 12-13), but this area was not included in our October 2,
2012, proposed critical habitat designation because beetles were
generally not observed there for a decade. As described in our October
2, 2012, proposed rule, the area supports the following primary
constituent elements: (1) Elevations from 5,610 to 6,857 feet (1,710 to
2,090 meters); (2) appropriate levels of moisture and compaction to
allow for burrowing (greater than 3 percent); and (3) vegetative cover
of 23-57 percent that allows for ovipositing, adult thermoregulation,
and abundant prey (77 FR 60208). Portions of this area are also
included in the Conservation Agreement amendment (see Conservation
Agreement Amendment, below). We seek comments from the public on the
survey results, which are available at http://www.regulations.gov at
Docket No. FWS-R6-ES-2013-0020 and at http://www.fws.gov/mountain-prairie/species/invertebrates/CoralPinkSandDunesTigerBeetle/index.html.
Conservation Agreement Amendment
Initially formalized in 1997 (Conservation Committee 1997, entire),
and revised in 2009 (Conservation Committee 2009, entire), the
Conservation Agreement for the Coral Pink Sand Dunes Tiger Beetle is a
partnership for the development and implementation of conservation
measures to protect the tiger beetle and its habitat. The purpose of
the partnership is to ensure the long-term persistence of the Coral
Pink Sand Dunes tiger beetle within its historical range and provide a
framework for future conservation efforts. The Utah Department of
Natural Resources, Division of Parks and Recreation, Bureau of Land
Management (BLM), U.S. Fish and Wildlife Service, and Kane County,
Utah, are signatories to these agreements and comprise the conservation
committee. The conservation committee has implemented conservation
actions to benefit the Coral Pink Sand Dunes tiger beetle and its
habitat, monitored their effectiveness, and adapted strategies as new
information became available. Coordination under the Conservation
Agreement resulted in the establishment of two Conservation Areas that
protect the Coral Pink Sand Dunes tiger beetle from ORV use--
Conservation Areas A and B (see our proposed rule (77 FR 60208, October
2, 2012) for more information on these Conservation Areas).
On March 21, 2013, signatories to the Conservation Agreement signed
an amendment (Amendment to the 2009 Conservation Agreement and Strategy
for the Coral Pink Sand Dunes Tiger Beetle (Cicindela albissima))
(Conservation Committee 2013, entire) to the 2009 Conservation
Agreement that outlines several new conservation actions that will be
enacted to address the threats that were identified in the October 2,
2012, proposed rule (77 FR 60208). The amendment evaluates the most
recent tiger beetle survey information (Knisley and Gowan 2013, entire;
see 2012 Survey Information, above) and concludes that modifications to
the boundaries of the Conservation Areas are needed to ensure continued
protection of the tiger beetle from ongoing threats (see below
description of threats). The amendment enlarges Conservation Area A by
29 percent from 84 to 108 ha (207 to 266 ac). The expansion of
Conservation Area A protects 88 percent of the species' population from
ORV use. In addition, the amendment provides protection for islands of
habitat between Conservation Areas A and B (an additional 106 ha (263
ac)), with the intent of providing dispersal habitat for the species.
Overall, the Conservation Agreement amendment addresses the
following threats to the Coral Pink Sand Dunes tiger beetle: (1)
Habitat loss and degradation caused by off-road vehicle use; (2) small
population effects, such as vulnerability to random chance events; (3)
the effects of climate change and drought; and (4) cumulative
interaction of individual factors such as off-road vehicle use, climate
change, and drought (77 FR 60208, October 2, 2012) (Table 3).
Additional information can be found in the Conservation Agreement
amendment, which can be obtained as specified at the beginning of this
document (see ADDRESSES: Document Availability).
[[Page 26313]]
Table 2--Threats to the Coral Pink Sand Dunes Tiger Beetle as Identified
in the October 2, 2012, Proposed Listing Decision and Proposed
Designation of Critical Habitat, and Planned Actions to Address Those
Threats Through the Conservation Agreement and Strategy Amendment
------------------------------------------------------------------------
Threat Planned action
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Habitat loss/degradation and Utah Department of Natural
mortality associated with ORV use. Resources, Division of Parks and
Recreation agrees to expand the
boundary of Conservation Area A to
protect additional habitat while
addressing diversity in recreation
and maintaining safety standards
for dune visitors. This area will
be expanded in the 2013 field
season from 84 to 108 ha (207 to
266 ac), thus increasing protection
of tiger beetle occupied swales
from 48 percent to 88 percent. All
new or expanded habitat areas will
be demarcated with carsonite
marking posts to facilitate
compliance by Park visitors.
Utah Department of Natural
Resources, Division of Parks and
Recreation and the BLM will protect
vegetated habitat islands of
connectivity between the southern
and northern conservation areas and
monitor to ensure compliance. This
action will occur in 2013 and will
protect 106 ha (263 ac) of
additional sand dune habitat
comprising 14 individual habitat
patches, which range in size from 1
to 15 ha (2.6 to 37 ac). All new or
expanded habitat areas will be
demarcated with carsonite marking
posts to facilitate compliance by
Park visitors.
Tiger beetle adults and
larvae were found to the south of
Conservation Area A in 2012. The
conservation committee will visit
this area in spring of 2013 to
determine any additional habitats
that should be protected to support
the tiger beetle. The size and
configuration of any protected
areas will be determined during the
2013 field season with input from
all members of the conservation
committee. All new or expanded
habitat areas will be demarcated
with carsonite posts to facilitate
compliance by Park visitors.
The conservation committee
will analyze available historic
aerial imagery and other data to
better understand dune movement and
associated vegetation changes as
they relate to beetle occupation
and suitable habitat over time.
Knowledge of dune movement patterns
will be used in adaptive management
planning to accommodate dune
changes and the need to alter
conservation area boundaries.
The conservation committee
will conduct experimental
vegetation treatments within
existing conservation areas to
determine if this activity could be
an effective mechanism to increase
suitable habitat.
The conservation committee
will revisit conservation area
boundaries on a routine cycle
(every 3 years) and make necessary
adjustments as a result of shifting
dunes, vegetation changes,
population increases and decreases,
and resulting changes to suitable
habitat.
Utah Department of Natural
Resources, Division of Parks and
Recreation and the BLM will
continue efforts in law
enforcement, education, and
outreach.
Vulnerability to stochastic events We are not aware of any
due to small population size. additional populations of Coral
Pink Sand Dunes tiger beetles
outside of the Coral Pink Sand
Dunes geologic feature. However,
the conservation committee believes
it is appropriate to continue
surveys for the species and
suitable habitat in the area. The
conservation committee will
identify potential habitat within
an 80-km (50-mi) radius of the
Coral Pink Sand Dunes using aerial
imagery, and survey for tiger
beetle presence and habitat
suitability. If appropriate habitat
is found, the area will be
considered for experimental
introduction.
The conservation committee
will increase research efforts in
experimental translocations in
Conservation Area B and evaluate
new habitat islands for
appropriateness for reintroduction
efforts.
The conservation committee
will introduce individuals into
suitable habitats (potential sites
have been identified), monitor
these sites, and revise
translocation activities via an
adaptive management process.
Inadequacy of existing regulatory The Utah Department of
mechanisms. Natural Resources, Division of
Parks and Recreation and the BLM
have done a creditable job of
enforcing the protection boundaries
of Conservation Areas A and B for
approximately the last 15 years.
This amendment increases the size
of Conservation Area A by 24 ha (59
ac), and the conservation committee
will consider further protection of
habitats to the south of
Conservation Area A (see Habitat
loss/degradation and mortality
associated with ORV use, above). In
addition, the amendment establishes
14 habitat patches to support
dispersal of tiger beetles between
Conservation Areas A and B,
increasing the total protected area
by an additional 106 ha (263 ac).
Because these signatory agencies
have complied with the Conservation
Agreement and Strategy for the last
15 years, we can reasonably
conclude that the BLM and Utah
Department of Natural Resources,
Division of Parks and Recreation
will continue to properly enforce
the boundaries of all protected
areas.
Climate change and drought........ The BLM is installing a
weather station onsite in spring
2013 to better correlate weather
patterns with beetle abundance.
Understanding the effects of
weather patterns on Coral Pink Sand
Dunes tiger beetle populations may
help us develop adaptive management
strategies by identifying important
habitat use areas during
particularly warm or dry years.
The establishment of 14
additional habitat patches totaling
106 ha (263 ac) will occur at
higher elevations in the sand dune
area, and at locations that provide
significant vegetated habitat. This
effort has the potential to offset
the drying and warming effects of
climate change and drought on Coral
Pink Sand Dunes tiger beetle
habitat. In addition these habitat
patches will provide dispersal
habitat and connectivity between
Conservation Areas A and B, which
will better allow the tiger beetle
to disperse to potentially cooler
and wetter habitat that occurs in
Conservation Area B.
Cumulative effects of the above... Addressing the threats
listed above independently will
prevent these threats from acting
cumulatively.
------------------------------------------------------------------------
Required Determinations--Amended
In our October 2, 2012, proposed rule (77 FR 60208), we indicated
that we would defer our determination of compliance with several
statutes and Executive Orders (EOs) 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
E.O. 12866 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O.
13132 (Federalism), E.O. 12988 (Civil Justice Reform), the Paperwork
Reduction Act, E.O. 12866 and E.O. 12988 (Clarity of the Rule), 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
[[Page 26314]]
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 (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996), whenever an agency must 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. 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 rulemaking.
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 the
rule, as well as the 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.
A significant economic impact threshold is generally a 3 percent
impact as measured by appropriate quantitative metrics, such as
annualized cost of compliance as a percentage of sales, government
revenue, or annual operating expenditures. In general, if more than 20
percent of the affected small entities experience a significant
economic impact, then there is considered to be a significant impact on
a substantial number of small entities, and a regulatory flexibility
analysis must be prepared.
For there to be a significant impact on a substantial number of
small entities associated with designating critical habitat, then the
incremental direct compliance costs must exceed the 3 percent threshold
for more than 20 percent of the affected small entities. Since the
Service, BLM, and Coral Pink Sand Dunes State Park are the only
entities with expected direct compliance costs and are not considered
small entities, this rule will not result in a significant impact on a
substantial number of small entities.
However, small entities, such as Kane County, ORV tour and rental
businesses, and other local tourism-related businesses, may be
indirectly affected as a result of the proposed listing and critical
habitat designation. Because motorized visitors to the dunes may be
further restricted access in the dune area than under the current
boundaries, ORV use and rentals may be displaced or reduced, impacting
the ORV rental entities and any businesses the visitors might frequent
as part of their overall trip.
Executive Order 13211--Energy Supply, Distribution, and Use
E.O. 13211, Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use, requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
The Office of Management and Budget's guidance for implementing this
Executive order outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to no regulatory action.
Critical habitat designation for Coral Pink Sand Dunes tiger beetle is
not anticipated to affect energy supply, distribution, and use.
Therefore, designation of critical habitat is not expected to lead to
any adverse outcomes (such as a reduction in oil and natural gas
production or distribution), and a Statement of Energy Effects is not
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This rule will 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. First, it excludes ``a condition of federal
assistance.'' Second, it 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 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. While 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, 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
[[Page 26315]]
shift the costs of the large entitlement programs listed above on to
State governments.
(b) As discussed in the DEA of the proposed designation of critical
habitat for Coral Pink Sand Dunes tiger beetle, we do not believe that
the rule would significantly or uniquely affect small governments
because it would not produce a Federal mandate of $100 million or
greater in any year; that is, it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. The DEA concludes that
incremental impacts may occur due to project modifications and
administrative costs of consultation that may need to be made for
grazing, maintenance, and recreational activities; however, these are
not expected to affect small governments to the extent described above.
Consequently, we do not believe that the proposed critical habitat
designation would significantly or uniquely affect small government
entities. As such, a Small Government Agency Plan is not required.
References Cited
A complete list of all references we cited in the proposed rule and
in this document is available on the Internet at http://www.regulations.gov or by contacting the Utah Ecological Services
Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this document are the staff members of the
Utah Ecological Services Office.
Dated: April 26, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-10568 Filed 5-3-13; 8:45 am]
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