Endangered and Threatened Wildlife and Plants; Listing as Endangered and Designation of Critical Habitat for Acuña Cactus and the Fickeisen Plains Cactus, 18938-18943 [2013-07159]

Download as PDF 18938 Federal Register / Vol. 78, No. 60 / Thursday, March 28, 2013 / Proposed Rules description of the Rosemont talussnail (previously Sonorella rosemontensis) was made in error, and the taxonomic entity is actually the same species as the Santa Rita talussnail (S. walkeri). Therefore, we conclude that the Rosemont talussnail (S. rosemontensis) is not a species under section 3(16) of the Act. We have reviewed the relevant literature, and we also find that the Rosemont talussnail is not a subspecies of the Santa Rita talussnail. Additionally, invertebrates are precluded by statute from DPS consideration. Therefore, we conclude that the petitioned entity does not constitute a listable entity and cannot be listed under the Act. Finding Based on the best scientific and commercial information available, we find that the Rosemont talussnail is not a listable entity and cannot be listed under the Act. The Rosemont talussnail (Sonorella rosemontensis) was subsumed into the Santa Rita talussnail (S. walkeri), which is a widespread and common species whose distribution extends across southern Arizona from the Santa Rita and Atascosa Mountain Ranges in Santa Cruz County; the Whetstone Mountains of Cochise County; and south into Sonora, Mexico (Pilsbry and Ferris 1915, p. 395; Bequaert and Miller 1973, p. 115; Arizona Game and Fish Department 2008, p. 2). Please submit any new information concerning the status of, or threats to, the Santa Rita talussnail to our Arizona Ecological Services Field Office (see ADDRESSES) whenever it becomes available. New information will help us monitor the Santa Rita talussnail and encourage its conservation. mstockstill on DSK4VPTVN1PROD with PROPOSALS References Cited A complete list of references cited is available on the Internet at https:// www.regulations.gov at Docket Number FWS–R2–ES–2013–0058, in the Species Assessment and Listing Priority Assignment Form on the Internet at https://www.fws.gov/endangered/, and upon request from the Arizona Ecological Services Field Office (see ADDRESSES). Authors The primary authors of this notice are the staff members of the Arizona Ecological Services Field Office. Authority The authority for this section is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). VerDate Mar<15>2010 18:19 Mar 27, 2013 Jkt 229001 Dated: March 15, 2013. Rowan W. Gould, Deputy Director, Fish and Wildlife Service. [FR Doc. 2013–07149 Filed 3–27–13; 8:45 am] BILLING CODE 4310–55–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R2–ES–2013–0025; 4500030113] RIN 1018–AZ43 Endangered and Threatened Wildlife and Plants; Listing as Endangered and Designation of Critical Habitat for ˜ Acuna Cactus and the Fickeisen Plains Cactus Fish and Wildlife Service, Interior. ACTION: Proposed rule; reopening of comment period. AGENCY: SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on our October 3, 2012, proposal to add ˜ the acuna cactus and Fickeisen plains cactus to the list of endangered species under the Endangered Species Act of 1973, as amended (Act). We also announce the reopening of comment on our October 3, 2012, proposal to ˜ designate critical habitat for the acuna cactus and Fickeisen plains cactus and the availability of a draft economic analysis of the proposed designation of critical habitat and an amended required determinations section for the proposal. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposals, the associated draft economic analysis for the critical habitat designation, and the amended required determinations. Comments previously submitted need not be resubmitted, as they will be fully considered in preparation of the final rules. DATES: We will consider comments received or postmarked on or before April 29, 2013. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES section, below) must be received by 11:59 p.m. Eastern Time on the closing date. Any comments that we receive after the closing date may not be considered in the final decisions on these actions. ADDRESSES: Document availability: You may obtain copies of the October 3, 2012, proposed rule on the internet at PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 https://www.regulations.gov at Docket No. FWS–R2–ES–2012–0061 or by mail from the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may obtain a copy of the draft economic analysis at Docket No. FWS–R2–ES–2013–0025. Written comments: You may submit written comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: https:// www.regulations.gov. Submit comments on the listing proposal to Docket No. FWS–R2–ES–2012–0061, and submit comments on the critical habitat proposal and associated draft economic analysis to Docket No. FWS–R2–ES– 2013–0025. See SUPPLEMENTARY INFORMATION for an explanation of the two dockets. (2) By hard copy: Submit comment on the listing proposal by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R2–ES–2012– 0061; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042–PDM; Arlington, VA 22203. Submit comment on the critical habitat proposal and draft economic analysis by U.S. mail or hand-delivery to: Public Comments processing, Attn. FWS–R2– ES–2013–0025; 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). FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, AZ 85021; telephone (602) 242–0210; facsimile (602) 242–2513. 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 are reopening the comment period for our proposed listing determination and proposed critical habitat designation for Echinomastus ˜ erectocentrus var. acunensis (acuna cactus) and Pediocactus peeblesianus var. fickeiseniae (Fickeisen plains cactus) that was published in the Federal Register on October 3, 2012 (77 E:\FR\FM\28MRP1.SGM 28MRP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 78, No. 60 / Thursday, March 28, 2013 / Proposed Rules FR 60509). We are specifically seeking comments on the draft economic analysis, which is now available, for the critical habitat designation; see ADDRESSES for information on where to send your comments. We are also notifying the public that we will publish two separate rules for the final listing determination and the final critical habitat determination for ˜ acuna cactus and Fickeisen plains cactus. The final listing rule will publish under the existing docket number, FWS–R2–ES–2012–0061, and the final critical habitat designation will publish under docket number FWS–R2– ES–2013–0025. We request that you provide comments specifically on our listing determination under the existing docket number FWS–R2–ES–2012–0061. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning: (1) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species and regulations that may be addressing those threats. (2) Additional information concerning the historical and current status, range, distribution, and population size of these species, including the locations of any additional populations of these species. (3) Any information on the biological or ecological requirements of these species and ongoing conservation measures for these species and their habitat. (4) Current or planned activities in the areas occupied by these species and possible impacts of these activities on these species. We request that you provide comments specifically on the critical habitat determination and draft economic analysis under docket number FWS–R2–ES–2013–0025. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning: (5) 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 these 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 may not be prudent. (6) Specific information on: (a) The amount and distribution of ˜ habitat for acuna cactus or the Fickeisen plains cactus; VerDate Mar<15>2010 18:19 Mar 27, 2013 Jkt 229001 (b) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of these species, should be included in the designation and why; (c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including management for the potential effects of climate change; and (d) What areas not occupied at the time of listing are essential to the conservation of the species and why. (7) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat. (8) Information on the projected and reasonably likely impacts of climate change on these species and their proposed critical habitat. (9) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation; in particular, we seek information on any impacts on small entities or families, and the benefits of including or excluding areas from the proposed designation that are exhibit these impacts. (10) Information on the extent to which the description of economic impacts in the draft economic analysis is complete and accurate. (11) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. (12) Whether the benefits of exclusion outweigh the benefits of including the area proposed as critical habitat for the Fickeisen plains cactus on the Navajo Nation based on the ‘‘Navajo Nation Fickeisen Plains Cactus Management Plan’’ submitted during the initial comment period. (13) Whether Department of Defense lands (Barry M. Goldwater Range) proposed as critical habitat for the ˜ acuna cactus should be exempted under section 4(a)(3) from the critical habitat designation based on their revised integrated natural resources management plan submitted during the initial comment period. (14) Additional information from the public as to the current status of the ˜ population of acuna cactus in subunit 1b of the proposed critical habitat designation to aid in our determination of whether this subunit meets the PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 18939 definition of critical habitat for the ˜ acuna cactus. (15) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments. If you submitted comments or information on the proposed rule (77 FR 60509) during the initial comment period from October 3, 2012, to December 3, 2012, please do not resubmit them. We have incorporated them into the public record, and we will fully consider them in the preparation of our final rules. On the basis of public comments and other relevant information, we may, during the development of our final determination on the proposed critical habitat designations, 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 draft economic analysis by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described in the ADDRESSES section. If you submit a comment via 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, will be available for public inspection on https:// www.regulations.gov at Docket No. FWS–R2–ES–2012–0061 (for the proposed listings) and Docket No. FWS– R2–ES–2013–0025 (for the proposed critical habitat designations and draft economic analysis), or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule on the Internet at https:// www.regulations.gov at Docket Number FWS–R2–ES–2012–0061 and the draft economic analysis at Docket No. FWS– R2–ES–2013–0025, or by mail from the E:\FR\FM\28MRP1.SGM 28MRP1 18940 Federal Register / Vol. 78, No. 60 / Thursday, March 28, 2013 / Proposed Rules Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). the effects of their proposed actions, under section 7(a)(2) of the Act. Background Proposed Changes to Proposed Critical Habitat On October 3, 2012, we proposed approximately 1,591 ha (3,931 ac) as ˜ acuna cactus critical habitat within Subunit 1b (Dripping Spring; 77 FR 60510, p. 60552). This Subunit was delineated from records of a 1952 collection of this species from an area south of Dripping Spring in Organ Pipe Cactus National Monument. This subunit is located in the southern part of Organ Pipe Cactus National Monument. During the comment period, we received information from the National Park Service indicating this general area has been visited frequently during surveys for cultural and natural ˜ resources and no acuna cactus plants were located. We are considering withdrawing this subunit from our final critical habitat designation; however, we are seeking additional information from the public as to the current status of this population and whether this area, if unoccupied, is essential for the conservation of the species. It is our intent to discuss only those topics directly relevant to the designation of critical habitat for the ˜ acuna cactus and the Fickeisen plains cactus in the remainder of this document. For more information on the species, their habitat, and previous Federal actions concerning the species, refer to the proposed listing rule and designation of critical habitat published in the Federal Register on October 3, 2012 (77 FR 60509). The proposed rule is available online at https:// www.regulations.gov (at Docket Number FWS–R2–ES–2012–0061) or from the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Previous Federal Actions On October 3, 2012, we published a proposed rule to list as endangered and ˜ designate critical habitat for the acuna cactus and the Fickeisen plains cactus ˜ (77 FR 60509). For the acuna cactus, we proposed to designate as critical habitat approximately 21,740 hectares (ha) (53,720 acres (ac)) in 6 units located in Maricopa, Pima, and Pinal Counties, Arizona. For the Fickeisen plains cactus, we proposed to designate as critical habitat approximately 19,901 ha (49,186 ac) in 9 units located in Coconino and Mohave Counties, Arizona. That proposal had a 60-day comment period, ending December 3, 2012. We will publish in the Federal Register a final listing determination and critical habitat designation for the ˜ acuna cactus and the Fickeisen plains cactus on or before October 3, 2013. mstockstill on DSK4VPTVN1PROD with PROPOSALS 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 critical habitat designation 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 VerDate Mar<15>2010 18:19 Mar 27, 2013 Jkt 229001 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. PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 For the Fickeisen plains cactus, we are considering excluding the entirety of Unit 6 (Tiger Wash Unit) and Unit 7 (Little Colorado River Overlook Unit), and a portion of Subunit 8b (Gray Mountain Subunit) that is under the jurisdiction of the Navajo Nation. The Navajo Nation has submitted a management plan for the Fickeisen plains cactus on lands under its ˜ jurisdiction. For the acuna cactus, we are considering excluding the entirety of Subunit 3b (Cimarron Mountain Subunit) and a portion of Subunit 3a (Coffeepot Mountain Subunit) that is under the jurisdiction of the Tohono O’odham Nation based on a request from the Tohono O’odham Nation. Consideration of Exemption under Section 4(a)(3) of the Act ˜ For the acuna cactus, we are considering an exemption for a portion of Subunit 3a (Coffeepot Mountain Subunit) and the entirety of Subunit 4b (Sand Tank Mountains Subunit), which ˜ is proposed critical habitat for acuna cactus on Department of Defense lands (Barry M. Goldwater Range, under the jurisdiction of the U.S. Air Force). Section 4(a)(3) of the Act exempts Department of Defense lands from critical habitat if an integrated natural resources management plan is prepared and if the Secretary of the Interior determines that plan provides a benefit to the species for which critical habitat is proposed for designation. A revised management plan has been submitted to the Service for review. However, the final decision on whether to exclude or exempt any area 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, which is available for review and comment (see ADDRESSES section). Draft Economic Analysis The purpose of the draft economic analysis is to identify and analyze the potential economic impacts associated with the proposed critical habitat ˜ designation for the acuna cactus and the Fickeisen plains cactus. The draft economic analysis 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 acuna cactus and the Fickeisen plains cactus (e.g., E:\FR\FM\28MRP1.SGM 28MRP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 78, No. 60 / Thursday, March 28, 2013 / Proposed Rules 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 the 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 draft economic analysis, 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 draft economic analysis. The draft economic analysis provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for ˜ the acuna cactus and the Fickeisen plains cactus 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 draft economic analysis quantifies economic impacts of the ˜ acuna cactus conservation efforts associated with the following categories of activity: (1) BLM Statewide and Resource Management Plans; (2) livestock grazing; (3) Barry M. Goldwater Range activities; (4) U.S. Mexican border activities; (5) Tohono O’odham Nation activities; and (6) transportation activities. The draft economic analysis quantifies economic impacts of the Fickeisen plains cactus conservation efforts associated with the following categories of activity: (1) Livestock grazing; (2) BLM Statewide Plans; (3) uranium mining; (4) activities on lands of the Navajo Nation; and (5) transportation activities. Total present value incremental impacts are approximately $60,000 over 20 years following the designation of the ˜ acuna cactus critical habitat, assuming a 7 percent discount rate ($65,000 assuming a 3 percent discount rate). Total present value incremental impacts are approximately $39,000 over 20 years following the designation of the VerDate Mar<15>2010 18:19 Mar 27, 2013 Jkt 229001 Fickeisen plains cactus critical habitat, assuming a 7 percent discount rate ($43,000 assuming a 3 percent discount rate). The total present value incremental impacts in areas considered for exclusion within the Fickeisen plains cactus critical habitat are approximately $22,000, assuming a 7 percent discount rate ($23,000 assuming a 3 percent discount rate). The majority of the incremental costs for both cacti is administrative in nature and results from the consideration of adverse modification in section 7 consultations. Additional costs are associated with ˜ conducting surveys for acuna cactus within the Barry M. Goldwater Range. As stated earlier, we are soliciting data and comments from the public on the draft economic analysis, 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 3, 2012, proposed rule (77 FR 60509), 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 draft economic analysis. We have now made use of the draft economic analysis data to make these determinations. In this document, we affirm the information in our proposed rule concerning Executive Orders (E.O.s) 12866 and 13563 (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.), and the National Environmental Policy Act (42 U.S.C. 4321 et seq.). However, based on the draft economic analysis data, we are amending our required determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and the President’s memorandum of April 29, 1994, ‘‘Government-to-Government Relations with Native American Tribal Governments’’ (59 FR 22951). PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 18941 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 draft economic analysis of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of our final rulemaking. According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; 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 E:\FR\FM\28MRP1.SGM 28MRP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 18942 Federal Register / Vol. 78, No. 60 / Thursday, March 28, 2013 / Proposed Rules ˜ acuna cactus and the Fickeisen plains cactus would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as uranium mining, livestock grazing, and transportation construction and maintenance projects. 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 ˜ acuna cactus or the Fickeisen plains cactus 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 the 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 draft economic analysis, 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 acuna cactus and the Fickeisen plains cactus. Fifty-five percent of land in the proposed ˜ designation for acuna cactus and 34 percent of the land in the proposed designation for Fickeisen plains cactus is federally owned. Anticipated incremental impacts in proposed critical habitat are primarily related to consultations on livestock grazing and other Federal land management activities. The remaining forecast impacts are anticipated to be conducted for transportation construction and maintenance projects, Partners for Fish and Wildlife programs, and activities on the Tohono O’odham or Navajo Nations’ lands. The Arizona Department of Transportation (ADOT) and Tribes are not considered small entities. Therefore, of the remaining activities affected by the proposed critical habitat designations for the cacti, only one is expected to incur costs to small entities: uranium mining. One consultation is projected for the EZ uranium mine. This one consultation will result in impacts to Energy Fuels Inc. (operators of the EZ VerDate Mar<15>2010 18:19 Mar 27, 2013 Jkt 229001 Mine) of approximately $900 on a present value basis, or approximately $80 on an annualized basis, which constitutes an impact of less than onetenth of a percent of annual revenues. Of the activities affected by the ˜ proposed designation for the acuna cactus and the Fickeisen plains cactus, none is expected to incur incremental costs to third-party small entities. The forecast consultations either do not include third parties (programmatic consultations, intra-Service consultations, and consultations with another Federal agency) or the third parties are not considered small entities (consultations with the ADOT and the Tribes). Please refer to the Appendix A of the draft economic analysis of the proposed critical habitat designation for a more detailed discussion of potential economic impacts. The Service’s current understanding of recent case law is that Federal agencies are only required to evaluate the potential impacts of rulemaking on those entities directly regulated by the rulemaking; therefore, they are not required to evaluate the potential impacts to those entities not directly regulated by the designation of critical habitat. The designation of critical habitat for an endangered or threatened species only has a regulatory effect where a Federal action agency is involved in a particular action that may affect the designated critical habitat. Under these circumstances, only the Federal action agency is directly regulated by the designation, and, therefore, consistent with the Service’s current interpretation of the RFA and recent case law, the Service may limit its evaluation of the potential impacts to those identified for Federal action agencies. Under this interpretation, there is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated, such as small businesses. However, Executive Orders 12866 and 13563 direct Federal agencies to assess cost and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consequently, it is the current practice of the Service to assess to the extent practicable these potential impacts, if sufficient data are available, whether or not this analysis is believed by the Service to be strictly required by the RFA. In other words, while the effects analysis required under the RFA is limited to entities directly regulated by the rulemaking, the effects analysis under the Act, consistent with the E.O. regulatory analysis requirements, can take into consideration impacts to both directly and indirectly impacted PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 entities, where practicable and reasonable. 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 conclude that future consultations are not likely to involve a third party or the third parties are not considered small entities. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designations would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required. Government-to-Government Relations With Native American Tribal Governments’’ (59 FR 22951) In accordance with the President’s memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior’s manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. Please see our statement under this required determination in our October 3, 2012, proposed rule (77 FR 60565– 60566) for information regarding the Tribal lands included in the proposed ˜ critical habitat designation for the acuna cactus and Fickeisen plains cactus. Since the publication of that proposed rule, we sent the Chairmen of the Navajo and Tohono O’odham Nations letters of notification on October 31, 2012. In addition, we had a meeting with Tohono O’odham Nation staff in February 2013, to discuss the proposed designations. Authors The primary authors of this notice are the staff members of the Arizona E:\FR\FM\28MRP1.SGM 28MRP1 Federal Register / Vol. 78, No. 60 / Thursday, March 28, 2013 / Proposed Rules Ecological Services Field Office, Region 2, U.S. Fish and Wildlife Service. Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). Dated: March 18, 2013. Rachel Jacobson, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2013–07159 Filed 3–27–13; 8:45 am] BILLING CODE 4310–55–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R2–ES–2013–0018; 4500030113] RIN 1018–AZ46 Endangered and Threatened Wildlife and Plants; Listing as Endangered and Designation of Critical Habitat for the Gierisch Mallow Fish and Wildlife Service, Interior. ACTION: Proposed rule; reopening of comment period. mstockstill on DSK4VPTVN1PROD with PROPOSALS AGENCY: SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the August 17, 2012, proposal to add the Gierisch mallow to the list of endangered species under the Endangered Species Act of 1973, as amended (Act). We also announce the reopening of comment on the August 17, 2012, proposal to designate critical habitat for the Gierisch mallow and the availability of a draft economic analysis and draft environmental assessment of the proposed critical habitat designation and amended required determinations for the proposed rule. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposals, the associated draft economic and environmental analyses, and the amended required determinations. Comments previously submitted need not be resubmitted, as they will be fully considered in preparation of the final rule. DATES: Written comments: We will consider comments received or postmarked on or before April 29, 2013. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES section, below) must be received by 11:59 p.m. Eastern Time on the closing date. VerDate Mar<15>2010 18:19 Mar 27, 2013 Jkt 229001 ADDRESSES: Document availability: You may obtain a copy of the proposed listing rule on the internet at https:// www.regulations.gov at Docket No. FWS–R2–ES–2012–0049 or by mail from the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may obtain a copy of the proposed critical habitat rule and associated draft economic and environmental analyses at Docket No. FWS–R2–ES–2013–0018. Written comments: You may submit written comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: https:// www.regulations.gov. Submit comments on the listing proposal to Docket No. FWS–R2–ES–2012–0049, and submit comments on the critical habitat proposal and associated draft analyses to Docket No. FWS–R2–ES–2013–0018. See SUPPLEMENTARY INFORMATION for an explanation of the two dockets. (2) By hard copy: Submit comment on the listing proposal by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R2–ES–2012– 0049; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042–PDM; Arlington, VA 22203. Submit comments on the critical habitat proposal and draft economic and environmental analyses by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R2–ES–2013– 0018; 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). FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, Arizona Ecological Services Field Office, 2123 West Royal Palm Road, Suite 103, Phoenix, AZ 85021; by telephone (602)–242–0210; or by facsimile (602)–242–2513. 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 are reopening the comment period for our proposed listing determination and proposed critical habitat PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 18943 designation for Sphaeralcea gierischii (Gierisch mallow) that was published in the Federal Register on August 17, 2012 (77 FR 49894). We are specifically seeking comments on the draft economic and environmental analyses, which are now available, for the proposed critical habitat designation; see ADDRESSES for information on where to send your comments. We are also notifying the public that we will publish two separate rules for the final listing determination and the final critical habitat determination for Gierisch mallow. The final listing rule will publish under the existing docket number, FWS–R2–ES–2012–0049, and the final critical habitat designation will publish under docket number FWS–R2– ES–2013–0018. We request that you provide comments specifically on our listing determination under the existing docket number FWS–R2–ES–2012–0049. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning: (1) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and regulations that may be addressing those threats. (2) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species. (3) Any information on the biological or ecological requirements of the species, and ongoing conservation measures for the species and its habitat. (4) Current or planned activities in the areas occupied by the species and possible impacts of these activities on this species. We request that you provide comments specifically on the critical habitat determination and draft economic and environmental analyses under docket number FWS–R2–ES– 2013–0018. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning: (5) The reasons why we should or should not designate land 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 may not be prudent. (6) Specific information on: E:\FR\FM\28MRP1.SGM 28MRP1

Agencies

[Federal Register Volume 78, Number 60 (Thursday, March 28, 2013)]
[Proposed Rules]
[Pages 18938-18943]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07159]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2013-0025; 4500030113]
RIN 1018-AZ43

Endangered and Threatened Wildlife and Plants; Listing as
Endangered and Designation of Critical Habitat for Acu[ntilde]a Cactus
and the Fickeisen Plains Cactus

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 public comment period on our October 3, 2012, proposal
to add the acu[ntilde]a cactus and Fickeisen plains cactus to the list
of endangered species under the Endangered Species Act of 1973, as
amended (Act). We also announce the reopening of comment on our October
3, 2012, proposal to designate critical habitat for the acu[ntilde]a
cactus and Fickeisen plains cactus and the availability of a draft
economic analysis of the proposed designation of critical habitat and
an amended required determinations section for the proposal. We are
reopening the comment period to allow all interested parties an
opportunity to comment simultaneously on the proposals, the associated
draft economic analysis for the critical habitat designation, and the
amended required determinations. Comments previously submitted need not
be resubmitted, as they will be fully considered in preparation of the
final rules.

DATES: We will consider comments received or postmarked on or before
April 29, 2013. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES section, below) must be received by
11:59 p.m. Eastern Time on the closing date. Any comments that we
receive after the closing date may not be considered in the final
decisions on these actions.

ADDRESSES: Document availability: You may obtain copies of the October
3, 2012, proposed rule on the internet at https://www.regulations.gov at
Docket No. FWS-R2-ES-2012-0061 or by mail from the Arizona Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may
obtain a copy of the draft economic analysis at Docket No. FWS-R2-ES-
2013-0025.
Written comments: You may submit written comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. Submit comments on the listing proposal to Docket
No. FWS-R2-ES-2012-0061, and submit comments on the critical habitat
proposal and associated draft economic analysis to Docket No. FWS-R2-
ES-2013-0025. See SUPPLEMENTARY INFORMATION for an explanation of the
two dockets.
(2) By hard copy: Submit comment on the listing proposal by U.S.
mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-
2012-0061; Division of Policy and Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA
22203. Submit comment on the critical habitat proposal and draft
economic analysis by U.S. mail or hand-delivery to: Public Comments
processing, Attn. FWS-R2-ES-2013-0025; 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).

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S.
Fish and Wildlife Service, Arizona Ecological Services Field Office,
2321 W. Royal Palm Road, Suite 103, Phoenix, AZ 85021; telephone (602)
242-0210; facsimile (602) 242-2513. 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 are reopening the comment period for our proposed listing
determination and proposed critical habitat designation for
Echinomastus erectocentrus var. acunensis (acu[ntilde]a cactus) and
Pediocactus peeblesianus var. fickeiseniae (Fickeisen plains cactus)
that was published in the Federal Register on October 3, 2012 (77

[[Page 18939]]

FR 60509). We are specifically seeking comments on the draft economic
analysis, which is now available, for the critical habitat designation;
see ADDRESSES for information on where to send your comments.
We are also notifying the public that we will publish two separate
rules for the final listing determination and the final critical
habitat determination for acu[ntilde]a cactus and Fickeisen plains
cactus. The final listing rule will publish under the existing docket
number, FWS-R2-ES-2012-0061, and the final critical habitat designation
will publish under docket number FWS-R2-ES-2013-0025.
We request that you provide comments specifically on our listing
determination under the existing docket number FWS-R2-ES-2012-0061. We
will consider information and recommendations from all interested
parties. We are particularly interested in comments concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to these species and regulations that may
be addressing those threats.
(2) Additional information concerning the historical and current
status, range, distribution, and population size of these species,
including the locations of any additional populations of these species.
(3) Any information on the biological or ecological requirements of
these species and ongoing conservation measures for these species and
their habitat.
(4) Current or planned activities in the areas occupied by these
species and possible impacts of these activities on these species.
We request that you provide comments specifically on the critical
habitat determination and draft economic analysis under docket number
FWS-R2-ES-2013-0025. We will consider information and recommendations
from all interested parties. We are particularly interested in comments
concerning:
(5) 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 these 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 may not be
prudent.
(6) Specific information on:
(a) The amount and distribution of habitat for acu[ntilde]a cactus
or the Fickeisen plains cactus;
(b) What areas, that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of these species, should be included in the designation
and why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including management
for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential to
the conservation of the species and why.
(7) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(8) Information on the projected and reasonably likely impacts of
climate change on these species and their proposed critical habitat.
(9) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, we seek information on any impacts on small
entities or families, and the benefits of including or excluding areas
from the proposed designation that are exhibit these impacts.
(10) Information on the extent to which the description of economic
impacts in the draft economic analysis is complete and accurate.
(11) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act.
(12) Whether the benefits of exclusion outweigh the benefits of
including the area proposed as critical habitat for the Fickeisen
plains cactus on the Navajo Nation based on the ``Navajo Nation
Fickeisen Plains Cactus Management Plan'' submitted during the initial
comment period.
(13) Whether Department of Defense lands (Barry M. Goldwater Range)
proposed as critical habitat for the acu[ntilde]a cactus should be
exempted under section 4(a)(3) from the critical habitat designation
based on their revised integrated natural resources management plan
submitted during the initial comment period.
(14) Additional information from the public as to the current
status of the population of acu[ntilde]a cactus in subunit 1b of the
proposed critical habitat designation to aid in our determination of
whether this subunit meets the definition of critical habitat for the
acu[ntilde]a cactus.
(15) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
If you submitted comments or information on the proposed rule (77
FR 60509) during the initial comment period from October 3, 2012, to
December 3, 2012, please do not resubmit them. We have incorporated
them into the public record, and we will fully consider them in the
preparation of our final rules. On the basis of public comments and
other relevant information, we may, during the development of our final
determination on the proposed critical habitat designations, 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 draft economic analysis by one of the methods listed in the
ADDRESSES section. We request that you send comments only by the
methods described in the ADDRESSES section.
If you submit a comment via 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, will be available for public inspection on
https://www.regulations.gov at Docket No. FWS-R2-ES-2012-0061 (for the
proposed listings) and Docket No. FWS-R2-ES-2013-0025 (for the proposed
critical habitat designations and draft economic analysis), or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Arizona Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT). You may obtain copies of the proposed
rule on the Internet at https://www.regulations.gov at Docket Number
FWS-R2-ES-2012-0061 and the draft economic analysis at Docket No. FWS-
R2-ES-2013-0025, or by mail from the

[[Page 18940]]

Arizona 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 acu[ntilde]a cactus and the
Fickeisen plains cactus in the remainder of this document. For more
information on the species, their habitat, and previous Federal actions
concerning the species, refer to the proposed listing rule and
designation of critical habitat published in the Federal Register on
October 3, 2012 (77 FR 60509). The proposed rule is available online at
https://www.regulations.gov (at Docket Number FWS-R2-ES-2012-0061) or
from the Arizona Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).

Previous Federal Actions

On October 3, 2012, we published a proposed rule to list as
endangered and designate critical habitat for the acu[ntilde]a cactus
and the Fickeisen plains cactus (77 FR 60509). For the acu[ntilde]a
cactus, we proposed to designate as critical habitat approximately
21,740 hectares (ha) (53,720 acres (ac)) in 6 units located in
Maricopa, Pima, and Pinal Counties, Arizona. For the Fickeisen plains
cactus, we proposed to designate as critical habitat approximately
19,901 ha (49,186 ac) in 9 units located in Coconino and Mohave
Counties, Arizona. That proposal had a 60-day comment period, ending
December 3, 2012. We will publish in the Federal Register a final
listing determination and critical habitat designation for the
acu[ntilde]a cactus and the Fickeisen plains cactus on or before
October 3, 2013.

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 critical
habitat designation 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.

Proposed Changes to Proposed Critical Habitat

On October 3, 2012, we proposed approximately 1,591 ha (3,931 ac)
as acu[ntilde]a cactus critical habitat within Subunit 1b (Dripping
Spring; 77 FR 60510, p. 60552). This Subunit was delineated from
records of a 1952 collection of this species from an area south of
Dripping Spring in Organ Pipe Cactus National Monument. This subunit is
located in the southern part of Organ Pipe Cactus National Monument.
During the comment period, we received information from the National
Park Service indicating this general area has been visited frequently
during surveys for cultural and natural resources and no acu[ntilde]a
cactus plants were located. We are considering withdrawing this subunit
from our final critical habitat designation; however, we are seeking
additional information from the public as to the current status of this
population and whether this area, if unoccupied, is essential for the
conservation of the species.

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. For the Fickeisen
plains cactus, we are considering excluding the entirety of Unit 6
(Tiger Wash Unit) and Unit 7 (Little Colorado River Overlook Unit), and
a portion of Subunit 8b (Gray Mountain Subunit) that is under the
jurisdiction of the Navajo Nation. The Navajo Nation has submitted a
management plan for the Fickeisen plains cactus on lands under its
jurisdiction. For the acu[ntilde]a cactus, we are considering excluding
the entirety of Subunit 3b (Cimarron Mountain Subunit) and a portion of
Subunit 3a (Coffeepot Mountain Subunit) that is under the jurisdiction
of the Tohono O'odham Nation based on a request from the Tohono O'odham
Nation.

Consideration of Exemption under Section 4(a)(3) of the Act

For the acu[ntilde]a cactus, we are considering an exemption for a
portion of Subunit 3a (Coffeepot Mountain Subunit) and the entirety of
Subunit 4b (Sand Tank Mountains Subunit), which is proposed critical
habitat for acu[ntilde]a cactus on Department of Defense lands (Barry
M. Goldwater Range, under the jurisdiction of the U.S. Air Force).
Section 4(a)(3) of the Act exempts Department of Defense lands from
critical habitat if an integrated natural resources management plan is
prepared and if the Secretary of the Interior determines that plan
provides a benefit to the species for which critical habitat is
proposed for designation. A revised management plan has been submitted
to the Service for review. However, the final decision on whether to
exclude or exempt any area 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, which is
available for review and comment (see ADDRESSES section).

Draft Economic Analysis

The purpose of the draft economic analysis is to identify and
analyze the potential economic impacts associated with the proposed
critical habitat designation for the acu[ntilde]a cactus and the
Fickeisen plains cactus. The draft economic analysis 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
acu[ntilde]a cactus and the Fickeisen plains cactus (e.g.,

[[Page 18941]]

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 the 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 draft economic analysis, 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 draft economic analysis.
The draft economic analysis provides estimated costs of the
foreseeable potential economic impacts of the proposed critical habitat
designation for the acu[ntilde]a cactus and the Fickeisen plains cactus
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 draft economic analysis quantifies economic impacts of the
acu[ntilde]a cactus conservation efforts associated with the following
categories of activity: (1) BLM Statewide and Resource Management
Plans; (2) livestock grazing; (3) Barry M. Goldwater Range activities;
(4) U.S. Mexican border activities; (5) Tohono O'odham Nation
activities; and (6) transportation activities. The draft economic
analysis quantifies economic impacts of the Fickeisen plains cactus
conservation efforts associated with the following categories of
activity: (1) Livestock grazing; (2) BLM Statewide Plans; (3) uranium
mining; (4) activities on lands of the Navajo Nation; and (5)
transportation activities.
Total present value incremental impacts are approximately $60,000
over 20 years following the designation of the acu[ntilde]a cactus
critical habitat, assuming a 7 percent discount rate ($65,000 assuming
a 3 percent discount rate). Total present value incremental impacts are
approximately $39,000 over 20 years following the designation of the
Fickeisen plains cactus critical habitat, assuming a 7 percent discount
rate ($43,000 assuming a 3 percent discount rate). The total present
value incremental impacts in areas considered for exclusion within the
Fickeisen plains cactus critical habitat are approximately $22,000,
assuming a 7 percent discount rate ($23,000 assuming a 3 percent
discount rate). The majority of the incremental costs for both cacti is
administrative in nature and results from the consideration of adverse
modification in section 7 consultations. Additional costs are
associated with conducting surveys for acu[ntilde]a cactus within the
Barry M. Goldwater Range.
As stated earlier, we are soliciting data and comments from the
public on the draft economic analysis, 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 3, 2012, proposed rule (77 FR 60509), 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 draft economic
analysis. We have now made use of the draft economic analysis data to
make these determinations. In this document, we affirm the information
in our proposed rule concerning Executive Orders (E.O.s) 12866 and
13563 (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.), and the National Environmental Policy Act (42
U.S.C. 4321 et seq.). However, based on the draft economic analysis
data, we are amending our required determinations concerning the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and the President's
memorandum of April 29, 1994, ``Government-to-Government Relations with
Native American Tribal Governments'' (59 FR 22951).

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 draft economic analysis of the
proposed designation, we provide our analysis for determining whether
the proposed rule would result in a significant economic impact on a
substantial number of small entities. Based on comments we receive, we
may revise this determination as part of our final rulemaking.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; 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

[[Page 18942]]

acu[ntilde]a cactus and the Fickeisen plains cactus would affect a
substantial number of small entities, we considered the number of small
entities affected within particular types of economic activities, such
as uranium mining, livestock grazing, and transportation construction
and maintenance projects. 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 acu[ntilde]a cactus or the
Fickeisen plains cactus 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 the 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 draft economic analysis, 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
acu[ntilde]a cactus and the Fickeisen plains cactus. Fifty-five percent
of land in the proposed designation for acu[ntilde]a cactus and 34
percent of the land in the proposed designation for Fickeisen plains
cactus is federally owned. Anticipated incremental impacts in proposed
critical habitat are primarily related to consultations on livestock
grazing and other Federal land management activities. The remaining
forecast impacts are anticipated to be conducted for transportation
construction and maintenance projects, Partners for Fish and Wildlife
programs, and activities on the Tohono O'odham or Navajo Nations'
lands. The Arizona Department of Transportation (ADOT) and Tribes are
not considered small entities. Therefore, of the remaining activities
affected by the proposed critical habitat designations for the cacti,
only one is expected to incur costs to small entities: uranium mining.
One consultation is projected for the EZ uranium mine. This one
consultation will result in impacts to Energy Fuels Inc. (operators of
the EZ Mine) of approximately $900 on a present value basis, or
approximately $80 on an annualized basis, which constitutes an impact
of less than one-tenth of a percent of annual revenues. Of the
activities affected by the proposed designation for the acu[ntilde]a
cactus and the Fickeisen plains cactus, none is expected to incur
incremental costs to third-party small entities. The forecast
consultations either do not include third parties (programmatic
consultations, intra-Service consultations, and consultations with
another Federal agency) or the third parties are not considered small
entities (consultations with the ADOT and the Tribes). Please refer to
the Appendix A of the draft economic analysis of the proposed critical
habitat designation for a more detailed discussion of potential
economic impacts.
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated by the designation of critical
habitat. The designation of critical habitat for an endangered or
threatened species only has a regulatory effect where a Federal action
agency is involved in a particular action that may affect the
designated critical habitat. Under these circumstances, only the
Federal action agency is directly regulated by the designation, and,
therefore, consistent with the Service's current interpretation of the
RFA and recent case law, the Service may limit its evaluation of the
potential impacts to those identified for Federal action agencies.
Under this interpretation, there is no requirement under the RFA to
evaluate the potential impacts to entities not directly regulated, such
as small businesses. However, Executive Orders 12866 and 13563 direct
Federal agencies to assess cost and benefits of available regulatory
alternatives in quantitative (to the extent feasible) and qualitative
terms. Consequently, it is the current practice of the Service to
assess to the extent practicable these potential impacts, if sufficient
data are available, whether or not this analysis is believed by the
Service to be strictly required by the RFA. In other words, while the
effects analysis required under the RFA is limited to entities directly
regulated by the rulemaking, the effects analysis under the Act,
consistent with the E.O. regulatory analysis requirements, can take
into consideration impacts to both directly and indirectly impacted
entities, where practicable and reasonable.
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
conclude that future consultations are not likely to involve a third
party or the third parties are not considered small entities. For the
above reasons and based on currently available information, we certify
that, if promulgated, the proposed critical habitat designations would
not have a significant economic impact on a substantial number of small
business entities. Therefore, an initial regulatory flexibility
analysis is not required.

Government-to-Government Relations With Native American Tribal
Governments'' (59 FR 22951)

In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
Please see our statement under this required determination in our
October 3, 2012, proposed rule (77 FR 60565-60566) for information
regarding the Tribal lands included in the proposed critical habitat
designation for the acu[ntilde]a cactus and Fickeisen plains cactus.
Since the publication of that proposed rule, we sent the Chairmen of
the Navajo and Tohono O'odham Nations letters of notification on
October 31, 2012. In addition, we had a meeting with Tohono O'odham
Nation staff in February 2013, to discuss the proposed designations.

Authors

The primary authors of this notice are the staff members of the
Arizona

[[Page 18943]]

Ecological Services Field Office, Region 2, U.S. Fish and Wildlife
Service.

Authority

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

Dated: March 18, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-07159 Filed 3-27-13; 8:45 am]
BILLING CODE 4310-55-P

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