[Federal Register Volume 79, Number 90 (Friday, May 9, 2014)]
[Proposed Rules]
[Pages 26679-26684]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10399]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket Nos. FWS-R4-ES-2013-0100; FWS-R4-ES-2013-0030; 4500030113]
RIN 1018-AY72; 1018-AZ55
Endangered and Threatened Wildlife and Plants; Threatened Species
Status and Designation of Critical Habitat for Arabis georgiana
(Georgia Rockcress)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rules; reopening of 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 the September 12, 2013,
proposed rule to list Arabis georgiana (Georgia rockcress) as a
threatened species under the Endangered Species Act of 1973, as amended
(Act); the reopening of the public comment period on the September 12,
2013, proposed rule to designate critical habitat for A. georgiana; the
amended required determinations section of the proposed rule to
designate critical habitat; and the availability of a draft economic
analysis (DEA) for the proposed designation of critical habitat. We are
reopening both proposed rules' 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 rules.
DATES: Written comments: We will consider comments received or
postmarked on or before June 9, 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 informational session and public hearing: We will hold a
public informational session and public hearing on the proposed rules
in Columbus, Georgia on May 28, 2014, from 7 p.m. to 9 p.m.
ADDRESSES: Document availability: For the proposed listing, you may
obtain copies of the proposed rule and associated documents on the
Internet at http://www.regulations.gov at Docket No. FWS-R4-ES-2013-
0100. For the proposed critical habitat designation, you may obtain
copies of the proposed rule, associated documents, and the draft
economic analysis on the Internet at http://www.regulations.gov at
Docket No. FWS-R4-ES-2013-0030. You may also obtain copies of these
materials by mail from the Ecological Services Office in Athens,
Georgia (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 proposed listing by
searching for Docket No. FWS-R4-ES-2013-0100 or on the proposed
critical habitat designation and its associated draft economic analysis
by searching for Docket No. FWS-R4-ES-2013-0030.
(2) By hard copy: Submit comments on the proposed listing by U.S.
mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-
2013-0100; Division of Policy and Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA
22203. Submit comments on the proposed critical habitat designation and
its associated draft economic analysis by U.S. mail or hand-delivery
to: Public Comments Processing, Attn: FWS-R4-ES-2013-0030; 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
[[Page 26680]]
information you provide us (see the Public Comments section, below, for
more information).
Public informational session and public hearing: A public
informational session and public hearing will be held in the Magnolia
Room at Columbus State University, 4225 University Avenue, Columbus, GA
31907. People needing reasonable accommodations to attend and
participate in this public hearing should contact Robin Goodloe as soon
as possible (see FOR FURTHER INFORMATION CONTACT, below).
FOR FURTHER INFORMATION CONTACT: Robin Goodloe, Assistant Field
Supervisor, U.S. Fish and Wildlife Service, 105 Westpark Drive, Suite
D, Athens, GA 30606; telephone 706-613-9493; facsimile 706-613-6059.
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 September 12, 2013, proposed rule to
list Arabis georgiana as a threatened species (78 FR 56192); our
September 12, 2013, proposed rule to designate critical habitat for A.
georgiana (78 FR 56506); our DEA of the proposed critical habitat
designation; and the amended required determinations provided in this
document for the proposed rule to designate critical habitat. We will
consider information and recommendations from all interested parties.
We are particularly interested in comments concerning:
(1) Georgia rockcress's biology, range, and population trends,
including:
(a) Biological or ecological requirements of the species, including
habitat requirements for growth and reproduction;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Factors that that may affect the continued existence of the
species, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors affecting
its continued existence.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, of this species, including the locations of any additional
populations of this species.
(5) 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.
(6) Specific information on:
(a) The distribution of Arabis georgiana;
(b) The amount and distribution of A. georgiana 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.
(7) Land use designations and current or planned activities in the
subject areas and their probable impacts on proposed critical habitat.
(8) Information on the projected and reasonably likely impacts of
climate change on Arabis georgiana and proposed critical habitat.
(9) 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.
(10) Information on the extent to which the description of economic
impacts in the draft economic analysis is a reasonable estimate of the
likely economic impacts.
(11) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the associated documents of the
draft economic analysis, 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.
(12) 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.
(13) 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 rules (78
FR 56192 or 78 FR 56506) during the initial comment period from
September 12, 2013, to November 12, 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
determinations. Our final determinations 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 critical habitat 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 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.
For the proposed listing, you may obtain copies of the proposed
rule and associated documents (including comments and materials we
receive and supporting documentation we used in preparing the proposed
rule) on the Internet at http://www.regulations.gov at Docket No. FWS-
R4-ES-2013-0100. For the proposed critical habitat designation, you may
obtain copies of the proposed rule, associated documents (including
comments and materials we receive and supporting documentation we used
in preparing the proposed rule), and the draft economic analysis on the
Internet at http://www.regulations.gov at Docket No. FWS-R4-ES-2013-
0030. You may also obtain copies of these materials by mail from the
Ecological Services Office in
[[Page 26681]]
Athens, Georgia (see FOR FURTHER INFORMATION CONTACT).
Background
It is our intent to discuss only those topics directly relevant to
the listing or designation of critical habitat for Arabis georgiana in
this document. On September 12, 2013, we published a proposed rule to
list A. georgiana as threatened under the Act (78 FR 56192). In the
proposed rule, we determined that the most serious threats to the
species are habitat degradation and the subsequent invasion of exotic
species. Specifically, disturbance associated with timber harvesting,
road building, and grazing has created favorable conditions for the
invasion of exotic weeds, especially Japanese honeysuckle (Lonicera
japonica), in this species' habitat. These threaten the species
throughout its range.
On September 12, 2013, we published a proposed rule to designate
critical habitat for the Arabis georgiana (78 FR 56506). In total, we
proposed 323 hectares (ha) (786 acres (ac)). The proposed critical
habitat is located in Georgia including parts of Gordon, Floyd, Harris,
Muscogee, Chattahoochee, and Clay Counties; and in Alabama, including
parts of Bibb, Dallas, Elmore, Monroe, Russell, Sumter, and Wilcox
Counties. Under Corrections to Proposed Critical Habitat Designation
for Arabis georgiana, below, we correct the acreage numbers provided in
our September 12, 2013, proposed critical habitat designation.
Both proposed rules had a 60-day comment period, ending November
12, 2013. We intend to publish in the Federal Register final
determinations concerning listing Arabis georgiana and designating
critical habitat for the species on or before September 12, 2014.
For more information on previous Federal actions concerning Arabis
georgiana or its habitat, refer to the proposed listing rule published
in the Federal Register on September 12, 2013 (78 FR 56192), which is
available online at http://www.regulations.gov (at Docket No. FWS-R4-
ES-2013-0100) or from the office listed under FOR FURTHER INFORMATION
CONTACT, above.
Critical Habitat
The remainder of this document addresses our proposed critical
habitat designation for Arabis georgiana.
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.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that we designate 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; or implementation of a management
plan. In the case of Arabis georgiana, the benefits of critical habitat
include public awareness of the presence of A. georgiana and the
importance of habitat protection, and, where a Federal nexus exists,
increased habitat protection for A. georgiana 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 or authorized 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. Accordingly,
we have prepared a draft economic analysis concerning the proposed
critical habitat designation (DEA), which is available for review and
comment (see ADDRESSES).
Consideration of Economic Impacts
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 costs 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
[[Page 26682]]
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 4(b)(2) exclusion analysis.
For this designation, we developed an incremental effects
memorandum (IEM) considering the probable incremental economic impacts
that may result from this 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 Arabis georgiana (U.S. Fish and Wildlife Service 2013). 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. 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 our draft economic analysis of the proposed
critical habitat designation for the Arabis georgiana and is summarized
in the narrative below.
Executive Orders (E.O.s) 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 and if sufficient data are available,
the probable impacts 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 December 4, 2013,
first we identified probable incremental economic impacts associated
with the following categories of activities: (1) Transportation; (2)
water quantity/supply; (3) conservation/restoration; (4) forest
management; (5) hydropower; (6) mining; (7) in-water construction; and
(8) utilities (U.S. Fish and Wildlife Service, 2013). We considered
each industry or category individually. Additionally, we 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 Arabis georgiana 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.
In our IEM, we attempted to distinguish between the effects that
will 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 Arabis georgiana's critical
habitat. Because the designation of critical habitat for A. georgiana
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 will 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 requisites of the
species, and (2) any actions that would result in sufficient harm or
harassment to constitute jeopardy to A. georgiana 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.
Based on the available information, we anticipate fewer than five
consultations per year in occupied units, with costs of administrative
efforts ranging from approximately $400 to $9,000 per consultation
(2014 dollars, total cost for all parties participating in a single
consultation). Applying these unit cost estimates, this analysis
conservatively estimates that the administrative cost of considering
adverse modification in section 7 consultation will result in
incremental costs of up to $45,000 (2014 dollars) in a given year.
Corrections to Proposed Critical Habitat Designation for Arabis
georgiana
In the proposed rule, Unit 7A was described as 12 hectares (ha) (29
acres) in size, and Unit 9B was described as 13 ha (21 acres) in size.
Unit 7A was incorrect due to a minor error in the analysis (within the
Geographical Information System), and Unit 9B was a typographical
error. The correct numbers are 11 ha (26 ac) for Unit 7A, and 13 ha (31
ac) for Unit 9B with a total area of critical habitat of 322 ha (793
ac), these values have been corrected in the table and information
provided below.
In total, we are proposing 18 critical habitat units encompassing
approximately 322 hectares (ha) (793 acres (ac)). The proposed critical
habitat is located in Georgia including parts of Gordon, Floyd, Harris,
Muscogee, Chattahoochee, and Clay Counties; and in Alabama, including
parts of Bibb, Dallas, Elmore, Monroe, Russell, Sumter, and Wilcox
Counties. Unit name, location, and the approximate area of each
proposed critical habitat unit, as corrected here, are shown in Table
1.
Table 1--Proposed Critical Habitat Units for Georgia Rockcress
[Area estimates reflect all land within critical habitat unit boundaries]
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Unit No. Unit name County/state Ownership Hectares Acres
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1..................... Fort Tombecbee....... Sumter/AL....... State................ 6 14
2..................... Marshalls Bluff...... Monroe/AL....... Private.............. 11 27
3..................... Prairie Bluff........ Wilcox/AL....... Private.............. 13 32
[[Page 26683]]
4..................... Portland Landing Dallas/AL....... Private.............. 12 31
River Slopes.
5..................... Durant Bend.......... Dallas/AL....... Private.............. 12 28
6..................... Murphys Bluff Bridge Bibb/AL......... Private.............. 11 26
Cahaba River.
7A.................... Creekside Glades..... Bibb/AL......... Private.............. 11 26
7B.................... Little Schulz Creek.. Bibb/AL......... Private.............. 12 28
8A.................... Cottingham Creek Bibb/AL......... Private.............. 22 55
Bluff.
8B.................... Pratts Ferry......... Bibb/AL......... Private.............. 11 28
9A.................... Fern Glade........... Bibb/AL......... Federal.............. 14 34
9B.................... Sixmile Creek........ Bibb/AL......... Private.............. 13 31
10A................... Browns Dam Glade Bibb/AL......... Private.............. 14 35
North.
10B................... Browns Dam Glade Bibb/AL......... Private.............. 15 37
South.
11.................... McGuire Ford Bibb/AL......... Private.............. 6 15
Limestone
Park.
12.................... Fort Toulouse State Elmore/AL....... State................ 7 17
Park.
13.................... Fort Gaines Bluff.... Clay/GA......... Private.............. 17 42
14A................... Fort Benning (GA).... Chattahoochee/GA Federal.............. 14 35
14B................... Fort Benning (AL).... Russell/AL...... Federal.............. 11 26
15A................... Goat Rock North...... Harris/GA....... Private.............. 7 19
15B................... Goat Rock South...... Harris, Muscogee/ Private.............. 24 59
GA.
16.................... Blacks Bluff Preserve Floyd/GA........ Private.............. 37 92
17.................... Whitmore Bluff....... Floyd/GA........ Private.............. 17 43
18.................... Resaca Bluffs........ Gordon/GA....... Private.............. 5 13
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Total............. ..................... ................ ..................... 322 793
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Note: Area sizes may not sum due to rounding.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of the critical habitat
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 September 12, 2013, proposed rule (78 FR 56506), we
indicated that we would defer our determination of compliance with
certain 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
of the probable incremental economic impacts resulting from the
designation of critical habitat for Arabis georgiana, 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, 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.), 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 A. georgiana, 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 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
[[Page 26684]]
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 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 Arabis georgiana in a takings implications assessment. As
discussed above, the designation of critical habitat affects only
Federal actions. Although private parties that receive Federal funding
or assistance, or that 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 A. georgiana. 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, the
takings implications assessment concludes that the designation of
critical habitat for A. georgiana 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
Athens, Georgia, Ecological Services Office, Southeast 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: April 25, 2014.
Michael Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2014-10399 Filed 5-8-14; 8:45 am]
BILLING CODE 4310-55-P