[Federal Register Volume 79, Number 7 (Friday, January 10, 2014)]
[Proposed Rules]
[Pages 1805-1810]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-00281]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket Nos. FWS-R8-ES-2012-0100; FWS-R8-ES-2012-0074; 4500030113]
RIN 1018-AZ21; RIN 1018-AY07
Endangered and Threatened Wildlife and Plants; Endangered Status
for the Sierra Nevada Yellow-Legged Frog and the Northern Distinct
Population Segment of the Mountain Yellow-Legged Frog, and Threatened
Status for the Yosemite Toad and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rules; reopening of the comment periods.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on our April 25, 2013, proposed
rule to list the Sierra Nevada yellow-legged frog and the northern
distinct population segment (DPS) of the mountain yellow-legged frog
(populations that occur north of the Tehachapi Mountains) as endangered
species, and the Yosemite toad as a threatened species under the
Endangered Species Act of 1973, as amended (Act). We are also reopening
the public comment period on our April 25, 2013, proposed rule to
designate critical habitat for these species. We also announce the
availability of a draft economic analysis (DEA) of the proposed
designation of critical habitat for the Sierra Nevada yellow-legged
frog, the northern DPS of the mountain yellow-legged frog, and the
Yosemite toad and an amended required determinations section of the
proposal. We are also announcing the location and time of a public
hearing to receive public comments on the proposals, as well as the
times and locations of two public meetings. We are reopening the
comment periods to allow all interested parties an opportunity to
comment simultaneously on the proposed rules, the associated DEA, and
the amended required determinations section. Comments previously
submitted need not be resubmitted, as they will be fully considered in
preparation of the final rule.
DATES: We will consider comments on the proposed rules published April
25, 2013 (78 FR 24472 and 78 FR 24516) received or postmarked on or
before March 11, 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.
Public Hearing: We will hold a public hearing on these proposed
rules in Sacramento, California, on January 30, 2014, at 1:00 p.m. and
again at 6:00 p.m. (see ADDRESSES).
Public Meetings: We will hold two public meetings to provide
information on these proposed rules in Bridgeport, California, on
January 8, 2014, from 1:00 p.m. to 3:00 p.m. and in Fresno, California,
on January 13, 2014, from 1:00 p.m. to 3:00 p.m. (see ADDRESSES).
ADDRESSES:
Document availability: You may obtain copies of the proposed rules
and the associated documents of the draft economic analysis on the
internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2012-
0100 and Docket No. FWS-R8-ES-2012-0074 or by mail from the Sacramento
Fish and Wildlife 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-R8-ES-2012-0100 (the
docket number for the proposed listing rule) or FWS-R8-ES-2012-0074
(the docket number for the proposed critical habitat rule).
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R8-ES-2012-0100 (if commenting on the
proposed listing rule) or FWS-R8-ES-2012-0074 (if commenting on the
proposed critical habitat rule); 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).
Public informational sessions and public hearing: The public
informational sessions and hearing will be held at Mono County Board of
Supervisors Chambers in the Mono County Courthouse, State Highway 395
North, Bridgeport, CA 93517, and the Fresno County Board of Supervisors
Chambers in the Hall of Records, Room 301, 2281 Tulare Street, Fresno,
CA 93721. The hearing will be held at the Sacramento Horsemen's
Association, 3200 Longview Drive, Sacramento, CA 9582. People needing
reasonable accommodations in order to attend and participate in the
public hearing should contact Jennifer Norris, Field Supervisor,
Sacramento Fish and Wildlife Office, as soon as possible (see FOR
FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Jennifer Norris, Field Supervisor,
U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office,
2800 Cottage Way Room W-2605, Sacramento CA 95825; by telephone 916-
414-6600; or by facsimile 916-414-6712. 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 rule to list the Sierra Nevada
yellow-legged frog, the northern DPS of the mountain yellow-legged frog
as endangered species, and the Yosemite toad as a threatened species,
that was published in the Federal Register on April 25, 2013 (78 FR
24472). We will consider information and recommendations from all
interested parties. We are particularly interested in comments
concerning:
[[Page 1806]]
(1) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to these species, and regulations that
may be addressing those threats.
(2) Additional information concerning the historical and current
status, range, distribution, and population size of these species,
including the locations of any additional populations of these species.
(3) Any information on the biological or ecological requirements of
these species, and ongoing conservation measures for these species and
their habitats.
(4) The factors that are the basis for making a listing
determination for a species under section 4(a) of the Act (16 U.S.C.
1531 et seq.), which are:
(a) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(b) Overutilization for commercial, recreational, scientific, or
educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued
existence.
(5) Land use designations and current or planned activities in the
areas occupied by the species, and possible impacts of these activities
on these species.
(6) Information on the projected and reasonably likely impacts of
climate change on the Sierra Nevada yellow-legged frog, the northern
DPS of the mountain yellow-legged frog, and the Yosemite toad.
(7) Input on whether we should retain the northern and southern
DPSs of the mountain yellow-legged frog in the final rule or should we
combine the two DPSs into one listed entity for the species.
We will also accept written comments and information during this
reopened comment period on our proposed designation of critical habitat
for the Sierra Nevada yellow-legged frog, the northern DPS of the
mountain yellow-legged frog, and the Yosemite toad, which was published
in the Federal Register on April, 25, 2013 (78 FR 24516), 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 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 Sierra Nevada yellow-legged
frog, the northern DPS of the mountain yellow-legged frog, and Yosemite
toad, and their habitats;
(b) What may constitute ``physical or biological features essential
to the conservation of the species,'' within the geographical range
currently occupied by the species;
(c) Where these features are currently found;
(d) Whether any of these features may require special management
considerations or protection;
(e) Which areas currently occupied contain features essential to
the conservation of these species should be included in the
designation, and why; and
(f) Which areas not currently occupied are essential for the
conservation of these species, and why.
(3) Land use designations and current or planned activities in the
areas occupied by the species or proposed to be designated as critical
habitat, and possible impacts of these activities on these species and
their proposed critical habitats.
(4) Information on the projected and reasonably likely impacts of
climate change on the Sierra Nevada yellow-legged frog, the northern
DPS of the mountain yellow-legged frog, and the Yosemite toad, and on
their proposed critical habitats and whether the critical habitat may
adequately account for these potential effects. We also seek
information on special management considerations or protection that may
be needed in the proposed critical habitat areas, including management
for the potential effects of climate change.
(5) Any probable economic, national security, or other relevant
impacts that may result from designating any area as critical habitat
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.
(6) Information on the extent to which the description of probable
economic impacts in the DEA is complete and accurate, and specifically:
(a) Whether there are incremental costs of critical habitat
designation (for example, costs attributable solely to the designation
of critical habitat for the Sierra Nevada yellow-legged frog, the
northern DPS of the mountain yellow-legged frog, and the Yosemite toad)
that have not been appropriately identified or considered in our
economic analysis, including costs associated with future
administrative costs or project modifications that may be required by
Federal agencies related to section 7 consultation under the Act; and
(b) Whether there are additional project modifications that may
result from the designation of critical habitat for the Sierra Nevada
yellow-legged frog, the northern DPS of the mountain yellow-legged
frog, and the Yosemite toad, and what those potential project
modifications might represent.
(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 specific areas proposed 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 our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
If you submitted comments or information on the proposed rule (78
FR 24516) during either of the previous comment periods from April 25,
2013, to June 24, 1013, or July 19, 2013, to November 18, 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 the 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
rules or DEA by one of the methods listed in ADDRESSES. We request that
you send
[[Page 1807]]
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 listing, proposed
critical habitat, and DEA, will be available for public inspection on
http://www.regulations.gov at Docket Number FWS-R8-ES-2012-0100 for the
proposed listing and Docket Number FWS-R8-ES-2012-0074 for the proposed
critical habitat, or by appointment, during normal business hours, at
the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office
(see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the
proposed rule to designate critical habitat and the DEA on the Internet
at http://www.regulations.gov at Docket Number FWS-R8-ES-2012-0100 for
the proposed listing and Docket Number FWS-R8-ES-2012-0074 for the
proposed critical habitat, or by mail from the Sacramento Fish and
Wildlife 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 Sierra Nevada yellow-legged
frog, the northern DPS of the mountain yellow-legged frog, and the
Yosemite toad in this document. For more information on previous
Federal actions concerning the Sierra Nevada yellow-legged frog, the
northern DPS of the mountain yellow-legged frog, and the Yosemite toad,
refer to the proposed designation of critical habitat published in the
Federal Register on April 25, 2013 (78 FR 24516). For more information
on the Sierra Nevada yellow-legged frog, the northern DPS of the
mountain yellow-legged frog, and the Yosemite toad or its habitat,
refer to the proposed listing rule published in the Federal Register on
April 25, 2013 (78 FR 24472). Both are available online at http://www.regulations.gov (at Docket Number FWS-R8-ES-2012-0074 for the
listing and Docket Number FWS-R8-ES-2012-0100 for the critical habitat
designation) or from the Sacramento Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT).
On April 24, 2013, we published a proposed rule to designate
critical habitat for the Sierra Nevada yellow-legged frog, the northern
DPS of the mountain yellow-legged frog, and the Yosemite toad (78 FR
24516). We proposed to designate approximately 447,341 hectares
(1,105,400 acres) as critical habitat for the Sierra Nevada yellow-
legged frog in Butte, Plumas, Lassen, Sierra, Nevada, Placer, El
Dorado, Amador, Calaveras, Alpine, Mariposa, Mono, Madera, Tuolumne,
Fresno, and Inyo Counties, California as critical habitat;
approximately 89,637 hectares (221,498 acres) as critical habitat for
the northern DPS mountain yellow-legged frog in Fresno and Tulare
Counties, California; and approximately 303,889 hectares (750,926
acres) as critical habitat for Yosemite toad in Alpine, Tuolumne, Mono,
Mariposa, Madera, Fresno, and Inyo Counties, California. That proposal
had an initial 60-day comment period, ending June 24, 2013; however, we
reopened the comment period from July 19, 2013, to November 18, 2013
(78 FR 45122). We anticipate submitting for publication in the Federal
Register a final critical habitat designation for Sierra Nevada yellow-
legged frog, the northern DPS of the mountain yellow-legged frog, and
the Yosemite toad on or before April 25, 2014, if we finalize our
proposed rule to list the species under the Act.
Critical Habitat
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed rule is
made final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting critical habitat must consult with us on the effects of their
proposed actions, under section 7(a)(2) of the Act.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that we designate 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
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 exclusion, we consider, among
other things, whether exclusion of a specific area is likely to
incentivize or result in conservation; the continuation, strengthening,
or encouragement of partnerships; and the implementation of a
management plan. In the case of the Sierra Nevada yellow-legged frog,
the northern DPS of the mountain yellow-legged frog, and the Yosemite
toad, the benefits of critical habitat include public awareness of the
presence of these species, and the importance of habitat protection.
Where a Federal nexus exists, critical habitat would benefit the Sierra
Nevada yellow-legged frog, the northern DPS of the mountain yellow-
legged frog, and the Yosemite toad though increased habitat protection
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.
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 Sierra Nevada yellow-legged frog, the northern DPS
of the mountain yellow-legged frog, and the Yosemite toad. The DEA
separates conservation measures into two distinct categories according
to ``without critical habitat'' and ``with critical habitat''
scenarios. The ``without
[[Page 1808]]
critical habitat'' scenario represents the baseline for the analysis,
considering protections otherwise afforded to the Sierra Nevada yellow-
legged frog, the northern DPS of the mountain yellow-legged frog, and
the Yosemite toad (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 the species. In other words, these incremental
conservation measures and associated economic impacts would not occur
but for the designation of critical habitat. 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
Sierra Nevada yellow-legged frog, the northern DPS of the mountain
yellow-legged frog, and the Yosemite toad over the next 17 years. This
timeframe was determined to be the appropriate period for analysis
because planning information is not available for most activities to
forecast activity levels for projects beyond a 17-year timeframe. The
DEA identifies potential incremental costs as a result of the proposed
critical habitat designation. These incremental costs are associated
with the designation of critical habitat and are above those baseline
costs attributed to listing.
The DEA quantifies economic impacts of the Sierra Nevada yellow-
legged frog, the northern DPS of the mountain yellow-legged frog, and
the Yosemite toad conservation efforts associated with the following
categories of activity: (1) Fish stocking/persistence; (2) dams and
water diversions; (3) grazing; (4) fuels management; (5) timber
harvests; (6) recreation; and (7) habitat and species management.
The DEA concludes that incremental impacts resulting from the
critical habitat designation are limited to the administrative costs of
considering adverse modification in section 7 consultation. Estimating
the impact of a regulation on future outcomes is inherently uncertain,
as well as estimating the timing and duration of the administrative
costs associated with section 7 consultation. Due to the uncertainty in
the specifics of how Federal agencies will fulfill their section 7
requirements, cost estimates were calculated for a low-end scenario
(single range-wide consultation) and a high-end scenario (project-by-
project consultation). The DEA estimates total potential incremental
economic impacts in areas proposed as critical habitat over the next 17
years (2014 to 2030) to be approximately $630,000 ($60,000 annualized)
under the low-end scenario and approximately $1.5 million ($140,000
annualized) under the high-end scenario. These impact estimates are in
present-value terms and apply a 7 percent discount rate (Industrial
Economics Incorporated 2013, p. 4-1).
Under the low-end scenario, costs related to dams and water
diversions represent approximately 75 percent of overall incremental
impacts, while costs for grazing and timber harvest activities
represent approximately 8 and 5 percent of forecast impacts,
respectively. In the high-end scenario, costs related to timber harvest
activities represent approximately 49 percent of overall incremental
impacts, with dams and water diversion activities representing 32
percent, and grazing activities representing 15 percent.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of the proposed rules and our
amended required determinations. We may revise the proposed rules 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 the species.
Required Determinations--Amended
In our April 25, 2013, proposed rule (78 FR 24516), 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 Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13132 (Federalism), E.O. 12988 (Civil Justice Reform), the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.), the National Environmental Policy
Act (42 U.S.C. 4321 et seq.), and the President's memorandum of April
29, 1994, ``Government-to-Government Relations with Native American
Tribal Governments'' (59 FR 22951). However, based on the DEA data, we
are amending our required determinations concerning the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), E.O. 12630 (Takings), and E.O.
13211 (Energy, Supply, Distribution, and Use).
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
[[Page 1809]]
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 Sierra Nevada yellow-legged frog, the northern DPS of the mountain
yellow-legged frog, and the Yosemite toad would affect a substantial
number of small entities, we considered the number of small entities
affected within particular types of economic activities, such as fish
stocking, dams and water diversions, grazing, fuels management, timber
harvest activities, and recreation. In order to determine whether it is
appropriate for our agency to certify that this proposed rule would not
have a significant economic impact on a substantial number of small
entities, we considered each industry or category individually. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement.
Critical habitat designation does 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 the proposed listing is made final, in areas where
the Sierra Nevada yellow-legged frog, the northern DPS of the mountain
yellow-legged frog, or the Yosemite toad is present, Federal agencies
will be required to consult with us under section 7(a)(2) 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 would be incorporated into that 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 Sierra Nevada
yellow-legged frog, the northern DPS of the mountain yellow-legged
frog, and the Yosemite toad. Because the Service, the National Park
Service, and the U.S. Forest Service are the only entities with
expected direct compliance costs related to fish stocking, grazing,
fuels management, and recreation, and these agencies are not considered
small entities, this rule will not result in any impact to small
entities regarding these activities. This rule has the potential to
impact four small entities that operate dams and water diversion for
power generation, and the impact is expected to range from 0.0003 to
0.01 percent of the entities' reported annual revenues. This rule also
has the potential to impact small entities engaged in timber harvest
activities on Federal lands. Given the limited information available to
specifically determine which small entities may be impacted, we
conservatively estimate that approximately 358 small entities
associated with timber harvest activities may be impacted by this rule.
While there is insufficient information to accurately quantify the
impact to these small entities, we anticipate that approximately 4
percent of these entities will be impacted in any given year, and that
the magnitude of impact will be small, as it is limited to the minor
administrative costs of consultation. 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 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, 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 the 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.
Executive Order 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 Sierra Nevada yellow-legged frog, the northern DPS of
the mountain yellow-legged frog, and the Yosemite toad 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 economic analysis found that
no significant economic impacts are likely to result from the
designation of critical habitat for the Sierra Nevada yellow-legged
frog, the northern DPS of the mountain yellow-legged frog, and the
Yosemite toad. 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 Sierra
Nevada yellow-legged frog, the northern DPS of the mountain yellow-
legged frog, and the Yosemite toad does not pose significant takings
implications for lands within or affected by the designation.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for
[[Page 1810]]
implementing this Executive Order that outlines nine outcomes that may
constitute ``a significant adverse effect'' when compared to not taking
the regulatory action under consideration. The DEA finds that impacts
to the energy industry from this rule are expected to be limited to
additional administrative costs. Thus, based on information in the DEA,
energy-related impacts associated with the Sierra Nevada yellow-legged
frog, the northern DPS of the mountain yellow-legged frog, and the
Yosemite toad within critical habitat are not expected. As such, the
designation of critical habitat is not expected to significantly affect
energy supplies, distribution, or use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
Authors
The primary authors of this document are the staff members of the
Sacramento Fish and Wildlife Office, Pacific Southwest Region, U.S.
Fish and Wildlife Service.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: December 13, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-00281 Filed 1-8-14; 11:15 am]
BILLING CODE 4310-55-P