Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Wintering Population of the Piping Plover in North Carolina, 28084-28094 [E8-10887]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 95 (Thursday, May 15, 2008)]
[Proposed Rules]
[Pages 28084-28094]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-10887]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R4-ES-2008-0041; 92210-1117-0000-B4]
RIN 1018-AU48


Endangered and Threatened Wildlife and Plants; Revised 
Designation of Critical Habitat for the Wintering Population of the 
Piping Plover in North Carolina

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Revised proposed rule; reopening of comment period, revisions 
to proposed critical habitat boundaries, notice of availability of 
revised draft economic analysis and environmental assessment, and 
amended required determinations.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on the proposed revised designation of 
critical habitat for the wintering population of the piping plover 
(Charadrius melodus) in Dare and Hyde Counties, North Carolina (71 FR 
33703, June 12, 2006). In this document, we are proposing to add 87 
hectares (ha) (215 acres (ac)) of critical habitat to two previously 
proposed units. As a result, our proposed revised critical habitat 
designation for the species now includes 4 revised critical habitat 
units totaling approximately 827 ha (2,043 ac). We also announce the 
availability of the revised draft economic analysis (DEA) and 
environmental assessment of the proposed revised designation of 
critical habitat. We are reopening the comment period on the June 12, 
2006, proposed rule to allow all interested parties an opportunity to 
comment simultaneously on that proposal, the proposed revised critical 
habitat units described in this document, our amended required 
determinations, and the associated revised DEA and environmental 
assessment. Please do not resend comments you have already submitted. 
We will incorporate comments previously submitted into the public 
record as part of this comment period, and we will fully consider them 
when preparing our final determination.

DATES: We will consider comments received or postmarked on or before 
June 16, 2008.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: 1018-AU48; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.
We will not accept e-mail or faxes. 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: Field Supervisor, Raleigh Fish and 
Wildlife Office, P.O. Box 33726, Raleigh, NC 27636-3726, (telephone 
919-856-4520; facsimile 919-856-4556). If you use a telecommunications 
device for the deaf (TDD), 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 June 12, 2006, proposed rule to revise 
critical habitat for the wintering population of the piping plover in 
North Carolina (71 FR 33703), the additional areas of critical habitat 
proposed in this document, the amended required determinations provided 
in this document, and our revised DEA and environmental assessment of 
the proposed revised designation. 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 Endangered Species Act of 1973, 
as amended (16 U.S.C. 1531 et seq.), including whether the benefit of 
designation would outweigh any threats to the species due to 
designation, such that the designation of critical habitat is prudent.
    (2) Specific information on:
     The amount and distribution of wintering piping plover 
habitat in North Carolina,
     What areas occupied at the time of listing that contain 
features essential for the conservation of the species we should 
include in the designation and why, and
     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 revised critical 
habitat.
    (4) Any foreseeable economic, national security, or other relevant 
impacts resulting from the proposed revised designation and, in 
particular, any such impacts on small entities, and the benefits of 
including or excluding areas from the proposed revised designation.
    (5) Any foreseeable environmental impacts directly or indirectly 
resulting from the proposed revised designation of critical habitat.
    (6) Information regarding our identification, in our June 12, 2006, 
proposed rule, of specific areas as not being in need of special 
management.
    (7) Information to assist the Secretary of the Interior in 
evaluating habitat with physical and biological features essential to 
the conservation of the piping plover on Cape Hatteras National 
Seashore, administered by the National Park Service, based on any 
benefit provided by the Interim Protected Species Management Strategy/
Environmental Assessment (Interim Strategy; NPS 2006) to the 
conservation of the wintering piping plover.

[[Page 28085]]

    (8) 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.
    (9) Information on whether the DEA identifies all State and local 
costs and benefits attributable to the proposed revised critical 
habitat designation, and information on any costs or benefits that we 
have overlooked.
    (10) Information on whether the DEA makes appropriate assumptions 
regarding current practices and any regulatory changes likely if we 
designate revised critical habitat.
    (11) Information on whether the DEA correctly assesses the effect 
on regional costs associated with any land use controls that may result 
from the revised critical habitat designation.
    (12) Information on whether the DEA identifies all costs that could 
result from the revised designation and whether you agree with the 
analysis.
    (13) Whether there is any information to suggest that beach 
recreation might increase as a result of this designation, and whether 
the effects of any such increased visitation can be quantified.
    If you submitted comments or information during the initial comment 
period from June 12, 2006, to August 11, 2006 (71 FR 33703), or during 
the reopened comment period from May 31, 2007, to July 30, 2007 (72 FR 
30326), or at the public hearing held on June 20, 2007, on the proposed 
rule, 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 preparation of our final determination. Our final 
determination concerning revised critical habitat will take into 
consideration all comments and any additional information we receive 
during all comment periods. On the basis of public comments, we may, 
during the development of our final determination, find that areas 
proposed do not contain the features essential to the conservation of 
the species or are not themselves 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 this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
consider comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    If you submit a comment via https://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. 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. We will post all 
hardcopy comments on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this notice, will be available for 
public inspection on https://www.regulations.gov, or by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service, 
Raleigh Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
    You may obtain copies of the proposed rule and DEA at https://
www.regulations.gov, by mail from the Raleigh Field Office (see FOR 
FURTHER INFORMATION CONTACT), or by visiting our Web site at https://
www.fws.gov/nc-es.

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this rule. For more information 
on the biology and ecology of the wintering population of the piping 
plover, refer to the final rule to designate critical habitat for the 
wintering population of the piping plover published in the Federal 
Register on July 10, 2001 (66 FR 36038), and the proposed rule to 
designate revised critical habitat for the wintering population of the 
piping plover in North Carolina published in the Federal Register on 
June 12, 2006 (71 FR 33703).
    The piping plover is a small, pale-colored shorebird that breeds in 
three discrete areas of North America--the Northern Great Plains, the 
Great Lakes, and the Atlantic Coast--and winters in coastal areas of 
the United States from North Carolina to Texas, along the coast of 
eastern Mexico, and on the Caribbean islands from Barbados to Cuba and 
the Bahamas. We published a rule to list the piping plover as 
endangered in the Great Lakes watershed and threatened elsewhere within 
its range on December 11, 1985 (50 FR 50726). All piping plovers on 
migratory routes outside of the Great Lakes watershed or on their 
wintering grounds (which includes the State of North Carolina) are 
considered threatened.
    We first designated critical habitat for the wintering population 
of the piping plover in 137 areas along the coasts of North Carolina, 
South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and 
Texas on July 10, 2001 (66 FR 36038). This designation included 
approximately 2,891.7 kilometers (km) (1,798.3 miles (mi)) of mapped 
shoreline and approximately 66,881 ha (165,211 ac) of mapped areas 
along the Gulf and Atlantic coasts and along margins of interior bays, 
inlets, and lagoons.
    In February 2003, two North Carolina counties (Dare and Hyde) and a 
beach access group (Cape Hatteras Access Preservation Alliance) filed a 
lawsuit challenging our designation of four units of critical habitat 
on the Cape Hatteras National Seashore, North Carolina (Units NC-1, NC-
2, NC-4, and NC-5). In 2004, the U.S. District Court for the District 
of Columbia remanded to us the 2001 designation of the four units (Cape 
Hatteras Access Preservation Alliance v. U.S. Department of the 
Interior, 344 F. Supp 2d 108). In response to the court's order, we 
published, on June 12, 2006, a proposed rule to revise designated 
critical habitat for the wintering population of the piping plover in 
North Carolina (71 FR 33703). That proposed rule described four coastal 
areas (named Units NC-1, NC-2, NC-4, and NC-5), totaling approximately 
739.4 ha (1,827.2 ac) entirely within Cape Hatteras National Seashore, 
as critical habitat for the wintering population of the piping plover. 
On May 31, 2007, we announced in the Federal Register the availability 
of a draft economic analysis and environmental assessment on the 
proposed revised critical habitat for the wintering population of the 
piping plover (72 FR 30326).
    We are now modifying the June 12, 2006, proposed rule (71 FR 33703) 
to add previously excluded areas to two of the proposed units, as 
described below in the ``Additional Proposed Critical Habitat Areas'' 
section. As a result of these additions and revisions, the proposed 
critical habitat now encompasses 827 ha (2,043 ac), an increase of 87 
ha (215 ac) from the June 12, 2006 proposed rule (71 FR 33703).
    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 
(with the changes proposed in this document) is made final, section 7 
of the Act will prohibit destruction or adverse modification of

[[Page 28086]]

critical habitat by any activity funded, authorized, or carried out by 
any Federal agency. Federal agencies proposing actions affecting areas 
designated as critical habitat must consult with us on the effects of 
their proposed actions, under section 7(a)(2) of the Act.
    Under section 4(b)(2) of the Act, we may exclude an area from 
critical habitat if we determine that the benefits of such exclusion 
outweigh the benefits of including that particular area as critical 
habitat, unless failure to designate that specific area as critical 
habitat will result in the extinction of the species. We may exclude an 
area from designated critical habitat taking into consideration 
economic impacts, national security, or any other relevant impact.

Additional Proposed Critical Habitat Areas

    By this document, we are advising the public of new proposed 
revisions to two of the four units described in the June 12, 2006, 
proposed rule (71 FR 33703). In that rule, we determined that the 
islands DR-005-05 and DR-005-06 (Dare County) and DR-009-03/04 (Dare 
and Hyde Counties), owned by the State of North Carolina, and about 96 
ha (137 ac) of Pea Island National Wildlife Refuge (Dare County) did 
not meet the definition of critical habitat under section 3(5)(A) of 
the Act. However, we have reconsidered our preliminary analysis of the 
special management or protection needs of the physical and biological 
features essential to the conservation of the species on these lands 
and have now determined that these areas should be proposed as critical 
habitat. This determination is based on Center for Biological Diversity 
v. Norton, 240 F. Supp 2d 1090, 1099 (D. Ariz. 2003), which held that 
if a habitat is already under some sort of management for its 
conservation, that particular habitat required special management 
considerations or protection and, therefore, meets the definition of 
critical habitat. As such, we are now including these areas in this 
proposed revised critical habitat, and we are considering whether the 
areas should be excluded from the final designation under section 
4(b)(2) of the Act, based on economic or other relevant impacts, and 
taking into account the existing protections in our benefit analysis.
    The two proposed revised units that are expanded by the newly 
proposed areas are Unit NC-1 (Oregon Inlet) and NC-4 (Hatteras Inlet); 
we propose to incorporate the areas previously omitted from the June 
12, 2006, proposal (i.e., several State-owned islands and portions of 
Pea Island National Wildlife Refuge) into Unit NC-1 and Unit NC-4. 
These additional areas of the proposed revised units are located within 
the range of the population, were occupied at the time of listing and 
are considered currently occupied, and contain habitat features 
essential for the conservation of the wintering population of piping 
plover, as described in the ``Primary Constituent Elements'' of our 
June 12, 2006, proposed rule (71 FR 33703). The additional areas total 
87 ha (215 ac). As a result of these additions, together with the 
revisions to area estimates proposed in the June 12, 2006, proposed 
rule (71 FR 33703), the proposed revised critical habitat now 
encompasses 827 ha (2,043 ac) in four units. The approximate area 
encompassed within each proposed critical habitat unit is shown in 
Table 1.

  Table 1.--Revised Critical Habitat Units Proposed for the Wintering Population of the Piping Plover in North
                                                    Carolina
                    [Area estimates reflect all land within critical habitat unit boundaries]
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                                                                Proposed         Additional
                                                            hectares (acres)      proposed
       Critical habitat units            Land ownership      (from June 12,   hectares (acres)   Total proposed
                                                             2006, proposed     (proposed in    hectares (acres)
                                                                  rule)        this document)
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Unit NC-1, Oregon Inlet............  Federal, State.......     115.0 (284.0)          81 (201)         196 (485)
Unit NC-2, Cape Hatteras Point.....  Federal..............     261.0 (646.0)                 0         262 (646)
Unit NC-4, Hatteras Inlet..........  Federal, State.......     160.0 (396.0)            6 (14)         166 (410)
Unit NC-5, Ocracoke Island.........  Federal..............     203.0 (502.0)                 0     203.0 (502.0)
                                                           -----------------------------------------------------
    Total..........................  .....................   739.0 (1,827.0)          87 (215)       827 (2,043)
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    Below, we present brief descriptions of the two revised units (NC-1 
and NC-4) and reasons why they meet the definition of critical habitat 
for the piping plover. As stated in the June 12, 2006, proposed rule 
(71 FR 33703), the textual unit descriptions of the units in the 
regulation constitute the definitive determination as to whether an 
area is within the critical habitat boundary.

Unit NC-1: Oregon Inlet

    Unit NC-1 is approximately 8.0 km (5.0 mi) long, and consists of 
about 196 ha (485 ac) of sandy beach and inlet spit habitat on Bodie 
Island and Pea Island in Dare County, North Carolina. This is the 
northernmost critical habitat unit proposed within the wintering range 
of the piping plover. Oregon Inlet is the northernmost inlet in coastal 
North Carolina, approximately 19.0 km (12.0 mi) southeast of the Town 
of Manteo, the county seat of Dare County. The proposed unit at Oregon 
Inlet is bounded by the Atlantic Ocean on the east and Pamlico Sound on 
the west and includes lands from the mean lower low water (MLLW) on the 
Atlantic Ocean shoreline to the line of stable, densely vegetated dune 
habitat (which is not used by piping plovers and where the physical and 
biological features essential to the conservation of the species do not 
occur) and from the MLLW on the Pamlico Sound side to the line of 
stable, densely vegetated habitat, or (where a line of stable, densely 
vegetated dune habitat does not exist) lands from MLLW on the Atlantic 
Ocean shoreline to the MLLW on the Pamlico Sound side. The unit begins 
at Ramp 4 near the Oregon Inlet Fishing Center on Bodie Island and 
extends approximately 8.0 km (5.0 mi) south to the intersection of NC 
Highway 12 and Salt Flats Wildlife Trail (near Mile Marker 30, NC 
Highway 12), approximately 5.0 km (3.0 mi) from the groin, on Pea 
Island, and includes Green Island and any emergent sandbars south and 
west of Oregon Inlet, and the lands owned by the State of North 
Carolina, specifically Islands DR-005-05 and DR-005-06. However, this 
unit does not include the Oregon Inlet Fishing Center, NC Highway 12, 
the Bonner Bridge and its associated structures, the terminal groin, 
the historic Pea Island Life-Saving Station, or any of their ancillary

[[Page 28087]]

facilities (e.g., parking lots, out buildings). This unit contains the 
physical and biological features essential to the conservation of the 
species. Areas of the unit contain a contiguous mix of intertidal 
beaches and sand or mud flats (between annual low tide and annual high 
tide) with no or very sparse emergent vegetation, and adjacent areas of 
unvegetated or sparsely vegetated dune systems and sand or mud flats 
above annual high tide.
    Oregon Inlet has reported consistent use by wintering piping 
plovers dating from the mid-1960s. As many as 100 piping plovers have 
been reported from a single day survey during the fall migration (NCWRC 
unpublished data). Christmas bird counts regularly recorded 20 to 30 
plovers using the area. Recent surveys have also recorded consistent 
and repeated use of the area by banded piping plovers from the 
endangered Great Lakes breeding population (J. Stucker, University of 
Minnesota, unpublished data). The overall number of piping plovers 
reported using the area has declined since the species was listed in 
1986 (NCWRC unpublished data), which corresponds to increases in the 
number of human users (NPS 2005) and off-road vehicles (Davis and 
Truett 2000).
    Oregon Inlet is one of the first beach access points for off-road 
vehicles within Cape Hatteras National Seashore when traveling from the 
developed coastal communities of Nags Head, Kill Devil Hills, Kitty 
Hawk, and Manteo. As such, the inlet spit is a popular area for off-
road vehicle users to congregate. The majority of the Cape Hatteras 
National Seashore users in this area are off-road vehicle owners and 
recreational fishermen. In fact, a recent visitor use study of Cape 
Hatteras National Seashore reported that Oregon Inlet is the second 
most popular off-road vehicle use area in the park (Vogelsong 2003). 
Furthermore, the adjacent islands are easily accessed by boat, which 
can be launched from the nearby Oregon Inlet Fishing Center. Pea Island 
National Wildlife Refuge does not allow off-road vehicle use; however, 
Pea Island regularly receives dredged sediments from the maintenance 
dredging of Oregon Inlet by the U.S. Army Corps of Engineers. The 
disposal of dredged sediments on Pea Island National Wildlife Refuge 
has the potential to disturb foraging and roosting plovers and their 
habitats. As a result, the sandy beach and mud and sand flat habitat 
being proposed as critical habitat in this unit may require special 
management considerations or protection.

Unit NC-4: Hatteras Inlet

    Unit NC-4 is approximately 8.0 km (5.0 mi) long, and consists of 
166 ha (410 ac) of sandy beach and inlet spit habitat on the western 
end of Hatteras Island and the eastern end of Ocracoke Island in Dare 
and Hyde Counties, North Carolina. The unit begins at the first beach 
access point at Ramp 55 at the end of NC Highway 12 near the Graveyard 
of the Atlantic Museum on the western end of Hatteras Island and 
continues southwest to the beach access at the ocean-side parking lot 
near Ramp 59 on the northeastern end of Ocracoke Island. This unit 
includes lands from the MLLW on the Atlantic Ocean shoreline to the 
line of stable, densely vegetated dune habitat (which itself is not 
used by the piping plover and where PBFs do not occur) and from the 
MLLW on the Pamlico Sound side to the line of stable, densely vegetated 
habitat, or (where a line of stable, densely vegetated dune habitat 
does not exist) lands from MLLW on the Atlantic Ocean shoreline to the 
MLLW on the Pamlico Sound side. The proposed unit at Hatteras Inlet 
includes all emergent sandbars within Hatteras Inlet including lands 
owned by the State of North Carolina, specifically Island DR-009-03/04. 
The unit is adjacent to, but does not include the Graveyard of the 
Atlantic Museum, the ferry terminal, the groin on Ocracoke Island, NC 
Highway 12, or their ancillary facilities (e.g., parking lots, out 
buildings). This unit contains the features essential to the 
conservation of the species. Areas of the unit contain a contiguous mix 
of intertidal beaches and sand or mud flats (between annual low tide 
and annual high tide) with no or very sparse emergent vegetation, and 
adjacent areas of unvegetated or sparsely vegetated dune systems and 
sand or mud flats above annual high tide.
    Hatteras Inlet has reported consistent use by wintering piping 
plovers since the early 1980s, but the specific area of use was not 
consistently recorded in earlier reports. Often piping plovers found at 
Cape Hatteras Point, Cape Hatteras Cove, and Hatteras Inlet were 
reported as a collective group. However, more recent surveys report 
plover use at Hatteras Inlet independently from Cape Hatteras Point. 
These single-day surveys have recorded as many as 40 piping plovers a 
day during migration (NCWRC unpublished data). Christmas bird counts 
regularly recorded 2 to 11 plovers using the area. Recent surveys have 
also recorded consistent and repeated use of the area by banded piping 
plovers from the endangered Great Lakes breeding population (J. 
Stucker, University of Minnesota, unpublished data). The overall 
numbers of piping plovers reported using the area has declined in the 
last 10 years (NCWRC unpublished data), corresponding with increases in 
the number of human users (NPS 2005) and off-road vehicles (Davis and 
Truett 2000).
    Hatteras Inlet is located near the Village of Hatteras, Dare 
County, and is the southernmost point of Cape Hatteras National 
Seashore that can be reached without having to take a ferry. As such, 
the inlet is a popular off-road vehicle and recreational fishing area. 
In fact, a recent visitor use study of the park found Hatteras Inlet 
the fourth most used area by off-road vehicles in the park (Vogelsong 
2003). Furthermore, the adjacent islands are easily accessed by boat, 
which can be launched from the nearby marinas of Hatteras Village. As a 
result, the sandy beach and mud and sand flat habitat being proposed as 
critical habitat in this unit may require special management 
considerations or protection.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial data 
available, after taking into consideration the economic, impact on 
national security, or any other relevant impact of specifying any 
particular area as critical habitat. On June 21, 2007, we published a 
document in the Federal Register (72 FR 34215) announcing the 
availability of the draft economic analysis for the proposed revised 
designation of critical habitat for the wintering population of the 
piping plover. Because we are now proposing additional areas of 
critical habitat in Units NC-1 and NC-4, we have prepared a revised DEA 
of the proposed revised critical habitat designation. The revised DEA 
is described below.
    The intent of the DEA is to quantify the economic impacts of all 
potential conservation efforts for the wintering population of the 
piping plover; some of these costs will likely be incurred regardless 
of whether we designate critical habitat. The DEA estimates the 
foreseeable economic impacts of conservation measures for the wintering 
population of the piping plover within the proposed revised critical 
habitat designation on government agencies, private businesses, and 
individuals. Specifically, the analysis measures how management 
activities undertaken by the National Park Service (NPS), the Service, 
and the State of North Carolina to protect wintering piping plover 
habitat against the threat of off-road

[[Page 28088]]

vehicle (ORV) use or other recreational use of the beach may affect the 
value of the beaches to ORV and other recreational users and the 
region. In this analysis, it is assumed that the primary management 
tool employed for wintering piping plover conservation could be the 
implementation of closures of certain portions of the beach. If 
implemented, these closures would reduce the opportunity for 
recreational activities, such as ORV use. The Service believes, 
however, that additional beach closures due to the designation of 
critical habitat for wintering piping plovers are unlikely. On October 
18, 2007, an action was filed against the National Park Service (NPS) 
in the United States District Court for the Eastern District of North 
Carolina, alleging that the management of off-road vehicles at Cape 
Hatteras National Seashore, which would include the areas proposed for 
critical habitat (Defenders of Wildlife et. al. v. National Park 
Service et al., No. 2:07-CV-45-BO (E.D.N.C.)). On April 16, 2008, the 
parties filed with the court a proposed consent decree that would 
require NPS to close to ORV use areas where piping plovers (and other 
shorebird species) engage in prenesting and other breeding behavior. If 
approved by the court, these closures would occur regardless of whether 
critical habitat is designated. At this time, the NPS, the Service, and 
the State of North Carolina are not undertaking any new activities on 
which the Service expects to be required to consult in the future.
    However, the Service plans to continue to consult with the U.S. 
Army Corps of Engineers on future sand disposal operations on Pea 
Island National Wildlife Refuge. In addition, it plans to consult with 
the Federal Highway Administration on the replacement of Bonner Bridge. 
At this time, it is unclear if these projects will affect the proposed 
revised critical habitat; therefore, this analysis does not include 
administrative costs associated with these projects. The analysis 
focuses instead on the effect of public closures of beaches on ORV use 
and the potential administrative costs to the NPS resulting from 
additional section 7 consultations and other administrative duties 
caused by designation of critical habitat. Our analysis determines that 
recreation may be affected under one of two possible scenarios: the 
high-end scenario, which estimates that a percentage of ORV trips to 
proposed revised designated critical habitat areas would be lost; and 
the low-end scenario, which assumes that no trips would be lost.
    The DEA forecasts that costs associated with conservation 
activities for the wintering population of the piping plover in North 
Carolina would range from $0 to $23.0 million in lost consumer surplus 
and $0 to $40.0 million in lost trip expenditures in undiscounted 
dollars over the next 20 years, with an additional $190,000 to $476,000 
in administrative costs. These costs are not related to, or the result 
of, the recently announced beach closures designed to protect breeding 
piping plovers and other seabirds resulting from the above-referenced 
settlement agreement. Discounted forecast impacts are estimated to 
range from $0 to $11.9 million in lost consumer surplus and $0 to $20.2 
million in lost trip expenditures over 20 years using a real rate of 
seven percent, with an additional $101,000 to $252,000 in 
administrative costs. This amounts to $0 to $985,000 in lost consumer 
surplus and $0 to $1.6 million in lost trip expenditures, annually. 
Using a real rate of three percent, discounted forecast impacts are 
estimated at $0 to $16.8 million in lost consumer surplus and $0 to 
$29.1 million in lost trip expenditures over the next 20 years, with an 
additional $141,000 to $354,000 in administrative costs. This amounts 
to $0 to $1.1 million in lost consumer surplus and $0 to $2.0 million 
in lost trip expenditures, annually. Of the four units proposed as 
revised critical habitat, unit NC-2 is calculated to experience the 
highest estimated costs (about 40 percent) in both lost consumer 
surplus ($0 to $9.2 million, undiscounted) and lost trip expenditures 
($0 to $16.0 million, undiscounted). Units NC-4, NC-5, and NC-1 account 
for about 26, 20, and 14 percent, respectively, of the total potential 
impacts.
    The DEA considers the potential economic effects of all actions 
relating to the conservation of the wintering population of the piping 
plover, including costs associated with sections 4, 7, and 10 of the 
Act, as well as costs attributable to the designation of revised 
critical habitat. It further considers the economic effects of 
protective measures taken as a result of other Federal, State, and 
local laws that aid habitat conservation for the wintering population 
of the piping plover in areas containing features essential to the 
conservation of the species. The DEA considers both economic efficiency 
and distributional effects. In the case of habitat conservation, 
efficiency effects generally reflect the ``opportunity costs'' 
associated with the commitment of resources to comply with habitat 
protection measures (such as lost economic opportunities associated 
with restrictions on land use).
    The DEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. The DEA measures lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. Decision-makers can use this information to assess whether 
the effects of the designation might unduly burden a particular group 
or economic sector. Finally, the DEA looks retrospectively at costs 
that have been incurred since 1985 (year of the species' final listing) 
(50 FR 50726), and considers those costs that may occur in the 19 years 
following the designation of critical habitat. Because the DEA 
considers the potential economic effects of all actions relating to the 
conservation of the wintering population of the piping plover, 
including costs associated with sections 4, 7, and 10 of the Act and 
those attributable to designation of critical habitat, the DEA may have 
overestimated the potential economic impacts of the revised critical 
habitat designation.
    The methodology used in the DEA assumes that in the baseline 
(without critical habitat designation) the entire 24,470 ac (9,903 ha) 
of the Cape Hatteras National Seashore will be open to ORV access 
except for areas closed for human safety and sensitive species' 
protection, and that baseline ORV use is evenly distributed over this 
area. On the basis of this assumption, the economists calculated an 
estimate of baseline ORVs per acre and evaluated potential ORV trip 
reductions using the number of acres potentially closed due to critical 
habitat designation as a percentage of total acres of Cape Hatteras 
National Seashore (4.8% in April through July, and 5.8% in August 
through March; see Exhibit 2-6 in draft DEA). We are specifically 
seeking comments regarding whether the methodology used in the 
evaluation is accurate and whether more specific information is 
available concerning: (1) The area of Cape Hatteras National Seashore 
open to ORV use; (2) the number of ORV trips within Cape Hatteras 
National Seashore; (3) how ORV trips to Cape Hatteras National Seashore 
are distributed across areas; and (4) potential impacts that

[[Page 28089]]

could result from additional beach closures.
    As stated earlier, we are soliciting data and comments from the 
public on this revised DEA, as well as on our June 12, 2006, proposed 
rule to revise critical habitat for the wintering population of the 
piping plover in North Carolina (71 FR 33703), the additional areas of 
critical habitat proposed in this document, the amended required 
determinations provided in this document, and our revised environmental 
assessment of the proposed revised designation. We may revise the 
proposed rule, or its supporting documents, to incorporate or address 
new information we receive. In particular, we may exclude an area from 
critical habitat designation if we determine that the benefits of 
excluding the area outweigh the benefits of including the area as 
critical habitat, provided the exclusion will not result in the 
extinction of the species.

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

    It is our position that, outside the Jurisdiction of the Tenth 
Federal Circuit, we do not need to prepare environmental analyses as 
defined by NEPA in connection with designating critical habitat under 
the Endangered Species Act of 1973, as amended. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This assertion was upheld by the Ninth 
Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), 
cert. denied 516 U.S. 1042 (1996)). However, the court decision 
remanding the critical habitat designation also ordered us to prepare 
an environmental analysis of the proposed designation under the 
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.). To 
comply with the court's order, we prepared a draft environmental 
assessment pursuant to the requirements of NEPA as implemented by the 
Council on Environmental Quality regulations (40 CFR 1500-1508) and 
according to the Department of the Interior's NEPA procedures. We 
published a notice of availability for the draft environmental 
assessment in the Federal Register on May 31, 2007 (72 FR 30326). That 
draft environmental assessment was based on the June 12, 2006, proposed 
rule (71 FR 33703). We have completed a revised draft environmental 
assessment to incorporate the proposed additions to units NC-1 and NC-4 
discussed in this document, and the revised draft environmental 
assessment is now available at https://www.regulations.gov. As stated 
earlier, we solicit data and comments from the public on the revised 
draft environmental assessment.

Required Determinations--Amended

    In our June 12, 2006, proposed rule (71 FR 33703), we said 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.) 
13132, the Paperwork Reduction Act, 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 revise our required determinations concerning E.O. 12866 and 
the Regulatory Flexibility Act, E.O. 13211 (Energy, Supply, 
Distribution, and Use), the Unfunded Mandates Reform Act, and E.O. 
12630 (Takings).

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under Executive 
Order 12866 (E.O. 12866). OMB bases its determination upon the 
following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), 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 effect of the rule on small entities (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. Based on our revised DEA of the 
proposed revised designation and the revised proposal of critical 
habitat units in this document, we provide our analysis for 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 (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city, town, and county governments that serve fewer than 
50,000 residents (for example, Dare and Hyde Counties); 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, 
including Dare County and Hyde County governmental entities, are 
significant, we considered in our economic analysis 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 revised critical habitat designation 
for the wintering population of the piping plover would affect a 
substantial number of small entities, we considered the number of small 
entities affected within particular types of economic activities, such 
as residential and commercial development. In order to determine 
whether it is appropriate for our agency to certify that this 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

[[Page 28090]]

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 revised critical habitat designation 
(including the additions to revised critical habitat proposed in this 
document), Federal agencies must consult with us under section 7 of the 
Act if their activities may affect designated critical habitat. 
Consultations to avoid the destruction or adverse modification of 
critical habitat would be incorporated into the existing consultation 
process.
    In our revised DEA, we evaluated the potential economic effects on 
small business entities from conservation actions related to the 
listing of the wintering population of the piping plover and proposed 
revised designation of the species' critical habitat. This analysis 
estimated prospective economic impacts due to the implementation of 
wintering piping plover conservation efforts in two categories: 
Recreation (particularly ORV use), and section 7 consultation 
undertaken by the NPS, the Service, and the State of North Carolina. We 
anticipate that impacts of conservation activities will not have a 
significant economic impact on small entities because the costs of 
consultation are borne entirely by the NPS, the Service, and the State 
of North Carolina. The only impacts we expect small entities to bear 
are the costs associated with lost consumer surplus and lost trip 
expenditures. Lost trips would impact generated visitor expenditures on 
such items as food, lodging, shopping, transportation, entertainment, 
and recreation. See ``Draft Economic Analysis'' section above and the 
revised DEA for a more detailed discussion of estimated discounted 
impacts.
    Approximately 93 percent of businesses in affected industry sectors 
in both counties are small. Assuming that all expenditures are lost 
only by small businesses and that these expenditures are distributed 
equally across all small businesses in both counties, each small 
business may experience a reduction in annual sales of between $661 and 
$6,494, depending on a business' industry. Specifically, the 
entertainment industry may expect a loss of $661 if no trips are lost 
and $992 if trips are lost. The food industry may expect a loss of $808 
and $1,213 for no trips lost and trips lost, respectively. The shopping 
industry may expect a loss of $1,383 and $2,077, and lodging may expect 
a loss of $3,660 to $5,495, for no trips lost and trips lost, 
respectively. The transportation industry may expect a loss of $4,325 
if no trips are lost and $6,494 if trips are lost. If the small 
business is generating annual sales just under the SBA small business 
threshold for its industry, this loss represents between 0.01 and 0.08 
percent of its annual sales (0.01 to 0.03 percent for food, shopping, 
and entertainment; 0.05 to 0.08 percent for transportation and 
lodging). The Service concludes that this is not a significant economic 
impact.
    Assuming that each small business has annual sales just under its 
SBA industry small business threshold may underestimate lost 
expenditures as a percentage of annual sales. It is likely that most 
small businesses have annual sales well below the threshold. However, 
even if a business has annual sales below the small business threshold 
for its particular industry, it is probable that lost expenditures 
still are relatively small compared to annual sales. For example, if a 
small business has annual sales that are one-tenth of that industry's 
SBA small business threshold, potential losses still only represent 
between 0.10 and 0.85 percent of its annual sales.
    In summary, we have considered whether the proposed rule 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 this proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
Therefore, an initial regulatory flexibility analysis is not required.

Executive Order 13211--Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued Executive Order (E.O.) 13211 
on regulations that significantly affect energy supply, distribution, 
and use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. OMB's guidance for 
implementing this Executive Order outlines nine outcomes that may 
constitute ``a significant adverse effect'' when compared to no 
regulatory action. The revised DEA finds none of these criteria 
relevant to this analysis. Thus, based on information in the revised 
DEA, we do not expect designation of the proposed revised critical 
habitat to lead to energy-related impacts. As such, we do not expect 
the proposed revised designation of critical habitat to significantly 
affect energy supplies, distribution, or use and a Statement of Energy 
Effects is not required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding'' and the State, local, 
or tribal governments ``lack authority'' to adjust accordingly. 
``Federal private sector mandate'' includes a regulation that ``would 
impose an enforceable duty upon the private sector, except as (i) a 
condition of Federal assistance; or (ii) a duty arising from 
participation in a voluntary Federal program.''
    Critical habitat designation does not impose a legally binding duty 
on non-Federal Government entities or private parties. Under the Act, 
the only regulatory effect is that Federal agencies must ensure that 
their actions do not destroy or adversely modify critical habitat under 
section 7. Designation of critical habitat may indirectly impact non-
Federal entities that receive Federal funding, assistance, or permits, 
or that otherwise require approval or authorization from a Federal 
agency for an action. However, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency. Furthermore, to the extent that non-Federal 
entities are indirectly impacted because they receive Federal 
assistance or participate in a voluntary Federal aid program, the 
Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.

[[Page 28091]]

    (b) As discussed in the revised draft economic analysis of the 
proposed revised designation of critical habitat for the wintering 
population of the piping plover, we do not believe that this rule would 
significantly or uniquely affect small governments because only Federal 
and State lands are proposed for designation. The SBA does not consider 
the Federal or State Government to be a small governmental jurisdiction 
or entity. As such, it is unlikely that small governments will be 
involved with projects involving section 7 consultations for the 
wintering population of the piping plover within their jurisdictional 
areas. Consequently, we do not believe that the designation of critical 
habitat for this species would significantly or uniquely affect these 
small governmental entities. As such, a Small Government Agency Plan is 
not required.

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 
proposing revised critical habitat for the wintering population of the 
piping plover. Our takings implications assessment concludes that this 
proposed revised designation of critical habitat for the wintering 
population of the piping plover in North Carolina does not pose 
significant taking implications.

Author

    The primary author of this notice is the Raleigh Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT).

Authority

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

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as proposed to 
be amended at 71 FR 33703, June 12, 2006, as follows:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. The critical habitat entry for ``Piping Plover (Charadrius 
melodus) Wintering Habitat'' in Sec.  17.95(b), which was proposed to 
be revised on June 12, 2006, at 71 FR 33703, is proposed to be amended 
by:
    a. Revising the critical habitat description for Unit NC-1 to read 
as set forth below;
    b. Revising the critical habitat description for Unit NC-4 to read 
as set forth below;
    c. Revising the first map for ``North Carolina Unit: 1'' as set 
forth below; and
    d. Revising the second map for ``North Carolina Units: 2, 3, 4, 5, 
& 6'' as set forth below.


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) Birds.
* * * * *
    Piping Plover (Charadrius melodus) Wintering Habitat
* * * * *
    3. * * *
* * * * *

Unit NC-1: Oregon Inlet, 196 ha (485 ac) in Dare County, North Carolina

    This unit extends from the southern portion of Bodie Island through 
Oregon Inlet to the northern portion of Pea Island. It begins at the 
edge of Ramp 4 near the Oregon Inlet Fishing Center on Bodie Island and 
extends south approximately 7.6 km (4.7 mi) to the intersection of NC 
Highway 12 and Salt Flats Wildlife Trail (near Mile Marker 30, NC 
Highway 12), approximately 4.8 km (2.9 mi) from the groin, on Pea 
Island. The unit is bounded by the Atlantic Ocean on the east and 
Pamlico Sound on the west and includes lands from the mean lower low 
water (MLLW) on the Atlantic Ocean shoreline to the line of stable, 
densely vegetated dune habitat (which is not used by piping plovers and 
where primary constituent elements do not occur) and from the MLLW on 
the Pamlico Sound side to the line of stable, densely vegetated 
habitat, or (where a line of stable, densely vegetated dune habitat 
does not exist) lands from MLLW on the Atlantic Ocean shoreline to the 
MLLW on the Pamlico Sound side. Any emergent sandbars south and west of 
Oregon Inlet, including Green Island and lands owned by the State of 
North Carolina such as Islands DR-005-05 and DR-005-06, are included 
(but are not shown on map). This unit does not include the Oregon Inlet 
Fishing Center, NC Highway 12 and the Bonner Bridge or its associated 
structures, the terminal groin, the historic Pea Island Life-Saving 
Station, or any of their ancillary facilities (e.g., parking lots, out 
buildings).
* * * * *

Unit NC-4: Hatteras Inlet, 166 ha (410 ac) in Dare and Hyde Counties, 
North Carolina

    This unit extends from the western end of Hatteras Island to the 
eastern end of Ocracoke Island. The unit extends approximately 7.6 km 
(4.7 mi) southwest from the first beach access point at the edge of 
Ramp 55 at the end of NC Highway 12 near the Graveyard of the Atlantic 
Museum on the western end of Hatteras Island to the edge of the beach 
access at the ocean-side parking lot (approximately 0.1 mi south of 
Ramp 59) on NC Highway 12, approximately 1.25 km (0.78 mi) southwest 
(straight-line distance) of the ferry terminal on the northeastern end 
of Ocracoke Island. The unit includes lands from the MLLW on the 
Atlantic Ocean shoreline to the line of stable, densely vegetated dune 
habitat (which is not used by the piping plover and where primary 
constituent elements do not occur) and from the MLLW on the Pamlico 
Sound side to the line of stable, densely vegetated habitat, or (where 
a line of stable, densely vegetated dune habitat does not exist) lands 
from MLLW on the Atlantic Ocean shoreline to the MLLW on the Pamlico 
Sound side. All emergent sandbars within Hatteras Inlet between 
Hatteras Island and Ocracoke Island, including lands owned by the State 
of North Carolina such as Island DR-009-03/04 (not shown on map), are 
included. The unit is adjacent to but does not include the Graveyard of 
the Atlantic Museum, the ferry terminal, the groin on Ocracoke Island, 
NC Highway 12, or their ancillary facilities (e.g., parking lots, out 
buildings).
* * * * *
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* * * * *

    Dated: May 7, 2008.
 Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-10887 Filed 5-14-08; 8:45 am]
BILLING CODE 4310-55-C