[Federal Register Volume 78, Number 138 (Thursday, July 18, 2013)]
[Proposed Rules]
[Pages 42921-42927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-17205]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2012-0103; 4500030114]
RIN 1018-AY71
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Northwest Atlantic Ocean Distinct Population
Segment of the Loggerhead Sea Turtle (Caretta caretta)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period; announcement of
public hearing; and availability of draft economic analysis.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS),
announce the reopening of the comment period on the March 25, 2013,
proposed rule to designate specific areas in the terrestrial
environment as critical habitat for the Northwest Atlantic Ocean
Distinct Population Segment (DPS) of the Loggerhead Sea Turtle (Caretta
caretta) under the Endangered Species Act of 1973, as amended (Act). We
also announce the availability of a draft economic analysis (DEA) of
the proposed designation of critical habitat and an amended required
determinations section of the proposal. We also announce that, based on
a reevaluation of the applicable Habitat Conservation Plan, we are
removing Unit LOGG-T-FL-04 from consideration for exclusion from
critical habitat. We are reopening the comment period to allow all
interested parties an opportunity to comment simultaneously on the
proposed rule, the associated DEA, and the amended required
determinations section. Comments previously submitted need not be
resubmitted, as they will be fully considered in preparation of the
final rule.
DATES: The comment period for the proposed rule published March 25,
2013, at 78 FR 18000, is reopened. We will consider comments received
or postmarked by September 16, 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 decision on this action.
Public informational sessions and public hearings: We will hold
three public informational sessions and public hearings on this
proposed rule. We will hold a public informational session from 5:30
p.m. to 6:30 p.m.,
[[Page 42922]]
followed by a public hearing from 7 p.m. to 9 p.m., in Charleston,
South Carolina on Tuesday, August 6 (see ADDRESSES). We will hold a
public informational session from 5:30 p.m. to 6:30 p.m., followed by a
public hearing from 7 p.m. to 9 p.m., in Wilmington, North Carolina on
Wednesday, August 7 (see ADDRESSES). We will hold a public
informational session from 5:30 p.m. to 6:30 p.m., followed by a public
hearing from 7 p.m. to 9 p.m., in Morehead City, North Carolina on
Thursday, August 8 (see ADDRESSES). Registration to present oral
comments on the proposed rule at the public hearings will begin at the
start of each informational session.
ADDRESSES: You may submit written comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for FWS-R4-ES-2012-0103, which is the
docket number for this rulemaking.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R4-ES-2012-0103; 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).
Document Availability: You may obtain copies of the proposed rule
and draft economic analysis on the internet at http://www.regulations.gov at Docket No. FWS-R4-ES-2012-0103 or at http://www.fws.gov/northflorida, or by mail from the North Florida Ecological
Services Office (see FOR FURTHER INFORMATION CONTACT).
Public informational sessions and public hearings: The August 6,
2013, public informational session and hearing will be held at the
South Carolina Department of Natural Resources, Marine Resources
Research Institute Auditorium, 217 Ft. Johnson Road, Charleston, SC
29412. The August 7, 2013, public informational session and hearing
will be held at the University of North Carolina--Wilmington, Warwick
Center, Ballroom 5, 629 Hamilton Drive, Wilmington, NC 28403. The
August 8, 2013, public informational session and hearing will be held
at the Crystal Coast Civic Center, 3505 Arendell Street, Morehead City,
NC 28557. People needing reasonable accommodations in order to attend
and participate should contact Chuck Underwood, External Affairs
Specialist, North Florida Ecological Services Office, as soon as
possible (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Dawn P. Jennings, Acting Field
Supervisor, U.S. Fish and Wildlife Service, North Florida Ecological
Services Office, 7915 Baymeadows Way, Suite 200, Jacksonville, FL
32256; by telephone 904-731-3336; or by facsimile 904-731-3045. People
needing reasonable accommodations in order to attend and participate in
the public informational sessions and hearings should contact Chuck
Underwood, External Affairs Specialist, North Florida Ecological
Services Office; by telephone 904-731-3336; or by email [email protected]. 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 designation of critical habitat
in the terrestrial environment for the Northwest Atlantic Distinct
Population Segment (DPS) of the loggerhead sea turtle that we published
in the Federal Register on March 25, 2013 (78 FR 18000), our DEA of the
proposed designation, and the amended required determinations provided
in this document. We will consider information and recommendations from
all interested parties. We are particularly interested in comments
concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act, 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.
(2) Specific information on:
(a) The distribution of the loggerhead sea turtle;
(b) The amount and distribution of loggerhead sea turtle habitat;
and
(c) Which areas, occupied by the species at the time of listing (or
currently occupied), that contain features essential for the
conservation of the species we should include in the designation and
why,
(d) What areas not occupied at the time of listing are essential to
the conservation of the 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) Whether any of the exemptions we are considering, under section
4(a)(3)(B) of the Act, of land on Department of Defense property at
Marine Corps Base Camp Lejeune (Onslow Beach), Cape Canaveral Air Force
Station, Patrick Air Force Base, and Eglin Air Force Base (Cape San
Blas) are or are not appropriate, and why.
(5) 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.
(6) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
(7) Information on the extent to which the description of economic
impacts in the DEA is complete and accurate.
(8) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the DEA, and how the consequences
of such reactions, if likely to occur, would relate to the conservation
and regulatory benefits of the proposed critical habitat designation.
(9) Special management considerations or protection that may be
needed for the nesting beach habitat in critical habitat areas we are
proposing, including managing for the potential effects of climate
change.
(10) Information on the projected and reasonably likely impacts of
climate change on the loggerhead sea turtle and proposed terrestrial
critical habitat.
(11) Whether any of the areas we are considering for exclusion
under section 4(b)(2) of the Act in St. Johns, Volusia, and Indian
River Counties, Florida, because they are covered by an HCP that
incorporates measures that provide a benefit for the conservation of
the loggerhead sea turtle, are or are not appropriate, and why. The St.
Johns County, Florida, Habitat Conservation Plan (``A Plan for the
Protection of Sea Turtles and Anastasia Island Beach Mice on the
Beaches of St. Johns County, Florida'') is available at http://
www.co.st-johns.fl.us/HCP/
[[Page 42923]]
HabitatConservation.aspx, the Volusia County, Florida, Habitat
Conservation Plan (``A Plan for the Protection of Sea Turtles on the
Beaches of Volusia County, Florida'') is available at http://www.volusia.org/core/fileparse.php/4145/urlt/VolusiaHCPDec2007small2.pdf, and the Indian River County, Florida,
Habitat Conservation Plan (``Habitat Conservation Plan for the
Protection of Sea Turtles on the Eroding Beaches of Indian River
County, Florida'') is available at http://www.ecological-associates.com/IRC-Final-HCP-July-2003.pdf.
(12) Whether any other 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.
If you submitted comments or information on the proposed rule (78
FR 18000) during the initial comment period from March 25, 2013, to May
24, 2013, please do not resubmit them. We will incorporate them into
the public record as part of this comment period, and we will fully
consider them in the preparation of our final 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 or DEA by one of the methods listed in the ADDRESSES section. We
request that you send comments only by the methods described in the
ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule and the DEA, will
be available for public inspection at http://www.regulations.gov at
Docket No. FWS-R4-ES-2012-0103, or by appointment, during normal
business hours, at the U.S. Fish and Wildlife Service, North Florida
Ecological Services Office (see FOR FURTHER INFORMATION CONTACT). You
may obtain copies of the proposed rule and the DEA on the Internet at
http://www.regulations.gov at Docket No. FWS-R4-ES-2012-0103, or by
mail from the North Florida Ecological Services Office (see FOR FURTHER
INFORMATION CONTACT).
Background
For more information on the Northwest Atlantic Ocean DPS of the
loggerhead sea turtle, its habitat, or previous Federal actions, refer
to the proposed designation of critical habitat published in the
Federal Register on March 25, 2013 (78 FR 18000), which is available
online at http://www.regulations.gov (at Docket No. FWS-R4-ES-2012-
0103) or the final listing rule published in the Federal Register on
September 22, 2011 (76 FR 58868), which is available online at http://www.regulations.gov (at Docket Number 100104003-1068-02). Both
documents are available from the North Florida Ecological Services
Office (see FOR FURTHER INFORMATION CONTACT).
Previous Federal Actions
The proposed rule to designate areas in the terrestrial environment
as critical habitat for the Northwest Atlantic Ocean DPS of the
loggerhead sea turtle was published in the Federal Register on March
25, 2013 (78 FR 18000), with a 60-day comment period ending May 24,
2013.
On May 10, 2013, the U.S. District Court of the Northern District
of California approved a settlement agreement between USFWS and NMFS
and the Center for Biological Diversity that stipulates: (1) On or
before July 1, 2013, NMFS will complete a determination concerning the
designation of marine critical habitat for the Northwest Atlantic Ocean
DPS of the loggerhead sea turtle and submit it to the Federal Register
for publication; (2) on or before July 1, 2014, USFWS will complete a
final determination concerning the designation of terrestrial critical
habitat for the Northwest Atlantic Ocean DPS of the loggerhead sea
turtle and submit it to the Federal Register for publication; and (3)
on or before July 1, 2014, NMFS will complete a final determination
concerning the designation of marine critical habitat for the Northwest
Atlantic Ocean DPS of the loggerhead sea turtle and submit it to the
Federal Register for publication.
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 March 25, 2013,
proposed rule is made final, section 7 of the Act will prohibit
destruction or adverse modification of the designated 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. The Secretary may exclude an area from
critical habitat if he determines 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. In the case of
the Northwest Atlantic Ocean DPS of the loggerhead sea turtle,
[[Page 42924]]
the benefits of critical habitat include public awareness of the
presence of the species and the importance of habitat protection, and,
where a Federal nexus exists, increased habitat protection for the
species due to protection from adverse modification or destruction of
critical habitat. In practice, situations with a Federal nexus exist
primarily on Federal lands or for permits issued by or for projects
undertaken by Federal agencies.
As discussed in the proposed rule, we are considering whether to
exclude areas in St. Johns, Volusia, and Indian River counties,
Florida, that are covered under habitat conservation plans (HCP),
because the HCPs incorporate measures that provide a benefit for the
conservation of the loggerhead sea turtle. In the proposed rule, areas
being considered for exclusion include areas within Units LOGG-T-FL-01,
LOGG-T-FL-02, and LOGG-T-FL-03 that are covered under the St. Johns
County HCP; areas within Units LOGG-T-FL-04 and LOGG-T-FL-05 that are
covered under the Volusia County HCP; and areas within Unit LOGG-T-FL-
10 that are covered under the Indian River County HCP. Subsequent
evaluation of the Volusia County HCP indicates that, although Unit
LOGG-T-FL-04 is within the HCP's defined area, the only portion of this
critical habitat unit that occurs in Volusia County is the North
Peninsula State Park, over which Volusia County has no jurisdiction.
The HCP covers only incidental take associated with County emergency
vehicles accessing the North Peninsula State Park beaches and does not
contain any specific conservation measures for the loggerhead sea
turtle within the park. Therefore, we announce that we are no longer
considering Unit LOGG-T-FL-04 for exclusion from critical habitat
designation under section 4(b)(2) of the Act. We also have received
comments on the proposed rule requesting that we exclude other areas
based on economic or other concerns. We will evaluate these additional
exclusion requests during our development of a final designation.
Draft Economic Analysis
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 periods
and information about the economic impact of designation. Accordingly,
we have prepared a DEA concerning the proposed critical habitat
designation, which is available for review and comment at http://www.regulations.gov at Docket No. FWS-R4-ES-2012-0103 (see ADDRESSES
section). The DEA analyzes economic impacts from the proposed critical
habitat designation, published in the Federal Register March 25, 2013
(78 FR 18000).
The purpose of the DEA is to identify and analyze the potential
economic impacts associated with the proposed terrestrial critical
habitat designation for the Northwest Atlantic Ocean DPS of the
loggerhead sea turtle. 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 loggerhead (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 the loggerhead.
In other words, these incremental conservation measures and associated
economic impacts would not occur but for the designation. Conservation
measures implemented under the baseline (without critical habitat)
scenario are described qualitatively within the DEA, but economic
impacts associated with these measures are not quantified. Economic
impacts are only quantified for conservation measures implemented
specifically due to the designation of critical habitat (i.e.,
incremental impacts). For a further description of the methodology of
the analysis, see Chapter 2 ``Framework of the Analysis'' of the DEA.
The DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed critical habitat designation for the
Northwest Atlantic Ocean DPS of the loggerhead sea turtle over the next
10 years (2014 to 2023). This was determined to be an appropriate
period for analysis because limited planning information is available
for most economic activities in the area beyond a 10-year timeframe. It
identifies potential incremental costs due to the proposed critical
habitat designation; these are those costs attributable to critical
habitat that are in addition to the baseline costs attributable to
listing and other regulatory protections for the species.
The DEA quantifies economic impacts of loggerhead conservation
efforts associated with the following categories of activity: (1)
Species and habitat management, (2) in-water and coastal construction,
(3) sand placement, (4) recreation, (5) lighting management, (6)
disaster response, and (7) oil and gas activities. The DEA considers
both economic efficiency and distributional effects that may result
from efforts to protect the loggerhead and its habitat. Economic
efficiency effects generally reflect ``opportunity costs'' associated
with the commitment of resources required to accomplish species and
habitat conservation. The DEA also addresses how potential economic
impacts are likely to be distributed.
The DEA concludes that incremental impacts resulting from the
critical habitat designation are limited to additional administrative
costs of section 7 consultation. The primary source of uncertainty
associated with the incremental effects analysis is that the actual
rate and locations of future projects is unknown. The analysis does not
identify any future projects beyond those covered by existing baseline
projections. As a result, the analysis does not forecast incremental
impacts due to conservation measures being implemented as a result of
the designation of critical habitat.
The DEA estimates total potential incremental economic impacts in
areas proposed as critical habitat over the next 10 years (2014 to
2023) to be approximately $1,200,000 ($150,000 annualized) in present-
value terms applying a 7 percent discount rate. Administrative costs
associated with section 7 consultations are distributed as follows: in-
water and coastal construction is greatest (46 percent--$530,000),
followed by sand placement (18 percent--$210,000), species and habitat
management (17 percent--$200,000), recreation (10 percent--$120,000),
disaster response (5 percent--$53,000), lighting management (3
percent--$32,000), and oil and gas activities (1 percent--$6,600). In
areas being considered for exclusion, quantified impacts to in-water
and coastal construction are greatest (54 percent--$68,000), followed
by species and habitat management (24 percent--$30,000), recreation (16
percent--$21,000), disaster response (4 percent--$4,900), and sand
placement (2 percent--$2,500), with minor quantified impacts expected
for lighting management ($370) and oil and gas activities ($140).
The incremental costs described above are further broken down by
location of expected incremental costs within the proposed critical
habitat units. The greatest incremental impacts are due to the cost of
section 7 consultations forecast to occur for activities within LOGG-T-
AL-01 (approximately $86,000), comprising approximately seven percent
of the overall incremental impacts. The second
[[Page 42925]]
largest incremental impacts are predicted to occur within LOGG-T-FL-40
(approximately $83,000), also comprising approximately seven percent of
the overall incremental impacts. Overall, however, quantified impacts
in 58 of the proposed critical habitat units are expected to be under
$10,000.
The critical habitat units with the greatest level of
administrative costs for section 7 consultations by activity are as
follows: species and habitat management (LOGG-T-AL-01), in-water and
coastal construction (LOGG-T-FL-40), sand placement (LOGG-T-SC-01),
recreation (LOGG-T-FL-07), lighting management (LOGG-T-FL-07), disaster
response (equally distributed across all units), and oil and gas
activities (LOGG-T-MS-01 and 02; LOGG-T-AL-01 and 02).
As stated earlier, we are soliciting data and comments from the
public on the DEA, as well as on 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 March 25, 2013, proposed rule (78 FR 18000), we indicated
that we would defer our determination of compliance with several
statutes and executive orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the DEA. We have now
made use of the DEA data to make these determinations. In this
document, we affirm the information in our proposed rule concerning
Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice
Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National
Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's
memorandum of April 29, 1994, ``Government-to-Government Relations with
Native American Tribal Governments'' (59 FR 22951). However, based on
the DEA data, we are amending our required determination concerning the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities. Based on our DEA of the proposed designation,
we provide our analysis for determining whether the proposed rule would
result in a significant economic impact on a substantial number of
small entities. Based on comments we receive, we may revise this
determination as part of our final 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.
Of the seven categories of key activities (species and habitat
management, in-water and coastal construction, sand placement,
recreation, lighting management, disaster response, and oil and gas
activities) identified in the DEA as those that may have an adverse
impact on the physical and biological features of loggerhead
terrestrial critical habitat, small entities are not anticipated to
incur incremental costs associated with disaster response or oil and
gas activities. This is due to the fact that the forecasted section 7
consultations concerning these activities are expected to involve only
USFWS and Federal agencies (Federal Emergency Management Agency and
Bureau of Ocean Energy Management). The DEA also describes impacts
associated with species and habitat management, in-water and coastal
development, sand placement, recreation, and lighting management. While
we expect that future section 7 consultations concerning these
activities will primarily involve USFWS and Federal agencies, the
potential exists for third parties to be involved in consultations.
Specifically, for species and habitat management, sand placement,
recreation, and lighting management, counties may be involved in future
section 7 consultations. For in-water and coastal development,
businesses may be involved in future section 7 consultations.
Therefore, the DEA presents information on small governmental
jurisdictions (counties) and small businesses that may be involved in
the forecast consultations for these activities.
To determine if the proposed designation of terrestrial critical
habitat for the loggerhead would affect a substantial number of small
entities, we considered the number of small entities affected within
the categories of activities identified above. 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 loggerhead is
present, Federal agencies already are required to consult with us
[[Page 42926]]
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.
Of the county governments potentially involved in future section 7
consultation on species and habitat management, lighting management,
sand placement, and recreation, only one county is considered a small
government jurisdiction as defined in Section 601(5) of the RFA. With a
population of 15,844, Gulf County, Florida, is considered a small
governmental jurisdiction. The total potential annualized incremental
economic impact to Gulf County is $650 (seven percent discount rate),
which represents less than 0.01 percent of the county's reported
revenues in 2011. This impact is the total third party cost of
forecasted section 7 consultations on species and habitat management
(associated with the potential reinitiation of formal consultation on
the Gulf County draft HCP should it be approved prior to final
designation of terrestrial critical habitat), sand placement,
recreation, and lighting management, which are expected to occur in the
proposed critical habitat units located in Gulf County, Florida, as
described in Chapters 3, 5, and 6 of the DEA. We exclude costs
associated with programmatic consultations, as these are expected to
involve only USFWS and a Federal agency. Note that proposed critical
habitat unit LOGG-T-FL-41 contains areas in both Bay and Gulf Counties.
For purposes of this analysis, the DEA conservatively assumed that the
full third party costs associated with consultations in this unit are
incurred by Gulf County, which may result in an overestimate of costs.
In the DEA, we also evaluated the potential economic effects on
small entities resulting from participation in section 7 consultation.
Although we expect that Federal agencies are the only entities that
will be directly regulated as a result of designation of terrestrial
critical habitat for the loggerhead, we acknowledge that third party
proponents of an action subject to Federal permitting or funding may be
indirectly affected by critical habitat designation. The DEA,
therefore, uses information from Dun and Bradstreet databases to
determine the number of small businesses operating within potentially
affected industry sectors in each county containing proposed critical
habitat units and includes a brief evaluation of the potential number
of third party small business entities likely to be affected if this
critical habitat designation is finalized. 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 required to evaluate the potential impacts of
rulemaking only 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 has a regulatory effect
only 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. Within areas proposed for critical
habitat designation, the quantified annualized impacts to small
entities are estimated to be $15,000, or approximately 12 percent of
total quantified incremental impacts anticipated as a result of
designation of this proposed critical habitat. In areas being
considered for exclusion, the quantified annualized impacts to small
entities are estimated to be $1,800, or approximately 11 percent of
total quantified incremental impacts anticipated as a result of
designation of this proposed critical habitat. However, based on
comments we receive, we may revise this estimate as part of our final
rulemaking. For the above reasons and based on currently available
information, we certify that, if promulgated, the proposed critical
habitat designation would not have a significant economic impact on a
substantial number of small business entities. Therefore, an initial
regulatory flexibility analysis is not required.
E.O. 12630 (Takings)
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating terrestrial
critical habitat for the loggerhead 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 economic analysis found that no significant
economic impacts are likely to result from the designation of critical
habitat for loggerhead. Because the Act's critical habitat protection
requirements apply only to Federal agency actions, few conflicts
between critical habitat and private property rights should result from
this designation. Based on information contained in the economic
analysis assessment and described within this document, it is not
likely that economic impacts to a property owner would be of a
sufficient magnitude to support a takings action. Therefore, the
takings implications assessment concludes that this designation of
critical habitat for loggerhead does not pose significant takings
implications for lands within or affected by the designation.
Authors
The primary authors of this notice are the staff members of the
North Florida Ecological Services Office, Southeast Region, U.S. Fish
and Wildlife Service.
[[Page 42927]]
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: June 10, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-17205 Filed 7-17-13; 8:45 am]
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