Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Polar Bear in the United States, 24545-24549 [2010-10512]

Download as PDF erowe on DSK5CLS3C1PROD with PROPOSALS-1 Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Proposed Rules compound (VOC) emissions from petroleum facilities, chemical plants, and facilities which use organic solvents. We are proposing to approve local rules to regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). DATES: Any comments on this proposal must arrive by June 4, 2010. ADDRESSES: Submit comments, identified by docket number [EPA–R09– OAR–2010–0218], by one of the following methods: 1. Federal eRulemaking Portal: https:// www.regulations.gov. Follow the on-line instructions. 2. E-mail: steckel.andrew@epa.gov. 3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105–3901. Instructions: All comments will be included in the public docket without change and may be made available online at https://www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through https://www.regulations.gov or e-mail. https://www.regulations.gov is an ‘‘anonymous access’’ system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send email directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: The index to the docket for this action is available electronically at https://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Nicole Law, EPA Region IX, (415) 947– 4126, law.nicole@epa.gov. VerDate Mar<15>2010 15:17 May 04, 2010 Jkt 220001 This proposal addresses the following local rules: PCAPCD Rule 216 Organic Solvent Cleaning and Degreasing Operations, SMAQMD Rule 466 Solvent Cleaning, SJVUAPCD Rule 4661 Organic Solvents, SCAQMD Rule 1173 Control of Volatile Organic Compound Leaks and Releases from Components at Petroleum Facilities and Chemical Plants. In the Rules and Regulations section of this Federal Register, we are approving these local rules in a direct final action without prior proposal because we believe these SIP revisions are not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment. We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action. SUPPLEMENTARY INFORMATION: Dated: March 18, 2010. Jared Blumenfeld, Regional Administrator, Region IX. [FR Doc. 2010–10401 Filed 5–4–10; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R7–ES–2009–0042; 92210–1117–0000–B4] RIN 1018–AW56 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Polar Bear in the United States AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule; reopening of comment period, and announcement of public hearings. SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening of the public comment period on the proposed designation of critical habitat for the polar bear (Ursus maritimus) under the Endangered PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 24545 Species Act of 1973, as amended (Act). We also announce the availability of a draft economic analysis (DEA), corrections to our proposed boundaries for sea-ice critical habitat, our intention to hold two public hearings to provide the public with an opportunity to submit testimony on the proposed designation of critical habitat for the polar bear and on the DEA, and an amended required determinations section of the proposal. We are reopening the comment period to allow all interested parties an opportunity to provide additional comment on the proposed rule, the associated DEA, corrections to our proposed boundaries for sea-ice critical habitat, and the amended required determinations section. If you submitted comments previously, you do not need to resubmit them because we have already incorporated them into the public record and will fully consider them in preparation of the final rule. DATES: Written Comments: We will consider comments we receive on or before July 6, 2010. Public Hearings: We will hold two public hearings, one on June 15, 2010, from 7–10 p.m. in Anchorage, Alaska, and another on June 17, 2010, from 7– 10 p.m. in Barrow, Alaska. During the first hour of these meetings (from 7–8 p.m.), we will present information on the DEA and proposed critical habitat. Public comments will be taken from 8– 10 p.m. ADDRESSES: Written Comments: You may submit comments by one of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. Please follow the instructions for submitting comments on Docket No. FWS–R7–ES–2009–0042. • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS–R7– ES–2009–0042; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203. Public Hearings: • The Barrow, Alaska, public hearing ˜ will be held at Inupiat Heritage Center, 5421 North Star Street, Barrow, Alaska. • The Anchorage, Alaska, public hearing will be held at Z.J. Loussac Public Library, 3600 Denali Street, Anchorage, Alaska. For more information on the public hearings, see the Public Hearings section below. We will post all comments, and transcripts of the public hearings on https://www.regulations.gov. This generally means that we will post any personal information you provide to us (see the Public Comments section below for more information). E:\FR\FM\05MYP1.SGM 05MYP1 24546 Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Proposed Rules FOR FURTHER INFORMATION CONTACT: Thomas Evans, Wildlife Biologist, U.S. Fish and Wildlife Service, Marine Mammals Management Office, 1011 East Tudor Road, Anchorage, AK 99503; by telephone (907–786–3800); or by facsimile (907–786–3816). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: erowe on DSK5CLS3C1PROD with PROPOSALS-1 Public Comments We will accept written comments and information during this reopened comment period on the proposed rule to designate critical habitat for the polar bear that we published in the Federal Register on October 29, 2009 (74 FR 56058), the DEA of the proposed designation, corrections to our proposed boundaries for sea-ice critical habitat, and the amended required determinations section 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 Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), including whether the benefit of designation would outweigh threats to the species caused by that designation, such that the designation of critical habitat is prudent. (2) Specific information on: • The amount and distribution of habitat used by polar bear populations in the United States, specifically in the southern Beaufort, Chukchi, and Bering Seas; • 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, within the jurisdiction of the United States, 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 features essential to the conservation of the species within proposed critical habitat. (4) Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities, and the benefits of including or excluding areas that exhibit these impacts. Such impacts could include any potential impacts on VerDate Mar<15>2010 15:17 May 04, 2010 Jkt 220001 oil and gas development and exploration. (5) Potential effects on oil and gas development and exploration including those related to impacts referenced in (4), and those relating to the opening of oil and gas lease sale areas in the Chukchi and Beaufort Seas. (6) Potential effects on native cultures and villages. (7) Potential effects on commercial shipping through the Northern Sea Route in anticipation of a longer navigable season. (8) Special management considerations or protections that the essential features, as identified in the proposed rule to designate critical habitat (74 FR 56058), may require. (9) Specific information on the incremental effects of the designation of critical habitat for the polar bear. In particular, will any aspect of the proposed critical habitat designation result in consultations under section 7 of the Act with a different set of protections than those afforded by the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.)? (10) 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. (11) Information on whether the DEA identifies all Federal, State, and local costs and benefits attributable to the proposed designation of critical habitat, and information on any costs that we may have inadvertently overlooked. (12) Information on whether the DEA makes appropriate assumptions regarding current practices and any regulatory changes that likely may occur if we designate critical habitat. (13) Information on the accuracy of our methodology in the DEA for distinguishing baseline and incremental costs, and the assumptions underlying the methodology. (14) Information on whether the DEA correctly assesses the effect on regional costs associated with land use controls that may result from the designation of critical habitat. (15) Information on the likelihood of adverse social reactions to the designation of critical habitat, as discussed in the DEA, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation. (16) Information on areas that the members of the public have recommended we exclude from or add PO 00000 Frm 00053 Fmt 4702 Sfmt 4702 to our proposed critical habitat designation. Specifically, we may exercise our discretion to exclude areas from critical habitat designation if we determine that the benefits of excluding an area outweigh the benefits of including it, provided the exclusions will not result in the extinction of the species. In response to our Federal Register notice of October 29, 2009, the Service received comments recommending that we exclude certain areas from the critical habitat designation as provided for under the Act. The requested exclusions include the following: • Coastal villages that are either within or adjacent to proposed critical habitat. • Alaska Native and privately-owned lands, e.g., Village Corporations, organized municipalities, North Slope Borough land, and Alaska Native allotments. • Lands under the control of the U.S. Department of Defense, e.g., Long Range Radar Sites and Short Range Radar Sites. • Current and proposed oil and gas exploration, development, and production sites, including transportation corridors; all active and proposed oil and gas lease sale areas; and proposed sites for mining and shipping operations. • Areas where polar bears den infrequently, such as barrier islands that do not contain denning habitat; barrier islands in western Alaska; and areas that do not contain the specific habitat characteristics that allow for denning. • Areas where polar bears occur infrequently, such as the proposed 1.6kilometer (km) (1-mile) no-disturbance area around the barrier islands; Norton Sound and Norton Bay; the Seward Peninsula; and sea-ice habitat when sea ice concentrations are less than 15 percent. The Service also received comments recommending that we include additional areas in our proposed critical habitat designation, including: • The entire coastal plain of the Arctic National Wildlife Refuge. • Additional sea-ice habitat beyond the 300-meter (984-feet) isobath to encompass the entire 321 km (200 miles) or the Exclusive Economic Zone. • All lands known to contain terrestrial dens. All comments we received in response to our October 29, 2009, proposed rule (74 FR 56058) that recommended exclusion or inclusion of lands from the designation of critical habitat are available for public review and comment at the Federal E:\FR\FM\05MYP1.SGM 05MYP1 Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Proposed Rules erowe on DSK5CLS3C1PROD with PROPOSALS-1 eRulemaking Portal: https:// www.regulations.gov. Search under Docket No. FWS–R7–ES–2009–0042. You may submit your comments and materials concerning the proposed rule, associated DEA, boundary corrections, or amended required determinations by one of the methods listed in the ADDRESSES section. If you submit a comment via https:// www.regulations.gov, your entire comment—including any personal identifying information that you provide, such as your address, phone number and e-mail address—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 the proposed rule, this document, and the DEA, 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, Marine Mammals Management Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule and the DEA on the Internet at https://www.regulations.gov at Docket No. FWS–R7–ES–2009–0042, or by mail from the Marine Mammals Management Office (see FOR FURTHER INFORMATION CONTACT). Public Hearings Section 4(b)(5)(E) of the Act requires that we hold one public hearing if any person requests it within 45 days of the publication of a proposed rule. In response to requests from the public, the Service will hold two public hearings on our proposed rule to designate critical habitat for the polar bear on the dates and times shown in the DATES section and at the locations shown in the ADDRESSES section. In addition to having the opportunity to provide oral comments in person, we will provide telephone access for the public hearing held in Barrow, Alaska. Contact the Marine Mammals Management Office (see FOR FURTHER INFORMATION CONTACT) for more information about obtaining telephone access for the Barrow, Alaska, public hearing. People wishing to make an oral statement for the record at a public hearing are encouraged to provide a written copy of their statement and present it to us at the hearing. In the event that attendance at the public VerDate Mar<15>2010 15:17 May 04, 2010 Jkt 220001 hearings is large, the time allotted for oral statements may be limited. Oral and written statements receive equal consideration. There are no limits on the length of written comments submitted to us. If you have any questions concerning a public hearing, please contact the Marine Mammals Management Office (see FOR FURTHER INFORMATION CONTACT). People needing reasonable accommodations in order to attend and participate in the public hearings should contact the Marine Mammals Management Office (see FOR FURTHER INFORMATION CONTACT) as soon as possible. In order to allow sufficient time to process requests, please call no later than one week before the hearing date. Correction to Total Area Proposed for Critical Habitat The October 29, 2009, proposed rule (74 FR 56058) indicated a total proposed designation of approximately 519,403 square kilometers (km2) (200,541 square miles (mi2)). However, we incorrectly identified the extent of U.S. territorial waters in that proposal; thus, we are reducing the area we are proposing as critical habitat for the polar bear to accurately reflect the U.S. boundary for proposed sea-ice habitat. With this change, we are proposing to designate in total approximately 484,764 km2 (187,166 mi2) of critical habitat for the polar bear. We have updated our maps to reflect this change; you may view revised maps on our Web site at: https://alaska.fws.gov/fisheries/mmm/ polarbear/criticalhabitat.htm. You can obtain hard copies of maps by contacting the Marine Mammals Management Office (see FOR FURTHER INFORMATION CONTACT). Background It is our intent to discuss only those topics directly relevant to the designation of critical habitat for the polar bear. On July 16, 2008, the Center for Biological Diversity, Natural Resources Defense Council, and, Greenpeace, Inc., filed an amended complaint against the Service for, in part, failing to designate critical habitat for the polar bear concurrently with the final listing rule [Center for Biological Diversity et al. v. Kempthorne et al., No. 08–2113–D.D.C. (transferred from N.D. Cal.)]. On October 7, 2008, the U.S. District Court for the Northern District of California entered an order approving a stipulated settlement of the parties. The stipulated settlement, in part, required the Service, on or before June 30, 2010, to submit to the Federal Register a final critical habitat PO 00000 Frm 00054 Fmt 4702 Sfmt 4702 24547 designation for the polar bear. On March 24, 2010, the court approved a stipulation extending this deadline to November 23, 2010. Comments or information that we receive in response to the proposed rule will allow us to comply with the court order and section 4(b)(2) of the Act. For more information on previous Federal actions concerning the polar bear, refer to the final listing rule and final special rule published in the Federal Register on May 15, 2008 (73 FR 28212), and December 16, 2008 (73 FR 76249), respectively. On October 29, 2009, we published a proposed rule to designate critical habitat for the polar bear (74 FR 56058). With the boundary change described above, we propose to designate approximately 484,764 km2 (187,166 mi2) in three units including sea-ice, denning, and barrier island habitat. The proposed rule had an initial 60-day comment period that closed on December 28, 2009. 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 that affect critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act. 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, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We have prepared a DEA that identifies and analyzes the potential economic impacts associated with the proposed critical habitat designation for the polar bear published in the Federal Register on October 29, 2009 (74 FR 56058). The DEA quantifies the potential economic impacts of critical habitat designation for the polar bear. The economic impact of the proposed critical habitat designation is analyzed E:\FR\FM\05MYP1.SGM 05MYP1 erowe on DSK5CLS3C1PROD with PROPOSALS-1 24548 Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Proposed Rules by comparing scenarios both ‘‘with critical habitat’’ and ‘‘without critical habitat.’’ The ‘‘without critical habitat’’ scenario represents the baseline for the analysis, and qualitatively considers protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred from polar bear conservation efforts expected to occur 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 are those not expected to occur absent 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 may consider in the final designation of critical habitat. The analysis forecasts incremental impacts likely to occur if we finalize the proposed critical habitat designation. The DEA provides estimated costs of the reasonably foreseeable potential economic impacts of the proposed critical habitat designation for the polar bear through 2039. This time horizon pertains to the forecast of impacts to oil and gas exploration, development, and production, and associated construction projects, as these are the primary activities occurring within the proposed critical habitat area. It identifies potential incremental costs as a result of the proposed critical habitat designation, which are those costs attributed to critical habitat over and above those costs attributed to listing and the protections afforded the polar bear under the MMPA. The DEA quantifies economic impacts of polar bear conservation efforts associated with the following categories of activity: (1) Oil and gas exploration and development; (2) marine and coastal construction activities; (3) commercial shipping and marine transportation; and (4) U.S Air Force and U.S. Coast Guard operations. Polar bears and their habitat already receive significant regulatory protection under the MMPA and under the Act (due to the listing of the species as threatened). The incidental take regulations (73 FR 33212, 71 FR 43925) address the direct effects of oil and gas projects, and provide protection for habitats that are predictably used, such as denning habitat. Longer term planning actions, such as oil and gas lease sales, are reviewed under the VerDate Mar<15>2010 15:17 May 04, 2010 Jkt 220001 section 7 jeopardy standard of the Act. For example, U.S. Department of the Interior’s Bureau of Land Management National Petroleum Reserve-Alaska Integrated Activity plans are reviewed under section 7 of the Act because polar bears are listed as a threatened species. Oil spills are not authorized; however, protections are provided through the Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.), which mandates contingency planning and enhanced capabilities for oil spill responses. Additionally, the State of Alaska’s Department of Natural Resources Division of Oil and Gas permits, while lacking a federal nexus, adopt and reiterate existing Federal requirements and protections, for example, requiring permittees to document and report sightings of polar bears to the Service, to maintain buffers of 1 mile around known polar bear dens, and to report to the Service within 24 hours any new dens identified. These existing regulatory requirements provide significant protections for polar bears and their habitat, such that we anticipate only minimal additional regulatory involvement under the Act resulting from the designation of critical habitat. Costs associated with the designation of polar bear critical habitat are therefore limited primarily to the administrative costs of considering adverse modification in future section 7 consultations under the Act (that is, in addition to considering jeopardy, which is considered due to the listing of the polar bear). The future (2010–2039) total present value incremental impacts (those estimated to occur because of critical habitat designation) are estimated to be $669,000 (an annualized impact of $53,900) assuming a 7-percent discount rate. On March 31, 2010, President Obama announced the opening of additional lease sale areas along the Outer Continental Shelf, including areas of the Eastern Gulf of Mexico and the Atlantic Ocean. The announcement did not open additional lease sale areas in the proposed critical habitat area for polar bears or the Arctic Ocean in general. The existing 5-year plans for the Beaufort and Chukchi Seas (2007–2012) both proposed a series of lease sales. The Administration’s announcement states that planned lease sales in these areas that have not yet been conducted will be canceled. Exploration may continue on existing leases in the Beaufort and Chukchi Seas, and the results of exploration, along with information from current and planned scientific studies, will help determine the extent to which additional lease sales in these areas are both needed and PO 00000 Frm 00055 Fmt 4702 Sfmt 4702 appropriate in the next 5-year program. (e.g., in the 2012–2017 5-year plan). This announcement relates to Section 3.4 of the DEA, which describes potential future oil and gas activity in the proposed critical habitat area, 2010 through 2039. Given changes in OCS policy, as described in the President’s announcement, the DEA may overstate future oil and gas development activity in areas proposed for critical habitat. However, these changes are unlikely to have an effect on the findings of the DEA. This is because, regardless of scope and scale of future oil and gas development, critical habitat designation will not result in changes to polar bear conservation requirements (i.e., the FWS anticipates that polar bear conservation will continue to be driven by the Marine Mammal Protection Act and the bear’s listing status). In addition, the discussion contained in Section 3.2 of the DEA, which addresses the limited direct incremental economic impacts of critical habitat designation and the potential for indirect impacts, remains unchanged. As stated earlier, we are requesting data and comments from the public on the DEA, as well as all aspects of the proposed rule, our boundary corrections, and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the reopened 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 exclusions will not result in the extinction of this species. Required Determinations—Amended In our October 29, 2009, proposed rule (74 FR 56058), we indicated that we would defer our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. We have used the DEA data to make these determinations. In this document, we affirm the information in our proposed rule concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act, the Paperwork Reduction Act, the National Environmental Policy Act, and the President’s memorandum of April 29, 1994, ‘‘Government-to-Government E:\FR\FM\05MYP1.SGM 05MYP1 Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Proposed Rules erowe on DSK5CLS3C1PROD with PROPOSALS-1 Relations with Native American Tribal Governments’’ (59 FR 22951). However, based on the DEA data, we revise our required determination concerning the Regulatory Flexibility Act. 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 (i.e., small businesses, small organizations, and small government jurisdictions), as described below. However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based on our DEA of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of our final rulemaking. According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include: Oil and gas extraction and drilling, natural gas distribution, and mining concerns with fewer than 500 employees; oil and gas or mining support activities, water supply and irrigation systems, land subdivision, air traffic control and airport operations, and transportation support activities with annual average revenues of less than $6.5 million; construction-related businesses with less than $31 million in average annual revenues; and pipeline transportation of crude oil businesses with less than 1,500 employees. 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 operations. To determine if the proposed designation of critical habitat for the VerDate Mar<15>2010 15:17 May 04, 2010 Jkt 220001 polar bear would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, i.e., oil and gas exploration and development, and marine and coastal development activities. Specifically, we identified 131 entities that may be impacted by the designation of critical habitat, and of these, 112 entities meet the small business threshold. These entities include local governments (e.g., the North Slope Borough and the Northwest Arctic Borough), construction companies, specialty trade contractors, airport operations and support contractors, and other support contracting companies. In estimating the numbers of small entities potentially affected, we considered whether the activities of these entities may include any Federal involvement, in particular, activities that may trigger a consultation under section 7 of the Act. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat affects activities conducted, funded, or authorized by Federal agencies. If we finalize the proposed critical habitat designation, 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. As described in Appendix A of the DEA, the potential impacts to small businesses are those associated with administrative costs resulting from the need to conduct consultations under section 7 of the Act. These costs associated with small businesses fall under two primary component activities: (1) Oil and Gas Exploration, Development, and Production, and (2) Construction and Development Activities. As discussed in Appendix A of the DEA, we anticipate both of these primary activities to be minimally impacted by a designation of critical habitat because they are generally covered by existing regional regulations (e.g., the MMPA’s incidental take regulations at (73 FR 33212, 71 FR 43925)), or associated with section 7 consultation processes. As a consequence, we anticipate only minimal additional regulatory involvement under the Act resulting from the designation of critical habitat. 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 PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 24549 based on currently available information, we certify that, if promulgated, the designation of critical habitat for the polar bear would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required. Authors The primary authors of this notice are the staff members of the Marine Mammals Management Office, Alaska Region, 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 19, 2010. Thomas L. Strickland, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2010–10512 Filed 5–4–10; 8:45 am] BILLING CODE 4310–55–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 253 [Docket No. 0908061221–91225–01] RIN 0648–AY16 Merchant Marine Act and MagnusonStevens Fishery Conservation and Management Act (Magnuson-Stevens Act) Provisions; Fishing Vessel, Fishing Facility and Individual Fishing Quota Lending Program Regulations AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: The Fisheries Finance Program (FFP or the Program) provides long-term financing to the commercial fishing and aquaculture industries for fishing vessels, fisheries facilities, aquaculture facilities, and individual fishing quotas (IFQs). The Program became a direct loan program, as a result of legislation in 1996, replacing a guaranteed loan program. The FFP collects loan principal and interest from loan recipients and fees from applicants in order to repay monies borrowed from the U.S. Treasury. It maintains fixed interest rates that are comparable to those of private sector lenders, however the FFP allows borrowers to prepay without penalty, and may carry longer E:\FR\FM\05MYP1.SGM 05MYP1

Agencies

[Federal Register Volume 75, Number 86 (Wednesday, May 5, 2010)]
[Proposed Rules]
[Pages 24545-24549]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-10512]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R7-ES-2009-0042; 92210-1117-0000-B4]
RIN 1018-AW56


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Polar Bear in the United States

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, and announcement of 
public hearings.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening 
of the public comment period on the proposed designation of critical 
habitat for the polar bear (Ursus maritimus) under the Endangered 
Species Act of 1973, as amended (Act). We also announce the 
availability of a draft economic analysis (DEA), corrections to our 
proposed boundaries for sea-ice critical habitat, our intention to hold 
two public hearings to provide the public with an opportunity to submit 
testimony on the proposed designation of critical habitat for the polar 
bear and on the DEA, and an amended required determinations section of 
the proposal. We are reopening the comment period to allow all 
interested parties an opportunity to provide additional comment on the 
proposed rule, the associated DEA, corrections to our proposed 
boundaries for sea-ice critical habitat, and the amended required 
determinations section. If you submitted comments previously, you do 
not need to resubmit them because we have already incorporated them 
into the public record and will fully consider them in preparation of 
the final rule.

DATES: Written Comments: We will consider comments we receive on or 
before July 6, 2010.
    Public Hearings: We will hold two public hearings, one on June 15, 
2010, from 7-10 p.m. in Anchorage, Alaska, and another on June 17, 
2010, from 7-10 p.m. in Barrow, Alaska. During the first hour of these 
meetings (from 7-8 p.m.), we will present information on the DEA and 
proposed critical habitat. Public comments will be taken from 8-10 p.m.

ADDRESSES: Written Comments: You may submit comments by one of the 
following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Please follow the instructions for submitting comments on Docket No. 
FWS-R7-ES-2009-0042.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R7-ES-2009-0042; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    Public Hearings:
     The Barrow, Alaska, public hearing will be held at 
I[ntilde]upiat Heritage Center, 5421 North Star Street, Barrow, Alaska.
     The Anchorage, Alaska, public hearing will be held at Z.J. 
Loussac Public Library, 3600 Denali Street, Anchorage, Alaska.
    For more information on the public hearings, see the Public 
Hearings section below.
    We will post all comments, and transcripts of the public hearings 
on https://www.regulations.gov. This generally means that we will post 
any personal information you provide to us (see the Public Comments 
section below for more information).

[[Page 24546]]


FOR FURTHER INFORMATION CONTACT: Thomas Evans, Wildlife Biologist, U.S. 
Fish and Wildlife Service, Marine Mammals Management Office, 1011 East 
Tudor Road, Anchorage, AK 99503; by telephone (907-786-3800); or by 
facsimile (907-786-3816). 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 the proposed rule to designate critical 
habitat for the polar bear that we published in the Federal Register on 
October 29, 2009 (74 FR 56058), the DEA of the proposed designation, 
corrections to our proposed boundaries for sea-ice critical habitat, 
and the amended required determinations section 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 Endangered Species Act of 1973, 
as amended (Act) (16 U.S.C. 1531 et seq.), including whether the 
benefit of designation would outweigh threats to the species caused by 
that designation, such that the designation of critical habitat is 
prudent.
    (2) Specific information on:
     The amount and distribution of habitat used by polar bear 
populations in the United States, specifically in the southern 
Beaufort, Chukchi, and Bering Seas;
     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, within the 
jurisdiction of the United States, 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 features essential to the 
conservation of the species within proposed critical habitat.
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities, and the benefits of including or excluding 
areas that exhibit these impacts. Such impacts could include any 
potential impacts on oil and gas development and exploration.
    (5) Potential effects on oil and gas development and exploration 
including those related to impacts referenced in (4), and those 
relating to the opening of oil and gas lease sale areas in the Chukchi 
and Beaufort Seas.
    (6) Potential effects on native cultures and villages.
    (7) Potential effects on commercial shipping through the Northern 
Sea Route in anticipation of a longer navigable season.
    (8) Special management considerations or protections that the 
essential features, as identified in the proposed rule to designate 
critical habitat (74 FR 56058), may require.
    (9) Specific information on the incremental effects of the 
designation of critical habitat for the polar bear. In particular, will 
any aspect of the proposed critical habitat designation result in 
consultations under section 7 of the Act with a different set of 
protections than those afforded by the Marine Mammal Protection Act 
(MMPA) (16 U.S.C. 1361 et seq.)?
    (10) 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.
    (11) Information on whether the DEA identifies all Federal, State, 
and local costs and benefits attributable to the proposed designation 
of critical habitat, and information on any costs that we may have 
inadvertently overlooked.
    (12) Information on whether the DEA makes appropriate assumptions 
regarding current practices and any regulatory changes that likely may 
occur if we designate critical habitat.
    (13) Information on the accuracy of our methodology in the DEA for 
distinguishing baseline and incremental costs, and the assumptions 
underlying the methodology.
    (14) Information on whether the DEA correctly assesses the effect 
on regional costs associated with land use controls that may result 
from the designation of critical habitat.
    (15) Information on the likelihood of adverse social reactions to 
the designation of critical habitat, as discussed in the DEA, and how 
the consequences of such reactions, if likely to occur, would relate to 
the conservation and regulatory benefits of the proposed critical 
habitat designation.
    (16) Information on areas that the members of the public have 
recommended we exclude from or add to our proposed critical habitat 
designation. Specifically, we may exercise our discretion to exclude 
areas from critical habitat designation if we determine that the 
benefits of excluding an area outweigh the benefits of including it, 
provided the exclusions will not result in the extinction of the 
species. In response to our Federal Register notice of October 29, 
2009, the Service received comments recommending that we exclude 
certain areas from the critical habitat designation as provided for 
under the Act. The requested exclusions include the following:
     Coastal villages that are either within or adjacent to 
proposed critical habitat.
     Alaska Native and privately-owned lands, e.g., Village 
Corporations, organized municipalities, North Slope Borough land, and 
Alaska Native allotments.
     Lands under the control of the U.S. Department of Defense, 
e.g., Long Range Radar Sites and Short Range Radar Sites.
     Current and proposed oil and gas exploration, development, 
and production sites, including transportation corridors; all active 
and proposed oil and gas lease sale areas; and proposed sites for 
mining and shipping operations.
     Areas where polar bears den infrequently, such as barrier 
islands that do not contain denning habitat; barrier islands in western 
Alaska; and areas that do not contain the specific habitat 
characteristics that allow for denning.
     Areas where polar bears occur infrequently, such as the 
proposed 1.6-kilometer (km) (1-mile) no-disturbance area around the 
barrier islands; Norton Sound and Norton Bay; the Seward Peninsula; and 
sea-ice habitat when sea ice concentrations are less than 15 percent.

The Service also received comments recommending that we include 
additional areas in our proposed critical habitat designation, 
including:
     The entire coastal plain of the Arctic National Wildlife 
Refuge.
     Additional sea-ice habitat beyond the 300-meter (984-feet) 
isobath to encompass the entire 321 km (200 miles) or the Exclusive 
Economic Zone.
     All lands known to contain terrestrial dens.

    All comments we received in response to our October 29, 2009, 
proposed rule (74 FR 56058) that recommended exclusion or inclusion of 
lands from the designation of critical habitat are available for public 
review and comment at the Federal

[[Page 24547]]

eRulemaking Portal: https://www.regulations.gov. Search under Docket No. 
FWS-R7-ES-2009-0042.
    You may submit your comments and materials concerning the proposed 
rule, associated DEA, boundary corrections, or amended required 
determinations by one of the methods listed in the ADDRESSES section. 
If you submit a comment via https://www.regulations.gov, your entire 
comment--including any personal identifying information that you 
provide, such as your address, phone number and e-mail address--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 the proposed rule, this document, 
and the DEA, 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, Marine Mammals Management Office 
(see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the 
proposed rule and the DEA on the Internet at https://www.regulations.gov 
at Docket No. FWS-R7-ES-2009-0042, or by mail from the Marine Mammals 
Management Office (see FOR FURTHER INFORMATION CONTACT).

Public Hearings

    Section 4(b)(5)(E) of the Act requires that we hold one public 
hearing if any person requests it within 45 days of the publication of 
a proposed rule. In response to requests from the public, the Service 
will hold two public hearings on our proposed rule to designate 
critical habitat for the polar bear on the dates and times shown in the 
DATES section and at the locations shown in the ADDRESSES section. In 
addition to having the opportunity to provide oral comments in person, 
we will provide telephone access for the public hearing held in Barrow, 
Alaska. Contact the Marine Mammals Management Office (see FOR FURTHER 
INFORMATION CONTACT) for more information about obtaining telephone 
access for the Barrow, Alaska, public hearing.
    People wishing to make an oral statement for the record at a public 
hearing are encouraged to provide a written copy of their statement and 
present it to us at the hearing. In the event that attendance at the 
public hearings is large, the time allotted for oral statements may be 
limited. Oral and written statements receive equal consideration. There 
are no limits on the length of written comments submitted to us. If you 
have any questions concerning a public hearing, please contact the 
Marine Mammals Management Office (see FOR FURTHER INFORMATION CONTACT).
    People needing reasonable accommodations in order to attend and 
participate in the public hearings should contact the Marine Mammals 
Management Office (see FOR FURTHER INFORMATION CONTACT) as soon as 
possible. In order to allow sufficient time to process requests, please 
call no later than one week before the hearing date.

Correction to Total Area Proposed for Critical Habitat

    The October 29, 2009, proposed rule (74 FR 56058) indicated a total 
proposed designation of approximately 519,403 square kilometers (km\2\) 
(200,541 square miles (mi\2\)). However, we incorrectly identified the 
extent of U.S. territorial waters in that proposal; thus, we are 
reducing the area we are proposing as critical habitat for the polar 
bear to accurately reflect the U.S. boundary for proposed sea-ice 
habitat. With this change, we are proposing to designate in total 
approximately 484,764 km\2\ (187,166 mi\2\) of critical habitat for the 
polar bear. We have updated our maps to reflect this change; you may 
view revised maps on our Web site at: https://alaska.fws.gov/fisheries/mmm/polarbear/criticalhabitat.htm. You can obtain hard copies of maps 
by contacting the Marine Mammals Management Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for the polar bear. On July 16, 
2008, the Center for Biological Diversity, Natural Resources Defense 
Council, and, Greenpeace, Inc., filed an amended complaint against the 
Service for, in part, failing to designate critical habitat for the 
polar bear concurrently with the final listing rule [Center for 
Biological Diversity et al. v. Kempthorne et al., No. 08-2113-D.D.C. 
(transferred from N.D. Cal.)]. On October 7, 2008, the U.S. District 
Court for the Northern District of California entered an order 
approving a stipulated settlement of the parties. The stipulated 
settlement, in part, required the Service, on or before June 30, 2010, 
to submit to the Federal Register a final critical habitat designation 
for the polar bear. On March 24, 2010, the court approved a stipulation 
extending this deadline to November 23, 2010. Comments or information 
that we receive in response to the proposed rule will allow us to 
comply with the court order and section 4(b)(2) of the Act. For more 
information on previous Federal actions concerning the polar bear, 
refer to the final listing rule and final special rule published in the 
Federal Register on May 15, 2008 (73 FR 28212), and December 16, 2008 
(73 FR 76249), respectively.
    On October 29, 2009, we published a proposed rule to designate 
critical habitat for the polar bear (74 FR 56058). With the boundary 
change described above, we propose to designate approximately 484,764 
km\2\ (187,166 mi\2\) in three units including sea-ice, denning, and 
barrier island habitat. The proposed rule had an initial 60-day comment 
period that closed on December 28, 2009.
    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 
that affect critical habitat must consult with us on the effects of 
their proposed actions, under section 7(a)(2) of the Act.

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, impact 
on national security, or any other relevant impact of specifying any 
particular area as critical habitat.
    We have prepared a DEA that identifies and analyzes the potential 
economic impacts associated with the proposed critical habitat 
designation for the polar bear published in the Federal Register on 
October 29, 2009 (74 FR 56058). The DEA quantifies the potential 
economic impacts of critical habitat designation for the polar bear. 
The economic impact of the proposed critical habitat designation is 
analyzed

[[Page 24548]]

by comparing scenarios both ``with critical habitat'' and ``without 
critical habitat.'' The ``without critical habitat'' scenario 
represents the baseline for the analysis, and qualitatively considers 
protections already in place for the species (e.g., under the Federal 
listing and other Federal, State, and local regulations). The baseline, 
therefore, represents the costs incurred from polar bear conservation 
efforts expected to occur 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 are those not expected to occur absent 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 may consider in the final designation of critical habitat. The 
analysis forecasts incremental impacts likely to occur if we finalize 
the proposed critical habitat designation.
    The DEA provides estimated costs of the reasonably foreseeable 
potential economic impacts of the proposed critical habitat designation 
for the polar bear through 2039. This time horizon pertains to the 
forecast of impacts to oil and gas exploration, development, and 
production, and associated construction projects, as these are the 
primary activities occurring within the proposed critical habitat area. 
It identifies potential incremental costs as a result of the proposed 
critical habitat designation, which are those costs attributed to 
critical habitat over and above those costs attributed to listing and 
the protections afforded the polar bear under the MMPA. The DEA 
quantifies economic impacts of polar bear conservation efforts 
associated with the following categories of activity: (1) Oil and gas 
exploration and development; (2) marine and coastal construction 
activities; (3) commercial shipping and marine transportation; and (4) 
U.S Air Force and U.S. Coast Guard operations.
    Polar bears and their habitat already receive significant 
regulatory protection under the MMPA and under the Act (due to the 
listing of the species as threatened). The incidental take regulations 
(73 FR 33212, 71 FR 43925) address the direct effects of oil and gas 
projects, and provide protection for habitats that are predictably 
used, such as denning habitat. Longer term planning actions, such as 
oil and gas lease sales, are reviewed under the section 7 jeopardy 
standard of the Act. For example, U.S. Department of the Interior's 
Bureau of Land Management National Petroleum Reserve-Alaska Integrated 
Activity plans are reviewed under section 7 of the Act because polar 
bears are listed as a threatened species. Oil spills are not 
authorized; however, protections are provided through the Oil Pollution 
Act of 1990 (33 U.S.C. 2701 et seq.), which mandates contingency 
planning and enhanced capabilities for oil spill responses. 
Additionally, the State of Alaska's Department of Natural Resources 
Division of Oil and Gas permits, while lacking a federal nexus, adopt 
and reiterate existing Federal requirements and protections, for 
example, requiring permittees to document and report sightings of polar 
bears to the Service, to maintain buffers of 1 mile around known polar 
bear dens, and to report to the Service within 24 hours any new dens 
identified. These existing regulatory requirements provide significant 
protections for polar bears and their habitat, such that we anticipate 
only minimal additional regulatory involvement under the Act resulting 
from the designation of critical habitat. Costs associated with the 
designation of polar bear critical habitat are therefore limited 
primarily to the administrative costs of considering adverse 
modification in future section 7 consultations under the Act (that is, 
in addition to considering jeopardy, which is considered due to the 
listing of the polar bear). The future (2010-2039) total present value 
incremental impacts (those estimated to occur because of critical 
habitat designation) are estimated to be $669,000 (an annualized impact 
of $53,900) assuming a 7-percent discount rate.
    On March 31, 2010, President Obama announced the opening of 
additional lease sale areas along the Outer Continental Shelf, 
including areas of the Eastern Gulf of Mexico and the Atlantic Ocean. 
The announcement did not open additional lease sale areas in the 
proposed critical habitat area for polar bears or the Arctic Ocean in 
general. The existing 5-year plans for the Beaufort and Chukchi Seas 
(2007-2012) both proposed a series of lease sales. The Administration's 
announcement states that planned lease sales in these areas that have 
not yet been conducted will be canceled. Exploration may continue on 
existing leases in the Beaufort and Chukchi Seas, and the results of 
exploration, along with information from current and planned scientific 
studies, will help determine the extent to which additional lease sales 
in these areas are both needed and appropriate in the next 5-year 
program. (e.g., in the 2012-2017 5-year plan).
    This announcement relates to Section 3.4 of the DEA, which 
describes potential future oil and gas activity in the proposed 
critical habitat area, 2010 through 2039. Given changes in OCS policy, 
as described in the President's announcement, the DEA may overstate 
future oil and gas development activity in areas proposed for critical 
habitat. However, these changes are unlikely to have an effect on the 
findings of the DEA. This is because, regardless of scope and scale of 
future oil and gas development, critical habitat designation will not 
result in changes to polar bear conservation requirements (i.e., the 
FWS anticipates that polar bear conservation will continue to be driven 
by the Marine Mammal Protection Act and the bear's listing status). In 
addition, the discussion contained in Section 3.2 of the DEA, which 
addresses the limited direct incremental economic impacts of critical 
habitat designation and the potential for indirect impacts, remains 
unchanged.
    As stated earlier, we are requesting data and comments from the 
public on the DEA, as well as all aspects of the proposed rule, our 
boundary corrections, and our amended required determinations. We may 
revise the proposed rule or supporting documents to incorporate or 
address information we receive during the reopened 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 exclusions will not result 
in the extinction of this species.

Required Determinations--Amended

    In our October 29, 2009, proposed rule (74 FR 56058), we indicated 
that we would defer our determination of compliance with several 
statutes and Executive Orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders became available in the DEA. We have used 
the DEA data to make these determinations. In this document, we affirm 
the information in our proposed rule concerning Executive Order (E.O.) 
12866 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 
13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 
(Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform 
Act, the Paperwork Reduction Act, the National Environmental Policy 
Act, and the President's memorandum of April 29, 1994, ``Government-to-
Government

[[Page 24549]]

Relations with Native American Tribal Governments'' (59 FR 22951). 
However, based on the DEA data, we revise our required determination 
concerning the Regulatory Flexibility Act.

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 (i.e., small 
businesses, small organizations, and small government jurisdictions), 
as described below. However, no regulatory flexibility analysis is 
required if the head of an agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
Based on our DEA of the proposed designation, we provide our analysis 
for determining whether the proposed rule would result in a significant 
economic impact on a substantial number of small entities. Based on 
comments we receive, we may revise this determination as part of our 
final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include: Oil and gas extraction and drilling, natural gas 
distribution, and mining concerns with fewer than 500 employees; oil 
and gas or mining support activities, water supply and irrigation 
systems, land subdivision, air traffic control and airport operations, 
and transportation support activities with annual average revenues of 
less than $6.5 million; construction-related businesses with less than 
$31 million in average annual revenues; and pipeline transportation of 
crude oil businesses with less than 1,500 employees. 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 
operations.
    To determine if the proposed designation of critical habitat for 
the polar bear would affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities, i.e., oil and gas exploration and 
development, and marine and coastal development activities. 
Specifically, we identified 131 entities that may be impacted by the 
designation of critical habitat, and of these, 112 entities meet the 
small business threshold. These entities include local governments 
(e.g., the North Slope Borough and the Northwest Arctic Borough), 
construction companies, specialty trade contractors, airport operations 
and support contractors, and other support contracting companies. In 
estimating the numbers of small entities potentially affected, we 
considered whether the activities of these entities may include any 
Federal involvement, in particular, activities that may trigger a 
consultation under section 7 of the Act. Critical habitat designation 
will not affect activities that do not have any Federal involvement; 
designation of critical habitat affects activities conducted, funded, 
or authorized by Federal agencies.
    If we finalize the proposed critical habitat designation, 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.
    As described in Appendix A of the DEA, the potential impacts to 
small businesses are those associated with administrative costs 
resulting from the need to conduct consultations under section 7 of the 
Act. These costs associated with small businesses fall under two 
primary component activities: (1) Oil and Gas Exploration, Development, 
and Production, and (2) Construction and Development Activities. As 
discussed in Appendix A of the DEA, we anticipate both of these primary 
activities to be minimally impacted by a designation of critical 
habitat because they are generally covered by existing regional 
regulations (e.g., the MMPA's incidental take regulations at (73 FR 
33212, 71 FR 43925)), or associated with section 7 consultation 
processes. As a consequence, we anticipate only minimal additional 
regulatory involvement under the Act resulting from the designation of 
critical habitat.
    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 designation 
of critical habitat for the polar bear would not have a significant 
economic impact on a substantial number of small business entities. 
Therefore, an initial regulatory flexibility analysis is not required.

Authors

    The primary authors of this notice are the staff members of the 
Marine Mammals Management Office, Alaska Region, 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 19, 2010.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-10512 Filed 5-4-10; 8:45 am]
BILLING CODE 4310-55-P
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