[Federal Register Volume 78, Number 90 (Thursday, May 9, 2013)]
[Proposed Rules]
[Pages 27171-27177]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10990]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2012-0031; FWS-R4-ES-2013-0007; 4500030113]
RIN 1018-AX73; 1018-AZ30
Endangered and Threatened Wildlife and Plants; Proposed
Endangered Status for the Neosho Mucket, Threatened Status for the
Rabbitsfoot, and Designation of Critical Habitat for Both Species
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 our October 16, 2012, proposed listing
and designation of critical habitat for the Neosho mucket (Lampsilis
rafinesqueana) and rabbitsfoot (Quadrula cylindrica cylindrica) mussels
under the Endangered Species Act of 1973, as amended (Act). We also
announce the availability of a draft economic analysis (DEA) and draft
environmental assessment 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 revised proposed rule, the
associated DEA and draft environmental assessment, and the amended
required determinations section. Comments previously submitted need not
be resubmitted, as they will be fully considered in preparation of the
final rules.
DATES: We will consider all comments received or postmarked on or
before June 10, 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 a copy of the proposed
rule on the Internet at http://www.regulations.gov at Docket No. FWS-
R4-ES-2012-0031 or by mail from the Arkansas Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT). You may obtain a copy of
the draft economic analysis and the draft environmental assessment at
Docket No. FWS-R4-ES-2013-0007.
Written comments: You may submit written 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-R4-ES-2012-0031, and submit comments on the critical habitat
proposal and associated draft economic analysis and draft environmental
assessment to Docket No. FWS-R4-ES-2013-0007. 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
[[Page 27172]]
Processing, Attn: FWS-R4-ES-2012-0031; 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, draft economic analysis, and draft
environmental assessment by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R4-ES-2013-0007; 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: Jim Boggs, Field Supervisor, U.S. Fish
and Wildlife Service, Arkansas Ecological Services Field Office, 110
South Amity Road, Suite 300, Conway, AR 72032; by telephone 501-513-
4475; or by facsimile 501-513-4480. 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 our proposed listing determination and
proposed critical habitat designation for the Neosho mucket (Lampsilis
rafinesqueana) and rabbitsfoot (Quadrula cylindrica cylindrica) mussels
that was published in the Federal Register on October 16, 2012 (77 FR
63440), our draft economic analysis (DEA) and draft environmental
assessment of the proposed designation, and the amended required
determinations provided in this document. 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
Neosho mucket and rabbitsfoot mussels. The final listing rule will
publish under the existing Docket No. FWS-R4-ES-2012-0031 and the final
critical habitat designation will publish under Docket No. FWS-R4-ES-
2013-0007.
We request that you provide comments specifically on our listing
determination under Docket No. FWS-R4-ES-2012-0031.
We request that you provide comments specifically on the critical
habitat determination and related draft economic analysis and draft
environmental assessment under Docket No. FWS-R4-ES-2013-0007. 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 is not
prudent.
(2) Specific information on:
(a) The amount and distribution of each species' habitat;
(b) What areas occupied by the species at the time of listing that
contain features essential for the conservation of these species we
should include in the designation and why; and
(c) 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 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 draft environmental
assessment, 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 (77
FR 63440) during the initial comment period from October 16, 2012, to
December 17, 2012, please do not resubmit them. We have incorporated
them into the public record as part of the comment period, and we will
fully consider them in the preparation of our final determination. Our
final determination concerning 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, DEA, or draft environmental assessment 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, draft economic
analysis, and draft environmental assessment will be available for
public inspection on http://www.regulations.gov at Docket No. FWS-R4-
ES-2012-0031 and Docket No. FWS-R4-ES-2013-0007, or by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service,
Arkansas Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT). You may obtain copies of the proposed rule, the DEA, and the
draft environmental assessment on the Internet at http://www.regulations.gov at Docket No. FWS-R4-ES-2012-0031 and Docket No.
FWS-R4-ES-2013-0007, or by mail from the Arkansas Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
Background
It is our intent to discuss only those topics directly relevant to
the proposed designation of critical habitat for the Neosho mucket and
rabbitsfoot in this document. For more information on the two mussels,
their fish hosts, or their habitats, or more information than we
provide below concerning previous
[[Page 27173]]
Federal actions for these mussels, refer to the proposed listing
determination and proposed designation of critical habitat published in
the Federal Register on October 16, 2012 (77 FR 63440), which is
available online at http://www.regulations.gov (at Docket No. FWS-R4-
ES-2012-0031 or Docket No. FWS-R4-ES-2013-0007) or from the Arkansas
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Previous Federal Actions
On October 16, 2012, we published a proposed rule to list the
Neosho mucket (Lampsilis rafinesqueana) as an endangered species and
the rabbitsfoot (Quadrula cylindrica cylindrica) mussel as a threatened
species under the Act and to designate critical habitat for these two
mussels (77 FR 63440). We proposed to designate approximately 779.1
river kilometers (rkm) (484.1 river miles (rmi)) of critical habitat
for the Neosho mucket in the Cottonwood, Elk, Fall, Illinois, Neosho,
Shoal, Spring, North Fork Spring, and Verdigris Rivers in Arkansas,
Kansas, Missouri, and Oklahoma. The proposed critical habitat for the
Neosho mucket is located in:
Benton and Washington Counties, Arkansas;
Allen, Chase, Cherokee, Coffey, Elk, Greenwood, Labette,
Montgomery, Neosho, Wilson, and Woodson Counties, Kansas;
Jasper, Lawrence, McDonald, and Newton Counties, Missouri;
and
Adair, Cherokee, and Delaware Counties, Oklahoma.
We proposed to designate 2,664 rkm (1,655 rmi) (as amended in this
document; see Changes from the Proposed Rule, below) of critical
habitat for the rabbitsfoot in the Neosho, Spring (Arkansas River
system), Verdigris, Black, Buffalo, Little, Ouachita, Saline, Middle
Fork Little Red, Spring (White River system), South Fork Spring,
Strawberry, White, St. Francis, Big Sunflower, Big Black, Paint Rock,
Duck, Tennessee, Red, Ohio, Allegheny, Green, Tippecanoe, Walhonding,
Middle Branch North Fork Vermilion, and North Fork Vermilion Rivers and
Bear, French, Muddy, Little Darby and Fish Creeks in Alabama, Arkansas,
Kansas, Kentucky, Illinois, Indiana, Mississippi, Missouri, Ohio,
Oklahoma, Pennsylvania, and Tennessee. The proposed critical habitat
for the rabbitsfoot is located in:
Colbert, Jackson, Madison, and Marshall Counties, Alabama;
Arkansas, Ashley, Bradley, Clark, Cleveland, Dallas, Drew,
Fulton, Grant, Hot Spring, Independence, Izard, Jackson, Lawrence,
Little River, Marion, Monroe, Montgomery, Newton, Ouachita, Randolph,
Saline, Searcy, Sevier, Sharp, Van Buren, White, and Woodruff Counties,
Arkansas;
Allen and Cherokee Counties, Kansas;
Ballard, Green, Hart, Livingston, Logan, Marshall, and
McCracken Counties, Kentucky;
Massac, Pulaski, and Vermilion Counties, Illinois;
Carroll, Pulaski, Tippecanoe, and White Counties, Indiana;
Hinds, Sunflower, Toshimingo, and Warren Counties,
Mississippi;
Jasper, Madison, and Wayne Counties, Missouri;
Coshocton, Madison, Union, and Williams Counties, Ohio;
McCurtain and Rogers Counties, Oklahoma;
Crawford, Erie, Mercer, and Venango Counties,
Pennsylvania; and
Hardin, Hickman, Marshall, Maury, and Robertson Counties,
Tennessee.
That proposal had a 60-day comment period, ending December 17,
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.
Changes From the Proposed Rule
We are changing the proposed rule of October 16, 2012 (77 FR 63440)
to revise the total number of river kilometers (km) for the proposed
designation of rabbitsfoot critical habitat. However, the beginning and
ending points of the proposed critical habitat designation, as well as
the unit descriptions (as described in the proposed critical habitat
rule), remain the same.
The change in mapping was necessary due to an oversight in methods
used for estimating the unit length in proposed critical habitat Unit
RF7. The new methodology uses a better technique for following the
curve and meander of the river channel, which results in an additional
1.4 river kilometers (rkm) (0.9 river mile (rmi)) of proposed critical
habitat. An additional change in mapping, for Unit RF5, resulted from a
mapping error. A short segment in the middle of Unit RF5 was not
included; the addition of this segment added 0.8 rkm (0.5 rmi) to Unit
RF5 and resulted in a corresponding increase to the private ownership
river miles adjacent to Units RF5 and RF7.
The following table shows the revised number of river kilometers
(rkm) and river miles (rmi) and ownership of adjacent riparian lands
for the proposed designation of critical habitat for rabbitsfoot in
Units RF5 and RF7. The data in this table replace the data provided in
Table 5 of the proposed rule at 77 FR 63440 (October 16, 2012).
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Tribal*
Federal rkm; State & local Private rkm; (subset of
Critical habitat units rmi government rmi private) rkm;
rkm; rmi rmi
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Rabbitsfoot
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Unit RF5: Saline River.......................... 0 22.3; 13.9 266.8; 165.8 0
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Unit RF7: Middle Fork Little Red River.......... 0 0 24.7; 15.4 0
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Total rabbitsfoot........................... 328.1; 203.9 137.9; 85.7 2,197.5; 86.9; 54.0
1,365.3
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Total for both species.................. 357.6; 222.2 147.7; 91.8 2,937.3; 189.9; 118.0
1,825.3
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[[Page 27174]]
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 an area would receive from
consultation regarding 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 features that are essential to 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, 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 two mussels, the benefits of critical habitat include public
awareness of the presence of the mussels and the importance of habitat
protection, and, where a Federal nexus exists, increased habitat
protection for the two mussels 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, funded, or permitted 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 and commercial data available at the time
of the final designation, including information obtained during the
comment period and information about the economic impact of the
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 Neosho mucket and rabbitsfoot. 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 two
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.
Most courts have held that the Service only needs to consider the
incremental impacts imposed by the critical habitat designation over
and above those impacts imposed as a result of listing the species. For
example, the Ninth Circuit Court of Appeals reached this conclusion
twice within the last few years, and the U.S. Supreme Court declined to
hear any further appeal from those rulings. (See Arizona Cattle
Growers' Assoc. v. Salazar, 606 F.3d 116, (9th Cir. June 4, 2010) cert.
denied, 179 L. Ed. 2d 300, 2011 U.S. LEXIS 1362, 79 U.S.L.W. 3475
(2011); Home Builders Association of Northern California v. United
States Fish & Wildlife Service, 616 F. 3rd 983 (9th Cir. 2010) cert.
denied, 179 L. Ed. 2d 300, 2011 U.S. LEXIS 1362, 79 U.S.L.W. 3475
(2011).)
However, the prevailing court decisions in the Tenth Circuit Court
of Appeals do not allow the incremental analysis approach. Instead, the
Tenth Circuit requires that the Service consider both the baseline
economic impacts imposed due to listing the species and the additional
incremental economic impacts imposed by designating critical habitat.
(See New Mexico Cattle Growers Ass'n v. FWS, 248 F.3d 1277 (10th Cir.
May 11, 2001).) As a consequence, an economic analysis for critical
habitat that is being proposed for designation within States that fall
within the jurisdiction of the Tenth Circuit (as this designation does)
should include a coextensive cost evaluation, which addresses, and
quantifies to the extent feasible, all of the conservation-related
impacts associated with the regulatory baseline (those resulting under
the jeopardy standard under section 7 of the Act, and under sections 9
and 10 of the Act). In other words, the allocation of impacts should
show those that are part of the regulatory baseline and those that are
unique to the critical habitat 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
two 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 conservation efforts for the two mussels associated with the
following categories of activity: (1) Water management; (2) timber
management, agriculture, and grazing; (3) mining; (4) oil and gas
development; (5) transportation (roads, highways, bridges) and
utilities; (6) development; and (7) recreation.
The DEA concluded that the types of conservation efforts requested
by the Service during section 7 consultation regarding the two mussels
were 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
the ability of these species to exist is very closely tied to the
quality of their habitats, and significant alterations of their
occupied habitat that could result in adverse modification would also
result in jeopardy to the 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 two mussels.
The present value of the total direct (administrative) incremental cost
of critical habitat designation is $4,400,000 over the next 20 years
assuming a 7 percent discount rate, or $290,000 on an annualized basis.
Transportation and utility
[[Page 27175]]
activities are likely to be subject to the greatest incremental impacts
at $1,400,000 over the next 20 years, followed by timber, agriculture,
and grazing at $960,000; development at $760,000; other (animal and
biological control, prescribed burns, land clearing, bank
stabilization, habitat or shoreline restoration) at $530,000; oil and
gas development at $320,000; water flow management at $190,000; water
quality management at $120,000; and mining at $71,000.
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 this species.
Draft Environmental Assessment
The purpose of an environmental assessment is to identify and
disclose the environmental consequences associated with the proposed
critical habitat designation for the Neosho mucket and rabbitsfoot in
compliance with the National Environmental Policy Act (NEPA; 42 U.S.C.
4321 et seq.). We evaluated a variety of issues related to the human
environment that could potentially be affected by the designation of
critical habitat for the two mussels, including conservation of the
Neosho mucket and rabbitsfoot, water resources, energy development and
production, socioeconomic conditions and environmental justice, and
cumulative effects. Our draft environmental assessment concerning the
proposed critical habitat designation is available for review and
comment (see ADDRESSES).
Required Determinations--Amended
In our October 12, 2011, proposed rule (76 FR 63360), 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.s) 12866 and 13563 (Regulatory Planning and
Review), 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.), and the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 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. 12630
(Takings), 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).
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 rulemaking.
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 two mussels would affect a substantial number of small entities, we
considered the number of small entities affected within particular
types of economic activities, such as water management, timber
management, agriculture and grazing, mining, oil and gas development,
transportation and utilities, and development and recreation. 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. If we finalize the proposed listing
for these species, in the areas where they are present Federal agencies
will already 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 this proposed critical habitat designation,
consultations to avoid the destruction or adverse modification of
critical habitat will 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 two mussels. We
anticipate that 11 small entities could be affected by water flow
management consultations in a single year at a cost of $410 each,
representing less than 0.007 percent of annual revenues. Eleven small
entities could be affected by water quality management consultations
within a single year at a cost of $340 each, representing less than 1
percent of annual revenues. Forty-one small
[[Page 27176]]
entities could be affected by timber, agriculture, and grazing
consultations within a single year, at a cost of $470, representing
less than 0.028 percent of annual revenues. Four small entities could
be affected by mining consultations within a single year, at a cost of
$430, representing less than 0.005 percent of annual revenues. Fourteen
small entities could be affected by oil and gas development
consultations within a single year, at a cost of $460, representing
less than 0.006 percent of annual revenues. Forty-three small entities
could be affected by development and recreation consultations within a
single year, at a cost of $410, representing less than 0.007 percent of
annual revenues. Sixty-eight small entities could be affected by
transportation and utility consultations within a single year, at a
cost of $450, representing 0.005 percent of annual revenues. Thirty-
five small entities could be affected by other consultations within a
single year, at a cost of $400, representing 0.005 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 potential impacts to entities not directly
regulated, such as small businesses. However, Executive Orders 12866
and 13563 direct Federal agencies to assess the 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 E.O. 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. Information for this analysis was gathered from the
Small Business Administration, stakeholders, and the Service. We have
identified 227 small entities that may be impacted by the proposed
critical habitat designation in a single year. 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.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in
connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This position was
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)). However, when the range of the species includes States
within the Tenth Circuit, as is the case with the Neosho mucket and
rabbitsfoot, under the Tenth Circuit ruling in Catron County Board of
Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th
Cir. 1996), we will undertake a NEPA analysis for critical habitat
designation. Accordingly, we have completed a draft environmental
assessment to identify and disclose the environmental consequences
resulting from the proposed designation of critical habitat for the
Neosho mucket and rabbitsfoot. Our preliminary determination is that
the designation of critical habitat for the Neosho mucket and
rabbitsfoot would not have direct impacts on the environment. However,
we will further evaluate this issue as we complete our final
environmental assessment.
E.O. 12630 (Takings)
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the Neosho mucket and rabbitsfoot in a takings implications
assessment. As discussed above, the designation of critical habitat
affects only Federal actions. Although private parties that receive
Federal funding, assistance, or 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. The DEA found that no significant economic
impacts are likely to result from the designation of critical habitat
for the Neosho mucket and rabbitsfoot. Because the Act's critical
habitat protection requirements apply only to Federal agency actions,
few conflicts between critical habitat and private property rights
should result from this designation. Based on information contained in
the DEA and described within this document, it is not likely that
economic impacts to a property owner would be of a sufficient magnitude
to support a takings action. Therefore, the takings implications
assessment concludes that this designation of critical habitat for the
Neosho mucket and rabbitsfoot does not pose significant takings
implications for lands within or affected by the designation.
Government-to-Government Relationship With Tribes
Potentially affected Tribes include: the Osage Nation, Cherokee
Nation, United Keetowah Band of Cherokee Indians, Choctaw Nation,
Delaware Tribe of Indians, and Peoria Tribe. On April 19, 2011, we
notified the United Keetowah Band of Cherokee Indians and Delaware
Tribe of Indians via email regarding tribal lands potentially affected
by our proposal to list Neosho mucket and rabbitsfoot and to designate
critical habitat for each species. The Peoria Tribe and Osage Nation
also were notified via email on February 15, 2011, and we then followed
up with subsequent email correspondence. The Cherokee Nation and
Choctaw Nation were notified via email on April 20 and 21, 2011,
respectively, via email and telephone. Lands proposed to be designated
as critical habitat do not represent riparian land ownership by any
Tribe, represent only tribal
[[Page 27177]]
jurisdictional areas, are not managed by any Tribe, and are on
otherwise privately owned lands. We considered the Tribes' comments,
which were limited to providing tribal land and jurisdictional area
maps and biological data for the two mussels, during preparation of the
proposed rule.
Authors
The primary authors of this notice are the staff members of the
Arkansas Ecological Services Field Office and the Southeast Region,
U.S. Fish and Wildlife Service (see ADDRESSES).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: May 1, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-10990 Filed 5-8-13; 8:45 am]
BILLING CODE 4310-55-P