Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Tumbling Creek Cavesnail, 2076-2080 [2011-468]
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Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules
part of its review of the Virginia
submittal, EPA performed a line-by-line
review of Virginia’s proposed revision
and has preliminarily determined that
they are consistent with the Tailoring
Rule. These changes to Virginia’s
regulations are also consistent with
section 110 of the CAA because they are
incorporating GHGs for regulation in the
Virginia SIP.
V. Proposed Action
Pursuant to section 110 of the CAA,
EPA is proposing to approve Virginia’s
October 27, 2010, SIP revision, relating
to PSD requirements for GHG-emitting
sources. Specifically, Virginia’s October
27, 2010, proposed SIP revision
establishes appropriate emissions
thresholds for determining PSD
applicability to new and modified GHGemitting sources in accordance with
EPA’s Tailoring Rule. EPA has made the
preliminary determination that this SIP
revision is approvable because it is in
accordance with the CAA and EPA
regulations regarding PSD permitting for
GHGs. EPA is soliciting public
comments on the issues discussed in
this document. These comments will be
considered before taking final action.
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VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
action merely approves the State’s law
as meeting federal requirements and
does not impose additional
requirements beyond those imposed by
the State’s law. For that reason, this
proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
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• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this proposed SIP
revision pertaining to greenhouse gas
permitting does not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), because the SIP is not approved
to apply in Indian country located in the
State, and EPA notes that it will not
impose substantial direct costs on tribal
governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, and Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 3, 2011.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2011–495 Filed 1–11–11; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R3–ES–2010–0042; MO
92210–0–0009–B4]
RIN 1018–AW90
Endangered and Threatened Wildlife
and Plants; Designation of Critical
Habitat for Tumbling Creek Cavesnail
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; reopening of
comment period.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), announce the
SUMMARY:
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reopening of the comment period on
June 23, 2010, proposed designation of
critical habitat for the Tumbling Creek
cavesnail (Antrobia culveri) under the
Endangered Species Act of 1973, as
amended (Act). We also announce the
availability of a draft economic analysis
(DEA) of the proposed designation of
critical habitat for the Tumbling Creek
cavesnail and an amended required
determinations section of the proposal.
We are reopening the comment period
for an additional 30 days to allow all
interested parties an opportunity to
comment on the items listed above.
Comments previously submitted need
not be resubmitted and will be fully
considered in preparation of the final
rule.
DATES: We will consider public
comments we receive on or before
February 11, 2011. Comments must be
received by 11:59 p.m. Eastern Time on
the closing date. Any comments that we
receive after the closing date may not be
considered in the final decision on this
action.
ADDRESSES: You may submit comments
by one of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments
on Docket No. FWS–R3–ES–2010–0042.
• U.S. mail or hand-delivery: Public
Comments Processing, Attn: FWS–R3–
ES–2010–0042; Division of Policy and
Directives Management; U.S. Fish and
Wildlife Service, 4401 N. Fairfax Drive,
Suite 222, Arlington, VA 22203.
We will post all comments on https://
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: Paul
McKenzie, Endangered Species
Coordinator, Columbia Missouri
Ecological Services Field Office, 101
Park DeVille Dr.; Suite A, Columbia,
MO 65203; telephone (573) 234–2132;
facsimile (573) 234–2181. 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 intend that any final action
resulting from the proposed rule will be
based on the best scientific data
available and will be as accurate and
effective as possible. Therefore, we
request comments or information from
other concerned government agencies,
the scientific community, industry, or
any other interested party during this
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Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules
reopened comment period on the
proposed designation of critical habitat
for the Tumbling Creek cavesnail
published in the Federal Register on
June 23, 2010 (75 FR 35751), including
the draft economic analysis of the
proposed designation of critical habitat
for the Tumbling Creek cavesnail and
the amended required determinations
provided in this document. We will
consider information and
recommendations from all interested
parties. We are particularly interested in
comments concerning:
(1) The reasons why we should or
should not designate habitat as ‘‘critical
habitat’’ under section 4 of the Act (16
U.S.C. 1531 et seq.), including whether
there are threats to the species from
human activity, the degree of which can
be expected to increase due to the
designation, and whether that increase
in threat outweighs the benefit of
designation such that the designation of
critical habitat is not prudent.
(2) Specific information on:
• The amount and distribution of
Tumbling Creek cavesnail habitat,
• What areas within the geographical
area occupied by the species at the time
of listing that contain features essential
to the conservation of the species we
should include in the designation and
why, and
• What areas outside the geographical
area 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 effects on the
proposed critical habitat for the
Tumbling Creek cavesnail.
(4) Any foreseeable economic,
national security, or other relevant
impacts of designating any area that
may be included in the final
designation. We are particularly
interested in any impacts on small
entities (i.e., small businesses, small
organizations, and small government
jurisdictions), and the benefits of
including or excluding areas from the
proposed designation that exhibit these
impacts.
(5) 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.
(6) Comments or information that may
assist us in identifying or clarifying the
primary constituent elements and the
resulting physical and biological
features essential to the conservation of
the Tumbling Creek cavesnail.
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(7) How the proposed critical habitat
boundaries could be refined to more
closely circumscribe the landscapes
identified as essential.
(8) Information on the potential
effects of climate change on the
Tumbling Creek cavesnail and its
habitat.
(9) Any foreseeable impacts on energy
supplies, distribution, and use resulting
from the proposed designation and, in
particular, any impacts on electricity
production, and the benefits of
including or excluding any particular
areas that exhibit these impacts.
(10) 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 better
accommodate public concerns and
comments.
(11) Information on whether the DEA
makes appropriate assumptions
regarding current practices and any
regulatory changes that likely may occur
if we designate proposed critical habitat
for the Tumbling Creek cavesnail.
(12) Information on the accuracy of
our methodology in the DEA for
distinguishing baseline and incremental
costs, and the assumptions underlying
the methodology.
(13) Information on whether the DEA
correctly assesses the effect on regional
costs associated with any land use
controls that may result from the
proposed designation of critical habitat
for the Tumbling Creek cavesnail.
(14) Information on whether the
proposed designation of critical habitat
will result in disproportionate economic
impacts to specific areas or small
businesses, including small businesses
in the land development sector in Taney
County.
(15) Information on whether the DEA
identifies all costs that could result from
the proposed designation of critical
habitat for the Tumbling Creek
cavesnail.
(16) Economic data on the
incremental costs of designating a
particular area as critical habitat.
If you submitted comments or
information on the proposed rule (75 FR
35751) during the initial comment
period from June 23, 2010, to August 23,
2010, please do not resubmit them. We
will incorporate them into the public
record as part of this comment period,
and we will fully consider them in the
preparation of our final determination.
Our final determination concerning
critical habitat will take into
consideration all written comments and
any additional information we receive
during both comment periods. On the
basis of public comments, we may,
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during the development of our final
determination, find that areas proposed
are not essential, are appropriate for
exclusion under section 4(b)(2) of the
Act, or are not appropriate for
exclusion.
You may submit your comments and
materials concerning our proposed rule,
the associated DEA, and our amended
required determinations 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 hard
copy 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 hard copy comments on
https://www.regulations.gov.
Comments and materials we receive
(and have received), as well as
supporting documentation we used in
preparing the proposed rule and DEA,
will be available for public inspection
on https://www.regulations.gov (Docket
Number FWS–R3–ES–2010–0042), or by
appointment, during normal business
hours, at the U.S. Fish and Wildlife
Service, Columbia, Missouri Ecological
Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
You may obtain copies of the
proposed rule and DEA by mail from the
Columbia, Missouri Ecological Services
Field Office (see FOR FURTHER
INFORMATION CONTACT), by visiting the
Federal eRulemaking Portal at https://
www.regulations.gov (Docket Number
FWS–R3–ES–2010–0042), or on our
Web site at https://www.fws.gov/
midwest/Endangered.
Background
It is our intent to discuss only those
topics directly relevant to the proposed
designation of critical habitat for the
Tumbling Creek cavesnail in this
document. For more information on
previous Federal actions concerning the
Tumbling Creek cavesnail, refer to the
proposed designation of critical habitat
published in the Federal Register on
June 23, 2010 (75 FR 35751). Additional
information on the Tumbling Creek
cavesnail may also be found in the final
listing rule published in the Federal
Register on August 14, 2002 (67 FR
52879). These documents are available
on our Web site at https://www.fws.gov/
midwest/Endangered.
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On December 27, 2001 (66 FR 66803),
we published an emergency rule to list
the Tumbling Creek cavesnail, due to
water degradation and a precipitous
decline in the cavesnail populations.
The species was subsequently listed as
endangered on August 14, 2002 (67 FR
52879). At the time, critical habitat was
not designated in order to allow the
Service to concentrate its resources on
immediate protections needed for the
conservation of the species. On August
11, 2008, the Institute for Wildlife
Protection and Crystal Grace Rutherford
filed a lawsuit against the Secretary of
the Interior for our failure to timely
designate critical habitat for the
Tumbling Creek cavesnail (Institute for
Wildlife Protection et al. v. Kempthorne,
(Case No. CV–07–01202–CMP)). In a
court-approved settlement agreement,
we agreed to submit to the Federal
Register a prudency determination, and
if the designation was found to be
prudent, a proposed designation of
critical habitat, by June 30, 2010, and a
final designation by June 30, 2011. On
June 23, 2010, we proposed to designate
25 acres of Tumbling Creek and
associated springs as critical habitat.
The Tumbling Creek cavesnail is a
small, white, blind, aquatic snail,
restricted to a single cave stream in
Tumbling Creek Cave in Taney County,
southwestern Missouri. Significant
declines in the snail’s population have
been documented since 1996. The
Tumbling Creek cavesnail is likely
threatened by habitat degradation
through diminished water quality from
upstream locations within the
unprotected or improperly managed
areas within the cave’s delineated
recharge zone. The species may also be
threatened with competition from
limpets or from changes in the cave’s
normal hydrological cycles due to
recent droughts.
Section 3 of the Act defines critical
habitat as the specific areas within the
geographical area occupied by a species,
at the time it is listed in accordance
with the Act, on which are found those
physical or biological features essential
to the conservation of the species and
that may require special management
considerations or protection, and
specific areas outside the geographical
area occupied by a species at the time
it is listed, upon a determination that
such areas are essential for the
conservation of the species. If the
proposed rule is made final, section 7 of
the Act will prohibit destruction or
adverse modification of critical habitat
by any activity funded, authorized, or
carried out by any Federal agency.
Federal agencies proposing actions
affecting areas designated as critical
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habitat must consult with us on the
effects of their proposed actions, under
section 7(a)(2) of the Act.
Possible Exclusions From Critical
Habitat and Draft Economic Analysis
Section 4(b)(2) of the Act requires that
we designate critical habitat based upon
the best scientific data available, after
taking into consideration the economic
impact, impact on national security, or
any other relevant impact of specifying
any particular area as critical habitat.
We may exclude an area from critical
habitat if we determine that the benefits
of excluding the area outweigh the
benefits of including the area as critical
habitat, provided such exclusion will
not result in the extinction of the
species. We have not proposed to
exclude any areas from critical habitat.
However, the final decision on whether
to exclude any areas will be based on
the best scientific data available at the
time of the final designation, including
information obtained during the
comment period and information about
the economic impact of designation.
Accordingly, we have prepared a draft
economic analysis concerning the
proposed critical habitat designation
(DEA), which is available for review and
comment (see ADDRESSES section).
The intent of the DEA is to identify
and analyze the potential economic
impacts associated with the proposed
designation of critical habitat for the
Tumbling Creek cavesnail. The DEA
quantifies the economic impacts of all
potential conservation efforts for the
Tumbling Creek cavesnail; some of
these costs will likely be incurred
regardless of whether we designate
critical habitat. The economic impact of
the proposed designation of critical
habitat for the Tumbling Creek cavesnail
is analyzed by comparing scenarios both
‘‘with critical habitat’’ and ‘‘without
critical habitat.’’ The ‘‘without critical
habitat’’ scenario represents the baseline
for the analysis, considering protections
already in place for the species (for
example, under the Federal listing and
other Federal, State, and local
regulations). The baseline, therefore,
represents the costs incurred regardless
of whether critical habitat is designated
and may include costs incurred in the
future. 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
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beyond the baseline costs; these are the
costs we may consider in the final
designation of critical habitat. The
analysis looks retrospectively at
baseline impacts incurred since we
listed the species, and forecasts both
baseline and incremental impacts likely
to occur if we finalize the proposed
designation of critical habitat for the
Tumbling Creek cavesnail. For a further
description of the methodology of the
analysis, see Chapter 2, ‘‘Framework for
the Analysis,’’ of the DEA.
The current DEA estimates the
foreseeable economic impacts of the
proposed designation of critical habitat
for the Tumbling Creek cavesnail by
identifying the potential resulting
incremental costs. The DEA analyzed
economic impacts of Tumbling Creek
cavesnail conservation efforts on the
following activities: Water management
and other activities that may affect
water quality such as road construction
and maintenance; oil, gas, and utility
easements; forest and pasture
management; alteration of septic
systems; and effluent discharges. It also
assessed possible indirect impacts to
economic activities as the result of
possible applications of other State and
local laws and regulatory uncertainty or
delay. The DEA considers future
baseline and incremental impacts over
the next 20 years (2011 to 2030).
The DEA estimates that minimal
economic impacts are likely to result
from the designation of critical habitat.
The main reason for this conclusion is
that the private landowners of all
surface critical habitat areas and the
Tumbling Creek Cave Foundation,
which owns lands within much of the
cave’s recharge area, have been
undertaking extensive restoration and
conservation efforts for the benefit of the
cavesnail. Those lands have recently
been enrolled in a voluntary
conservation program that encourages
the landowners to undertake and
continue additional conservation
activities. These efforts are expected to
continue after critical habitat
designation.
An additional reason that minimal
economic impacts are likely to result
from critical habitat designation is that,
while cavesnails may not always be
detected through surveys within critical
habitat every year, the Service assumes
the species is present within the entire
area proposed for designation. Thus, we
anticipate that Action agencies will
initiate consultation regarding the
cavesnail regardless of whether critical
habitat is designated. Activities taking
place outside of the proposed
designation but within the recharge area
for the cave may affect the cavesnail.
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Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules
These projects may include road
construction projects, U.S. Forest
Service activities, or management
changes at Bull Shoals reservoir. These
types of projects are already subject to
section 7 consultation under the
jeopardy standard; therefore, the only
incremental costs are those resulting
from the additional administrative costs
by the Service and action agency to
include an adverse modification finding
within the Biological Opinion and
Biological Assessment as part of a
formal consultation. As a result, the
total incremental costs associated with
this rule are estimated to be $4,420
annually over the next 20 years,
assuming a 7 percent discount rate.
The DEA also discusses the potential
benefits associated with the designation
of critical habitat. The primary intended
benefit of critical habitat is to support
the conservation of endangered and
threatened species, such as the
Tumbling Creek cavesnail. However,
economic benefits are not quantified or
monetized in the DEA. As described in
the DEA, designation of critical habitat
is not anticipated to result in additional
conservation efforts for the cavesnail. As
a result, no changes in economic
activity or land management are
expected to result from critical habitat
designation.
The DEA considered 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 (e.g.,
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, small
entities, and the energy industry. We
can use this information to assess
whether the effects of the proposed
designation might unduly burden a
particular group or economic sector.
As we stated earlier, we are soliciting
data and comments from the public on
the DEA, as well as on all aspects of the
proposed designation of critical habitat,
and our amended required
determinations. We may revise the
proposed rule or the economic analysis
to incorporate or address information
we receive during this 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 as critical habitat,
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provided the exclusion will not result in
the extinction of the species.
Required Determinations—Amended
In our proposed rule dated June 23,
2010 (75 FR 35751), we indicated that
we would defer our determination of
compliance with several statutes and
executive orders until the information
concerning potential economic impacts
of the designation and potential effects
on landowners and stakeholders became
available in the DEA. We have now
made use of the DEA 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), the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.), the National Environmental
Policy Act (42 U.S.C. 4321 et seq.), and
the President’s memorandum of April
29, 1994, ‘‘Government-to-Government
Relations with Native American Tribal
Governments’’ (59 FR 22951). Based on
the DEA data, we are also affirming our
required determinations made in the
proposed rule concerning the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.), Unfunded Mandates Reform Act
(2 U.S.C. 1501 et seq.), and E.O. 13211
(Energy, Supply, Distribution, and Use).
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act,
as amended by the Small Business
Regulatory Enforcement Fairness Act (5
U.S.C. 802(2)), 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).
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 a final rulemaking.
According to the Small Business
Administration, small entities include
small organizations, such as
independent nonprofit organizations;
small governmental jurisdictions,
including school boards and city and
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town governments that serve fewer than
50,000 residents; and small businesses
(13 CFR 121.201). Small businesses
include manufacturing and mining
concerns with fewer than 500
employees, wholesale trade entities
with fewer than 100 employees, retail
and service businesses with less than $5
million in annual sales, general and
heavy construction businesses with less
than $27.5 million in annual business,
special trade contractors doing less than
$11.5 million in annual business, and
agricultural businesses with annual
sales less than $750,000. To determine
if potential economic impacts to these
small entities are significant, we
considered the types of activities that
might trigger regulatory impacts under
this designation as well as types of
project modifications that may result. In
general, the term ‘‘significant economic
impact’’ is meant to apply to a typical
small business firm’s business
operations.
To determine if the proposed
designation of critical habitat for the
Tumbling Creek cavesnail 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 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. Some kinds of
activities are unlikely to have any
Federal involvement and so will not be
affected by critical habitat designation.
In areas where the species is present,
Federal agencies already are required to
consult with us under section 7 of the
Act on activities they fund, permit, or
implement that may affect the Tumbling
Creek cavesnail. If the proposed critical
habitat designation is finalized,
consultations to avoid the destruction or
adverse modification of critical habitat
would be incorporated into the existing
consultation process.
In the DEA of the proposed
designation of critical habitat, we
evaluated the potential economic effects
resulting from implementation of
conservation actions related to the
proposed designation of critical habitat.
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Although the DEA forecasts
approximately $50,100 in incremental
impacts over the next 20 years, these
impacts are expected to be borne by
Federal and State agencies, including
the U.S. Forest Service, U.S. Army
Corps of Engineers, the Natural
Resource Conservation Service, and the
Missouri Department of Transportation.
Such agencies are not considered small
entities.
In summary, we have considered
whether the proposed designation
would result in a significant economic
impact on a substantial number of small
entities. Information for this analysis
was gathered from the Small Business
Administration, stakeholders, and the
Service. For the reasons discussed
above, and based on currently available
information, we certify that if
promulgated, the proposed designation
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, and Use
Executive Order 13211 requires an
agency to prepare a Statement of Energy
Effects when undertaking certain
actions. We implement this executive
order using the Office of Management
and Budget’s guidance which outlines
nine outcomes that may constitute ‘‘a
significant adverse effect’’ when
compared to no regulatory action. As
discussed in chapter 3, the DEA finds
that this proposed critical habitat
designation is not expected to have any
impacts on the energy industry. As a
result, a Statement of Energy Effects is
not required.
mstockstill on DSKH9S0YB1PROD with PROPOSALS
Unfunded Mandates Reform Act
(2 U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act, the Service
makes 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
VerDate Mar<15>2010
17:24 Jan 11, 2011
Jkt 223001
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 (i) as 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 nonFederal 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 that may affect designated
critical habitat. 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 nonFederal 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
PO 00000
Frm 00052
Fmt 4702
Sfmt 9990
critical habitat shift the costs of the large
entitlement programs listed above on to
State governments.
(b) As discussed in the DEA of the
proposed designation of critical habitat
for the Tumbling Creek cavesnail, we do
not believe that this rule would
significantly or uniquely affect small
governments because it would not
produce a Federal mandate of $100
million or greater in any year; that is, it
is not a ‘‘significant regulatory action’’
under the Unfunded Mandates Reform
Act. The DEA concludes that
incremental impacts expected to result
from the designation of critical habitat
are limited to additional administrative
effort to consider adverse modification
in section 7 consultation. In total, these
impacts are estimated at $50,100 in
present value terms over the next 20
years, or $4,420 on an annualized basis
(discounted at seven percent).
Consequently, we do not believe critical
habitat designation would significantly
or uniquely affect small government
entities. As such, a Small Government
Agency Plan is not required.
References Cited
A complete list of all references we
cited in the proposed rule and in this
document is available on the Internet at
https://www.regulations.gov at Docket
No. FWS–R3–ES–2010–0042 or from the
Columbia, Missouri Ecological Services
Field Office (see FOR FURTHER
INFORMATION CONTACT section).
Authors
The primary authors of this notice are
staff members of the Columbia, Missouri
Ecological Services Field 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.).
Dated: December 30, 2010.
Will Shafroth,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. 2011–468 Filed 1–11–11; 8:45 am]
BILLING CODE 4310–55–P
E:\FR\FM\12JAP1.SGM
12JAP1
Agencies
[Federal Register Volume 76, Number 8 (Wednesday, January 12, 2011)]
[Proposed Rules]
[Pages 2076-2080]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-468]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R3-ES-2010-0042; MO 92210-0-0009-B4]
RIN 1018-AW90
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Tumbling Creek Cavesnail
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the comment period on June 23, 2010, proposed designation
of critical habitat for the Tumbling Creek cavesnail (Antrobia culveri)
under the Endangered Species Act of 1973, as amended (Act). We also
announce the availability of a draft economic analysis (DEA) of the
proposed designation of critical habitat for the Tumbling Creek
cavesnail and an amended required determinations section of the
proposal. We are reopening the comment period for an additional 30 days
to allow all interested parties an opportunity to comment on the items
listed above. Comments previously submitted need not be resubmitted and
will be fully considered in preparation of the final rule.
DATES: We will consider public comments we receive on or before
February 11, 2011. Comments must be received by 11:59 p.m. Eastern Time
on the closing date. Any comments that we receive after the closing
date may not be considered in the final decision on this action.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments on Docket No. FWS-R3-
ES-2010-0042.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R3-ES-2010-0042; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive,
Suite 222, Arlington, VA 22203.
We will post all comments on https://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: Paul McKenzie, Endangered Species
Coordinator, Columbia Missouri Ecological Services Field Office, 101
Park DeVille Dr.; Suite A, Columbia, MO 65203; telephone (573) 234-
2132; facsimile (573) 234-2181. 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 intend that any final action resulting from the proposed rule
will be based on the best scientific data available and will be as
accurate and effective as possible. Therefore, we request comments or
information from other concerned government agencies, the scientific
community, industry, or any other interested party during this
[[Page 2077]]
reopened comment period on the proposed designation of critical habitat
for the Tumbling Creek cavesnail published in the Federal Register on
June 23, 2010 (75 FR 35751), including the draft economic analysis of
the proposed designation of critical habitat for the Tumbling Creek
cavesnail and the amended required determinations provided in this
document. We will consider information and recommendations from all
interested parties. We are particularly interested in comments
concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat is not
prudent.
(2) Specific information on:
The amount and distribution of Tumbling Creek cavesnail
habitat,
What areas within the geographical area occupied by the
species at the time of listing that contain features essential to the
conservation of the species we should include in the designation and
why, and
What areas outside the geographical area 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 effects on the proposed critical
habitat for the Tumbling Creek cavesnail.
(4) Any foreseeable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation. We are particularly interested in any impacts on small
entities (i.e., small businesses, small organizations, and small
government jurisdictions), and the benefits of including or excluding
areas from the proposed designation that exhibit these impacts.
(5) 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.
(6) Comments or information that may assist us in identifying or
clarifying the primary constituent elements and the resulting physical
and biological features essential to the conservation of the Tumbling
Creek cavesnail.
(7) How the proposed critical habitat boundaries could be refined
to more closely circumscribe the landscapes identified as essential.
(8) Information on the potential effects of climate change on the
Tumbling Creek cavesnail and its habitat.
(9) Any foreseeable impacts on energy supplies, distribution, and
use resulting from the proposed designation and, in particular, any
impacts on electricity production, and the benefits of including or
excluding any particular areas that exhibit these impacts.
(10) 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 better accommodate public
concerns and comments.
(11) Information on whether the DEA makes appropriate assumptions
regarding current practices and any regulatory changes that likely may
occur if we designate proposed critical habitat for the Tumbling Creek
cavesnail.
(12) Information on the accuracy of our methodology in the DEA for
distinguishing baseline and incremental costs, and the assumptions
underlying the methodology.
(13) Information on whether the DEA correctly assesses the effect
on regional costs associated with any land use controls that may result
from the proposed designation of critical habitat for the Tumbling
Creek cavesnail.
(14) Information on whether the proposed designation of critical
habitat will result in disproportionate economic impacts to specific
areas or small businesses, including small businesses in the land
development sector in Taney County.
(15) Information on whether the DEA identifies all costs that could
result from the proposed designation of critical habitat for the
Tumbling Creek cavesnail.
(16) Economic data on the incremental costs of designating a
particular area as critical habitat.
If you submitted comments or information on the proposed rule (75
FR 35751) during the initial comment period from June 23, 2010, to
August 23, 2010, please do not resubmit them. We will incorporate them
into the public record as part of this comment period, and we will
fully consider them in the preparation of our final determination. Our
final determination concerning critical habitat will take into
consideration all written comments and any additional information we
receive during both comment periods. On the basis of public comments,
we may, during the development of our final determination, find that
areas proposed are not essential, are appropriate for exclusion under
section 4(b)(2) of the Act, or are not appropriate for exclusion.
You may submit your comments and materials concerning our proposed
rule, the associated DEA, and our amended required determinations 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 hard copy 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
hard copy comments on https://www.regulations.gov.
Comments and materials we receive (and have received), as well as
supporting documentation we used in preparing the proposed rule and
DEA, will be available for public inspection on https://www.regulations.gov (Docket Number FWS-R3-ES-2010-0042), or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Columbia, Missouri Ecological Services Field Office
(see FOR FURTHER INFORMATION CONTACT).
You may obtain copies of the proposed rule and DEA by mail from the
Columbia, Missouri Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT), by visiting the Federal eRulemaking Portal at
https://www.regulations.gov (Docket Number FWS-R3-ES-2010-0042), or on
our Web site at https://www.fws.gov/midwest/Endangered.
Background
It is our intent to discuss only those topics directly relevant to
the proposed designation of critical habitat for the Tumbling Creek
cavesnail in this document. For more information on previous Federal
actions concerning the Tumbling Creek cavesnail, refer to the proposed
designation of critical habitat published in the Federal Register on
June 23, 2010 (75 FR 35751). Additional information on the Tumbling
Creek cavesnail may also be found in the final listing rule published
in the Federal Register on August 14, 2002 (67 FR 52879). These
documents are available on our Web site at https://www.fws.gov/midwest/Endangered.
[[Page 2078]]
On December 27, 2001 (66 FR 66803), we published an emergency rule
to list the Tumbling Creek cavesnail, due to water degradation and a
precipitous decline in the cavesnail populations. The species was
subsequently listed as endangered on August 14, 2002 (67 FR 52879). At
the time, critical habitat was not designated in order to allow the
Service to concentrate its resources on immediate protections needed
for the conservation of the species. On August 11, 2008, the Institute
for Wildlife Protection and Crystal Grace Rutherford filed a lawsuit
against the Secretary of the Interior for our failure to timely
designate critical habitat for the Tumbling Creek cavesnail (Institute
for Wildlife Protection et al. v. Kempthorne, (Case No. CV-07-01202-
CMP)). In a court-approved settlement agreement, we agreed to submit to
the Federal Register a prudency determination, and if the designation
was found to be prudent, a proposed designation of critical habitat, by
June 30, 2010, and a final designation by June 30, 2011. On June 23,
2010, we proposed to designate 25 acres of Tumbling Creek and
associated springs as critical habitat.
The Tumbling Creek cavesnail is a small, white, blind, aquatic
snail, restricted to a single cave stream in Tumbling Creek Cave in
Taney County, southwestern Missouri. Significant declines in the
snail's population have been documented since 1996. The Tumbling Creek
cavesnail is likely threatened by habitat degradation through
diminished water quality from upstream locations within the unprotected
or improperly managed areas within the cave's delineated recharge zone.
The species may also be threatened with competition from limpets or
from changes in the cave's normal hydrological cycles due to recent
droughts.
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed rule is
made final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting areas designated as critical habitat must consult with us on
the effects of their proposed actions, under section 7(a)(2) of the
Act.
Possible Exclusions From Critical Habitat and Draft Economic Analysis
Section 4(b)(2) of the Act requires that we designate critical
habitat based upon the best scientific data available, after taking
into consideration the economic impact, impact on national security, or
any other relevant impact of specifying any particular area as critical
habitat. We may exclude an area from critical habitat if we determine
that the benefits of excluding the area outweigh the benefits of
including the area as critical habitat, provided such exclusion will
not result in the extinction of the species. We have not proposed to
exclude any areas from critical habitat. However, the final decision on
whether to exclude any areas will be based on the best scientific data
available at the time of the final designation, including information
obtained during the comment period and information about the economic
impact of designation. Accordingly, we have prepared a draft economic
analysis concerning the proposed critical habitat designation (DEA),
which is available for review and comment (see ADDRESSES section).
The intent of the DEA is to identify and analyze the potential
economic impacts associated with the proposed designation of critical
habitat for the Tumbling Creek cavesnail. The DEA quantifies the
economic impacts of all potential conservation efforts for the Tumbling
Creek cavesnail; some of these costs will likely be incurred regardless
of whether we designate critical habitat. The economic impact of the
proposed designation of critical habitat for the Tumbling Creek
cavesnail is analyzed by comparing scenarios both ``with critical
habitat'' and ``without critical habitat.'' The ``without critical
habitat'' scenario represents the baseline for the analysis,
considering protections already in place for the species (for example,
under the Federal listing and other Federal, State, and local
regulations). The baseline, therefore, represents the costs incurred
regardless of whether critical habitat is designated and may include
costs incurred in the future. 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 looks retrospectively at baseline
impacts incurred since we listed the species, and forecasts both
baseline and incremental impacts likely to occur if we finalize the
proposed designation of critical habitat for the Tumbling Creek
cavesnail. For a further description of the methodology of the
analysis, see Chapter 2, ``Framework for the Analysis,'' of the DEA.
The current DEA estimates the foreseeable economic impacts of the
proposed designation of critical habitat for the Tumbling Creek
cavesnail by identifying the potential resulting incremental costs. The
DEA analyzed economic impacts of Tumbling Creek cavesnail conservation
efforts on the following activities: Water management and other
activities that may affect water quality such as road construction and
maintenance; oil, gas, and utility easements; forest and pasture
management; alteration of septic systems; and effluent discharges. It
also assessed possible indirect impacts to economic activities as the
result of possible applications of other State and local laws and
regulatory uncertainty or delay. The DEA considers future baseline and
incremental impacts over the next 20 years (2011 to 2030).
The DEA estimates that minimal economic impacts are likely to
result from the designation of critical habitat. The main reason for
this conclusion is that the private landowners of all surface critical
habitat areas and the Tumbling Creek Cave Foundation, which owns lands
within much of the cave's recharge area, have been undertaking
extensive restoration and conservation efforts for the benefit of the
cavesnail. Those lands have recently been enrolled in a voluntary
conservation program that encourages the landowners to undertake and
continue additional conservation activities. These efforts are expected
to continue after critical habitat designation.
An additional reason that minimal economic impacts are likely to
result from critical habitat designation is that, while cavesnails may
not always be detected through surveys within critical habitat every
year, the Service assumes the species is present within the entire area
proposed for designation. Thus, we anticipate that Action agencies will
initiate consultation regarding the cavesnail regardless of whether
critical habitat is designated. Activities taking place outside of the
proposed designation but within the recharge area for the cave may
affect the cavesnail.
[[Page 2079]]
These projects may include road construction projects, U.S. Forest
Service activities, or management changes at Bull Shoals reservoir.
These types of projects are already subject to section 7 consultation
under the jeopardy standard; therefore, the only incremental costs are
those resulting from the additional administrative costs by the Service
and action agency to include an adverse modification finding within the
Biological Opinion and Biological Assessment as part of a formal
consultation. As a result, the total incremental costs associated with
this rule are estimated to be $4,420 annually over the next 20 years,
assuming a 7 percent discount rate.
The DEA also discusses the potential benefits associated with the
designation of critical habitat. The primary intended benefit of
critical habitat is to support the conservation of endangered and
threatened species, such as the Tumbling Creek cavesnail. However,
economic benefits are not quantified or monetized in the DEA. As
described in the DEA, designation of critical habitat is not
anticipated to result in additional conservation efforts for the
cavesnail. As a result, no changes in economic activity or land
management are expected to result from critical habitat designation.
The DEA considered 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
(e.g., 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, small entities, and the
energy industry. We can use this information to assess whether the
effects of the proposed designation might unduly burden a particular
group or economic sector.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as on all aspects of the proposed
designation of critical habitat, and our amended required
determinations. We may revise the proposed rule or the economic
analysis to incorporate or address information we receive during this
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 as critical habitat,
provided the exclusion will not result in the extinction of the
species.
Required Determinations--Amended
In our proposed rule dated June 23, 2010 (75 FR 35751), we
indicated that we would defer our determination of compliance with
several statutes and executive orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the DEA. We have now
made use of the DEA 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), the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National
Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's
memorandum of April 29, 1994, ``Government-to-Government Relations with
Native American Tribal Governments'' (59 FR 22951). Based on the DEA
data, we are also affirming our required determinations made in the
proposed rule concerning the Regulatory Flexibility Act (5 U.S.C. 601
et seq.), Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), and
E.O. 13211 (Energy, Supply, Distribution, and Use).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act, as amended by the Small
Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)),
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). 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 a final rulemaking.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
To determine if the proposed designation of critical habitat for
the Tumbling Creek cavesnail 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
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. Some
kinds of activities are unlikely to have any Federal involvement and so
will not be affected by critical habitat designation. In areas where
the species is present, Federal agencies already are required to
consult with us under section 7 of the Act on activities they fund,
permit, or implement that may affect the Tumbling Creek cavesnail. If
the proposed critical habitat designation is finalized, consultations
to avoid the destruction or adverse modification of critical habitat
would be incorporated into the existing consultation process.
In the DEA of the proposed designation of critical habitat, we
evaluated the potential economic effects resulting from implementation
of conservation actions related to the proposed designation of critical
habitat.
[[Page 2080]]
Although the DEA forecasts approximately $50,100 in incremental impacts
over the next 20 years, these impacts are expected to be borne by
Federal and State agencies, including the U.S. Forest Service, U.S.
Army Corps of Engineers, the Natural Resource Conservation Service, and
the Missouri Department of Transportation. Such agencies are not
considered small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. Information for this analysis was gathered from the
Small Business Administration, stakeholders, and the Service. For the
reasons discussed above, and based on currently available information,
we certify that if promulgated, the proposed designation 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, and Use
Executive Order 13211 requires an agency to prepare a Statement of
Energy Effects when undertaking certain actions. We implement this
executive order using the Office of Management and Budget's guidance
which outlines nine outcomes that may constitute ``a significant
adverse effect'' when compared to no regulatory action. As discussed in
chapter 3, the DEA finds that this proposed critical habitat
designation is not expected to have any impacts on the energy industry.
As a result, 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, the Service
makes 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 (i) as 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 that may affect designated critical habitat.
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.
(b) As discussed in the DEA of the proposed designation of critical
habitat for the Tumbling Creek cavesnail, we do not believe that this
rule would significantly or uniquely affect small governments because
it would not produce a Federal mandate of $100 million or greater in
any year; that is, it is not a ``significant regulatory action'' under
the Unfunded Mandates Reform Act. The DEA concludes that incremental
impacts expected to result from the designation of critical habitat are
limited to additional administrative effort to consider adverse
modification in section 7 consultation. In total, these impacts are
estimated at $50,100 in present value terms over the next 20 years, or
$4,420 on an annualized basis (discounted at seven percent).
Consequently, we do not believe critical habitat designation would
significantly or uniquely affect small government entities. As such, a
Small Government Agency Plan is not required.
References Cited
A complete list of all references we cited in the proposed rule and
in this document is available on the Internet at https://www.regulations.gov at Docket No. FWS-R3-ES-2010-0042 or from the
Columbia, Missouri Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT section).
Authors
The primary authors of this notice are staff members of the
Columbia, Missouri Ecological Services Field 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.).
Dated: December 30, 2010.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-468 Filed 1-11-11; 8:45 am]
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