[Federal Register Volume 78, Number 60 (Thursday, March 28, 2013)]
[Proposed Rules]
[Pages 18938-18943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07159]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2013-0025; 4500030113]
RIN 1018-AZ43


Endangered and Threatened Wildlife and Plants; Listing as 
Endangered and Designation of Critical Habitat for Acu[ntilde]a Cactus 
and the Fickeisen Plains Cactus

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 our October 3, 2012, proposal 
to add the acu[ntilde]a cactus and Fickeisen plains cactus to the list 
of endangered species under the Endangered Species Act of 1973, as 
amended (Act). We also announce the reopening of comment on our October 
3, 2012, proposal to designate critical habitat for the acu[ntilde]a 
cactus and Fickeisen plains cactus and the availability of a draft 
economic analysis of the proposed designation of critical habitat and 
an amended required determinations section for the proposal. We are 
reopening the comment period to allow all interested parties an 
opportunity to comment simultaneously on the proposals, the associated 
draft economic analysis for the critical habitat designation, and the 
amended required determinations. Comments previously submitted need not 
be resubmitted, as they will be fully considered in preparation of the 
final rules.

DATES: 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. Any comments that we 
receive after the closing date may not be considered in the final 
decisions on these actions.

ADDRESSES: Document availability: You may obtain copies of the October 
3, 2012, proposed rule on the internet at http://www.regulations.gov at 
Docket No. FWS-R2-ES-2012-0061 or by mail from the Arizona Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may 
obtain a copy of the draft economic analysis at Docket No. FWS-R2-ES-
2013-0025.
    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-2012-0061, and submit comments on the critical habitat 
proposal and associated draft economic analysis to Docket No. FWS-R2-
ES-2013-0025. 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-
2012-0061; Division of Policy and Directives Management; U.S. Fish and 
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 
22203. Submit comment on the critical habitat proposal and draft 
economic analysis by U.S. mail or hand-delivery to: Public Comments 
processing, Attn. FWS-R2-ES-2013-0025; 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, U.S. 
Fish and Wildlife Service, Arizona Ecological Services Field Office, 
2321 W. Royal Palm Road, Suite 103, Phoenix, AZ 85021; telephone (602) 
242-0210; 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 
Echinomastus erectocentrus var. acunensis (acu[ntilde]a cactus) and 
Pediocactus peeblesianus var. fickeiseniae (Fickeisen plains cactus) 
that was published in the Federal Register on October 3, 2012 (77

[[Page 18939]]

FR 60509). We are specifically seeking comments on the draft economic 
analysis, which is now available, for the 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 acu[ntilde]a cactus and Fickeisen plains 
cactus. The final listing rule will publish under the existing docket 
number, FWS-R2-ES-2012-0061, and the final critical habitat designation 
will publish under docket number FWS-R2-ES-2013-0025.
    We request that you provide comments specifically on our listing 
determination under the existing docket number FWS-R2-ES-2012-0061. 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 these species and regulations that may 
be addressing those threats.
    (2) Additional information concerning the historical and current 
status, range, distribution, and population size of these species, 
including the locations of any additional populations of these species.
    (3) Any information on the biological or ecological requirements of 
these species and ongoing conservation measures for these species and 
their habitat.
    (4) Current or planned activities in the areas occupied by these 
species and possible impacts of these activities on these species.
    We request that you provide comments specifically on the critical 
habitat determination and draft economic analysis under docket number 
FWS-R2-ES-2013-0025. 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 habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.) including whether there are threats to these species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat may not be 
prudent.
    (6) Specific information on:
    (a) The amount and distribution of habitat for acu[ntilde]a cactus 
or the Fickeisen plains cactus;
    (b) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of these 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 to 
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 these species and their 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 
from the proposed designation that are exhibit these impacts.
    (10) Information on the extent to which the description of economic 
impacts in the draft economic 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 the benefits of exclusion outweigh the benefits of 
including the area proposed as critical habitat for the Fickeisen 
plains cactus on the Navajo Nation based on the ``Navajo Nation 
Fickeisen Plains Cactus Management Plan'' submitted during the initial 
comment period.
    (13) Whether Department of Defense lands (Barry M. Goldwater Range) 
proposed as critical habitat for the acu[ntilde]a cactus should be 
exempted under section 4(a)(3) from the critical habitat designation 
based on their revised integrated natural resources management plan 
submitted during the initial comment period.
    (14) Additional information from the public as to the current 
status of the population of acu[ntilde]a cactus in subunit 1b of the 
proposed critical habitat designation to aid in our determination of 
whether this subunit meets the definition of critical habitat for the 
acu[ntilde]a cactus.
    (15) 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 60509) during the initial comment period from October 3, 2012, to 
December 3, 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 designations, 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 analysis by one of the methods listed in the 
ADDRESSES section. We request that you send comments only by the 
methods described in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used, will be available for public inspection on 
http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0061 (for the 
proposed listings) and Docket No. FWS-R2-ES-2013-0025 (for the proposed 
critical habitat designations and draft economic analysis), 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-2012-0061 and the draft economic analysis at Docket No. FWS-
R2-ES-2013-0025, or by mail from the

[[Page 18940]]

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 the acu[ntilde]a cactus and the 
Fickeisen plains cactus in the remainder of this document. For more 
information on the species, their habitat, and previous Federal actions 
concerning the species, refer to the proposed listing rule and 
designation of critical habitat published in the Federal Register on 
October 3, 2012 (77 FR 60509). The proposed rule is available online at 
http://www.regulations.gov (at Docket Number FWS-R2-ES-2012-0061) or 
from the Arizona Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Previous Federal Actions

    On October 3, 2012, we published a proposed rule to list as 
endangered and designate critical habitat for the acu[ntilde]a cactus 
and the Fickeisen plains cactus (77 FR 60509). For the acu[ntilde]a 
cactus, we proposed to designate as critical habitat approximately 
21,740 hectares (ha) (53,720 acres (ac)) in 6 units located in 
Maricopa, Pima, and Pinal Counties, Arizona. For the Fickeisen plains 
cactus, we proposed to designate as critical habitat approximately 
19,901 ha (49,186 ac) in 9 units located in Coconino and Mohave 
Counties, Arizona. That proposal had a 60-day comment period, ending 
December 3, 2012. We will publish in the Federal Register a final 
listing determination and critical habitat designation for the 
acu[ntilde]a cactus and the Fickeisen plains cactus on or before 
October 3, 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.

Proposed Changes to Proposed Critical Habitat

    On October 3, 2012, we proposed approximately 1,591 ha (3,931 ac) 
as acu[ntilde]a cactus critical habitat within Subunit 1b (Dripping 
Spring; 77 FR 60510, p. 60552). This Subunit was delineated from 
records of a 1952 collection of this species from an area south of 
Dripping Spring in Organ Pipe Cactus National Monument. This subunit is 
located in the southern part of Organ Pipe Cactus National Monument. 
During the comment period, we received information from the National 
Park Service indicating this general area has been visited frequently 
during surveys for cultural and natural resources and no acu[ntilde]a 
cactus plants were located. We are considering withdrawing this subunit 
from our final critical habitat designation; however, we are seeking 
additional information from the public as to the current status of this 
population and whether this area, if unoccupied, is essential for the 
conservation of the species.

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 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. For the Fickeisen 
plains cactus, we are considering excluding the entirety of Unit 6 
(Tiger Wash Unit) and Unit 7 (Little Colorado River Overlook Unit), and 
a portion of Subunit 8b (Gray Mountain Subunit) that is under the 
jurisdiction of the Navajo Nation. The Navajo Nation has submitted a 
management plan for the Fickeisen plains cactus on lands under its 
jurisdiction. For the acu[ntilde]a cactus, we are considering excluding 
the entirety of Subunit 3b (Cimarron Mountain Subunit) and a portion of 
Subunit 3a (Coffeepot Mountain Subunit) that is under the jurisdiction 
of the Tohono O'odham Nation based on a request from the Tohono O'odham 
Nation.

Consideration of Exemption under Section 4(a)(3) of the Act

    For the acu[ntilde]a cactus, we are considering an exemption for a 
portion of Subunit 3a (Coffeepot Mountain Subunit) and the entirety of 
Subunit 4b (Sand Tank Mountains Subunit), which is proposed critical 
habitat for acu[ntilde]a cactus on Department of Defense lands (Barry 
M. Goldwater Range, under the jurisdiction of the U.S. Air Force). 
Section 4(a)(3) of the Act exempts Department of Defense lands from 
critical habitat if an integrated natural resources management plan is 
prepared and if the Secretary of the Interior determines that plan 
provides a benefit to the species for which critical habitat is 
proposed for designation. A revised management plan has been submitted 
to the Service for review. However, the final decision on whether to 
exclude or exempt any area 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 section).

Draft Economic Analysis

    The purpose of the draft economic analysis is to identify and 
analyze the potential economic impacts associated with the proposed 
critical habitat designation for the acu[ntilde]a cactus and the 
Fickeisen plains cactus. The draft economic analysis 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 
acu[ntilde]a cactus and the Fickeisen plains cactus (e.g.,

[[Page 18941]]

under the Federal listing and other Federal, State, and local 
regulations). The ``with critical habitat'' scenario describes the 
incremental impacts specifically due to designation of critical habitat 
for the species. In other words, these incremental conservation 
measures and associated economic impacts would not occur but for the 
designation. Conservation measures implemented under the baseline 
(without critical habitat) scenario are described qualitatively within 
the draft economic analysis, but economic impacts associated with these 
measures are not quantified. Economic impacts are only quantified for 
conservation measures implemented specifically due to the designation 
of critical habitat (i.e., incremental impacts). For a further 
description of the methodology of the analysis, see Chapter 2, 
``FRAMEWORK FOR THE ANALYSIS,'' of the draft economic analysis.
    The draft economic analysis provides estimated costs of the 
foreseeable potential economic impacts of the proposed critical habitat 
designation for the acu[ntilde]a cactus and the Fickeisen plains cactus 
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 the 
acu[ntilde]a cactus conservation efforts associated with the following 
categories of activity: (1) BLM Statewide and Resource Management 
Plans; (2) livestock grazing; (3) Barry M. Goldwater Range activities; 
(4) U.S. Mexican border activities; (5) Tohono O'odham Nation 
activities; and (6) transportation activities. The draft economic 
analysis quantifies economic impacts of the Fickeisen plains cactus 
conservation efforts associated with the following categories of 
activity: (1) Livestock grazing; (2) BLM Statewide Plans; (3) uranium 
mining; (4) activities on lands of the Navajo Nation; and (5) 
transportation activities.
    Total present value incremental impacts are approximately $60,000 
over 20 years following the designation of the acu[ntilde]a cactus 
critical habitat, assuming a 7 percent discount rate ($65,000 assuming 
a 3 percent discount rate). Total present value incremental impacts are 
approximately $39,000 over 20 years following the designation of the 
Fickeisen plains cactus critical habitat, assuming a 7 percent discount 
rate ($43,000 assuming a 3 percent discount rate). The total present 
value incremental impacts in areas considered for exclusion within the 
Fickeisen plains cactus critical habitat are approximately $22,000, 
assuming a 7 percent discount rate ($23,000 assuming a 3 percent 
discount rate). The majority of the incremental costs for both cacti is 
administrative in nature and results from the consideration of adverse 
modification in section 7 consultations. Additional costs are 
associated with conducting surveys for acu[ntilde]a cactus within the 
Barry M. Goldwater Range.
    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.

Required Determinations--Amended

    In our October 3, 2012, proposed rule (77 FR 60509), 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 National Environmental Policy Act (42 
U.S.C. 4321 et seq.). 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 President's 
memorandum of April 29, 1994, ``Government-to-Government Relations with 
Native American Tribal Governments'' (59 FR 22951).

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 
the

[[Page 18942]]

acu[ntilde]a cactus and the Fickeisen plains cactus would affect a 
substantial number of small entities, we considered the number of small 
entities affected within particular types of economic activities, such 
as uranium mining, livestock grazing, and transportation construction 
and maintenance projects. In order to determine whether it is 
appropriate for our agency to certify that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities, we considered each industry or category individually. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement. 
Critical habitat designation 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 acu[ntilde]a cactus or the 
Fickeisen plains cactus are present, Federal agencies already are 
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 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 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 
acu[ntilde]a cactus and the Fickeisen plains cactus. Fifty-five percent 
of land in the proposed designation for acu[ntilde]a cactus and 34 
percent of the land in the proposed designation for Fickeisen plains 
cactus is federally owned. Anticipated incremental impacts in proposed 
critical habitat are primarily related to consultations on livestock 
grazing and other Federal land management activities. The remaining 
forecast impacts are anticipated to be conducted for transportation 
construction and maintenance projects, Partners for Fish and Wildlife 
programs, and activities on the Tohono O'odham or Navajo Nations' 
lands. The Arizona Department of Transportation (ADOT) and Tribes are 
not considered small entities. Therefore, of the remaining activities 
affected by the proposed critical habitat designations for the cacti, 
only one is expected to incur costs to small entities: uranium mining. 
One consultation is projected for the EZ uranium mine. This one 
consultation will result in impacts to Energy Fuels Inc. (operators of 
the EZ Mine) of approximately $900 on a present value basis, or 
approximately $80 on an annualized basis, which constitutes an impact 
of less than one-tenth of a percent of annual revenues. Of the 
activities affected by the proposed designation for the acu[ntilde]a 
cactus and the Fickeisen plains cactus, none is expected to incur 
incremental costs to third-party small entities. The forecast 
consultations either do not include third parties (programmatic 
consultations, intra-Service consultations, and consultations with 
another Federal agency) or the third parties are not considered small 
entities (consultations with the ADOT and the Tribes). Please refer to 
the 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 by the designation of critical 
habitat. 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 the 
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 the potential impacts to entities not directly regulated, such 
as small businesses. However, Executive Orders 12866 and 13563 direct 
Federal agencies to assess cost 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 not likely to involve a third 
party or the third parties are not considered small entities. For the 
above reasons and based on currently available information, we certify 
that, if promulgated, the proposed critical habitat designations would 
not have a significant economic impact on a substantial number of small 
business entities. Therefore, an initial regulatory flexibility 
analysis is not required.

Government-to-Government Relations With Native American Tribal 
Governments'' (59 FR 22951)

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    Please see our statement under this required determination in our 
October 3, 2012, proposed rule (77 FR 60565-60566) for information 
regarding the Tribal lands included in the proposed critical habitat 
designation for the acu[ntilde]a cactus and Fickeisen plains cactus. 
Since the publication of that proposed rule, we sent the Chairmen of 
the Navajo and Tohono O'odham Nations letters of notification on 
October 31, 2012. In addition, we had a meeting with Tohono O'odham 
Nation staff in February 2013, to discuss the proposed designations.

Authors

    The primary authors of this notice are the staff members of the 
Arizona

[[Page 18943]]

Ecological Services Field Office, Region 2, 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. 2013-07159 Filed 3-27-13; 8:45 am]
BILLING CODE 4310-55-P