[Federal Register Volume 78, Number 130 (Monday, July 8, 2013)]
[Proposed Rules]
[Pages 40673-40686]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16240]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2013-0025; 4500030113]
RIN 1018-AZ43
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Acu[ntilde]a Cactus and the Fickeisen Plains
Cactus
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; revisions and reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on the October 3, 2012, proposed
listing and designation of critical habitat for Echinomastus
erectocentrus var. acunensis (acu[ntilde]a cactus) and Pediocactus
peeblesianus var. fickeiseniae (Fickeisen plains cactus) under the
Endangered Species Act of 1973, as amended (Act). We are reopening the
comment period to allow all interested parties an opportunity to
comment on revisions to the proposed critical habitat designations,
which are described in this document; the associated draft economic
analysis (DEA) for the proposed critical habitat designations; and the
amended required determinations. Comments previously submitted need not
be resubmitted, as they will be fully considered in preparation of the
final rule.
DATES: We will consider comments received or postmarked on or before
July 23, 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.
ADDRESSES: Document availability: You may obtain copies of the October
3, 2012, proposed rule on the Internet at http://www.regulations.gov at
Docket No. FWS-R2-ES-2012-0061 or by mail from the Arizona Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
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. Search for Docket No. FWS-R2-ES-2013-0025, 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-R2-ES-2013-0025; 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: Steve Spangle, Field Supervisor, U.S.
Fish and Wildlife Service, Arizona Ecological Services Field Office,
2321 W. Royal Palm Road, Suite 103, Phoenix, AZ 85021; telephone (602)
242-0210; facsimile (602) 242-2513. 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 are reopening the comment period for our proposed critical
habitat designations for the acu[ntilde]a cactus and the Fickeisen
plains cactus that published in the Federal Register on October 3, 2012
(77 FR 60509). We are specifically seeking comments on the revised
proposed critical habitat designations described in this document; see
ADDRESSES for information on how to submit your comments. We will
consider information and recommendations from all interested parties.
We also seek comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat is not
prudent.
(2) Specific information on:
(a) The distribution of the acu[ntilde]a cactus or the Fickeisen
plains cactus;
(b) The amount and distribution of acu[ntilde]a cactus or the
Fickeisen plains cactus habitat;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including management
for the potential effects of climate change; and
(d) 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.
(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) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
(6) Information on the extent to which the description of economic
impacts in the DEA is complete and accurate.
(7) 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.
(8) Information that may inform our consideration of exclusion,
including benefits of exclusion and benefits of including the areas
proposed as critical habitat for the Fickeisen plains cactus on the
Navajo Nation based on the ``Navajo Nation Fickeisen Plains Cactus
Management Plan'' and on the Babbitt Ranches based on their ``Draft
Babbitt Ranches Fickeisen Plains Cactus Management Plan.'' Both plans
were submitted during the March 28 through April 29, 2013, comment
period (78 FR 18938) and are available on http://www.regulations.gov at
Docket No. FWS-R2-ES-2013-0025.
If you submitted comments or information on the proposed rule (77
FR 60509) during the initial comment period from October 3 to December
3, 2012, or during the second comment period (78 FR 18938) from March
28 to April 29, 2013, please do not resubmit them. We will incorporate
them into the public record as part of this comment period, and we will
fully consider them
[[Page 40674]]
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 this and the
prior two comment periods. On the basis of public comments, we may,
during the development of our final determination, find that areas
proposed are not essential, are appropriate for exclusion under section
4(b)(2) of the Act, or are not appropriate for exclusion.
You may submit your comments and materials concerning the proposed
rule or DEA by one of the methods listed in the ADDRESSES section. We
request that you send comments only by the methods described in the
ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule and DEA, will be
available for public inspection on http://www.regulations.gov at Docket
No. FWS-R2-ES-2013-0025, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Arizona Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may
obtain copies of the proposed rule and the DEA on the Internet at
http://www.regulations.gov at Docket Number FWS-R2-ES-2013-0025, or by
mail from the Arizona Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT section).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for the acu[ntilde]a cactus and the
Fickeisen plains cactus in this document. For more information on
previous Federal actions concerning the acu[ntilde]a cactus and the
Fickeisen plains cactus, refer to the proposed listing determination
and designation of critical habitat published in the Federal Register
on October 3, 2012 (77 FR 60509) or the draft economic analysis, which
are available online at http://www.regulations.gov (at Docket Number
FWS-R2-ES-2013-0025) or from the Arizona Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Previous Federal Actions
On October 3, 2012, we published a proposed rule to list the
acu[ntilde]a cactus and the Fickeisen plains cactus as endangered and
to designate critical habitat for both plants (77 FR 60509). For the
acu[ntilde]a cactus, we proposed to designate as critical habitat
approximately 21,740 hectares (ha) (53,720 acres (ac)) in six units
located in Maricopa, Pima, and Pinal Counties, Arizona. For the
Fickeisen plains cactus, we proposed to designate as critical habitat
approximately 19,901 ha (49,186 ac) in nine units located in Coconino
and Mohave Counties, Arizona. That proposal had a 60-day comment
period, ending December 3, 2012. On March 28, 2013, we reopened the
comment period for 30 days to announce the availability of the DEA (78
FR 18938). We will submit for publication in the Federal Register final
listing and critical habitat designations for the acu[ntilde]a cactus
and the Fickeisen plains cactus on or before October 3, 2013.
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 critical
habitat designation 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.
Revised Proposed Critical Habitat
Based on information we received during the comment periods, we are
revising our proposed critical habitat for both cacti species (see the
Criteria Used to Identify Critical Habitat section of the October 3,
2012, proposed rule (77 FR 60509)). The new information resulted in
revisions to most of the acu[ntilde]a cactus critical habitat units.
For the Fickeisen plains cactus, we are proposing to remove Unit 4,
Snake Gulch, and add a new unit on U.S. Forest Service land. For the
acu[ntilde]a cactus, we propose to designate approximately 7,657 ha
(18,921 ac) as critical habitat in Maricopa, Pima, and Pinal Counties,
Arizona. For the Fickeisen plains cactus, we propose to designate
approximately 19,066 ha (47,123 ac) as critical habitat in Coconino and
Mohave Counties, Arizona. Therefore, acu[ntilde]a cactus proposed
critical habitat is reduced by 14,184 ha (34,799 ac), and Fickeisen
plains cactus proposed critical habitat is reduced by 835 ha (2,063
ac).
Criteria Used To Identify Critical Habitat
In our October 3, 2012 (77 FR 60509), proposed rule, we identified
additional areas, not occupied at the time of listing, as essential for
the conservation of the acu[ntilde]a cactus. These areas were
delineated using monitoring records from Organ Pipe Cactus National
Monument (OPCNM) and GIS precipitation data. We noted that flowering
and recruitment peaked in 1992, coinciding with a very wet winter with
recorded precipitation of 29.7 cm (11.66 in). We intended to delineate
areas that were projected to have 29.7 cm (11.66 in) or higher winter
precipitation based on the past 30-year average. However, we mistakenly
based our delineations on annual precipitation, not winter
precipitation. We reevaluated our model, and there are no areas that
meet the 29.7-cm (11.66-in) winter rainfall criterion. In summary, we
acknowledge that long-term drought is a threat to acu[ntilde]a cactus;
however, we do not have any additional information that allows us to
delineate areas outside of those currently occupied that would be
essential for the conservation of the species.
Acu[ntilde]a cactus
Unit 1--Organ Pipe Cactus National Monument
The Dripping Spring Subunit (1,591 ha (3,931 ac)) was originally
proposed based on an acu[ntilde]a cactus herbarium specimen collected
in 1952, which noted the collection location as south of Dripping
Spring within 3 m (10 ft) of the U.S.-Mexico border; the exact location
was not provided. Although OPCNM staff were unaware of this herbarium
collection, they stated in their comments they had visited the general
area of the collection while doing surveys for sensitive cultural and
natural resources, as well as for buffelgrass, and no acu[ntilde]a
cactus plants
[[Page 40675]]
were noted. Although it is likely this was once a population supporting
enough individuals to warrant collection for herbaria, it now seems
likely this population no longer exists at this location; therefore we
consider this unit to be unoccupied. We also reevaluated the habitat to
consider whether or not this unoccupied area is essential for the
conservation of the species. In the October 3, 2012, proposed rule, we
outlined criteria for designation of critical habitat, and we
determined that unoccupied areas with suitable acu[ntilde]a cactus
habitat and that receive higher mean winter precipitation were
necessary for the conservation of the species. As the Dripping Spring
Subunit does not receive this amount (29.7 cm (11.66 in)) of winter
rainfall, it does not meet the definition of critical habitat for the
species, and we are no longer proposing it as critical habitat for the
acu[ntilde]a cactus. We have removed this subunit from our proposed
designation. The revised proposed Unit 1 contains 2,416 ha (5,971 ac).
All Units Containing Unoccupied Acu[ntilde]a Cactus Habitat
In our proposed critical habitat rule, we proposed to designate
unoccupied critical habitat for acu[ntilde]a cactus in areas receiving
higher winter rainfall, thus allowing space for growth and expansion of
the species in the face of ongoing drought and climate change model
predictions. However, we received public comments regarding the data we
used to identify the unoccupied critical habitat areas. In reviewing
the information, we acknowledge that we incorrectly used annual
rainfall data rather than winter rainfall data in our evaluation (see
Criteria Used to Identify Critical Habitat above). As a result, we
reevaluated the data and determined that no areas in southern Arizona
meet rainfall criteria established in the proposed rule. Therefore, we
are removing all the unoccupied critical habitat proposed in our
October 3, 2012, proposed rule. Consequently, we are removing the
entire Cimarron Mountain Subunit (2,100 ha (5,190 ac)) from our
proposed designation. All of these lands are on the Tohono O'odham
Nation. Within proposed Unit 4, the entire Sand Tank Mountain Subunit
(3,107 ha (7,677 ac)) of Federal lands is removed. The amount of land
removed within the Javelina Mountain Subunit of the Sand Tank Mountains
Unit is 362 ha (895 ac), leaving 549 ha (1,355 ac) on Bureau of Land
Management (BLM) lands within the Sonoran Desert National Monument. The
amount of land removed within proposed Unit 5, Mineral Mountain, is 304
ha (752 ac) of BLM land, leaving 787 ha (1,945 ac) on BLM, Bureau of
Reclamation (BOR), and State lands. Within proposed Unit 6, Box O Wash,
we are removing 6,240 ha (15,419 ac) of land, leaving 1,981 ha (4,895
ac) split between two subunits, A and B; this land is distributed among
Federal, State, and private landowners.
Table 1--Acu[ntilde]a Cactus Proposed Critical Habitat and Revised Proposed Critical Habitat
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Revised proposed
Unit Proposed critical critical habitat ha Difference ha (ac)
habitat ha (ac) (ac)
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Unit 1........................................ 4,007 (9,902) 2,416 (5,971) 1,591 (3,931)
Unit 2........................................ 666 (1,645) 666 (1,645) 0 (0)
Unit 3........................................ 3,737 (9,234) 1,258 (3,109)* 2,579 (6,373)
Unit 4........................................ 4,018 (9,928) 549 (1,355) 3,469 (8,572)
Unit 5........................................ 1,092 (2,697) 787 (1,945) 305 (752)
Unit 6........................................ 8,221 (20,314) 1,981 (4,895) 6,240 (15,419)
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Totals.................................... 21,741 (53,720) 7,657 (18,921) 14,084 (34,799)
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* See Exemptions for Acu[ntilde]a Cactus section below.
Revised Proposed Unit Descriptions for Acu[ntilde]a Cactus
Below we present unit descriptions for those units for which we are
revising proposed critical habitat for acu[ntilde]a cactus.
Table 2--Revised Area of Proposed Critical Habitat for the Acu[ntilde]a Cactus
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Federal State Tribal Private Total Total
Unit or subunit ---------------------------------------------------------------------------------------------------
Ha Ac Ha Ac Ha Ac Ha Ac Ha Ac
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Unit 1--Organ Pipe Cactus National Monument......... 2,416 5,971 0 0 0 0 0 0 2,416 5,971
Unit 3--Sauceda Mountains........................... 1,102 2,724 0 0 156 385 0 0 1,258 3,109
Unit 4--Sand Tank Mountains......................... 549 1,355 0 0 0 0 0 0 549 1,355
Unit 5--Mineral Mountain............................ 570 1,408 217 537 0 0 0 0 787 1,945
Unit 6a--Box O Wash A Subunit....................... 4 9 1,348 3,332 0 0 369 913 1,721 4,253
Unit 6b--Box O Wash B Subunit....................... 0 0 158 391 0 0 102 251 260 642
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Grand Total..................................... 4,640 11,466 1,723 4,260 156 385 471 1,164 6,991 17,276
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Note: Area sizes may not sum due to rounding.
[[Page 40676]]
Unit 1: Organ Pipe Cactus National Monument
Proposed Unit 1 consists of 2,416 ha (5,971 ac) within OPCNM in
southwestern Pima County, Arizona. The unit is on federally owned land
administered by the National Park Service. Land within this unit is
occupied at the time of listing with the largest known population of
the acu[ntilde]a cactus, approximately 2,000 individuals. This unit
contains all of the primary constituent elements of the physical or
biological features essential to the conservation of the acu[ntilde]a
cactus.
Grazing and mining are not permitted within OPCNM; however, off-
road, border-related activities do occur in OPCNM. Special management
considerations or protection may be required to address off-road,
border-related human disturbances; invasive plant removal; and insect
predation in acu[ntilde]a cactus habitat.
Unit 3: Sauceda Mountains
Proposed Unit 3 is located in the Sauceda Mountains of northwestern
Pima and southwestern Maricopa Counties, Arizona. This unit contains
1,102 ha (2,724 ac) of federally owned land and 156 ha (385 ac) of
tribally owned land. The Federal land is administered by the BLM; the
Tribal land is administered by the Tohono O'odham Nation. This unit is
comprised of four separate populations, which are close enough in
proximity as to be combined within the 900-m (2,953-ft) radius defined
for pollinators. Lands within this unit are occupied at the time of
listing; the combined number of plants occurring within this unit is
212. This unit contains all of the primary constituent elements of the
physical or biological features essential to the conservation of the
acu[ntilde]a cactus.
The features essential to the conservation of the species within
the unit are threatened by mining; grazing; and off-road, border-
related activities. Special management considerations or protection may
be required within the unit to minimize habitat fragmentation; to
minimize disturbance to individual acu[ntilde]a cactus individuals,
soil, and associated native vegetation; and to prevent or remove
invasive, exotic plants within acu[ntilde]a cactus habitat.
Unit 4: Sand Tank Mountains
Proposed Unit 4 consists of 549 ha (1,355 ac) within the Sonoran
Desert National Monument of southwestern Maricopa County, Arizona. The
unit is on federally owned land administered by the BLM. Land within
this unit is occupied at the time of listing; the combined number of
plants occurring within this unit is 200, occurring in three separate
populations. This unit contains all of the primary constituent elements
of the physical or biological features essential to the conservation of
the acu[ntilde]a cactus.
Grazing and mining are not permitted within the Sonoran Desert
National Monument; however, off-road, border-related activities and
trespass livestock grazing may occur in this unit. Special management
considerations or protection may be required within this unit to
address increased off-road, border-related human disturbances; to
minimize disturbance to acu[ntilde]a cactus individuals, the soil, and
associated native vegetation; and to prevent or remove invasive, exotic
plants within acu[ntilde]a cactus habitat.
Unit 5: Mineral Mountain
Proposed Unit 5 consists of 787 ha (1,945 ac) on Mineral Mountain
of north-central Pinal County, Arizona. This unit contains 570 ha
(1,408 ac) of federally owned land and 217 ha (537 ac) of State-owned
land. The Federal land is administered by the BLM (569 ha (1,406 ac))
and the Bureau of Reclamation (1 ha (2 ac)).
This unit contains five separate known populations totaling at
least 30 individuals on lands administered by the BLM and the State of
Arizona. This unit contains all of the primary constituent elements of
the physical or biological features essential to the conservation of
the acu[ntilde]a cactus.
Livestock grazing and off-road vehicle activity occur on this unit,
and mining occurs nearby. Special management considerations or
protection may be required within the unit to minimize habitat
fragmentation; to minimize disturbance to acu[ntilde]a cactus
individuals, soil, and associated native vegetation; and to prevent or
remove invasive, exotic plants within acu[ntilde]a cactus habitat.
Unit 6: Box O Wash
Proposed Unit 6 is located near Box O Wash of north-central Pinal
County, Arizona. This unit consists of two subunits totaling 1,981 ha
(4,895 ac). This unit contains 4 ha (9 ac) of federally owned land,
1,506 ha (3,722 ac) of State-owned land, and 471 ha (1,164 ac) of
privately owned land. The Federal land is administered by the BLM.
Subunit 6a: Box O Wash A--Subunit 6a consists of 3.7 ha (9.1 ac) of
BLM land, 369 ha (913 ac) of private land, and 1,348 ha (3,332 ac) of
State land east of Florence, Arizona. This subunit is comprised of two
separate populations of the acu[ntilde]a cactus on private and State-
owned lands, which are close enough in proximity to be combined within
the 900-m (2,953-ft) radius defined for pollinators. Lands within this
subunit are occupied at the time of listing; the combined number of
plants occurring within this subunit is 11. This subunit contains all
of the primary constituent elements of the physical or biological
features essential to the conservation of the acu[ntilde]a cactus.
Subunit 6b: Box O Wash B--Subunit 6b consists of 158 ha (391 ac) of
State-owned land and 102 ha (251 ac) of private land east of Florence,
Arizona. This subunit is comprised of one population of the
acu[ntilde]a cactus on State-owned land; the 900-m (2,953-ft) radius
defined for pollinators overlaps into private land. This area was
surveyed in 2008, and 32 living acu[ntilde]a cacti were found. A 2011
survey resulted in no living plants located; however this was not a
thorough survey. Therefore, we consider lands within this subunit
occupied at the time of listing. This subunit contains all of the
primary constituent elements of the physical or biological features
essential to the conservation of the acu[ntilde]a cactus.
Livestock grazing and off-road vehicle activity occur in both
subunits of proposed Unit 6, and mining occurs nearby. Special
management considerations or protection may be required within both
subunits of this unit to minimize habitat fragmentation; to minimize
disturbance to acu[ntilde]a cactus individuals, soil, and associated
native vegetation; and to prevent or remove invasive, exotic plants
within acu[ntilde]a cactus habitat.
Exemptions for Acu[ntilde]a Cactus
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
[[Page 40677]]
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographic areas owned
or controlled by the Department of Defense, or designated for its use,
that are subject to an integrated natural resources management plan
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the
Secretary determines in writing that such plan provides a benefit to
the species for which critical habitat is proposed for designation.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations located within the range of the
critical habitat designation for acu[ntilde]a cactus to determine if
they meet the criteria for exemption from critical habitat under
section 4(a)(3) of the Act. The following areas are Department of
Defense lands with completed, Service-approved INRMPs within the
revised proposed critical habitat designation.
Approved INRMPs
Barry M. Goldwater Gunnery Range (BMGR)--Arizona
The BMGR has an approved INRMP. The U.S. Air Force is committed to
working closely with the Service to continually refine the existing
INRMP as part of the Sikes Act's INRMP review process. Based on our
review of the INRMP for this military installation, and in accordance
with section 4(a)(3)(B)(i) of the Act, we have determined that the
portion of the acu[ntilde]a cactus habitat within this installation,
identified as meeting the definition of critical habitat, is subject to
the INRMP, and that conservation efforts identified in this INRMP will
provide a benefit to the acu[ntilde]a cactus. Therefore, lands within
this installation are exempt from critical habitat designation under
section 4(a)(3)(B)(i) of the Act. We are not including 379 ha (935 ac)
of habitat on BMGR within the Coffeepot Mountain Subunit in this
revised critical habitat designation because of this exemption. This
leaves 1,258 ha (3,109 ac) in the Coffeepot Mountain Subunit on Bureau
of Land Management and Tohono O'odham Nation lands as proposed critical
habitat for the acu[ntilde]a cactus.
The BMGR completed a revision to the INRMP in relation to ongoing
and planned conservation efforts for the acu[ntilde]a cactus and
provided this revision to us during a public comment period. The
benefits for acu[ntilde]a cactus from this revised INRMP include: Avoid
disturbance of vegetation and pollinators within 900 meters of known
acu[ntilde]a cactus plants; develop and implement procedures to control
trespass livestock; monitor illegal immigration, contraband
trafficking, and border-related enforcement; and continue to monitor
and control invasive plant species to maintain quality habitat and
prevent unnatural fire. Further, BMGR's environmental staff reviews
projects and enforces existing regulations and orders that, through
their implementation, avoid and minimize impacts to natural resources,
including acu[ntilde]a cacti and their habitat. In addition, BMGR's
INRMP provides protection to acu[ntilde]a cactus habitat by prohibiting
both mining and agriculture on their lands. BMGR's INRMP specifies
periodic monitoring of the distribution and abundance of acu[ntilde]a
cacti populations on the range.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts
identified in the 2007 INRMP for BMGR and the revised acu[ntilde]a
cactus portion of this INRMP developed in 2012 provide a benefit to the
acu[ntilde]a cactus and its habitat. Therefore, lands subject to the
INRMP for BMGR, which includes the lands leased from the Department of
Defense by other parties, are exempt from critical habitat designation
under section 4(a)(3) of the Act, and we are not including
approximately 379 ha (935 ac) of habitat in this revised proposed
critical habitat designation.
Fickeisen Plains Cactus
We are revising two areas of proposed Fickeisen plains cactus
critical habitat: (1) We are removing Unit 4, Snake Gulch Unit, from
proposed critical habitat; and (2) we are proposing an additional area
as critical habitat on the Kaibab National Forest. We also announce
additional areas being considered for exclusion from the final
designation of Fickeisen plains cactus critical habitat (see Public
Comments section above).
On October 3, 2012, we proposed approximately 945 ha (2,335 ac) as
critical habitat within the Snake Gulch Unit on Federal land (77 FR
60509, p. 60560). The Snake Gulch Unit is located near the western
boundary of the Kaibab National Forest on the North Kaibab Ranger
District. It includes one of two known occurrences of the Fickeisen
plains cactus on the Kaibab National Forest. Plants were observed in
the 1980s in the area near Willow Point in the vicinity of Snake Gulch
(Heritage Data Management System 2012). After this date, no other site
visits had occurred to verify the location and status of the plant.
During the public comment periods, the Kaibab National Forest conducted
surveys near Willow Point and within the proposed designated critical
habitat, but no plants were found (Hannemann 2013, p. 1; Hannemann
2013, pers. comm.). Further, the Kaibab National Forest had previously
conducted surveys in the Snake Gulch area in 2002 and 2003, for a
section 7 consultation, and those efforts failed to locate plants (USFS
2004, p. 601). Further investigation of the source of the 1980s
information revealed that the observed occurrence of the Fickeisen
plains cactus in the Snake Gulch vicinity was in error. Based on this
finding and with three negative survey results, we consider the area at
Snake Gulch to be unoccupied by the Fickeisen plains cactus. We are
removing the 945-ha (2,335-ac) Snake Gulch Unit from our proposed
critical habitat designation. We also reevaluated the habitat to
consider whether unoccupied areas are essential for the conservation of
the species. In the October 3, 2012, proposed rule, we determined that
within the range of the Fickeisen plains cactus there are adequate
amounts of area occupied by the plant to provide for and ensure the
conservation of the species. We have determined that, even without the
habitat previously considered occupied at the Snake Gulch Unit, there
are adequate amounts of area occupied by the plant proposed as critical
habitat to provide for and ensure the conservation of the species
without the designation of any unoccupied areas as critical habitat.
Therefore, we are not proposing any unoccupied areas as critical
habitat for the Fickeisen plains cactus.
We also received new information on the available habitat at South
Canyon that is located on the eastern boundary of the Kaibab National
Forest near the Colorado River. This site is different from Subunit 5d
(South Canyon) (in Unit 5, House Rock Valley) that is on
[[Page 40678]]
BLM lands. This area was known to be occupied by the plant based on its
discovery in 2004 (Phillips 2013, pers. comm.); however, the location
and number of plants had not been recorded. The Kaibab National Forest
surveyed the area in late March 2013, and documented 62 individuals
(Hannemann 2013, pers. comm.). We are proposing to designate this area
(South Canyon Unit) as critical habitat along the rim of South Canyon.
This area would constitute an addition of 110 ha (272 ac) to proposed
critical habitat for the Fickeisen plains cactus.
Revised Proposed Unit Descriptions for Fickeisen Plains Cactus
Unit 4: South Canyon
Proposed Unit 4 is located on the eastern boundary of the North
Kaibab Ranger District of the Kaibab National Forest in Coconino
County. It is bounded by the Colorado River near Marble Canyon at House
Rock Valley. It includes land originally designated as the Grand Canyon
National Game Preserve that is now referred to as the Buffalo Ranch
Management Area. It contains 110 ha (272 ac) of federally owned land
that is administered by the Kaibab National Forest.
This unit contains at least 62 individuals scattered among six
areas along the rim of South Canyon Point. It contains all of the
primary constituent elements of the physical or biological features
essential to the conservation of the Fickeisen plains cactus.
The primary land uses within proposed Unit 4 include big game
hunting and recreational activities throughout the year. The area is
very remote and may receive limited number of hikers, hunters, or
campers. Under a memorandum of understanding, the Kaibab National
Forest and the Arizona Game and Fish Department commit to managing the
natural resources of this area, mainly big game species, to ensure that
sensitive resources are not impacted and desired conditions are
achieved (USFS 2012, p. 92). Livestock grazing by cattle and mining
activities are not authorized within the Buffalo Ranch Management Area.
Special management considerations or protection may be required within
the unit to minimize habitat disturbance to the soil and associated
native vegetation, and prevent invasion of nonnative plants within
Fickeisen plains cactus habitat.
Draft Economic Analysis
On March 28, 2013, we released the draft economic analysis of the
proposed designations for the acu[ntilde]a cactus and the Fickeisen
plains cactus and published a summary of the analysis in the Federal
Register (78 FR 18938). For the acu[ntilde]a cactus, in this document,
we are removing specific areas from the proposed designation of
critical habitat for the acu[ntilde]a cactus. In the March 28, 2013,
draft economic analysis, we estimated the total present value
incremental impacts to be approximately $60,000 over 20 years following
the designation of the acu[ntilde]a cactus critical habitat, assuming a
7 percent discount rate ($65,000 assuming a 3 percent discount rate).
Since we are revising the proposed designation by removing areas and
now exempting the Barry M. Goldwater Range from critical habitat, the
total incremental impacts will be less than $60,000 over 20 years.
For the Fickeisen plains cactus, we are removing the Snake Gulch
Unit and proposing the South Canyon Unit. In the March 28, 2013, draft
economic analysis, we estimated the total present value incremental
impacts to be approximately $39,000 over 20 years following the
designation of the Fickeisen plains cactus critical habitat, assuming a
7 percent discount rate ($43,000 assuming a 3 percent discount rate).
The draft economic analysis estimated the potential incremental costs
of the Snake Gulch Unit to be approximately $7,000 over the next 20
years as a result of the consideration of adverse modification in
section 7 consultations. With the addition of the South Canyon Unit, we
estimate similar probable incremental administrative costs resulting
from consideration of adverse modification in section 7 consultations.
Therefore, we estimate the total present value incremental impacts to
be approximately $39,000 over 20 years following the designation of the
Fickeisen plains cactus critical habitat.
As stated earlier, we are soliciting data and comments from the
public on the draft economic analysis, as well as all aspects of the
revisions to the proposed rule described in this document 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.
Required Determinations--Amended
In our March 28, 2013 (78 FR 18938), publication, we affirmed our
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 draft economic analysis. Because we have made changes to the
proposed rules for both species, in this document, we reaffirm the
information in our proposed rule concerning Executive Orders (E.O.s)
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.), and the National Environmental Policy Act (42
U.S.C. 4321 et seq.). We also affirm the statement in our March 28,
2013, publication (78 FR 18938) concerning the President's memorandum
of April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951). Because we have made
changes to the proposed critical habitat designations for both species,
we are amending our required determination 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.), 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 draft economic analysis 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
[[Page 40679]]
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 acu[ntilde]a cactus and the Fickeisen plains cactus would affect a
substantial number of small entities, we considered the number of small
entities affected within particular types of economic activities, such
as uranium mining, livestock grazing, and transportation construction
and maintenance projects. In order to determine whether it is
appropriate for our agency to certify that the proposed rule would not
have a significant economic impact on a substantial number of small
entities, we considered each industry or category individually. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement.
Critical habitat designation will not affect activities that do not
have any Federal involvement; designation of critical habitat only
affects activities conducted, funded, permitted, or authorized by
Federal agencies. In areas where the acu[ntilde]a cactus or the
Fickeisen plains cactus 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 consultation process.
In the draft economic analysis, 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
acu[ntilde]a cactus and the Fickeisen plains cactus. As a result of
changes to the proposed critical habitat designation, more than 63
percent of land in the proposed designation for acu[ntilde]a cactus and
less than 34 percent of the land in the proposed designation for
Fickeisen plains cactus is federally owned. Anticipated incremental
impacts in proposed critical habitat are primarily related to
consultations on livestock grazing and other Federal land management
activities. The remaining forecast impacts are anticipated to be
conducted for transportation construction and maintenance projects,
Partners for Fish and Wildlife programs, and activities on the Tohono
O'odham or Navajo Nations' lands. The Arizona Department of
Transportation (ADOT) and Tribes are not considered small entities.
Therefore, of the remaining activities affected by the proposed
critical habitat designations for the cacti, only one is expected to
incur costs to small entities: uranium mining. One consultation is
projected for the EZ uranium mine. This one consultation will result in
impacts to Energy Fuels Inc. (operators of the EZ Mine) of
approximately $900 on a present value basis, or approximately $80 on an
annualized basis, which constitutes an impact of less than one-tenth of
a percent of annual revenues. Of the activities affected by the
proposed designation for the acu[ntilde]a cactus and the Fickeisen
plains cactus, none is expected to incur incremental costs to third-
party small entities. The forecast consultations either do not include
third parties (programmatic consultations, intra-Service consultations,
and consultations with another Federal agency) or the third parties are
not considered small entities (consultations with the ADOT and the
Tribes). Please refer to the Appendix A of the draft economic analysis
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 by the designation of critical
habitat. 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 the
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 cost 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 revised 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 conclude that future consultations are not likely to
involve a third party or the third parties are not considered small
entities. For the above reasons and based on currently available
information, we certify that, if promulgated, the proposed critical
habitat designations 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
Arizona Ecological Services Field Office, Southwest Region, U.S. Fish
and Wildlife Service.
[[Page 40680]]
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to further amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as proposed to
be amended on October 3, 2012, at 77 FR 60509, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.96(a) as follows:
0
a. In the entry proposed for ``Echinomastus erectocentrus var.
acunensis (acu[ntilde]a cactus)'' at 77 FR 60509, by revising
paragraphs (a)(5), (a)(6), (a)(7), (a)(9), and (a)(10); and
0
b. In the entry proposed for ``Pediocactus peeblesianus var.
fickeiseniae (Fickeisen plains cactus),'' at 77 FR 60509, by revising
paragraphs (a)(5), (a)(9), (a)(10), and (a)(11).
The revisions read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Cactaceae: Echinomastus erectocentrus var. acunensis
(acu[ntilde]a cactus)
* * * * *
(5) Index map follows:
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[GRAPHIC] [TIFF OMITTED] TP08JY13.005
[[Page 40681]]
(6) Unit 1: Organ Pipe Cactus National Monument, Pima County, AZ.
Map of Unit 1 follows:
[GRAPHIC] [TIFF OMITTED] TP08JY13.006
[[Page 40682]]
(7) Unit 2: Ajo, Pima County, AZ. Map of Units 2 and 3 follows:
[GRAPHIC] [TIFF OMITTED] TP08JY13.007
* * * * *
[[Page 40683]]
(9) Unit 4: Sand Tank Mountains, Maricopa County, AZ. Map of Unit 4
follows:
[GRAPHIC] [TIFF OMITTED] TP08JY13.008
[[Page 40684]]
(10) Unit 5: Mineral Mountain, Pinal County, AZ. Map of Units 5 and
6 follows:
[GRAPHIC] [TIFF OMITTED] TP08JY13.009
* * * * *
[[Page 40685]]
Family Cactaceae: Pediocactus peeblesianus var. fickeiseniae
(Fickeisen plains cactus)
* * * * *
(5) Note: Index map follows:
[GRAPHIC] [TIFF OMITTED] TP08JY13.010
* * * * *
[[Page 40686]]
(9) Unit 4: South Canyon Unit, Coconino County, AZ. Map of Units 4,
5, and 6 follows:
[GRAPHIC] [TIFF OMITTED] TP08JY13.011
(10) Unit 5: House Rock Valley Unit, Coconino County AZ. Map of
Unit 5 is provided at paragraph (a)(9) of this entry.
(11) Unit 6: Tiger Wash Unit, Coconino County AZ. Map of Unit 6 is
provided at paragraph (a)(9) of this entry.
* * * * *
Dated: June 26, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-16240 Filed 7-5-13; 8:45 am]
BILLING CODE 4310-55-C