[Federal Register Volume 78, Number 90 (Thursday, May 9, 2013)]
[Proposed Rules]
[Pages 27171-27177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10990]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2012-0031; FWS-R4-ES-2013-0007; 4500030113]
RIN 1018-AX73; 1018-AZ30


Endangered and Threatened Wildlife and Plants; Proposed 
Endangered Status for the Neosho Mucket, Threatened Status for the 
Rabbitsfoot, and Designation of Critical Habitat for Both Species

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, announce the reopening 
of the public comment period on our October 16, 2012, proposed listing 
and designation of critical habitat for the Neosho mucket (Lampsilis 
rafinesqueana) and rabbitsfoot (Quadrula cylindrica cylindrica) mussels 
under the Endangered Species Act of 1973, as amended (Act). We also 
announce the availability of a draft economic analysis (DEA) and draft 
environmental assessment of the proposed designation of critical 
habitat 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 revised proposed rule, the 
associated DEA and draft environmental assessment, and the amended 
required determinations section. Comments previously submitted need not 
be resubmitted, as they will be fully considered in preparation of the 
final rules.

DATES: We will consider all comments received or postmarked on or 
before June 10, 2013. Comments submitted electronically using the 
Federal eRulemaking Portal (see ADDRESSES, 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 
rule on the Internet at http://www.regulations.gov at Docket No. FWS-
R4-ES-2012-0031 or by mail from the Arkansas Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT). You may obtain a copy of 
the draft economic analysis and the draft environmental assessment at 
Docket No. FWS-R4-ES-2013-0007.
    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-R4-ES-2012-0031, and submit comments on the critical habitat 
proposal and associated draft economic analysis and draft environmental 
assessment to Docket No. FWS-R4-ES-2013-0007. See SUPPLEMENTARY 
INFORMATION for an explanation of the two dockets.
    (2) By hard copy: Submit comments on the listing proposal by U.S. 
mail or hand-delivery to: Public Comments

[[Page 27172]]

Processing, Attn: FWS-R4-ES-2012-0031; 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, draft economic analysis, and draft 
environmental assessment by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R4-ES-2013-0007; 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: Jim Boggs, Field Supervisor, U.S. Fish 
and Wildlife Service, Arkansas Ecological Services Field Office, 110 
South Amity Road, Suite 300, Conway, AR 72032; by telephone 501-513-
4475; or by facsimile 501-513-4480. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed listing determination and 
proposed critical habitat designation for the Neosho mucket (Lampsilis 
rafinesqueana) and rabbitsfoot (Quadrula cylindrica cylindrica) mussels 
that was published in the Federal Register on October 16, 2012 (77 FR 
63440), our draft economic analysis (DEA) and draft environmental 
assessment of the proposed designation, and the amended required 
determinations provided in this document. 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 the 
Neosho mucket and rabbitsfoot mussels. The final listing rule will 
publish under the existing Docket No. FWS-R4-ES-2012-0031 and the final 
critical habitat designation will publish under Docket No. FWS-R4-ES-
2013-0007.
    We request that you provide comments specifically on our listing 
determination under Docket No. FWS-R4-ES-2012-0031.
    We request that you provide comments specifically on the critical 
habitat determination and related draft economic analysis and draft 
environmental assessment under Docket No. FWS-R4-ES-2013-0007. We are 
particularly interested in comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to these species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat is not 
prudent.
    (2) Specific information on:
    (a) The amount and distribution of each species' habitat;
    (b) What areas occupied by the species at the time of listing that 
contain features essential for the conservation of these species we 
should include in the designation and why; and
    (c) 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 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 draft environmental 
assessment, 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 (77 
FR 63440) during the initial comment period from October 16, 2012, to 
December 17, 2012, please do not resubmit them. We have incorporated 
them into the public record as part of the comment period, and we will 
fully consider them in the preparation of our final determination. Our 
final determination concerning critical habitat will take into 
consideration all written comments and any additional information we 
receive during 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, DEA, or draft environmental assessment 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 in preparing the proposed rule, draft economic 
analysis, and draft environmental assessment will be available for 
public inspection on http://www.regulations.gov at Docket No. FWS-R4-
ES-2012-0031 and Docket No. FWS-R4-ES-2013-0007, or by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service, 
Arkansas Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT). You may obtain copies of the proposed rule, the DEA, and the 
draft environmental assessment on the Internet at http://www.regulations.gov at Docket No. FWS-R4-ES-2012-0031 and Docket No. 
FWS-R4-ES-2013-0007, or by mail from the Arkansas Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the proposed designation of critical habitat for the Neosho mucket and 
rabbitsfoot in this document. For more information on the two mussels, 
their fish hosts, or their habitats, or more information than we 
provide below concerning previous

[[Page 27173]]

Federal actions for these mussels, refer to the proposed listing 
determination and proposed designation of critical habitat published in 
the Federal Register on October 16, 2012 (77 FR 63440), which is 
available online at http://www.regulations.gov (at Docket No. FWS-R4-
ES-2012-0031 or Docket No. FWS-R4-ES-2013-0007) or from the Arkansas 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

    On October 16, 2012, we published a proposed rule to list the 
Neosho mucket (Lampsilis rafinesqueana) as an endangered species and 
the rabbitsfoot (Quadrula cylindrica cylindrica) mussel as a threatened 
species under the Act and to designate critical habitat for these two 
mussels (77 FR 63440). We proposed to designate approximately 779.1 
river kilometers (rkm) (484.1 river miles (rmi)) of critical habitat 
for the Neosho mucket in the Cottonwood, Elk, Fall, Illinois, Neosho, 
Shoal, Spring, North Fork Spring, and Verdigris Rivers in Arkansas, 
Kansas, Missouri, and Oklahoma. The proposed critical habitat for the 
Neosho mucket is located in:
     Benton and Washington Counties, Arkansas;
     Allen, Chase, Cherokee, Coffey, Elk, Greenwood, Labette, 
Montgomery, Neosho, Wilson, and Woodson Counties, Kansas;
     Jasper, Lawrence, McDonald, and Newton Counties, Missouri; 
and
     Adair, Cherokee, and Delaware Counties, Oklahoma.
    We proposed to designate 2,664 rkm (1,655 rmi) (as amended in this 
document; see Changes from the Proposed Rule, below) of critical 
habitat for the rabbitsfoot in the Neosho, Spring (Arkansas River 
system), Verdigris, Black, Buffalo, Little, Ouachita, Saline, Middle 
Fork Little Red, Spring (White River system), South Fork Spring, 
Strawberry, White, St. Francis, Big Sunflower, Big Black, Paint Rock, 
Duck, Tennessee, Red, Ohio, Allegheny, Green, Tippecanoe, Walhonding, 
Middle Branch North Fork Vermilion, and North Fork Vermilion Rivers and 
Bear, French, Muddy, Little Darby and Fish Creeks in Alabama, Arkansas, 
Kansas, Kentucky, Illinois, Indiana, Mississippi, Missouri, Ohio, 
Oklahoma, Pennsylvania, and Tennessee. The proposed critical habitat 
for the rabbitsfoot is located in:
     Colbert, Jackson, Madison, and Marshall Counties, Alabama;
     Arkansas, Ashley, Bradley, Clark, Cleveland, Dallas, Drew, 
Fulton, Grant, Hot Spring, Independence, Izard, Jackson, Lawrence, 
Little River, Marion, Monroe, Montgomery, Newton, Ouachita, Randolph, 
Saline, Searcy, Sevier, Sharp, Van Buren, White, and Woodruff Counties, 
Arkansas;
     Allen and Cherokee Counties, Kansas;
     Ballard, Green, Hart, Livingston, Logan, Marshall, and 
McCracken Counties, Kentucky;
     Massac, Pulaski, and Vermilion Counties, Illinois;
     Carroll, Pulaski, Tippecanoe, and White Counties, Indiana;
     Hinds, Sunflower, Toshimingo, and Warren Counties, 
Mississippi;
     Jasper, Madison, and Wayne Counties, Missouri;
     Coshocton, Madison, Union, and Williams Counties, Ohio;
     McCurtain and Rogers Counties, Oklahoma;
     Crawford, Erie, Mercer, and Venango Counties, 
Pennsylvania; and
     Hardin, Hickman, Marshall, Maury, and Robertson Counties, 
Tennessee.
    That proposal had a 60-day comment period, ending December 17, 
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.

Changes From the Proposed Rule

    We are changing the proposed rule of October 16, 2012 (77 FR 63440) 
to revise the total number of river kilometers (km) for the proposed 
designation of rabbitsfoot critical habitat. However, the beginning and 
ending points of the proposed critical habitat designation, as well as 
the unit descriptions (as described in the proposed critical habitat 
rule), remain the same.
    The change in mapping was necessary due to an oversight in methods 
used for estimating the unit length in proposed critical habitat Unit 
RF7. The new methodology uses a better technique for following the 
curve and meander of the river channel, which results in an additional 
1.4 river kilometers (rkm) (0.9 river mile (rmi)) of proposed critical 
habitat. An additional change in mapping, for Unit RF5, resulted from a 
mapping error. A short segment in the middle of Unit RF5 was not 
included; the addition of this segment added 0.8 rkm (0.5 rmi) to Unit 
RF5 and resulted in a corresponding increase to the private ownership 
river miles adjacent to Units RF5 and RF7.
    The following table shows the revised number of river kilometers 
(rkm) and river miles (rmi) and ownership of adjacent riparian lands 
for the proposed designation of critical habitat for rabbitsfoot in 
Units RF5 and RF7. The data in this table replace the data provided in 
Table 5 of the proposed rule at 77 FR 63440 (October 16, 2012).

----------------------------------------------------------------------------------------------------------------
                                                                                                      Tribal*
                                                   Federal rkm;    State & local   Private rkm;     (subset of
             Critical habitat units                     rmi         government          rmi        private) rkm;
                                                                     rkm; rmi                           rmi
----------------------------------------------------------------------------------------------------------------
                                                   Rabbitsfoot
----------------------------------------------------------------------------------------------------------------
Unit RF5: Saline River..........................               0      22.3; 13.9    266.8; 165.8               0
                                                 ---------------------------------------------------------------
Unit RF7: Middle Fork Little Red River..........               0               0      24.7; 15.4               0
                                                 ---------------------------------------------------------------
    Total rabbitsfoot...........................    328.1; 203.9     137.9; 85.7        2,197.5;      86.9; 54.0
                                                                                         1,365.3
                                                 ---------------------------------------------------------------
        Total for both species..................    357.6; 222.2     147.7; 91.8        2,937.3;    189.9; 118.0
                                                                                         1,825.3
----------------------------------------------------------------------------------------------------------------


[[Page 27174]]

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 an area would receive from 
consultation regarding 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 features that are essential to 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. In the case of 
these two mussels, the benefits of critical habitat include public 
awareness of the presence of the mussels and the importance of habitat 
protection, and, where a Federal nexus exists, increased habitat 
protection for the two mussels 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, funded, or permitted 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 and commercial data available at the time 
of the final designation, including information obtained during the 
comment period and information about the economic impact of the 
designation. Accordingly, our DEA concerning the proposed critical 
habitat designation is available for review and comment (see 
ADDRESSES).

Draft Economic Analysis

    The purpose of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed critical habitat 
designation for the Neosho mucket and rabbitsfoot. 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 two 
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.
    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. (See 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. 
(See 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 DEA, 
but economic impacts associated with these measures are not quantified. 
Economic impacts are only quantified for conservation measures 
implemented specifically due to the designation of critical habitat 
(i.e., incremental impacts). For a further description of the 
methodology of the analysis, see Chapter 2, ``FRAMEWORK FOR THE 
ANALYSIS'' of the DEA.
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for the 
two 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 conservation efforts for the two mussels associated with the 
following categories of activity: (1) Water management; (2) timber 
management, agriculture, and grazing; (3) mining; (4) oil and gas 
development; (5) transportation (roads, highways, bridges) and 
utilities; (6) development; and (7) recreation.
    The DEA concluded that the types of conservation efforts requested 
by the Service during section 7 consultation regarding the two mussels 
were not expected to change due to critical habitat designation. The 
Service believes that results of consultation under the adverse 
modification and jeopardy standards are likely to be similar because 
the ability of these species to exist is very closely tied to the 
quality of their habitats, and significant alterations of their 
occupied habitat that could result in adverse modification would also 
result in jeopardy to the species.
    The DEA concludes that incremental impacts of critical habitat 
designation are limited to additional administrative costs of 
consultations and that indirect incremental impacts are unlikely to 
result from the designation of critical habitat for the two mussels. 
The present value of the total direct (administrative) incremental cost 
of critical habitat designation is $4,400,000 over the next 20 years 
assuming a 7 percent discount rate, or $290,000 on an annualized basis. 
Transportation and utility

[[Page 27175]]

activities are likely to be subject to the greatest incremental impacts 
at $1,400,000 over the next 20 years, followed by timber, agriculture, 
and grazing at $960,000; development at $760,000; other (animal and 
biological control, prescribed burns, land clearing, bank 
stabilization, habitat or shoreline restoration) at $530,000; oil and 
gas development at $320,000; water flow management at $190,000; water 
quality management at $120,000; and mining at $71,000.
    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 this species.

Draft Environmental Assessment

    The purpose of an environmental assessment is to identify and 
disclose the environmental consequences associated with the proposed 
critical habitat designation for the Neosho mucket and rabbitsfoot in 
compliance with the National Environmental Policy Act (NEPA; 42 U.S.C. 
4321 et seq.). We evaluated a variety of issues related to the human 
environment that could potentially be affected by the designation of 
critical habitat for the two mussels, including conservation of the 
Neosho mucket and rabbitsfoot, water resources, energy development and 
production, socioeconomic conditions and environmental justice, and 
cumulative effects. Our draft environmental assessment concerning the 
proposed critical habitat designation is available for review and 
comment (see ADDRESSES).

Required Determinations--Amended

    In our October 12, 2011, proposed rule (76 FR 63360), 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 Orders (E.O.s) 12866 and 13563 (Regulatory Planning and 
Review), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), 
E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded 
Mandates Reform Act (2 U.S.C. 1501 et seq.), and the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). However, based on the 
DEA data, we are amending our required determinations concerning the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), E.O. 12630 
(Takings), 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).

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Based on our DEA of the proposed designation, 
we provide our analysis for determining whether the proposed rule would 
result in a significant economic impact on a substantial number of 
small entities. Based on comments we receive, we may revise this 
determination as part of our final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine 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 two mussels would affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities, such as water management, timber 
management, agriculture and grazing, mining, oil and gas development, 
transportation and utilities, and development and recreation. 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 these species, in the areas where they are present Federal agencies 
will already 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 will 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 two mussels. We 
anticipate that 11 small entities could be affected by water flow 
management consultations in a single year at a cost of $410 each, 
representing less than 0.007 percent of annual revenues. Eleven small 
entities could be affected by water quality management consultations 
within a single year at a cost of $340 each, representing less than 1 
percent of annual revenues. Forty-one small

[[Page 27176]]

entities could be affected by timber, agriculture, and grazing 
consultations within a single year, at a cost of $470, representing 
less than 0.028 percent of annual revenues. Four small entities could 
be affected by mining consultations within a single year, at a cost of 
$430, representing less than 0.005 percent of annual revenues. Fourteen 
small entities could be affected by oil and gas development 
consultations within a single year, at a cost of $460, representing 
less than 0.006 percent of annual revenues. Forty-three small entities 
could be affected by development and recreation consultations within a 
single year, at a cost of $410, representing less than 0.007 percent of 
annual revenues. Sixty-eight small entities could be affected by 
transportation and utility consultations within a single year, at a 
cost of $450, representing 0.005 percent of annual revenues. Thirty-
five small entities could be affected by other consultations within a 
single year, at a cost of $400, representing 0.005 percent of annual 
revenues. Please refer to the DEA of the proposed critical habitat 
designation for a more detailed discussion of potential economic 
impacts.
    The Service's current understanding of 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 have 
identified 227 small entities that may be impacted by the proposed 
critical habitat designation in a single year. 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, as is the case with the Neosho mucket and 
rabbitsfoot, 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. Accordingly, we have completed a draft environmental 
assessment to identify and disclose the environmental consequences 
resulting from the proposed designation of critical habitat for the 
Neosho mucket and rabbitsfoot. Our preliminary determination is that 
the designation of critical habitat for the Neosho mucket and 
rabbitsfoot would not have direct impacts on the environment. However, 
we will further evaluate this issue as we complete our final 
environmental assessment.

E.O. 12630 (Takings)

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the Neosho mucket and rabbitsfoot in a takings implications 
assessment. As discussed above, the designation of critical habitat 
affects only Federal actions. Although private parties that receive 
Federal funding, assistance, or require approval or authorization from 
a Federal agency for an action may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency. The DEA found that no significant economic 
impacts are likely to result from the designation of critical habitat 
for the Neosho mucket and rabbitsfoot. Because the Act's critical 
habitat protection requirements apply only to Federal agency actions, 
few conflicts between critical habitat and private property rights 
should result from this designation. Based on information contained in 
the DEA and described within this document, it is not likely that 
economic impacts to a property owner would be of a sufficient magnitude 
to support a takings action. Therefore, the takings implications 
assessment concludes that this designation of critical habitat for the 
Neosho mucket and rabbitsfoot does not pose significant takings 
implications for lands within or affected by the designation.

Government-to-Government Relationship With Tribes

    Potentially affected Tribes include: the Osage Nation, Cherokee 
Nation, United Keetowah Band of Cherokee Indians, Choctaw Nation, 
Delaware Tribe of Indians, and Peoria Tribe. On April 19, 2011, we 
notified the United Keetowah Band of Cherokee Indians and Delaware 
Tribe of Indians via email regarding tribal lands potentially affected 
by our proposal to list Neosho mucket and rabbitsfoot and to designate 
critical habitat for each species. The Peoria Tribe and Osage Nation 
also were notified via email on February 15, 2011, and we then followed 
up with subsequent email correspondence. The Cherokee Nation and 
Choctaw Nation were notified via email on April 20 and 21, 2011, 
respectively, via email and telephone. Lands proposed to be designated 
as critical habitat do not represent riparian land ownership by any 
Tribe, represent only tribal

[[Page 27177]]

jurisdictional areas, are not managed by any Tribe, and are on 
otherwise privately owned lands. We considered the Tribes' comments, 
which were limited to providing tribal land and jurisdictional area 
maps and biological data for the two mussels, during preparation of the 
proposed rule.

Authors

    The primary authors of this notice are the staff members of the 
Arkansas Ecological Services Field Office and the Southeast Region, 
U.S. Fish and Wildlife Service (see ADDRESSES).

Authority

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

    Dated: May 1, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-10990 Filed 5-8-13; 8:45 am]
BILLING CODE 4310-55-P