[Federal Register Volume 77, Number 59 (Tuesday, March 27, 2012)]
[Proposed Rules]
[Pages 18173-18176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7200]



[[Page 18173]]

-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2011-0050; 4500030114]
RIN 1018-AW92


Endangered and Threatened Wildlife and Plants; Endangered Status 
for the Alabama Pearlshell, Round Ebonyshell, Southern Sandshell, 
Southern Kidneyshell, and Choctaw Bean, and Threatened Status for the 
Tapered Pigtoe, Narrow Pigtoe, and Fuzzy Pigtoe; With Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening 
of the public comment period on the October 4, 2011, rule proposing 
endangered status for the Alabama pearlshell (Margaritifera marrianae), 
round ebonyshell (Fusconaia rotulata), southern sandshell (Hamiota 
australis), southern kidneyshell (Ptychobranchus jonesi), and Choctaw 
bean (Villosa choctawensis), and threatened status for the tapered 
pigtoe (Fusconaia burkei), narrow pigtoe (Fusconaia escambia), and 
fuzzy pigtoe (Pleurobema strodeanum), and designation of their critical 
habitat, 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 of critical habitat for these eight species 
and an amended required determinations section of the proposal. We are 
reopening the comment period to allow all interested parties an 
opportunity to comment simultaneously on the 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 preparation of the final rule.

DATES: We will consider comments received or postmarked on or before 
April 26, 2012. 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 draft economic analysis on the Internet at http://www.regulations.gov at Docket Number FWS-R4-ES-2011-0050, or by mail 
from the Panama City Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).
    Comment submission: 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-R4-ES-2011-0050, which 
is the docket number for this rulemaking.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R4-ES-2011-0050; 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: Don Imm, Field Supervisor, U.S. Fish 
and Wildlife Service, Panama City Ecological Services Field Office, 
1601 Balboa Avenue, Panama City, FL 32405; telephone 850-769-0552; 
facsimile 850-763-2177. If you use a telecommunications device for the 
deaf (TDD), 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 these eight mussels that was published in the Federal Register on 
October 4, 2011 (76 FR 61482), 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 eight mussels;
    (b) The amount and distribution of habitat for these eight mussels; 
and
    (c) What areas occupied by these species at the time of listing 
contain features essential for the conservation of the species that 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 these species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Any foreseeable economic, national security, or other relevant 
impacts that may result from designating any area that may be included 
in the final designation. We are particularly interested in any impacts 
on small entities, and the benefits of including or excluding areas 
from the proposed designation that are subject to these impacts.
    (5) The projected and reasonably likely impacts of climate change 
on these eight mussels and on the critical habitat we are proposing.
    (6) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    (7) Information on the extent to which the description of economic 
impacts in the DEA is complete and accurate.
    (8) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the DEA, and how the consequences 
of such reactions, if likely to occur, would relate to the conservation 
and regulatory benefits of the proposed critical habitat designation.
    If you submitted comments or information on the proposed rule (76 
FR 61482) during the initial comment period from October 4, 2011, to 
December 5, 2011, 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 designation of critical habitat will 
take into consideration all written comments and any additional 
information we receive during both comment periods. On the basis of 
public comments, we may, during the development of our final 
determination, find that areas proposed are not essential, are 
appropriate for exclusion under section 4(b)(2) of the Act, or are not 
appropriate for exclusion.
    You may submit your comments and materials concerning the proposed 
rule or DEA by one of the methods listed in

[[Page 18174]]

the ADDRESSES section. We request that you send comments only by the 
methods described in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the proposed rule and DEA, will be 
available for public inspection on http://www.regulations.gov at Docket 
No. FWS-R4-ES-2011-0050, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Panama City Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT section, 
above). 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-2011-
0050, or by mail from the Panama City Ecological Services Field Office 
(see FOR FURTHER INFORMATION CONTACT section, above).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for the Alabama pearlshell, round 
ebonyshell, southern sandshell, southern kidneyshell, Choctaw bean, 
tapered pigtoe, narrow pigtoe, and fuzzy pigtoe in this document. For 
more information on previous Federal actions concerning these eight 
species, or their biology and habitat needs, refer to the proposed 
listing and designation of critical habitat published in the Federal 
Register on October 4, 2011 (76 FR 61482). This document is available 
online at http://www.regulations.gov (at Docket Number FWS-R4-ES-2011-
0050) or from the Panama City Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT section, above).

Previous Federal Actions

    On October 4, 2011, we published a proposed rule to list and 
designate critical habitat for these species (76 FR 61482). We proposed 
to designate approximately 2,406 kilometers (km) (1,495 miles (mi)) of 
stream and river channels within Bay, Escambia, Holmes, Jackson, 
Okaloosa, Santa Rosa, Walton, and Washington Counties, Florida; and 
Barbour, Bullock, Butler, Coffee, Conecuh, Covington, Crenshaw, Dale, 
Escambia, Geneva, Henry, Houston, Monroe, and Pike Counties, Alabama. 
We will submit for publication in the Federal Register a final critical 
habitat designation for these eight species on or before October 4, 
2012.

Critical Habitat

    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If the proposed rule is 
made final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
affecting critical habitat must consult with us on the effects of their 
proposed actions, under section 7(a)(2) of the Act.

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 these species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from designation due 
to State or Federal laws that may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, the economic impacts of designation; whether exclusion of 
a specific area is likely to result in conservation; the continuation, 
strengthening, or encouragement of partnerships; or implementation of a 
management plan. In the case of these eight mussels, the benefits of 
critical habitat include public awareness of the presence of these 
species and the importance of habitat protection, and, where a Federal 
nexus exists, increased habitat protection for these species 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. Accordingly, 
we have prepared a draft economic analysis concerning the proposed 
critical habitat designation (DEA), which is available for review and 
comment (see ADDRESSES section, above).

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 these eight mussels. The DEA separates conservation 
measures into two distinct categories according to ``without critical 
habitat'' and ``with critical habitat'' scenarios. The ``without 
critical habitat'' scenario represents the baseline for the analysis, 
considering protections otherwise afforded to the eight mussels (e.g., 
under the Federal listing and other Federal, State, and local 
regulations). The ``with critical habitat'' scenario describes the 
incremental impacts specifically due to designation of critical habitat 
for these species. In other words, these incremental conservation 
measures and associated economic impacts would not occur but for the 
designation. 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 
methods of the analysis, see Chapter 2, ``Framework for the Analysis,'' 
of the DEA.

[[Page 18175]]

    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for these 
eight mussels over the next 20 years, which was determined to be the 
appropriate period for analysis because limited planning information is 
available for most activities to forecast activity levels for projects 
beyond a 20-year timeframe. It identifies potential incremental costs 
as a result of the proposed critical habitat designation; these are 
those costs attributed to critical habitat over and above those 
baseline costs attributed to listing. The DEA quantifies economic 
impacts of mussel conservation efforts associated with the following 
categories of activity: (1) Impoundments, dams, and diversions; (2) 
dredging, channelization, and in-stream mining; (3) transportation and 
utilities; (4) residential and commercial development; (5) timber 
management, agriculture, and grazing; and (6) oil wells/drilling.
    Based on discussions with State and local regulatory authorities, 
including Alabama Department of Environmental Management, Florida 
Department of Environmental Protection, and Northwest Florida Water 
Management District, land and water management practices are not 
expected to change due to the designation of critical habitat.
    The present value of the total incremental cost of critical habitat 
designation is estimated at $1.41 million over 20 years assuming a 7 
percent discount rate, or $125,000 on an annualized basis. 
Transportation and utility activities are likely to be subject to the 
greatest incremental impacts at $1.02 million over 20 years, followed 
by development at $62,300; timber management, agriculture, and grazing 
activities at $56,600; and impoundments, dams, and diversions at 
$13,100 (present values over 20 years assuming a 7 percent discount 
rate). No incremental impacts to dredging, channelization, and in-
stream mining are anticipated because these activities are not expected 
to occur within proposed critical habitat boundaries. No incremental 
impacts to oil wells or drilling operations are anticipated because 
there is no Federal nexus for these activities that would require 
section 7 consultation. Please refer to the DEA of the proposed 
critical habitat designation for a more detailed discussion of 
potential economic impacts.
    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 these species.

Required Determinations--Amended

    In our October 4, 2011, proposed rule (76 FR 61482), 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. 
12630 (Takings), 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. 13211 
(Energy, Supply, Distribution, or Use), and the Unfunded Mandates 
Reform Act (2 U.S.C. 1501 et seq.).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Based on our 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 rule making.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
these species would affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities, such as residential or commercial 
development entities. In order to determine whether it is appropriate 
for our agency to certify that the proposed rule would not have a 
significant economic impact on a substantial number of small entities, 
we considered each industry or category individually. In estimating the 
numbers of small entities potentially affected, we also considered 
whether their activities have any Federal involvement. Critical habitat 
designation will not affect activities that do not have any Federal 
involvement; designation of critical habitat only affects activities 
conducted, funded, permitted, or authorized by Federal agencies. In 
areas where the these eight mussels are present, Federal agencies 
already are required to consult with us under section 7 of the Act on

[[Page 18176]]

activities they fund, permit, or implement that may affect these 
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 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 eight mussels. 
This analysis estimates that six small governments (counties) may be 
affected by the rule. The affected counties represent 9 percent of 
small counties in Alabama and Florida. We anticipate approximately 
three to four counties could be affected each year, with an impact of 
approximately $875 per county. Assuming annual county tax revenues of 
at least $1 million, per county impacts represent approximately 0.02 
percent of annual revenues. Approximately 20 small development-related 
entities are likely to incur administrative costs associated with 
section 7 consultations. Assuming that all of these entities are small, 
they represent approximately 0.04, or less than one, percent of all 
small developers and homebuilders in the affected counties. Annualized 
impacts per entity are approximately $48, which represents less than 
one percent of annual, per entity revenues. Please refer to the DEA of 
the proposed critical habitat designation for a more detailed 
discussion of potential economic impacts to small businesses.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and the Service. 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.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    As outlined in the DEA and in the amended RFA determination above, 
we do not believe that this rule will significantly or uniquely affect 
small governments. It will not produce a Federal mandate of $100 
million or greater in any year, and therefore is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act. The 
designation of critical habitat imposes no obligations on state or 
local governments. By definition, Federal agencies are not considered 
small entities, although the activities they fund or permit may be 
proposed or carried out by small entities. After careful review of the 
DEA we have determined that a Small Government Agency Plan is not 
required.

Energy, Supply, Distribution, or Use

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) on regulations that significantly affect 
energy supply, distribution, and use. E.O. 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
The Office of Management and Budget provides guidance for implementing 
this executive order, and outlines the situations that are considered 
to have a ``significant energy effect'' when compared with the 
regulatory action under consideration. As outlined in the DEA, we do 
not anticipate impacts to oil wells and drilling activities in the 
study area (critical habitat reaches and associated watersheds). Thus, 
we do not anticipate a ``significant energy effect'' from this 
rulemaking.

Authors

    The primary authors of this notice are the staff members of the 
Panama City Ecological Services Field Office.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: March 16, 2012.
 Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-7200 Filed 3-26-12; 8:45 am]
BILLING CODE 4310-55-P