Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Cumberland Darter, Rush Darter, Yellowcheek Darter, Chucky Madtom, and Laurel Dace, 30988-30992 [2012-12572]
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Federal Register / Vol. 77, No. 101 / Thursday, May 24, 2012 / Proposed Rules
10. In § 178.707, paragraph (c)(3) is
revised to read as follows:
§ 178.707
Standards for composite IBCs.
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(c) * * *
(3) The inner receptacle must be
manufactured from plastic material of
known specifications and be of a
strength relative to its capacity and to
the service it is required to perform use.
The specification of the plastic material
may not fall outside the parameters
established by ASTM D4976–06 (IBR,
see § 171.7 of this subchapter). In
addition to conformance with the
requirements of § 173.24 of this
subchapter, the material must be
resistant to aging and to degradation
caused by ultraviolet radiation. The
inner receptacle of 31HZ2 composite
IBCs must consist of at least three plies
of film.
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11. In § 178.801, paragraph (l) is
revised to read as follows:
§ 178.801
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(l) Record retention. (1) The person
who certifies an IBC design type must
keep records of design qualification
tests for each IBC design type and for
each periodic design requalification as
specified in this part. These records
must be maintained at each location
where the IBC is manufactured and at
each location where design qualification
and periodic design requalification
testing is performed. The test report
must be maintained as follows:
Responsible party
Duration
Person manufacturing the packaging ..............................................................................
Person performing design testing ...................................................................................
Person performing periodic retesting ..............................................................................
These records must include the
following information: Name and
address of test facility; name and
address of the person certifying the IBC;
a unique test report identification; date
of test report; manufacturer of the IBC;
description of the IBC design type (e.g.,
dimensions, materials, closures,
thickness, representative service
equipment, etc.); maximum IBC
capacity; characteristics of test contents;
test descriptions and results (including
As long as manufactured and two years thereafter.
Until next periodic retest and five years thereafter.
Until next periodic retest.
drop heights, hydrostatic pressures, tear
propagation length, etc.). Each test
report must be signed with the name of
the person conducting the test, and
name of the person responsible for
testing.
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12. In § 178.955, paragraph (i) is
revised to read as follows:
§ 178.955
General Requirements.
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(i) Record retention. Following each
design qualification test and each
periodic retest on a Large Packaging, a
test report must be prepared. The test
report must be maintained at each
location where the Large Packaging is
manufactured and each location where
the design qualification tests are
conducted. The test report must be
maintained as follows:
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Responsible party
Duration
Person manufacturing the packaging ..............................................................................
Person performing design testing ...................................................................................
Person performing periodic retesting ..............................................................................
As long as manufactured and two years thereafter.
Until next periodic retest and five years thereafter.
Until next periodic retest.
The test report must be made
available to a user of a Large Packaging
or a representative of the Department of
Transportation upon request. The test
report, at a minimum, must contain the
following information: * * *
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DEPARTMENT OF THE INTERIOR
Issued in Washington, DC, on May 18,
2012 under authority delegated in 49 CFR
Part 106.
William Schoonover,
Deputy Associate Administrator, Field
Operations, Pipeline and Hazardous
Materials Safety Administration.
RIN 1018–AX76
[FR Doc. 2012–12471 Filed 5–23–12; 8:45 am]
AGENCY:
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BILLING CODE 4910–60–P
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R4–ES–2011–0074;
4500030114]
Endangered and Threatened Wildlife
and Plants; Designation of Critical
Habitat for the Cumberland Darter,
Rush Darter, Yellowcheek Darter,
Chucky Madtom, and Laurel Dace
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; reopening of
comment period and announcement of
public hearing.
We, the U.S. Fish and
Wildlife Service, announce the
reopening of the public comment period
on our October 12, 2011, proposed
designation of critical habitat for the
Cumberland darter (Etheostoma
SUMMARY:
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General Requirements.
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susanae), rush darter (Etheostoma
phytophilum), yellowcheek darter
(Etheostoma moorei), chucky madtom
(Noturus crypticus), and laurel dace
(Chrosomus saylori) 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 these five fishes and
an amended required determinations
section of the proposal. We are
reopening the comment period to allow
all interested parties an opportunity to
comment simultaneously on the revised
proposed rule, the associated DEA, and
the amended required determinations
section. Comments previously
submitted need not be resubmitted, as
they will be fully considered in
preparation of the final rule. We will
also hold a public hearing (see DATES
and ADDRESSES).
Comment submission: We will
consider all comments received or
postmarked on or before June 25, 2012.
DATES:
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Comments submitted electronically
using the Federal eRulemaking Portal
(see ADDRESSES, below) must be
received by 11:59 p.m. Eastern Time on
the closing date.
Public hearing: We will hold a public
hearing from 7:00 p.m. to 9:00 p.m., on
June 7, 2012, in Clinton, Arkansas.
ADDRESSES: Document availability: You
may obtain copies of the proposed rule
and the draft economic analysis on the
Internet at https://www.regulations.gov at
Docket Number FWS–R4–ES–2011–
0074, or by mail from the Tennessee
Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Comment submission: You may
submit written comments by one of the
following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://www.
regulations.gov. Search for Docket No.
FWS–R4–ES–2011–0074, which is the
docket number for this rulemaking.
(2) By hard copy: Submit by U.S. mail
or hand-delivery to: Public Comments
Processing, Attn: FWS–R4–ES–2011–
0074; Division of Policy and Directives
Management; U.S. Fish and Wildlife
Service; 4401 N. Fairfax Drive, MS
2042–PDM; Arlington, VA 22203.
We request that you send comments
only by the methods described above.
Unit
1
2
3
4
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).
Public hearing: The public hearing
will be held at the Clinton High School
Auditorium, 115 Joe Bowling Road,
Clinton, Arkansas 72031. People
needing reasonable accommodations in
order to attend and participate in the
public hearing should contact Jim
Boggs, Arkansas Ecological Services
Field Office, at 501–513–4470 no later
than 1 week before the hearing date (see
DATES) to allow sufficient time to
accommodate requests.
FOR FURTHER INFORMATION CONTACT:
Mary Jennings, Field Supervisor, U.S.
Fish and Wildlife Service, Tennessee
Ecological Services Field Office, 446
Neal Street, Cookeville, TN 38501; by
telephone 931–525–4973; or by
facsimile 931–528–7075. Persons who
use a telecommunications device for the
deaf (TDD) may call the Federal
Information Relay Service (FIRS) at
800–877–8339.
SUPPLEMENTARY INFORMATION:
Location
...................
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Middle Fork Little Red River ........................................
South Fork Little Red River .........................................
Archey Fork Little Red River .......................................
Devil’s Fork Little Red River ........................................
Yes
Yes
Yes
Yes
Total ......
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Public Comments
We will accept written comments and
information during this reopened
comment period on our proposed
designation of critical habitat for the
Cumberland darter (Etheostoma
susanae), rush darter (Etheostoma
phytophilum), yellowcheek darter
(Etheostoma moorei), chucky madtom
(Noturus crypticus), and laurel dace
(Chrosomus saylori) that was published
in the Federal Register on October 12,
2011 (76 FR 63360), our draft economic
analysis (DEA) of the proposed
designation, and the amended required
determinations provided in this
document. Verbal testimony or written
comments may also be presented during
the public hearing. We will consider
information and recommendations from
all interested parties. We are
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We are making the following changes
to the proposed rule of October 12, 2011
(76 FR 63360). A change in mapping
methodology resulted in a revision to
the total number of river kilometers
(km) for the proposed designation of
yellowcheek darter critical habitat. The
beginning and ending points of critical
habitat, as well as the unit descriptions
(as described in the proposed critical
habitat rule) will remain the same. The
change in mapping results from an
oversight in methods used for
estimating the unit lengths in the other
units proposed for designation as
critical habitat. This methodology uses
a better technique for following the
curve and meander of the river channel
and results in an additional 6.6 river
kilometers (rkm) (4.1 river miles (rm))
for the yellowcheek darter. In addition,
a revision to the ownership of one
property resulted in a change of the total
number of river kilometers (miles) in
private ownership, from 148 rkm (92
rm) to 162.7 rkm (101.1 rm), as well as
a corresponding downward revision to
other ownership types.
The following table shows the revised
totals. The data in this table replaces the
data provided in table 3 of the proposed
rule at 76 FR 63385 (October 12, 2011).
73.2
33.3
28.2
28.0
State, county,
city ownership
km (mi)
(45.5)
(20.7)
(17.5)
(17.4)
0
0.5 (0.3)
0.3 (0.2)
0
162.7 (101.1)
0.8 (0.5)
particularly interested in comments
concerning:
(1) The reasons why we should or
should not designate habitat as ‘‘critical
habitat’’ under section 4 of the Act (16
U.S.C. 1531 et seq.), including whether
there are threats to the species from
human activity, the degree of which can
be expected to increase due to the
designation, and whether that increase
in threat outweighs the benefit of
designation such that the designation of
critical habitat is not prudent.
(2) Specific information on:
(a) The amount and distribution of
each species’ habitat;
(b) What areas occupied by the
species at the time of listing that contain
features essential for the conservation of
the species we should include in the
designation and why; and
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Changes From the Proposed Rule
Private
ownership
km (mi)
Occupied
30989
Total length
km (mi)
73.2
33.8
28.5
28.0
(45.5)
(21.0)
(17.7)
(17.4)
163.5 (101.6)
(c) What areas not occupied at the
time of listing are essential to the
conservation of the species and why.
(3) Land use designations and current
or planned activities in the subject areas
and their possible impacts on proposed
critical habitat.
(4) Any foreseeable economic,
national security, or other relevant
impacts that may result from
designating any area that may be
included in the final designation. We
are particularly interested in any
impacts on small entities, and the
benefits of including or excluding areas
from the proposed designation that are
subject to these impacts.
(5) The projected and reasonably
likely impacts of climate change on the
critical habitat we are proposing.
(6) Whether our approach to
designating critical habitat could be
improved or modified in any way to
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provide for greater public participation
and understanding, or to assist us in
accommodating public concerns and
comments.
(7) Information on the extent to which
the description of economic impacts in
the DEA is complete and accurate.
(8) The likelihood of adverse social
reactions to the designation of critical
habitat, as discussed in the DEA, and
how the consequences of such reactions,
if likely to occur, would relate to the
conservation and regulatory benefits of
the proposed critical habitat
designation.
If you submitted comments or
information on the proposed rule (76 FR
63360) during the initial comment
period from October 12, 2011, to
December 12, 2011, please do not
resubmit them. We have incorporated
them into the public record as part of
the original comment period, and we
will fully consider them in the
preparation of our final determination.
Our final determination concerning
revised critical habitat will take into
consideration all written comments and
any additional information we receive
during both comment periods, including
public testimony from the public
hearing mentioned above. On the basis
of public comments, we may, during the
development of our final determination,
find that areas proposed are not
essential, are appropriate for exclusion
under section 4(b)(2) of the Act, or are
not appropriate for exclusion.
You may submit your comments and
materials concerning the proposed rule
or DEA by one of the methods listed in
ADDRESSES. We request that you send
comments only by the methods
described in ADDRESSES.
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. We will post all
hardcopy comments on https://
www.regulations.gov as well. If you
submit a hardcopy comment that
includes personal identifying
information, you may request at the top
of your document that we withhold this
information from public review.
However, we cannot guarantee that we
will be able to do so.
Comments and materials we receive,
as well as supporting documentation we
used in preparing the proposed rule and
DEA, will be available for public
inspection on https://
www.regulations.gov at Docket No.
FWS–R4–ES–2011–0074, or by
appointment, during normal business
hours, at the U.S. Fish and Wildlife
Service, Tennessee Ecological Services
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Field 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
Cumberland darter, rush darter,
yellowcheek darter, chucky madtom,
and laurel dace in this document. For
more information on previous Federal
actions concerning the five fishes, refer
to the proposed designation of critical
habitat published in the Federal
Register on October 12, 2011 (76 FR
63360). For more information on the
five fishes or their habitats, refer to the
final listing rule published in the
Federal Register on August 9, 2011 (FR
48722), which is available online at
https://www.regulations.gov (at Docket
Number FWS–R4–ES–2011–0027) or
from the Tennessee Ecological Services
Field Office (see FOR FURTHER
INFORMATION CONTACT).
Previous Federal Actions
On October 12, 2011, we published a
proposed rule to designate critical
habitat for these five fishes (76 FR
63360). We proposed to designate
approximately 85 river kilometers (rkm)
(53 river miles (rmi)) of critical habitat
for the Cumberland darter in McCreary
and Whitley Counties, Kentucky, and
Campbell and Scott Counties,
Tennessee; 42 rkm (27 rmi) and 19
hectares (ha) (22 acres (ac)) of critical
habitat for the rush darter in Etowah,
Jefferson, and Winston Counties,
Alabama; 157 rkm (98 rmi) of critical
habitat for the yellowcheek darter in
Cleburne, Searcy, Stone, and Van Buren
Counties, Arkansas; 32 rkm (20 rmi) of
critical habitat for the chucky madtom
in Greene County, Tennessee; and 42
rkm (26 rmi) of critical habitat for the
laurel dace in Bledsoe, Rhea, and
Sequatchie Counties, Tennessee. That
proposal had a 60-day comment period,
ending December 12, 2011. We will
submit for publication in the Federal
Register a final critical habitat
designation for these five fishes on or
before October 12, 2012.
Critical Habitat
Section 3 of the Act defines critical
habitat as the specific areas within the
geographical area occupied by a species,
at the time it is listed in accordance
with the Act, on which are found those
physical or biological features essential
to the conservation of the species and
that may require special management
considerations or protection, and
specific areas outside the geographical
area occupied by a species at the time
it is listed, upon a determination that
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such areas are essential for the
conservation of the species. If the
proposed rule is made final, section 7 of
the Act will prohibit destruction or
adverse modification of critical habitat
by any activity funded, authorized, or
carried out by any Federal agency.
Federal agencies proposing actions
affecting critical habitat must consult
with us on the effects of their proposed
actions, under section 7(a)(2) of the Act.
Consideration of Impacts Under Section
4(b)(2) of the Act
Section 4(b)(2) of the Act requires that
we designate or revise critical habitat
based upon the best scientific data
available, after taking into consideration
the economic impact, impact on
national security, or any other relevant
impact of specifying any particular area
as critical habitat. We may exclude an
area from critical habitat if we
determine that the benefits of excluding
the area outweigh the benefits of
including the area as critical habitat,
provided such exclusion will not result
in the extinction of the species.
When considering the benefits of
inclusion for an area, we consider the
additional regulatory benefits that area
would receive from the protection from
adverse modification or destruction as a
result of actions with a Federal nexus
(activities conducted, funded,
permitted, or authorized by Federal
agencies), the educational benefits of
mapping areas containing essential
features that aid in the recovery of the
listed species, and any benefits that may
result from designation due to State or
Federal laws that may apply to critical
habitat.
When considering the benefits of
exclusion, we consider, among other
things, whether exclusion of a specific
area is likely to result in conservation;
the continuation, strengthening, or
encouragement of partnerships; or
implementation of a management plan.
In the case of these five fishes, the
benefits of critical habitat include
public awareness of the presence of the
fishes and the importance of habitat
protection, and, where a Federal nexus
exists, increased habitat protection for
the five fishes due to protection from
adverse modification or destruction of
critical habitat. In practice, situations
with a Federal nexus exist primarily on
Federal lands or for projects undertaken
by Federal agencies.
We have not proposed to exclude any
areas from critical habitat. However, the
final decision on whether to exclude
any areas will be based on the best
scientific data available at the time of
the final designation, including
information obtained during the
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comment period and information about
the economic impact of designation.
Accordingly, our DEA concerning the
proposed critical habitat designation is
available for review and comment (see
ADDRESSES).
Draft Economic Analysis
The purpose of the DEA is to identify
and analyze the potential economic
impacts associated with the proposed
critical habitat designation for the
Cumberland darter, rush darter,
yellowcheek darter, chucky madtom,
and laurel dace. The DEA separates
conservation measures into two distinct
categories according to ‘‘without critical
habitat’’ and ‘‘with critical habitat’’
scenarios. The ‘‘without critical habitat’’
scenario represents the baseline for the
analysis, considering protections
otherwise afforded to the five fishes
(e.g., under the Federal listing and other
Federal, State, and local regulations).
The ‘‘with critical habitat’’ scenario
describes the incremental impacts
specifically due to designation of
critical habitat for these species. In other
words, these incremental conservation
measures and associated economic
impacts would not occur but for the
designation. Conservation measures
implemented under the baseline
(without critical habitat) scenario are
described qualitatively within the DEA,
but economic impacts associated with
these measures are not quantified.
Economic impacts are only quantified
for conservation measures implemented
specifically due to the designation of
critical habitat (i.e., incremental
impacts). For a further description of the
methodology of the analysis, see
Chapter 2, ‘‘Framework for the
analysis,’’ of the DEA.
The DEA provides estimated costs of
the foreseeable potential economic
impacts of the proposed critical habitat
designation for the five fishes over the
next 20 years, which was determined to
be the appropriate period for analysis
because limited planning information is
available for most activities to forecast
activity levels for projects beyond a 20year timeframe. It identifies potential
incremental costs as a result of the
proposed critical habitat designation;
these are those costs attributed to
critical habitat over and above those
baseline costs attributed to listing. The
DEA quantifies economic impacts of the
five fishes conservation efforts
associated with the following categories
of activity: (1) Coal mining; (2) oil and
natural gas development; (3) agriculture,
ranching, and silviculture; (4)
recreational uses; (5) dredging,
channelization, impoundments, dams,
and diversions; (6) transportation; and
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(7) residential and commercial
development.
The DEA concluded that the types of
conservation efforts requested by the
Service during section 7 consultation
regarding the five fishes were not
expected to change due to critical
habitat designations. The Service
believes that results of consultation
under the adverse modification and
jeopardy standards are likely to be
similar because (1) the primary
constituent elements that define critical
habitat are also essential for the survival
of the five fishes, (2) the five fishes are
limited or severely limited in the
respective ranges, and (3) numbers of
individuals in the surviving populations
are small or very small. In addition,
although two of the proposed critical
habitat units for the Cumberland darter
are unoccupied, incremental impacts of
the critical habitat designations will be
limited for the following reasons: (1)
Both units are currently occupied by the
federally threatened blackside dace,
Chrosomus cumberlandensis; (2) both
units are situated at least partially
within the Daniel Boone National
Forest, which is managed according to
a land and resource management plan
that includes specific measures to
protect sensitive species; and (3) both
units are located within the same
hydrologic unit as other occupied
critical habitat units.
The DEA concludes that incremental
impacts of critical habitat designation
are limited to additional administrative
costs of consultations and that indirect
incremental impacts are unlikely to
result from the designation of critical
habitat for the five fishes. The present
value of the total direct (administrative)
incremental cost of critical habitat
designation is $644,000 over the next 20
years assuming a seven percent discount
rate, or $56,800 on an annualized basis.
Water quality management activities are
likely to be subject to the greatest
incremental impacts at $273,000 over
the next 20 years, followed by
transportation at $161,000; coal mining
at $79,000; oil and natural gas
development at $73,700; agriculture,
ranching, and silviculture at $36,100;
dredging, channelization,
impoundments, dams, and diversions at
$10,700; and recreation at $10,000.
As we stated earlier, we are soliciting
data and comments from the public on
the DEA, as well as all aspects of the
proposed rule and our amended
required determinations. We may revise
the proposed rule or supporting
documents to incorporate or address
information we receive during the
public comment period. In particular,
we may exclude an area from critical
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habitat if we determine that the benefits
of excluding the area outweigh the
benefits of including the area, provided
the exclusion will not result in the
extinction of this species.
Required Determinations—Amended
In our October 12, 2011, proposed
rule (76 FR 63360), we indicated that we
would defer our determination of
compliance with several statutes and
executive orders until the information
concerning potential economic impacts
of the designation and potential effects
on landowners and stakeholders became
available in the DEA. We have now
made use of the DEA data to make these
determinations. In this document, we
affirm the information in our proposed
rule concerning Executive Order (E.O.)
12866 (Regulatory Planning and
Review), E.O. 12630 (Takings), E.O.
13132 (Federalism), E.O. 12988 (Civil
Justice Reform), E.O. 13211 (Energy,
Supply, Distribution, and Use), the
Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.), the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.), the National Environmental
Policy Act (42 U.S.C. 4321 et seq.), and
the President’s memorandum of April
29, 1994, ‘‘Government-to-Government
Relations with Native American Tribal
Governments’’ (59 FR 22951). However,
based on the DEA data, we are
amending our required determination
concerning the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(RFA; 5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA; 5 U.S.C. 801 et seq.),
whenever an agency is required to
publish a notice of rulemaking for any
proposed or final rule, it must prepare
and make available for public comment
a regulatory flexibility analysis that
describes the effects of the rule on small
entities (i.e., small businesses, small
organizations, and small government
jurisdictions). However, no regulatory
flexibility analysis is required if the
head of the agency certifies the rule will
not have a significant economic impact
on a substantial number of small
entities. The SBREFA amended the RFA
to require Federal agencies to provide a
certification statement of the factual
basis for certifying that the rule will not
have a significant economic impact on
a substantial number of small entities.
Based on our DEA of the proposed
designation, we provide our analysis for
determining whether the proposed rule
would result in a significant economic
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impact on a substantial number of small
entities. Based on comments we receive,
we may revise this determination as part
of our final rule.
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
five fishes would affect a substantial
number of small entities, we considered
the number of small entities affected
within particular types of economic
activities, such as coal mining; oil and
natural gas development; dredging,
channelization, impoundments, dams,
and diversions; and transportation. In
order to determine whether it is
VerDate Mar<15>2010
16:29 May 23, 2012
Jkt 226001
appropriate for our agency to certify that
this proposed rule would not have a
significant economic impact on a
substantial number of small entities, we
considered each industry or category
individually. In estimating the numbers
of small entities potentially affected, we
also considered whether their activities
have any Federal involvement. Critical
habitat designation will not affect
activities that do not have any Federal
involvement; designation of critical
habitat only affects activities conducted,
funded, permitted, or authorized by
Federal agencies. In areas where the five
fishes are 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 species. If we finalize this
proposed critical habitat designation,
consultations to avoid the destruction or
adverse modification of critical habitat
would be incorporated into the existing
consultation process.
In the DEA, we evaluated the
potential economic effects on small
entities resulting from implementation
of conservation actions related to the
proposed designation of critical habitat
for the five fishes. We anticipate that ten
small entities could be affected by coal
mining in a single year at a cost of $875
each, representing less than three
percent of annual revenues. Two small
entities could be affected by oil and
natural gas development within a single
year at a cost of $875 each, representing
less than three percent of annual
revenues. One small entity could be
affected by dredging, channelization,
impoundments, dams, and diversions
within a single year, at a cost of $2,630,
representing less than one percent of
annual revenues. One small entity could
PO 00000
Frm 00070
Fmt 4702
Sfmt 9990
be affected by transportation within a
single year, at a cost of $1,750,
representing less than one percent of
annual revenues. Please refer to the DEA
of the proposed critical habitat
designation for a more detailed
discussion of potential economic
impacts.
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. We have identified 14 small
entities that may be impacted by the
proposed critical habitat designation.
For the above reasons and based on
currently available information, we
certify that, if promulgated, the
proposed critical habitat designation
would not have a significant economic
impact on a substantial number of small
business entities. Therefore, an initial
regulatory flexibility analysis is not
required.
Authors
The primary authors of this notice are
the staff members of the Tennessee
Ecological Services Field Office (see
ADDRESSES section).
Authority
The authority for this action is the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Dated: May 17, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. 2012–12572 Filed 5–23–12; 8:45 am]
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]]>Agencies
[Federal Register Volume 77, Number 101 (Thursday, May 24, 2012)]
[Proposed Rules]
[Pages 30988-30992]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12572]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2011-0074; 4500030114]
RIN 1018-AX76
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Cumberland Darter, Rush Darter, Yellowcheek
Darter, Chucky Madtom, and Laurel Dace
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period and announcement of
public hearing.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening
of the public comment period on our October 12, 2011, proposed
designation of critical habitat for the Cumberland darter (Etheostoma
susanae), rush darter (Etheostoma phytophilum), yellowcheek darter
(Etheostoma moorei), chucky madtom (Noturus crypticus), and laurel dace
(Chrosomus saylori) 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
these five fishes and an amended required determinations section of the
proposal. We are reopening the comment period to allow all interested
parties an opportunity to comment simultaneously on the revised
proposed rule, the associated DEA, and the amended required
determinations section. Comments previously submitted need not be
resubmitted, as they will be fully considered in preparation of the
final rule. We will also hold a public hearing (see DATES and
ADDRESSES).
DATES: Comment submission: We will consider all comments received or
postmarked on or before June 25, 2012.
[[Page 30989]]
Comments submitted electronically using the Federal eRulemaking Portal
(see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on
the closing date.
Public hearing: We will hold a public hearing from 7:00 p.m. to
9:00 p.m., on June 7, 2012, in Clinton, Arkansas.
ADDRESSES: Document availability: You may obtain copies of the proposed
rule and the draft economic analysis on the Internet at https://www.regulations.gov at Docket Number FWS-R4-ES-2011-0074, or by mail
from the Tennessee Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Comment submission: You may submit written comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. Search for Docket No. FWS-R4-ES-2011-0074, which
is the docket number for this rulemaking.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R4-ES-2011-0074; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on 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).
Public hearing: The public hearing will be held at the Clinton High
School Auditorium, 115 Joe Bowling Road, Clinton, Arkansas 72031.
People needing reasonable accommodations in order to attend and
participate in the public hearing should contact Jim Boggs, Arkansas
Ecological Services Field Office, at 501-513-4470 no later than 1 week
before the hearing date (see DATES) to allow sufficient time to
accommodate requests.
FOR FURTHER INFORMATION CONTACT: Mary Jennings, Field Supervisor, U.S.
Fish and Wildlife Service, Tennessee Ecological Services Field Office,
446 Neal Street, Cookeville, TN 38501; by telephone 931-525-4973; or by
facsimile 931-528-7075. Persons who use a telecommunications device for
the deaf (TDD) may call the Federal Information Relay Service (FIRS) at
800-877-8339.
SUPPLEMENTARY INFORMATION:
Changes From the Proposed Rule
We are making the following changes to the proposed rule of October
12, 2011 (76 FR 63360). A change in mapping methodology resulted in a
revision to the total number of river kilometers (km) for the proposed
designation of yellowcheek darter critical habitat. The beginning and
ending points of critical habitat, as well as the unit descriptions (as
described in the proposed critical habitat rule) will remain the same.
The change in mapping results from an oversight in methods used for
estimating the unit lengths in the other units proposed for designation
as critical habitat. This methodology uses a better technique for
following the curve and meander of the river channel and results in an
additional 6.6 river kilometers (rkm) (4.1 river miles (rm)) for the
yellowcheek darter. In addition, a revision to the ownership of one
property resulted in a change of the total number of river kilometers
(miles) in private ownership, from 148 rkm (92 rm) to 162.7 rkm (101.1
rm), as well as a corresponding downward revision to other ownership
types.
The following table shows the revised totals. The data in this
table replaces the data provided in table 3 of the proposed rule at 76
FR 63385 (October 12, 2011).
----------------------------------------------------------------------------------------------------------------
Private State, county,
Unit Location Occupied ownership km city ownership Total length km
(mi) km (mi) (mi)
----------------------------------------------------------------------------------------------------------------
1.................. Middle Fork Yes............... 73.2 (45.5) 0 73.2 (45.5)
Little Red River.
2.................. South Fork Little Yes............... 33.3 (20.7) 0.5 (0.3) 33.8 (21.0)
Red River.
3.................. Archey Fork Yes............... 28.2 (17.5) 0.3 (0.2) 28.5 (17.7)
Little Red River.
4.................. Devil's Fork Yes............... 28.0 (17.4) 0 28.0 (17.4)
Little Red River.
-------------------------------------------------------------------------
Total.......... ................. .................. 162.7 (101.1) 0.8 (0.5) 163.5 (101.6)
----------------------------------------------------------------------------------------------------------------
Public Comments
We will accept written comments and information during this
reopened comment period on our proposed designation of critical habitat
for the Cumberland darter (Etheostoma susanae), rush darter (Etheostoma
phytophilum), yellowcheek darter (Etheostoma moorei), chucky madtom
(Noturus crypticus), and laurel dace (Chrosomus saylori) that was
published in the Federal Register on October 12, 2011 (76 FR 63360),
our draft economic analysis (DEA) of the proposed designation, and the
amended required determinations provided in this document. Verbal
testimony or written comments may also be presented during the public
hearing. We will consider information and recommendations from all
interested parties. We are particularly interested in comments
concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat is not
prudent.
(2) Specific information on:
(a) The amount and distribution of each species' habitat;
(b) What areas occupied by the species at the time of listing that
contain features essential for the conservation of the species we
should include in the designation and why; and
(c) What areas not occupied at the time of listing are essential to
the conservation of the species and why.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Any foreseeable economic, national security, or other relevant
impacts that may result from designating any area that may be included
in the final designation. We are particularly interested in any impacts
on small entities, and the benefits of including or excluding areas
from the proposed designation that are subject to these impacts.
(5) The projected and reasonably likely impacts of climate change
on the critical habitat we are proposing.
(6) Whether our approach to designating critical habitat could be
improved or modified in any way to
[[Page 30990]]
provide for greater public participation and understanding, or to
assist us in accommodating public concerns and comments.
(7) Information on the extent to which the description of economic
impacts in the DEA is complete and accurate.
(8) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the DEA, and how the consequences
of such reactions, if likely to occur, would relate to the conservation
and regulatory benefits of the proposed critical habitat designation.
If you submitted comments or information on the proposed rule (76
FR 63360) during the initial comment period from October 12, 2011, to
December 12, 2011, please do not resubmit them. We have incorporated
them into the public record as part of the original comment period, and
we will fully consider them in the preparation of our final
determination. Our final determination concerning revised critical
habitat will take into consideration all written comments and any
additional information we receive during both comment periods,
including public testimony from the public hearing mentioned above. On
the basis of public comments, we may, during the development of our
final determination, find that areas proposed are not essential, are
appropriate for exclusion under section 4(b)(2) of the Act, or are not
appropriate for exclusion.
You may submit your comments and materials concerning the proposed
rule or DEA by one of the methods listed in ADDRESSES. We request that
you send comments only by the methods described in ADDRESSES.
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. We will post all hardcopy comments on https://www.regulations.gov as well. If you submit a hardcopy comment that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule and DEA, will be
available for public inspection on https://www.regulations.gov at Docket
No. FWS-R4-ES-2011-0074, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Tennessee Ecological
Services Field 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 Cumberland darter, rush
darter, yellowcheek darter, chucky madtom, and laurel dace in this
document. For more information on previous Federal actions concerning
the five fishes, refer to the proposed designation of critical habitat
published in the Federal Register on October 12, 2011 (76 FR 63360).
For more information on the five fishes or their habitats, refer to the
final listing rule published in the Federal Register on August 9, 2011
(FR 48722), which is available online at https://www.regulations.gov (at
Docket Number FWS-R4-ES-2011-0027) or from the Tennessee Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Previous Federal Actions
On October 12, 2011, we published a proposed rule to designate
critical habitat for these five fishes (76 FR 63360). We proposed to
designate approximately 85 river kilometers (rkm) (53 river miles
(rmi)) of critical habitat for the Cumberland darter in McCreary and
Whitley Counties, Kentucky, and Campbell and Scott Counties, Tennessee;
42 rkm (27 rmi) and 19 hectares (ha) (22 acres (ac)) of critical
habitat for the rush darter in Etowah, Jefferson, and Winston Counties,
Alabama; 157 rkm (98 rmi) of critical habitat for the yellowcheek
darter in Cleburne, Searcy, Stone, and Van Buren Counties, Arkansas; 32
rkm (20 rmi) of critical habitat for the chucky madtom in Greene
County, Tennessee; and 42 rkm (26 rmi) of critical habitat for the
laurel dace in Bledsoe, Rhea, and Sequatchie Counties, Tennessee. That
proposal had a 60-day comment period, ending December 12, 2011. We will
submit for publication in the Federal Register a final critical habitat
designation for these five fishes on or before October 12, 2012.
Critical Habitat
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed rule is
made final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting critical habitat must consult with us on the effects of their
proposed actions, under section 7(a)(2) of the Act.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific data available, after
taking into consideration the economic impact, impact on national
security, or any other relevant impact of specifying any particular
area as critical habitat. We may exclude an area from critical habitat
if we determine that the benefits of excluding the area outweigh the
benefits of including the area as critical habitat, provided such
exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus (activities conducted, funded, permitted,
or authorized by Federal agencies), the educational benefits of mapping
areas containing essential features that aid in the recovery of the
listed species, and any benefits that may result from designation due
to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan. In the case of
these five fishes, the benefits of critical habitat include public
awareness of the presence of the fishes and the importance of habitat
protection, and, where a Federal nexus exists, increased habitat
protection for the five fishes due to protection from adverse
modification or destruction of critical habitat. In practice,
situations with a Federal nexus exist primarily on Federal lands or for
projects undertaken by Federal agencies.
We have not proposed to exclude any areas from critical habitat.
However, the final decision on whether to exclude any areas will be
based on the best scientific data available at the time of the final
designation, including information obtained during the
[[Page 30991]]
comment period and information about the economic impact of
designation. Accordingly, our DEA concerning the proposed critical
habitat designation is available for review and comment (see
ADDRESSES).
Draft Economic Analysis
The purpose of the DEA is to identify and analyze the potential
economic impacts associated with the proposed critical habitat
designation for the Cumberland darter, rush darter, yellowcheek darter,
chucky madtom, and laurel dace. The DEA separates conservation measures
into two distinct categories according to ``without critical habitat''
and ``with critical habitat'' scenarios. The ``without critical
habitat'' scenario represents the baseline for the analysis,
considering protections otherwise afforded to the five fishes (e.g.,
under the Federal listing and other Federal, State, and local
regulations). The ``with critical habitat'' scenario describes the
incremental impacts specifically due to designation of critical habitat
for these species. In other words, these incremental conservation
measures and associated economic impacts would not occur but for the
designation. Conservation measures implemented under the baseline
(without critical habitat) scenario are described qualitatively within
the DEA, but economic impacts associated with these measures are not
quantified. Economic impacts are only quantified for conservation
measures implemented specifically due to the designation of critical
habitat (i.e., incremental impacts). For a further description of the
methodology of the analysis, see Chapter 2, ``Framework for the
analysis,'' of the DEA.
The DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed critical habitat designation for the
five fishes over the next 20 years, which was determined to be the
appropriate period for analysis because limited planning information is
available for most activities to forecast activity levels for projects
beyond a 20-year timeframe. It identifies potential incremental costs
as a result of the proposed critical habitat designation; these are
those costs attributed to critical habitat over and above those
baseline costs attributed to listing. The DEA quantifies economic
impacts of the five fishes conservation efforts associated with the
following categories of activity: (1) Coal mining; (2) oil and natural
gas development; (3) agriculture, ranching, and silviculture; (4)
recreational uses; (5) dredging, channelization, impoundments, dams,
and diversions; (6) transportation; and (7) residential and commercial
development.
The DEA concluded that the types of conservation efforts requested
by the Service during section 7 consultation regarding the five fishes
were not expected to change due to critical habitat designations. The
Service believes that results of consultation under the adverse
modification and jeopardy standards are likely to be similar because
(1) the primary constituent elements that define critical habitat are
also essential for the survival of the five fishes, (2) the five fishes
are limited or severely limited in the respective ranges, and (3)
numbers of individuals in the surviving populations are small or very
small. In addition, although two of the proposed critical habitat units
for the Cumberland darter are unoccupied, incremental impacts of the
critical habitat designations will be limited for the following
reasons: (1) Both units are currently occupied by the federally
threatened blackside dace, Chrosomus cumberlandensis; (2) both units
are situated at least partially within the Daniel Boone National
Forest, which is managed according to a land and resource management
plan that includes specific measures to protect sensitive species; and
(3) both units are located within the same hydrologic unit as other
occupied critical habitat units.
The DEA concludes that incremental impacts of critical habitat
designation are limited to additional administrative costs of
consultations and that indirect incremental impacts are unlikely to
result from the designation of critical habitat for the five fishes.
The present value of the total direct (administrative) incremental cost
of critical habitat designation is $644,000 over the next 20 years
assuming a seven percent discount rate, or $56,800 on an annualized
basis. Water quality management activities are likely to be subject to
the greatest incremental impacts at $273,000 over the next 20 years,
followed by transportation at $161,000; coal mining at $79,000; oil and
natural gas development at $73,700; agriculture, ranching, and
silviculture at $36,100; dredging, channelization, impoundments, dams,
and diversions at $10,700; and recreation at $10,000.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of the proposed rule and our
amended required determinations. We may revise the proposed rule or
supporting documents to incorporate or address information we receive
during the public comment period. In particular, we may exclude an area
from critical habitat if we determine that the benefits of excluding
the area outweigh the benefits of including the area, provided the
exclusion will not result in the extinction of this species.
Required Determinations--Amended
In our October 12, 2011, proposed rule (76 FR 63360), we indicated
that we would defer our determination of compliance with several
statutes and executive orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the DEA. We have now
made use of the DEA data to make these determinations. In this
document, we affirm the information in our proposed rule concerning
Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice
Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National
Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's
memorandum of April 29, 1994, ``Government-to-Government Relations with
Native American Tribal Governments'' (59 FR 22951). However, based on
the DEA data, we are amending our required determination concerning the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities. Based on our DEA of the proposed designation,
we provide our analysis for determining whether the proposed rule would
result in a significant economic
[[Page 30992]]
impact on a substantial number of small entities. Based on comments we
receive, we may revise this determination as part of our final rule.
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 five fishes would affect a substantial number of small entities, we
considered the number of small entities affected within particular
types of economic activities, such as coal mining; oil and natural gas
development; dredging, channelization, impoundments, dams, and
diversions; and transportation. In order to determine whether it is
appropriate for our agency to certify that this proposed rule would not
have a significant economic impact on a substantial number of small
entities, we considered each industry or category individually. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement.
Critical habitat designation will not affect activities that do not
have any Federal involvement; designation of critical habitat only
affects activities conducted, funded, permitted, or authorized by
Federal agencies. In areas where the five fishes are 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
species. If we finalize this proposed critical habitat designation,
consultations to avoid the destruction or adverse modification of
critical habitat would be incorporated into the existing consultation
process.
In the DEA, we evaluated the potential economic effects on small
entities resulting from implementation of conservation actions related
to the proposed designation of critical habitat for the five fishes. We
anticipate that ten small entities could be affected by coal mining in
a single year at a cost of $875 each, representing less than three
percent of annual revenues. Two small entities could be affected by oil
and natural gas development within a single year at a cost of $875
each, representing less than three percent of annual revenues. One
small entity could be affected by dredging, channelization,
impoundments, dams, and diversions within a single year, at a cost of
$2,630, representing less than one percent of annual revenues. One
small entity could be affected by transportation within a single year,
at a cost of $1,750, representing less than one percent of annual
revenues. Please refer to the DEA of the proposed critical habitat
designation for a more detailed discussion of potential economic
impacts.
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. We have
identified 14 small entities that may be impacted by the proposed
critical habitat designation. For the above reasons and based on
currently available information, we certify that, if promulgated, the
proposed critical habitat designation would not have a significant
economic impact on a substantial number of small business entities.
Therefore, an initial regulatory flexibility analysis is not required.
Authors
The primary authors of this notice are the staff members of the
Tennessee Ecological Services Field Office (see ADDRESSES section).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: May 17, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-12572 Filed 5-23-12; 8:45 am]
BILLING CODE 4310-55-P
