[Federal Register Volume 78, Number 60 (Thursday, March 28, 2013)]
[Proposed Rules]
[Pages 18943-18947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07122]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2013-0018; 4500030113]
RIN 1018-AZ46


Endangered and Threatened Wildlife and Plants; Listing as 
Endangered and Designation of Critical Habitat for the Gierisch Mallow

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the August 17, 2012, proposal 
to add the Gierisch mallow to the list of endangered species under the 
Endangered Species Act of 1973, as amended (Act). We also announce the 
reopening of comment on the August 17, 2012, proposal to designate 
critical habitat for the Gierisch mallow and the availability of a 
draft economic analysis and draft environmental assessment of the 
proposed critical habitat designation and amended required 
determinations for the proposed rule. We are reopening the comment 
period to allow all interested parties an opportunity to comment 
simultaneously on the proposals, the associated draft economic and 
environmental analyses, and the amended required determinations. 
Comments previously submitted need not be resubmitted, as they will be 
fully considered in preparation of the final rule.

DATES: Written comments: We will consider comments received or 
postmarked on or before April 29, 2013. Comments submitted 
electronically using the Federal eRulemaking Portal (see ADDRESSES 
section, below) must be received by 11:59 p.m. Eastern Time on the 
closing date.

ADDRESSES:
    Document availability: You may obtain a copy of the proposed 
listing rule on the internet at http://www.regulations.gov at Docket 
No. FWS-R2-ES-2012-0049 or by mail from the Arizona Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT). You may obtain a 
copy of the proposed critical habitat rule and associated draft 
economic and environmental analyses at Docket No. FWS-R2-ES-2013-0018.
    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 listing proposal to Docket 
No. FWS-R2-ES-2012-0049, and submit comments on the critical habitat 
proposal and associated draft analyses to Docket No. FWS-R2-ES-2013-
0018. See SUPPLEMENTARY INFORMATION for an explanation of the two 
dockets.
    (2) By hard copy: Submit comment on the listing proposal by U.S. 
mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-
2012-0049; 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 critical habitat proposal and draft 
economic and environmental analyses by U.S. mail or hand-delivery to: 
Public Comments Processing, Attn: FWS-R2-ES-2013-0018; Division of 
Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 
N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, 
Arizona Ecological Services Field Office, 2123 West Royal Palm Road, 
Suite 103, Phoenix, AZ 85021; by telephone (602)-242-0210; or by 
facsimile (602)-242-2513. Persons who use a telecommunications device 
for the deaf (TDD) may call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We are reopening the comment period for our proposed listing 
determination and proposed critical habitat designation for Sphaeralcea 
gierischii (Gierisch mallow) that was published in the Federal Register 
on August 17, 2012 (77 FR 49894). We are specifically seeking comments 
on the draft economic and environmental analyses, which are now 
available, for the proposed critical habitat designation; see ADDRESSES 
for information on where to send your comments.
    We are also notifying the public that we will publish two separate 
rules for the final listing determination and the final critical 
habitat determination for Gierisch mallow. The final listing rule will 
publish under the existing docket number, FWS-R2-ES-2012-0049, and the 
final critical habitat designation will publish under docket number 
FWS-R2-ES-2013-0018.
    We request that you provide comments specifically on our listing 
determination under the existing docket number FWS-R2-ES-2012-0049. We 
will consider information and recommendations from all interested 
parties. We are particularly interested in comments concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and regulations that may 
be addressing those threats.
    (2) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    (3) Any information on the biological or ecological requirements of 
the species, and ongoing conservation measures for the species and its 
habitat.
    (4) Current or planned activities in the areas occupied by the 
species and possible impacts of these activities on this species.
    We request that you provide comments specifically on the critical 
habitat determination and draft economic and environmental analyses 
under docket number FWS-R2-ES-2013-0018. We will consider information 
and recommendations from all interested parties. We are particularly 
interested in comments concerning:
    (5) The reasons why we should or should not designate land 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 may not be 
prudent.
    (6) Specific information on:

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    (a) The amount and distribution of habitat for Gierisch mallow;
    (b) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of the species, should be included in the designation and 
why;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including management 
for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (7) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (8) Information on the projected and reasonably likely impacts of 
climate change on Gierisch mallow 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 any impacts on small 
entities or families, and 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 complete and accurate, and 
the description of the environmental impacts in the draft environmental 
analysis is complete and accurate.
    (11) Whether any specific 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.
    (12) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    If you submitted comments or information on the proposed rule (77 
FR 49894; August 17, 2012) during the initial comment period from 
August 17, 2012, to October 16, 2012, please do not resubmit them. We 
have incorporated them into the public record, and we will fully 
consider them in the preparation of our final rules. On the basis of 
public comments and other relevant information, we may, during the 
development of our final determination on the proposed critical habitat 
designation, 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 draft economic and environmental analyses by one of the methods 
listed in ADDRESSES. We request that you send 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, will be available for public inspection on 
http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0049 (for the 
proposed listing) and Docket No. FWS-R2-ES-2013-0018 (for the proposed 
critical habitat designation, draft economic analysis, and draft 
environmental assessment), or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Arizona Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may 
obtain copies of the proposed rule on the Internet at http://www.regulations.gov at Docket Number FWS-R2-ES-2012-0049 and the draft 
economic and environmental analyses at Docket No. FWS-R2-ES-2013-0018, 
or by mail from the Arizona Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for Gierisch mallow in the 
remainder of this document. For more information on the species, the 
species' habitat, and previous Federal actions concerning the Gierisch 
mallow, refer to the proposed listing rule and designation of critical 
habitat, published in the Federal Register on August 17, 2012 (77 FR 
49894). The proposed rule is available online at http://www.regulations.gov (at Docket Number FWS-R2-ES-2012-0049) or from the 
Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Previous Federal Actions

    On August 17, 2012, we published a proposed rule to list as 
endangered and to designate critical habitat for the Gierisch mallow 
(77 FR 49894). In total, we proposed approximately 5,189 hectares (ha) 
(12,822 acres (ac)) for designation as critical habitat in two units 
located in Mohave County, Arizona, and Washington County, Utah. That 
proposal had a 60-day comment period, ending October 16, 2012. We 
received a request for a public hearing; however, the request for the 
public hearing was withdrawn by the requestor on February 21, 2013. 
Therefore, we will not hold a public hearing. We will publish in the 
Federal Register a final listing determination and critical habitat 
designation for Gierisch mallow on or before August 17, 2013.

Critical Habitat

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

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 
the

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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, 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. 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, which is available for review and comment 
(see ADDRESSES).

Draft Economic Analysis

    The draft economic analysis describes the economic impacts of all 
potential conservation efforts for the Gierisch mallow; some of these 
costs will likely be incurred regardless of whether we designate 
critical habitat. The economic impact of the proposed critical habitat 
designation is analyzed by comparing scenarios both ``with critical 
habitat'' and ``without critical habitat.'' The ``without critical 
habitat'' scenario represents the baseline for the analysis, 
considering protections already in place for the species (e.g., under 
the Federal listing and other Federal, State, and local regulations). 
The baseline, therefore, represents the costs 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 are those not expected to 
occur absent the designation of critical habitat for the species.
    Most courts have held that the Service only needs to consider the 
incremental impacts imposed by the critical habitat designation over 
and above those impacts imposed as a result of listing the species. For 
example, the Ninth Circuit Court of Appeals reached this conclusion 
twice within the last few years, and the U.S. Supreme Court declined to 
hear any further appeal from those rulings. Arizona Cattle Growers' 
Assoc. v. Salazar, 606 F.3d 116, (9th Cir. June 4, 2010) cert. denied, 
179 L. Ed. 2d 300, 2011 U.S. LEXIS 1362, 79 U.S.L.W. 3475 (2011); Home 
Builders Association of Northern California v. United States Fish & 
Wildlife Service, 616 F. 3rd 983 (9th Cir. 2010) cert. denied, 179 L. 
Ed. 2d 300, 2011 U.S. LEXIS 1362, 79 U.S.L.W. 3475 (2011).
    However, the prevailing court decisions in the Tenth Circuit Court 
of Appeals do not allow the incremental analysis approach. Instead, the 
Tenth Circuit requires that the Service consider both the baseline 
economic impacts imposed due to listing the species and the additional 
incremental economic impacts imposed by designating critical habitat. 
New Mexico Cattle Growers Ass'n v. FWS, 248 F.3d 1277 (10th Cir. May 
11, 2001). As a consequence, an economic analysis for critical habitat 
that is being proposed for designation within States that fall within 
the jurisdiction of the Tenth Circuit (as this designation does) should 
include a coextensive cost evaluation which addresses, and quantifies 
to the extent feasible, all of the conservation-related impacts 
associated with the regulatory baseline (those resulting under the 
jeopardy standard under section 7 of the Act, and under sections 9 and 
10 of the Act). In other words, the allocation of impacts should show 
those that are part of the regulatory baseline and those that are 
unique to the critical habitat designation.
    Conservation measures implemented under the baseline (without 
critical habitat) scenario are described qualitatively within the draft 
economic analysis, but economic impacts associated with these measues 
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 draft economic analysis.
    The draft economic analysis provides estimated costs of the 
foreseeable potential economic impacts of the proposed critical habitat 
designation for Gierisch mallow 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 draft economic analysis quantifies economic impacts of Gierisch 
mallow conservation efforts associated with the following categories of 
activity: (1) Gypsum mining; (2) livestock grazing; and (3) 
transportation projects. Chapter 4 of the draft economic analysis 
provides the quantification of economic impacts of Gierisch mallow 
conservation efforts.
    We do not anticipate recommending incremental conservation measures 
to avoid adverse modification of critical habitat over and above those 
recommended to avoid jeopardy of the species, and, as such, the 
economic analysis forecasts few incremental economic impacts as a 
result of the designation of critical habitat for this species. A 
number of factors limit the extent to which the proposed critical 
habitat designation will result in incremental costs, including the 
fact that all proposed habitat is occupied by the species and the 
species' survival is closely linked to the quality of the habitat.
    The total projected incremental costs of administrative efforts 
resulting from section 7 consultations on Gierisch mallow are 
approximately $51,000 over 20 years ($3,300 on an annualized basis), 
assuming a 7 percent discount rate. The analysis estimates potential 
future administrative impacts based on the historical rate of 
consultations on listed species in areas proposed for critical habitat, 
as discussed in Chapter 2 of the draft economic analysis.
    As stated earlier, we are soliciting data and comments from the 
public on the draft economic analysis, as well as all aspects of the 
proposed rule and our amended required determinations. We may revise 
the proposed rule or supporting documents to incorporate or address 
information we receive during the public comment period. In particular, 
we may exclude an area from critical habitat if we determine that the 
benefits of excluding the area outweigh the benefits of including the 
area, provided the exclusion will not result in the extinction of this 
species.

Draft Environmental Assessment

    The purpose of the draft environmental assessment, prepared 
pursuant to the National Environmental Policy Act (NEPA) (42 U.S.C. 
4321 et seq.), is to identify and disclose the environmental 
consequences resulting from the proposed action of designating critical 
habitat for the Gierisch mallow.

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In the draft environmental assessment, three alternatives are 
evaluated: Alternative A, the no action alternative; Alternative B, the 
proposed rule without exclusion areas; and Alternative C, the proposed 
rule with exclusion areas. The no action alternative is required by 
NEPA for comparison to the other alternatives analyzed in the draft 
environmental assessment. The no action alternative is equivalent to no 
designation of critical habitat for Gierisch mallow. Under Alternative 
B, critical habitat would be designated, as proposed, with no 
exclusions. Under Alternative C, critical habitat would be designated; 
however, the Black Rock Gypsum Mine and the Georgia-Pacific Gypsum Mine 
would be excluded from critical habitat designation. Our preliminary 
determination is that designation of critical habitat for Gierisch 
mallow will not have direct impacts on the environment. However, we 
will further evaluate this issue as we complete our final environmental 
assessment.
    As we stated earlier, we are soliciting data and comments from the 
public on the draft environmental assessment, as well as all aspects of 
the proposed rule. We may revise the proposed rule or supporting 
documents to incorporate or address information we receive during the 
comment period on the environmental consequences resulting from our 
designation of critical habitat.

Required Determinations--Amended

    In our August 17, 2012, proposed rule (77 FR 49894), 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 draft economic 
analysis. We have now made use of the draft economic analysis data to 
make these determinations. In this document, we affirm the information 
in our proposed rule concerning Executive Orders (E.O.s) 12866 and 
13563 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 
13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 
(Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform 
Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.), and the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951). However, based on the draft economic 
analysis data, we are amending our required determinations concerning 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.),

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Based on our draft economic analysis of the 
proposed designation, we provide our analysis for determining whether 
the proposed rule would result in a significant economic impact on a 
substantial number of small entities. Based on comments we receive, we 
may revise this determination as part of our final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
Gierisch mallow would affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities, such as mining, livestock grazing, and 
transportation. 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. If we 
finalize the proposed listing for the species, in areas where the 
Gierisch mallow is present, Federal agencies will be required to 
consult with us under section 7 of the Act on activities they fund, 
permit, or implement that may affect the species. If we finalize this 
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 draft economic analysis, we evaluated the potential economic 
effects on small entities resulting from implementation of conservation 
actions related to the proposed designation of critical habitat for the 
Gierisch mallow. The designation of critical habitat for Gierisch 
mallow will not affect any small entities. Approximately 89 percent of 
land in the designation is federally owned. Anticipated incremental 
impacts in proposed critical habitat are primarily related to 
consultations on livestock management and mining activity. The forecast 
consultations either do not include third parties (programmatic 
consultations and consultations with another Federal agency) or the 
third parties are not considered small entities (consultations with the 
Arizona Department of Transportation and Western Mining Minerals Inc.). 
One of the gypsum mine operating companies, Western Mining Minerals, 
Inc., is a subsidiary of Saint-Gobain. The small business threshold for 
the NAICS code corresponding to gypsum mining (212399, All Other 
Nonmetallic Mineral Mining) is 500 employees. Saint-Gobain employs 
multiple thousands of people, and

[[Page 18947]]

therefore is not considered small. The other mining operation is owned 
by Georgia-Pacific; however, the company operates on Arizona State Land 
Department managed land where no Federal nexus exists, and all 
potential impacts resulting from mallow conservation are considered to 
be baseline impacts. The remaining forecast impacts are anticipated to 
be conducted for road and highway maintenance projects. Little to no 
impact to third parties is expected associated with these activities. 
For this reason, there would be little to no impacts to small entities 
as a result of critical habitat designation for Gierisch mallow. Please 
refer to Appendix A of the draft economic analysis of the proposed 
critical habitat designation for a more detailed discussion of 
potential economic impacts.
    The Service's current understanding of recent case law is that 
Federal agencies are only required to evaluate the potential impacts of 
rulemaking on those entities directly regulated by the rulemaking; 
therefore, they are not required to evaluate the potential impacts to 
those entities not directly regulated. The designation of critical 
habitat for an endangered or threatened species only has a regulatory 
effect where a Federal action agency is involved in a particular action 
that may affect the designated critical habitat. Under these 
circumstances, only the Federal action agency is directly regulated by 
the designation, and, therefore, consistent with the Service's current 
interpretation of RFA and recent case law, the Service may limit its 
evaluation of the potential impacts to those identified for Federal 
action agencies. Under this interpretation, there is no requirement 
under the RFA to evaluate potential impacts to entities not directly 
regulated, such as small businesses. However, Executive Orders 12866 
and 13563 direct Federal agencies to assess the costs and benefits of 
available regulatory alternatives in quantitative (to the extent 
feasible) and qualitative terms. Consequently, it is the current 
practice of the Service to assess to the extent practicable these 
potential impacts, if sufficient data are available, whether or not 
this analysis is believed by the Service to be strictly required by the 
RFA. In other words, while the effects analysis required under the RFA 
is limited to entities directly regulated by the rulemaking, the 
effects analysis under the Act, consistent with the E.O. regulatory 
analysis requirements, can take into consideration impacts to both 
directly and indirectly impacted entities, where practicable and 
reasonable.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and the Service. We 
conclude that future consultations are unlikely to involve a third 
party. 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.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in 
connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This position was 
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 
1042 (1996)). However, when the range of the species includes States 
within the Tenth Circuit, such as that of the Gieirsch mallow, under 
the Tenth Circuit ruling in Catron County Board of Commissioners v. 
U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we will 
undertake a NEPA analysis for critical habitat designation. In 
accordance with the Tenth Circuit, we have completed a draft 
environmental assessment to identify and disclose the environmental 
consequences resulting from the proposed designation of critical 
habitat for the Gieirsch mallow. Our preliminary determination is that 
the designation of critical habitat for the Gieirsch mallow would not 
have direct impacts on the environment. However, we will further 
evaluate this issue as we complete our final environmental assessment.

Authors

    The primary authors of this notice are the staff members of the 
Arizona Ecological Services Field Office, Southwest Region, U.S. Fish 
and Wildlife Service.

Authority

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

    Dated: March 18, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-07122 Filed 3-27-13; 8:45 am]
BILLING CODE 4310-55-P