[Federal Register Volume 79, Number 49 (Thursday, March 13, 2014)]
[Proposed Rules]
[Pages 14206-14211]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-05445]
[[Page 14206]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2013-0068; 4500030114]
RIN 1018-AY56
Endangered and Threatened Wildlife and Plants; Revision of
Critical Habitat for the Salt Creek Tiger Beetle
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on the June 4, 2013, proposed
revised designation of critical habitat for the Salt Creek tiger beetle
(Cicindela nevadica lincolniana) under the Endangered Species Act of
1973, as amended (Act). We also announce the availability of a draft
economic analysis (DEA) of the proposed designation of critical habitat
for the Salt Creek tiger beetle, a draft environmental assessment (EA),
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, the draft EA, and the amended required determinations
section. Comments previously submitted need not be resubmitted, as they
will be fully considered in preparation of the final rule.
DATES: We will consider comments received or postmarked on or before
March 28, 2014. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES section, below) must be received by
11:59 p.m. Eastern Time on the closing date.
ADDRESSES: Document availability: You may obtain copies of the proposed
rule and the associated documents of the draft economic analysis and
draft environmental assessment on the internet at http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0068, at http://www.fws.gov/mountain-prairie/species/invertebrates/saltcreektiger/, or
by mail from the Nebraska Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Comment submission: You may submit written comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the critical habitat proposal
and associated draft economic analysis and draft environmental
assessment by searching for FWS-R6-ES-2013-0068, which is the docket
number for this rulemaking.
(2) By hard copy: Submit comments on the critical habitat proposal
and associated draft economic analysis and draft environmental
assessment by U.S. mail or hand-delivery to: Public Comments
Processing, Attn: FWS-R6-ES-2013-0068; 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: Eliza Hines, Acting Field Supervisor,
U.S. Fish and Wildlife Service, Nebraska Ecological Services Field
Office, 203 West Second Street, Grand Island, NE 68801; by telephone
(308-382-6468), or by facsimile (308-384-8835). 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 revised designation of critical
habitat for the Salt Creek tiger beetle that was published in the
Federal Register on June 4, 2013 (78 FR 33282), our DEA of the proposed
designation, our draft environmental assessment, and the amended
required determinations provided in this document. We will consider
information and recommendations from all interested parties. We are
particularly interested in comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat is not
prudent.
(2) Specific information on:
(a) The distribution of the Salt Creek tiger beetle;
(b) The amount and distribution of Salt Creek tiger beetle habitat;
and
(c) What areas that were occupied at the time of listing (or are
currently occupied) and that contain features essential for the
conservation of the species should be included in the designation and
why;
(d) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change;
(e) What areas not occupied at the time of listing are essential
for the conservation of the species and why; and
(f) The amount of habitat needed to be occupied by Salt Creek tiger
beetles in order to recover the species.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the Salt Creek tiger beetle and proposed critical
habitat.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, the benefits of including or excluding
areas that exhibit these impacts.
(6) Information on the extent to which the description of economic
impacts in the draft economic analysis is a reasonable estimate of the
likely economic impacts and the description of the environmental
impacts in the draft environmental assessment is complete and accurate.
(7) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the associated documents of the
draft economic analysis, 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.
(8) Whether any 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.
(9) 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 (78
FR
[[Page 14207]]
33282) during the initial comment period from June 4, 2013, to August
5, 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 revised 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 EA 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, DEA, and draft
EA, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0068, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Nebraska Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT). You may obtain copies of the proposed
rule, the DEA, and the draft EA on the Internet at http://www.regulations.gov at Docket Number FWS-R6-ES-2013-0068, at http://www.fws.gov/mountain-prairie/species/invertebrates/saltcreektiger/, or
by mail from the Nebraska Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT section).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for the Salt Creek tiger beetle in
this document. For more information on previous Federal actions
concerning the Salt Creek tiger beetle, refer to the proposed revised
designation of critical habitat published in the Federal Register on
June 4, 2013 (FR 78 33282). For more information on the Salt Creek
tiger beetle or its habitat, refer to the final listing rule published
in the Federal Register on October 6, 2005 (70 FR 58335), which is
available online at http://www.fws.gov/mountain-prairie/species/invertebrates/saltcreektiger/ or from the Nebraska Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
Previous Federal Actions
We published a proposed rule to designate critical habitat for the
Salt Creek tiger beetle on December 12, 2007 (72 FR 70716). On April
28, 2009, we published a revised proposed rule to designate critical
habitat (74 FR 19167). A final rule designating approximately 1,933
acres (ac) (783 hectares (ha)) of critical habitat was published on
April 6, 2010 (75 FR 17466). The Center for Native Ecosystems, the
Center for Biological Diversity, and the Xerces Society (plaintiffs)
filed a complaint on February 23, 2011, regarding designation of
critical habitat for the species. A settlement agreement between the
plaintiffs and the Service was reached on June 7, 2011, in which we
agreed to reevaluate our designation of critical habitat.
In accordance with that agreement, on June 4, 2013, we published a
proposed rule to revise our designation of critical habitat for the
Salt Creek tiger beetle (78 FR 33282). We proposed to designate
approximately 1,110 ac (449 ha) in four units located in Lancaster and
Saunders counties in Nebraska as critical habitat. That proposal had a
60-day comment period, ending August 5, 2013. We will submit for
publication in the Federal Register a final critical habitat
designation for the Salt Creek tiger beetle on or before May 1, 2014.
Critical Habitat
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed rule is
made final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting critical habitat must consult with us on the effects of their
proposed actions, under section 7(a)(2) of the Act.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific data available, after
taking into consideration the economic impact, impact on national
security, or any other relevant impact of specifying any particular
area as critical habitat. We may exclude an area from critical habitat
if we determine that the benefits of excluding the area outweigh the
benefits of including the area as critical habitat, provided such
exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we
consider, among other factors, the additional regulatory benefits that
an area would receive through the analysis under section 7 of the Act
addressing the destruction or adverse modification of critical habitat
as a result of actions with a Federal nexus (activities conducted,
funded, permitted, or authorized by Federal agencies), the educational
benefits of identifying areas containing essential features that aid in
the recovery of the listed species, and any ancillary benefits
triggered by existing local, State, or Federal laws as a result of the
critical habitat designation.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to
incentivize or result in conservation; the continuation, strengthening,
or encouragement of partnerships; or implementation of a management
plan. In the case of the Salt Creek tiger beetle, 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 Salt Creek tiger
beetle due to protection from adverse modification or destruction of
critical habitat. In practice, situations with a Federal nexus exist
primarily on Federal lands or for projects undertaken by Federal
agencies.
We have not proposed to exclude any areas from critical habitat.
However, the final decision on whether to exclude any areas will be
based on the best scientific data available at the time of the final
designation, including information obtained during the comment period
and information about the economic impact of designation.
[[Page 14208]]
Accordingly, we have prepared a draft economic analysis concerning the
proposed critical habitat designation (DEA), which is available for
review and comment (see ADDRESSES section).
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios ``with critical
habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). The baseline, therefore, represents the costs of
all efforts attributable to the listing of the species under the Act
(i.e., conservation of the species and its habitat incurred regardless
of whether critical habitat is designated). The ``with critical
habitat'' scenario describes the incremental impacts associated
specifically with the designation of critical habitat for the species.
The incremental conservation efforts and associated impacts would not
be expected without the designation of critical habitat for the
species. In other words, the incremental costs are those attributable
solely to the designation of critical habitat, above and beyond the
baseline costs. These are the costs we use when evaluating the benefits
of inclusion and exclusion of particular areas from the final
designation of critical habitat should we choose to conduct an optional
4(b)(2) exclusion analysis.
For this particular designation, we developed an Incremental
Effects Memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the Salt Creek tiger beetle (IEc 2014). We began
by conducting a screening analysis of the proposed designation of
critical habitat in order to focus our analysis on the key factors that
are likely to result in incremental economic impacts. The purpose of
the screening analysis is to filter out the geographic areas in which
the critical habitat designation is unlikely to result in probable
incremental economic impacts. In particular, the screening analysis
considers baseline costs (i.e., absent critical habitat designation)
and includes probable economic impacts where land and water use may be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. The screening analysis
filters out particular areas of critical habitat that are already
subject to such protections and are, therefore, unlikely to incur
incremental economic impacts. Ultimately, the screening analysis allows
us to focus our analysis on evaluating the specific areas or sectors
that may incur probable incremental economic impacts as a result of the
designation. The screening analysis also assesses whether units are
unoccupied by the species and may require additional management or
conservation efforts as a result of the critical habitat designation
and may incur incremental economic impacts. This screening analysis
combined with the information contained in our IEM are what we consider
our draft economic analysis of the proposed critical habitat
designation for the Salt Creek tiger beetle, and this information is
summarized in the narrative below.
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. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly impacted entities, where practicable and reasonable. We
assess, to the extent practicable, the probable impacts, if sufficient
data are available, to both directly and indirectly impacted entities.
As part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation. In our evaluation of the probable
incremental economic impacts that may result from the proposed
designation of critical habitat for the Salt Creek tiger beetle, first
we identified, in the IEM dated December 6, 2013, probable incremental
economic impacts associated with the following categories of
activities: (1) Agriculture and livestock grazing; (2) restoration and
conservation; (3) residential and commercial development; (4) water
management and supply; (5) transportation activities, including bridge
construction; and (6) utility activities. We considered each industry
or category individually. Additionally, we 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 Salt Creek tiger beetle is present, Federal agencies already are
required to consult with the Service under section 7 of the Act on
activities they fund, permit, or implement that may affect the species.
If we finalize this proposed critical habitat designation,
consultations to avoid the destruction or adverse modification of
critical habitat would be incorporated into the existing consultation
process.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the Salt
Creek tiger beetle's critical habitat. Jeopardy is the standard that is
used when conducting a section 7 consultation on a listed species;
adverse modification is the standard used when conducting a
consultation on critical habitat. The Salt Creek tiger beetle was
listed in October 2005. Since that time, the jeopardy standard has been
used for section 7 consultations for the species. Once critical habitat
is designated, the adverse modification standard will also be used in
addition to the jeopardy standard for section 7 consultations on the
Salt Creek tiger beetle. Even though the Service recognizes differences
in the standards between avoidance of destruction or adverse
modification and jeopardy, the types of project modifications that
would be recommended for the Salt Creek tiger beetle would remain the
same given the extremely low numbers and small number of populations of
the species. Thus, the DEA seeks to identify the
[[Page 14209]]
difference in jeopardy and adverse modification or the incremental
difference in terms of the economic effects for this designation of
critical habitat. This evaluation of the incremental effects has been
used as the basis to evaluate the probable incremental economic impacts
of this proposed designation of critical habitat.
The proposed critical habitat designation for the Salt Creek tiger
beetle includes the Rock Creek, Little Salt Creek, Oak Creek, and
Haines Branch Creek units in Lancaster and Saunders counties (Table 1).
Of these units, one (Little Salt Creek) is currently occupied by the
Salt Creek tiger beetle and three (the Rock Creek, Oak Creek, and
Haines Branch units) are unoccupied.
Table 1--Designated Critical Habitat Units For Salt Creek Tiger Beetle
[Area estimates reflect all land within critical habitat unit boundaries]
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Percent of
Estimated quantity of critical
Critical habitat unit Land ownership by type critical habitat habitat
unit
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Little Salt Creek Unit.................. City of Lincoln................. 40 ac (16 ha) 14
Lower Platte South Natural 19 ac (8 ha) 7
Resources District.
Nebraska Game & Parks Commission 41 ac (17 ha) 14
The Nature Conservancy.......... 29 ac (12 ha) 10
Pheasants Forever............... 11 ac (4 ha) 4
Private *....................... 144 ac (58 ha) 51
Subtotal........................ 284 ac (115 ha)
Rock Creek Unit......................... Nebraska Game & Parks Commission 152 ac (62 ha) 29
Private *....................... 374 ac (152 ha) 71
Subtotal........................ 526 ac (213 ha)
Oak Creek Unit.......................... Nebraska Department of Roads.... 30 ac (12 ha) 14
City of Lincoln................. 178 ac (72 ha) 86
Subtotal........................ 208 ac (84 ha)
Haines Branch Unit...................... BNSF Railway.................... 7 ac (3 ha) 8
City of Lincoln/State of 45 ac (18 ha) 49
Nebraska.
Private......................... 40 ac (16 ha) 43
Subtotal........................ 92 ac (37 ha)
Total................................... City of Lincoln................. 263 ac (106 ha) 24
Lower Platte South Natural 19 ac (8 ha) 1.7
Resources District.
Nebraska Game & Parks Commission 193 ac (78 ha) 17.4
Nebraska Department of Roads.... 30 ac (12 ha) 2.7
BNSF Railway.................... 7 ac (3ac) 0.6
The Nature Conservancy.......... 29 ac (12 ha) 2.6
Pheasants Forever............... 11 ac (4 ha) 1.0
Private *....................... 558 ac (226 ha) 50.0
Total........................... 1,110 ac (449 ha)
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* Several private tracts are protected by easements.
In occupied habitat (Little Salt Creek Unit), the economic cost of
implementing the rule through section 7 of the Act will most likely be
limited to additional administrative effort to consider adverse
modification. This finding is based on the following factors:
The presence of the species already results in significant
baseline protection under the Act.
Project modifications requested by the Service to avoid
jeopardy to the species are also likely to avoid adverse modification
of critical habitat. The proposed designation of critical habitat is
unlikely to generate recommendations for additional or different
project modifications.
Critical habitat is unlikely to increase the number of
consultations occurring in occupied habitat as a result of the existing
awareness by Federal agencies of the need to consult due to the listing
of the species.
The proposed designation also receives baseline protection
from the presence of the State-listed endangered plant, saltwort
(Salicornia rubra).
In unoccupied habitat (Rock Creek, Oak Creek, and Haines Branch
Units), the proposed designation will generate the need for section 7
consultation on projects or activities that may affect critical
habitat. The administrative costs of these consultations, and costs of
any project modifications resulting from these consultations, reflect
incremental costs of the critical habitat rule. In particular, we may
request project modifications, including erosion control and biological
monitoring for highway projects to avoid adverse modification in
unoccupied critical habitat, and grazing restrictions for consultations
related to potential conservation partnerships.
Based on the historical consultation rate and forecasts of projects
and activities identified by land managers, the number of future
consultations is likely to be fewer than 12 in a single year, all of
which are expected to be conducted informally. The additional
administrative cost of addressing adverse modification during informal
section 7 consultation is approximately $2,400 per consultation, and
the full cost of a new informal consultation is approximately $7,100
per consultation. Incremental project modification costs may include
$360,000 for highway projects in the Oak Creek Unit, and up to $110,000
if grazing exclosures are implemented through conservation partnerships
in the Rock Creek Unit. Incremental costs are likely to be greatest in
the Oak Creek Unit and are driven by project modifications for highway
construction activities. Total forecast incremental costs of section 7
consultations, including administrative and project modification costs,
are likely to be less than $540,000 in a given year. Thus, in summary,
the incremental costs resulting from the critical habitat designation
are unlikely to reach $100 million in a given year based on the number
of anticipated consultations and per-consultation administrative and
project modification costs.
[[Page 14210]]
We are aware of other types of costs associated with the proposed
designation of critical habitat. For example, the designation of
critical habitat may cause farmers and ranchers to perceive that
private lands will be subject to land use restrictions, resulting in
perceptional effects. Such costs, if they occur, are unlikely to reach
$100 million in a given year based on the number of acres most likely
to be affected (1,110 ac (449 ha)) and the value of those acres.
Additionally, the designation of critical habitat is unlikely to
trigger additional requirements under State or local regulations. This
conclusion is based on the likelihood that activities in wetland areas
will require Federal permits and, therefore, section 7 consultation.
The proposed designation of critical habitat has the potential to
convey other benefits to the public. Additional efforts to conserve the
beetle are anticipated in unoccupied habitat. These project
modifications may result in direct benefits to the species (e.g.,
increased potential for recovery) as well as broader improvements to
environmental quality in these areas. Due to existing data limitations,
we are unable to assess the likely magnitude of such benefits.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, the draft EA, 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 June 4, 2013, proposed rule (78 FR 33282), we indicated that
we would defer our determination of compliance with several statutes
and executive orders until we had evaluated the probable effects on
landowners and stakeholders and the resulting probable economic impacts
of the designation. Following our evaluation of the probable
incremental economic impacts resulting from the proposed designation of
critical habitat for the Salt Creek tiger beetle, we have amended or
affirmed our determinations below. Specifically, we affirm the
information in our proposed rule concerning Executive Order (E.O.)
12866 (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.), the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), and the
President's memorandum of April 29, 1994, ``Government-to-Government
Relations with Native American Tribal Governments'' (59 FR 22951).
However, based on our evaluation of the probable incremental economic
impacts of the proposed designation of critical habitat for the Salt
Creek tiger beetle, we are amending our required determination
concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), E.O.
12630 (Takings), and the National Environmental Policy Act (42 U.S.C.
4321 et seq.).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
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.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are required to evaluate the potential incremental impacts of
rulemaking only on those entities directly regulated by the rulemaking
itself and, therefore, are not required to evaluate the potential
impacts to indirectly regulated entities. The regulatory mechanism
through which critical habitat protections are realized is section 7 of
the Act, which requires Federal agencies, in consultation with the
Service, to ensure that any action authorized, funded, or carried by
the Agency is not likely to adversely modify critical habitat.
Therefore, under these circumstances only Federal action agencies are
directly subject to the specific regulatory requirement (avoiding
destruction and adverse modification) imposed by critical habitat
designation. Under these circumstances, it is our position that only
Federal action agencies will be directly regulated by this designation.
Federal agencies are not small entities, and, to this end, there is no
requirement under the RFA to evaluate the potential impacts to entities
not directly regulated. Therefore, because no small entities are
directly regulated by this rulemaking, the Service certifies that, if
promulgated, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. 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 critical
habitat for the Salt Creek tiger beetle in a takings implications
assessment. As discussed above, the designation of critical habitat
[[Page 14211]]
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 the Salt Creek tiger beetle. 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 the Salt Creek tiger beetle does not pose
significant takings implications for lands within or affected by the
designation.
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 pursuant to the National Environmental Policy
Act (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, 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 are
required to complete NEPA analysis when designating critical habitat
under the Act within the boundaries of the Tenth Circuit. We prepared
an environmental assessment for our 2010 final rule designating
critical habitat for the Salt Creek tiger beetle, and made a finding of
no significant impacts. Although the State of Nebraska is not part of
the Tenth Circuit, and, therefore, NEPA analysis is not required, we
have undertaken a NEPA analysis in this case since we conducted one
previously for our 2010 final rule. Accordingly, we have prepared a
draft environmental assessment to identify and disclose the
environmental consequences resulting from the proposed designation of
critical habitat for the Salt Creek tiger beetle.
The draft EA presents the purpose of and need for critical habitat
designation, the proposed action and alternatives, and an evaluation of
the direct, indirect, and cumulative effects of the alternatives under
the requirements of NEPA as implemented by the Council on Environmental
Quality regulations (40 CFR 1500 et seq.) and according to the
Department of the Interior's NEPA procedures.
The draft EA will be used by the Service to decide whether or not
critical habitat will be designated as proposed; if the proposed action
requires refinement, or if another alternative is appropriate; or if
further analyses are needed through preparation of an environmental
impact statement. If the proposed action is selected as described (or
is changed minimally) and no further environmental analyses are needed,
then a finding of no significant impact (FONSI) would be the
appropriate conclusion of this process. A FONSI would then be prepared
for the environmental assessment. We are seeking data and comments from
the public on the draft EA, which is available at http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0068 and at http://www.fws.gov/mountain-prairie/species/invertebrates/saltcreektiger/.
Authors
The primary authors of this notice are the staff members of the
Nebraska Ecological Services Field Office, Region 6, 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 5, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-05445 Filed 3-12-14; 8:45 am]
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