[Federal Register Volume 79, Number 4 (Tuesday, January 7, 2014)]
[Proposed Rules]
[Pages 796-800]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-31575]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2013-0015; 4500030113]
RIN 1018-AZ47
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Leavenworthia exigua var. laciniata
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 (Service), announce the
reopening of the public comment period on the May 24, 2013, proposed
designation of critical habitat for Leavenworthia exigua var. laciniata
(Kentucky glade cress) under the Endangered Species Act of 1973, as
amended (Act). We also announce the availability of a draft economic
analysis (DEA) of the proposed designation and an amended required
determinations section of the proposal. For this action, our DEA
consists of an incremental effects memorandum considering the probable
incremental economic impacts that may result from the proposed
designation of critical habitat and a screening analysis of the
probable effects of the designation of critical habitat for the
Kentucky glade cress. We are reopening the comment period to allow all
interested parties an opportunity to comment simultaneously on the
proposed rule, the associated DEA, and the amended required
determinations section. Comments previously submitted need not be
resubmitted, as they will be fully considered in our determination on
this rulemaking action.
DATES: The comment period for the proposed rule published May 24, 2013,
at 78 FR 31479, is reopened. We will consider comments received or
postmarked on or before February 6, 2014. Comments submitted
electronically using the Federal eRulemaking Portal (see ADDRESSES
section, below) must be received by 11:59 p.m. Eastern Time on the
closing date.
ADDRESSES: Document availability: You may obtain copies of the proposed
rule and the DEA on the Internet at http://www.regulations.gov at
Docket Number FWS-R4-ES-2013-0015, or by mail from the Kentucky
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. Submit comments on the critical habitat proposal
and associated DEA by searching for Docket No. FWS-R4-ES-2013-0015,
which is the docket number for this rulemaking.
(2) By hard copy: Submit comments on the critical habitat proposal
and DEA by U.S. mail or hand-delivery to: Public Comments Processing,
Attn: FWS-R4-ES-2013-0015; 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: Lee Andrews, Field Supervisor, U.S.
Fish and Wildlife Service, Kentucky Ecological Services Field Office,
J.C. Watts Federal Building, 330 W.
[[Page 797]]
Broadway, Rm. 265, Frankfort, KY 40601; by telephone 502-695-0468; or
by facsimile 502-695-1024. 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 designation of critical habitat
for L. exigua var. laciniata that was published in the Federal Register
on May 24, 2013 (78 FR 31479), our DEA of the proposed designation, and
the amended required determinations provided in this document. We will
consider information and recommendations from all interested parties.
We are particularly interested in comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat is not
prudent.
(2) Specific information on:
(a) The distribution of the L. exigua var. laciniata;
(b) The amount and distribution of L. exigua var. laciniata
habitat;
(c) 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; and
(d) What areas not occupied at the time of listing are essential to
the conservation of the species and why.
(3) Land use designations and current or planned activities in the
subject areas and their probable impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on L. exigua var. laciniata 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, we seek information on the benefits of
including or excluding areas that exhibit these impacts.
(6) Information on the extent to which the description of economic
impacts in the DEA is a reasonable estimate of the likely economic
impacts.
(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) Whether any 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.
(9) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
If you submitted comments or information on the proposed rule (78
FR 31479) during the initial comment period from May 24, 2013, to July
23, 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 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
critical habitat 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 critical habitat rule
and DEA, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0015, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Kentucky 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 No. FWS-R4-ES-2013-0015, or by mail from the Kentucky Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for L. exigua var. laciniata in
this document. For more information on L. exigua var. laciniata or its
habitat, refer to the proposed listing rule published in the Federal
Register on May 24, 2013 (78 FR 31498), which is available online at
http://www.regulations.gov (at Docket Number FWS-R4-ES-2013-0069) or
from the Kentucky Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Previous Federal Actions
On May 24, 2013, we published a proposed rule to designate critical
habitat for the species (78 FR 31479). We proposed to designate
approximately 2,053 acres (ac) (830 hectares (ha)) in six units located
in Bullitt and Jefferson Counties, Kentucky, as critical habitat. That
proposal had a 60-day comment period, ending July 23, 2013. For more
information on previous Federal actions concerning L. exigua var.
laciniata, refer to the proposed designation of critical habitat
published in the Federal Register on May 24, 2013 (78 FR 31479).
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
[[Page 798]]
with us on the effects of their proposed actions, under section 7(a)(2)
of the Act.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific data available, after
taking into consideration the economic impact, impact on national
security, or any other relevant impact of specifying any particular
area as critical habitat. We may exclude an area from critical habitat
if we determine that the benefits of excluding the area outweigh the
benefits of including the area as critical habitat, provided such
exclusion will not result in the extinction of the species.
When considering the benefits of inclusion of an area we consider,
among other factors, the additional regulatory benefits that an area
would receive through the analysis under section 7 of the Act
addressing the destruction or adverse modification of critical habitat
as a result of actions with a Federal nexus (activities conducted,
funded, permitted, or authorized by Federal agencies); the educational
benefits of identifying areas containing essential features that aid in
the recovery of the listed species; and any ancillary benefits
triggered by existing local, State, or Federal laws as a result of the
critical habitat designation.
When considering the benefits of excluding a particular area, we
consider, among other things, whether exclusion of a specific area is
likely to incentivize or result in the conservation of the species and
its habitat; the continuation, strengthening, or encouragement of
partnerships; or implementation of a conservation or management plan
for the species and its habitat. In the case of L. exigua var.
laciniata, the benefits of critical habitat include public awareness of
the presence of L. exigua var. laciniata and the importance of habitat
protection, and, where a Federal nexus exists, increased habitat
protection for L. exigua var. laciniata due to protection from adverse
modification or destruction of critical habitat. In practice,
situations with a Federal nexus exist primarily on Federal lands or for
projects undertaken by Federal agencies.
We have not proposed to exclude any areas from critical habitat.
However, the final decision on whether to exclude any areas will be
based on the best scientific data available at the time of the final
designation, including information obtained during the comment period
and information about the economic impact of designation. To consider
information related to economic impact, we have prepared a draft
economic analysis (DEA) concerning the proposed critical habitat
designation, which is available for review and comment (see ADDRESSES).
Consideration of Economic Impact
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios ``with critical
habitat'' and ``without critical habitat.'' The ``without critical
habitat'' scenario represents the baseline for the analysis, which
includes the existing regulatory and socio-economic burden imposed on
landowners, managers, or other resource users potentially affected by
the designation of critical habitat (e.g., under the Federal listing as
well as other Federal, State, and local regulations). The baseline,
therefore, represents the impacts of all efforts attributable to the
listing of the species under the Act (i.e., conservation of the species
and its habitat 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 would not be expected without 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 use when
evaluating the benefits of inclusion and exclusion of particular areas
from the final designation of critical habitat should we choose to
conduct an optional section 4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from the proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the Kentucky glade cress (IEc 2013, entire). The
purpose of the screening analysis is to filter out the geographic areas
in which the critical habitat designation is unlikely to result in
probable incremental economic impacts. In particular, the screening
analysis considers baseline costs (i.e., absent critical habitat
designation) and includes probable economic impacts where land and
water use may be subject to conservation plans, land management plans,
best management practices, or regulations that protect the habitat area
as a result of the Federal listing status of the species. The screening
analysis filters out particular areas of critical habitat that are
already subject to such protections and are, therefore, unlikely to
incur incremental economic impacts. Ultimately, the screening analysis
allows us to focus our analysis on evaluating the specific areas or
sectors that may incur probable incremental economic impacts as a
result of the designation. The screening analysis also assesses whether
units are unoccupied by the species and may require additional
management or conservation efforts as a result of the critical habitat
designation and may incur incremental economic impacts. This screening
analysis, combined with the information contained in our IEM, is what
we consider our DEA of the proposed critical habitat designation for
the Kentucky glade cress and is summarized in the narrative below.
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. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly impacted entities, where practicable and reasonable. We
assess to the extent practicable the probable impacts, if sufficient
data are available, to both directly and indirectly impacted entities.
As part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation. In our IEM dated September 9, 2013,
we identified probable incremental economic impacts associated with the
following categories of activities: (1) Residential and commercial
development; (2) transportation
[[Page 799]]
projects; (3) recreational activities; (4) agricultural activities; (5)
utility projects; and (6) commercial timber harvest. We considered each
industry or category individually. Additionally, we considered whether
the 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 Kentucky glade cress is present, Federal agencies
already are required to consult with the Service under section 7 of the
Act on activities they fund, permit, or implement that may affect the
species. If we finalize the proposed critical habitat designation,
consultations to avoid the destruction or adverse modification of
critical habitat would be incorporated into the existing consultation
process. Therefore, disproportionate impacts to any geographic area or
sector are not likely as a result of this critical habitat designation.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
Kentucky glade cress critical habitat. Because the designation of
critical habitat for the Kentucky glade cress was proposed concurrently
with the listing, it has been our experience that it is more difficult
to discern which conservation efforts are attributable to the species
being listed and those which would result solely from the designation
of critical habitat. However, the following specific circumstances in
this case help to inform our evaluation: (1) The essential physical and
biological features identified for critical habitat are the same
features essential for the life requirements of the species, and (2)
any actions that would result in sufficient harm or harassment to
constitute jeopardy to the Kentucky glade cress would also likely
adversely affect the essential physical and biological features of
critical habitat. The IEM outlines our rationale concerning this
limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species.
The proposed critical habitat designation for the Kentucky glade
cress totals 2,053 ac (830 ha) in six units, consisting of 18 subunits,
that are all occupied by the species. All of the units and subunits are
privately owned except for unit 1, which is owned by the Louisville/
Jefferson County Metropolitan Government, and subunit 4B, where the
Kentucky State Nature Preserve Commission owns a 20-acre conservation
easement (Fish and Wildlife Service 2013). Inclusive of all units, any
actions that may affect the species or its habitat would also affect
designated critical habitat, and it is unlikely that any additional
conservation efforts would be recommended to address the adverse
modification standard over and above those recommended as necessary to
avoid jeopardizing the continued existence of the Kentucky glade cress.
In general, because the glade cress is a narrow endemic species, the
quality of its habitat is closely linked to the species' survival and
conservation measures would be, in most cases, addressed through the
consultation recommendations as necessary to avoid jeopardizing the
continued existence of the Kentucky glade cress (Fish and Wildlife
Service 2013). Therefore, in our DEA, we determined that in most
circumstances, these costs of the proposed critical habitat designation
would predominantly be administrative in nature and would not be
significant.
Federal action agencies will most likely incur incremental costs
associated with section 7 consultations. In the DEA, we determined that
few activities will lead to section 7 consultation because this species
is an upland plant with no occurrences on Federal lands. Future section
7 consultation is likely to be infrequent. Activities we expect to be
subject to consultation may involve the development in the Louisville,
Kentucky/Jefferson County metropolitan area, which is predicted to grow
substantially through year 2050. Critical habitat may impact property
values indirectly if developers assume the designation will limit the
potential use of that land. However, the designation of critical
habitat is not likely to result in an increase of consultations.
Therefore, the incremental administrative burden resulting from the
designation is unlikely to reach $100 million in a given year based on
the small number of anticipated consultations and pre-consultation
costs. The $100 million threshold is established by Executive Order
12866, which directs agencies to assess the potential costs and
benefits of regulatory actions and quantify those costs and benefits if
that action may have an effect on the economy of $100 million or more
annually.
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.
Required Determinations--Amended
In our May 24, 2013, proposed rule (78 FR 31479), we indicated that
we would defer our determination of compliance with several statutes
and executive orders until we had evaluated the probable effects on
landowners and stakeholders and the resulting probable economic impacts
of the designation. Following our evaluation in the DEA of the probable
incremental economic impacts resulting from the designation of critical
habitat for the Kentucky glade cress, we have amended or affirmed our
determinations below. Specifically, 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, or
Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National
Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's
memorandum of April 29, 1994, ``Government-to-Government Relations with
Native American Tribal Governments'' (59 FR 22951). However, based on
our evaluation of the probable incremental economic impacts of the
proposed designation of critical habitat for the Kentucky glade cress,
we are amending our required determination concerning the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) and E.O. 12630 (Takings).
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
[[Page 800]]
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.
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.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself, and, therefore, are not required to evaluate the
potential impacts to indirectly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried by the agency is not likely to adversely modify critical
habitat. Therefore, under these circumstances only Federal action
agencies are directly subject to the specific regulatory requirement
(avoiding destruction and adverse modification) imposed by critical
habitat designation. Under these circumstances, it is our position that
only Federal action agencies will be directly regulated by this
designation. Federal agencies are not small entities, and to this end,
there is no requirement under RFA to evaluate the potential impacts to
entities not directly regulated. Therefore, because no small entities
are directly regulated by this rulemaking, the Service certifies that,
if promulgated, the proposed critical habitat designation will not have
a significant economic impact on a substantial number of small
entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if promulgated, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
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 Kentucky glade cress 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 Kentucky glade cress.
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 economic analysis assessment 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, we conclude that this designation of critical
habitat for the Kentucky glade cress does not pose significant takings
implications for lands within or affected by the designation.
Authors
The primary authors of this notice are the staff members of the
Kentucky Ecological Services Field Office, Southeast Region, U.S. Fish
and Wildlife Service (see FOR FURTHER INFORMATION CONTACT).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: December 20, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-31575 Filed 1-6-14; 8:45 am]
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