Endangered and Threatened Wildlife and Plants; Threatened Status for the Spring Pygmy Sunfish and Designation of Critical Habitat, 25033-25041 [2013-09974]

Download as PDF Federal Register / Vol. 78, No. 82 / Monday, April 29, 2013 / Proposed Rules thereof was previously the owner (as defined in § 424.502) of a provider or supplier that had a Medicare debt that existed when the latter’s enrollment was voluntarily terminated, involuntarily terminated, or revoked and all of the following criteria are met: (A) The owner left the provider or supplier that had the Medicare debt within 1 year of that provider or supplier’s voluntary termination, involuntary termination or revocation. (B) The Medicare debt has not been fully repaid. (C) CMS determines that the uncollected debt poses an undue risk of fraud, waste or abuse. (iii) A denial of Medicare enrollment under this paragraph (a)(6) can be avoided if the enrolling provider, supplier or owner thereof does both of the following: (A) Satisfies the criteria set forth in § 401.607. (B)(1) Agrees to a CMS-approved extended repayment schedule for the entire outstanding Medicare debt; or (2) Repays the debt in full. * * * * * ■ 10. Section 424.535 is amended by revising paragraphs (a)(1) introductory text and (a)(3), (a)(5), (a)(8), (c), and (h) to read as follows: § 424.535 Revocation of enrollment and billing privileges in the Medicare program. emcdonald on DSK67QTVN1PROD with PROPOSALS * * * * * (a) * * * (1) Noncompliance. The provider or supplier is determined not to be in compliance with the enrollment requirements described in this subpart P, or in the enrollment application applicable for its provider or supplier type, and has not submitted a plan of corrective action as outlined in part 488 of this chapter. The provider or supplier may also be determined not to be in compliance if it has failed to pay any user fees as assessed under part 488 of this chapter. * * * * * (3) Felonies. (i) The provider, supplier, or any owner or managing employee of the provider or supplier was, within the preceding 10 years, convicted (as that term is defined in 42 CFR 1001.2) of a federal or state felony offense that CMS has determined to be detrimental to the best interests of the Medicare program and its beneficiaries. (ii) Revocations based on felony convictions are for a period to be determined by the Secretary, but not less than 10 years from the date of conviction if the individual has been convicted on one previous occasion for one or more offenses. * * * * * VerDate Mar<15>2010 14:14 Apr 26, 2013 Jkt 229001 (5) On-site review. Upon on-site review or other reliable evidence, CMS determines that the provider or supplier is either of the following: (i) No longer operational to furnish Medicare covered items or services. (ii) Otherwise fails to satisfy any Medicare enrollment requirements. * * * * * (8) Abuse of billing privileges. Abuse of billing privileges includes either of the following: (i) The provider or supplier submits a claim or claims for services that could not have been furnished to a specific individual on the date of service. These instances include but are not limited to the following situations: (A) Where the beneficiary is deceased. (B) The directing physician or beneficiary is not in the state or country when services were furnished. (C) When the equipment necessary for testing is not present where the testing is said to have occurred. (ii) CMS determines that the provider or supplier has a pattern or practice of submitting claims for services that fail to meet Medicare requirements. * * * * * (c) Reapplying after revocation. If a provider, supplier, owner, or managing employee has their billing privileges revoked, they are barred from participating in the Medicare program from the date of the revocation until the end of the re-enrollment bar. (1) The re-enrollment bar begins 30 days after CMS or its contractor mails notice of the revocation and lasts a minimum of 1 year, but not greater than 3 years, depending on the severity of the basis for revocation. (2) The re-enrollment bar does not apply in the event a revocation of Medicare billing privileges is imposed under paragraph (a)(1) of this section based upon a provider or supplier’s failure to respond timely to a revalidation request or other request for information. * * * * * (h) Submission of claims for services furnished before revocation. (1)(i) Except for HHAs as described in paragraph (h)(1)(ii) of this section, a revoked provider or supplier must, within 60 calendar days after the effective date of revocation, submit all claims for items and services furnished before the date of the revocation letter. (ii) A revoked HHA must submit all claims for items and services within 60 days after the later of the following: (A) The effective date of the revocation. (B) The date that the HHA’s last payable episode ends. PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 25033 (2) Nothing in this paragraph (h) impacts the requirements of § 424.44 regarding the timely filing of claims. PART 498—APPEALS PROCEDURES FOR DETERMINATIONS THAT AFFECT PARTICIPATION IN THE MEDICARE PROGRAM AND FOR DETERMINATIONS THAT AFFECT THE PARTICIPATION OF ICFs/MR AND CERTAIN NFs IN THE MEDICAID PROGRAM 10. The authority citation for part 498 continues to read as follows: ■ Authority: Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh). § 498.5 [Amended] 11. In § 498.5, paragraph (l)(4) is amended by removing the crossreference ‘‘§ 424.530(a)(9)’’ and adding the cross-reference ‘‘§ 424.530(a)(10)’’ in its place. ■ (Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance; and Program No. 93.774, Medicare—Supplementary Medical Insurance Program) Dated: August 23, 2012. Marilyn Tavenner, Acting Administrator, Centers for Medicare & Medicaid Services. Approved: April 17, 2013. Kathleen Sebelius, Secretary, Department of Health and Human Services. [FR Doc. 2013–09991 Filed 4–24–13; 11:15 am] BILLING CODE 4120–01–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket Nos. FWS–R4–ES–2012–0068; FWS–R4–ES–2013–0010; 4500030114] RIN 1018–AY19; 1018–AZ42 Endangered and Threatened Wildlife and Plants; Threatened Status for the Spring Pygmy Sunfish and Designation of Critical Habitat Fish and Wildlife Service, Interior. ACTION: Proposed rule; reopening of comment period. AGENCY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on our October 2, 2012, proposed listing and designation of critical habitat for the spring pygmy sunfish (Elassoma alabamae) under the Endangered SUMMARY: E:\FR\FM\29APP1.SGM 29APP1 emcdonald on DSK67QTVN1PROD with PROPOSALS 25034 Federal Register / Vol. 78, No. 82 / Monday, April 29, 2013 / Proposed Rules Species Act of 1973, as amended (Act). In this document, we propose a slight reduction to the size of the proposed designation based on public input. We also announce the availability of a draft economic analysis (DEA) of the proposed designation of critical habitat for spring pygmy sunfish 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. DATES: Written comments: We will consider comments received or postmarked on or before May 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. ADDRESSES: Document availability: You may obtain copies of the revised proposed rule and the draft economic analysis on the Internet at https:// www.regulations.gov at Docket Number FWS–R4–ES–2012–0068, or by mail from the Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). 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. For comments on the proposed listing of this species, search for Docket No. FWS–R4–ES– 2012–0068, which is the docket number for the listing portion of the proposed rulemaking. For comments on the proposed critical habitat designation for this species, search for Docket No. FWS–R4–ES–2013–0010, which is the docket number for the critical habitat portion of the proposed rulemaking. (2) By hard copy: For comments on the proposed listing of this species, submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R4–ES–2012–0068; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042–PDM; Arlington, VA 22203. For comments on the proposed critical habitat designation for this species (including the economic analysis), submit by U.S. mail or handdelivery to: Public Comments Processing, Attn: FWS–R4–ES–2013– 0010; Division of Policy and Directives Management; U.S. Fish and Wildlife VerDate Mar<15>2010 14:14 Apr 26, 2013 Jkt 229001 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 details). FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor, Mississippi Ecological Services Field Office, 6578 Dogwood View Parkway, Jackson, MS 39213; by telephone (601– 321–1122); or by facsimile (601–965– 4340). If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: Public Comments We will accept written comments and information during this reopened comment period on our proposed listing and designation of critical habitat for the spring pygmy sunfish that was published in the Federal Register on October 2, 2012 (77 FR 60180), the revision to the proposed critical habitat boundaries of Unit 1 described in this document, our DEA of the proposed designation, and the amended required determinations provided in this document. We will consider information and recommendations from all interested parties. 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 the Spring pygmy sunfish. The final listing rule will publish under the existing docket number, FWS–R4–ES– 2012–0068, and the final critical habitat designation will publish under new docket number FWS–R4–ES–2013– 0010. We will consider information and recommendations from all interested parties on both determinations. As to the proposed listing determination, 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 this species, and ongoing conservation PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 measures for these species and its habitat. (4) Current or planned activities in the areas occupied by this species and possible impacts of these activities on this species. As to the proposed critical habitat determination, 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 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. (6) Specific information on: (a) The distribution of the spring pygmy sunfish; (b) The amount and distribution of spring pygmy sunfish habitat; (c) 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 (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) 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. (9) Information on the extent to which the description of economic impacts in the DEA is complete and accurate. (10) 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. (11) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments. If you submitted comments or information on the proposed rule (77 FR 60180) during the initial comment period from October 2, 2012, to E:\FR\FM\29APP1.SGM 29APP1 Federal Register / Vol. 78, No. 82 / Monday, April 29, 2013 / Proposed Rules emcdonald on DSK67QTVN1PROD with PROPOSALS December 3, 2012, please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final determination. You may submit your comments and materials concerning the proposed rule or DEA 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 in preparing the proposed rule and DEA, will be available for public inspection on https:// www.regulations.gov at Docket No. FWS–R4–ES–2012–0068 for the proposed listing, and at Docket No FWS–R4–ES–2013–0010 for the proposed critical habitat, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Mississippi 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 spring pygmy sunfish in this document. For more information on previous Federal actions concerning the spring pygmy sunfish, or information regarding its biology, status, distribution, and habitat, refer to the proposed designation of critical habitat published in the Federal Register on October 2, 2012 (77 FR 60180), which is available online at https://www.regulations.gov (at Docket No. FWS–R4–ES–2012–0068) or from the Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Previous Federal Actions On October 2, 2012, we published a 12-month finding and a proposed rule to list the spring pygmy sunfish as threatened with critical habitat (77 FR 60180). We proposed to designate approximately 8 stream miles (mi) (12.9 VerDate Mar<15>2010 14:14 Apr 26, 2013 Jkt 229001 kilometers (km)) and 1,617 acres (ac) (654.4 hectares (ha)) of spring pool and spring-influenced wetland in Limestone County, Alabama, for designation as critical habitat. We will submit for publication in the Federal Register a final listing decision and critical habitat designation for the sunfish on or before October 2, 2013. In 2012, Belle Mina Farms, the owner of Beaverdam Spring, Moss Spring, and the upper reach of Beaverdam Creek, in Limestone County, Alabama, and the Service entered into a candidate conservation agreement with assurances (CCAA) for a population of spring pygmy sunfish. We are currently negotiating additional CCAAs with other landowners in the Beaverdam Spring system. 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. New Information and Changes From the Previously Proposed Critical Habitat The owner of property adjacent to the southwestern boundary of the proposed critical habitat contacted the Service by phone, and later through public comment, in regard to a boundary error in the proposed rule. In the proposed rule, we mistakenly included about 67.6 acres (27.3 ha) of his land as critical habitat, believing this land was part of Federal Government land within the Wheeler National Wildlife Refuge (Refuge). After being contacted by the landowner, we rechecked our records and verified land ownership with the Refuge. We have no records that this land was occupied historically by the species, and upon examination, we determined that it does not presently contain any of the primary constituent elements identified in the proposed rule. We therefore find that this land is PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 25035 not essential to the conservation of the spring pygmy sunfish. After this 67.6acre reduction, the total proposed critical habitat acreage is reduced from 1,617 ac to 1,549.4 ac (627.02 ha). The revised map of proposed critical habitat for Unit 1 is provided below in the Proposed Regulation Promulgation section of this document. We are also providing an updated index map of the critical habitat to reflect the changes to Unit 1 described above, and an updated map of Unit 2 that uses a revised map legend. We are not proposing any changes to the proposed boundaries of Unit 2 in this document. The revised index map and map of Unit 2 are also provided below in the Proposed Regulation Promulgation section of this document. 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 the spring pygmy sunfish, the benefits of critical habitat include public awareness of the presence of the species and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for this species due to protection from adverse modification or destruction of critical habitat. In practice, situations with a Federal nexus exist primarily on E:\FR\FM\29APP1.SGM 29APP1 25036 Federal Register / Vol. 78, No. 82 / Monday, April 29, 2013 / Proposed Rules emcdonald on DSK67QTVN1PROD with PROPOSALS 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 comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis concerning the proposed critical habitat designation (DEA), which is available for review and comment (see ADDRESSES). 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 spring pygmy sunfish. 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 that would be otherwise afforded to the spring pygmy sunfish (e.g., if we list the species as threatened and under 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 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 methods employed, see Section 1.4, ‘‘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 spring pygmy sunfish 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 VerDate Mar<15>2010 14:14 Apr 26, 2013 Jkt 229001 above those baseline costs attributed to listing. The DEA quantifies economic impacts of spring pygmy sunfish conservation efforts associated with the following categories of activity: (1) Residential, commercial and industrial development; (2) transportation and utilities; (3) groundwater and surface water extraction; (4) silviculture, agriculture, and grazing; and (5) dredging, channelization, and impoundment. Employing a 7 percent discount rate, the DEA estimates that the total incremental cost of the designation will be $150,000 over the next 20 years, or approximately $13,000 annually. The DEA states that in both units, the incremental impacts of the critical habitat designation would be limited to additional administrative costs to the Service, Federal agencies, and private third parties. Most of these impacts ($82,000) are associated with Unit 1 (Beaverdam Spring/Creek), with the remainder associated with Unit 2 (Pryor Spring/Branch). As Unit 1 is occupied by the sunfish, any conservation efforts the Service would recommend to avoid adverse modification of critical habitat would most likely be recommended to avoid jeopardy. Since Unit 2 is not occupied by the sunfish, impacts of any conservation efforts implemented for the benefit of the sunfish would be due solely to the designation of critical habitat. Transportation and utility activities are likely to be subject to the greatest incremental administrative impacts (forecast to be $85,000); followed by development ($49,000) and silviculture, agriculture, and grazing ($18,000) (all estimates expressed as present values over 20 years, assuming a 7 percent discount rate). No incremental impacts are anticipated for dredging, impoundment, and channelization, as these activities have not occurred within the study area for the past 10 years, and are not forecast to occur in the future. Please refer to the DEA for a more detailed discussion of study results. 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. Required Determinations—Amended In our October 2, 2012, proposed rule (77 FR 60180), 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 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 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 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.), 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 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 E:\FR\FM\29APP1.SGM 29APP1 25037 emcdonald on DSK67QTVN1PROD with PROPOSALS Federal Register / Vol. 78, No. 82 / Monday, April 29, 2013 / Proposed Rules 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 spring pygmy sunfish would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as agricultural producers. 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. If we finalize the proposed listing for this species, in areas where the spring pygmy sunfish is present, Federal agencies would be 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 spring pygmy sunfish. The only costs expected to be borne by third parties as a result of the proposed rule are portions of the total cost of each VerDate Mar<15>2010 14:14 Apr 26, 2013 Jkt 229001 section 7 consultation action forecast for development activities. The DEA concludes that the proportion of small entities that may be affected is approximately 0.6 percent (one entity per year), and that the average cost incurred by each entity being affected is approximately 0.01 percent of estimated annual revenues. Please refer to the DEA 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. 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 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 costs 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 PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 was gathered from the Small Business Administration, stakeholders, and the Service. We have estimated that approximately one entity per year may be impacted by the proposed critical habitat designation, at a cost of an estimated $510 per entity. These cost estimates are based on administrative costs associated with the proposed 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 Mississippi Ecological Services Field Office, Southeast Region, U.S. Fish and Wildlife Service. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, which was proposed to be amended at 77 FR 60180, October 2, 2012, as follows: PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: ■ Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500; unless otherwise noted. 2. In § 17.95(e), in the proposed entry for ‘‘Spring Pygmy Sunfish (Elassoma alabamae),’’ revise paragraphs (e)(5), (e)(6), and (e)(7)(ii) to read as follows: ■ § 17.95 Critical habitat—fish and wildlife. * * * (e) Fishes. * * * * * * * Spring Pygmy Sunfish (Elassoma alabamae) * * * * * (5) Index map of critical habitat for the spring pygmy sunfish follows: BILLING CODE 4310–55–P E:\FR\FM\29APP1.SGM 29APP1 Federal Register / Vol. 78, No. 82 / Monday, April 29, 2013 / Proposed Rules (6) Unit 1: Beaverdam Spring/Creek, Limestone County, Alabama. (i) General Description: Unit 1 includes a total of 9.5 km (5.9 mi) of Beaverdam Spring/Creek, northeast of VerDate Mar<15>2010 14:14 Apr 26, 2013 Jkt 229001 Greenbrier, Alabama, from the spring head, 5.6 km (3.5 mi) north of Interstate 565 (Lat. 34.703162, Long. ¥86.82899) to 3.9 km (2.4 mi) south of Interstate 565 (Lat. 34.625896, Long. ¥86.82505). Unit PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 1 encompasses Moss, Horton, and Thorsen springs. This includes a total of 553.2 hectares (1,367 acres). (ii) Map of Unit 1 follows: E:\FR\FM\29APP1.SGM 29APP1 EP29AP13.000</GPH> emcdonald on DSK67QTVN1PROD with PROPOSALS 25038 Federal Register / Vol. 78, No. 82 / Monday, April 29, 2013 / Proposed Rules VerDate Mar<15>2010 (ii) Map of Unit 2 follows: 14:14 Apr 26, 2013 Jkt 229001 PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 E:\FR\FM\29APP1.SGM 29APP1 EP29AP13.001</GPH> emcdonald on DSK67QTVN1PROD with PROPOSALS (7) * * * (i) * * * 25039 VerDate Mar<15>2010 Federal Register / Vol. 78, No. 82 / Monday, April 29, 2013 / Proposed Rules 14:14 Apr 26, 2013 Jkt 229001 PO 00000 Frm 00036 Fmt 4702 Sfmt 9990 E:\FR\FM\29APP1.SGM 29APP1 EP29AP13.002</GPH> emcdonald on DSK67QTVN1PROD with PROPOSALS 25040 Federal Register / Vol. 78, No. 82 / Monday, April 29, 2013 / Proposed Rules * * * * * Dated: April 12, 2013. Rachel Jacobson, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2013–09974 Filed 4–26–13; 8:45 am] BILLING CODE 4310–55–C DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket Nos. FWS–R4–ES–2012–0004; FWS–R4–ES–2013–0026; 4500030114] RIN 1018–AY06; 1018–AZ48 Endangered and Threatened Wildlife and Plants; Endangered Status for the Fluted Kidneyshell and Slabside Pearlymussel and Designation of Critical Habitat Fish and Wildlife Service, Interior. ACTION: Proposed rule; reopening of comment period. AGENCY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on our October 4, 2012, proposed listing and designation of critical habitat for the fluted kidneyshell (Ptychobranchus subtentum) and slabside pearlymussel (Pleuronaia dolabelloides) 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 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 proposed rule, the associated DEA, and amended required determinations section. 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 May 29, 2013. 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 informational session and public hearing: We will hold a public informational session and hearing on this proposed rule on May 14, 2013, from 6 to 9 p.m. (see ADDRESSES). ADDRESSES: Document availability: You may obtain copies of the proposed rule emcdonald on DSK67QTVN1PROD with PROPOSALS SUMMARY: VerDate Mar<15>2010 14:14 Apr 26, 2013 Jkt 229001 and the draft economic analysis on the Internet at https://www.regulations.gov at Docket Number FWS–R4–ES–2012– 0004 or FWS–R4–ES–2013–0026, or by mail from the Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Written comments: You may submit written comments by one of the following methods, or at the public hearing: (1) Electronically: Go to the Federal eRulemaking Portal: https:// www.regulations.gov. For comments on the proposed listing of these species, search for Docket No. FWS–R4–ES– 2012–0004, which is the docket number for the listing portion of the proposed rulemaking. For comments on the proposed critical habitat designation for these species, search for Docket No. FWS–R4–ES–2013–0026, which is the docket number for the critical habitat portion of the proposed rulemaking. (2) By hard copy: For comments on the proposed listing of these species, submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R4–ES–2012–0004; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042–PDM; Arlington, VA 22203. For comments on the proposed critical habitat designation for these species (including the economic analysis), submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R4–ES–2013– 0026; 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 details). Public informational session and public hearing: The public informational session and hearing will be held at Virginia Highlands Community College, Learning Resource Center, 110 Opportunity Lane, Abingdon, Virginia 24212–0828. People needing reasonable accommodations in order to attend and participate in the public hearing should contact Mary Jennings, Field Supervisor, Tennessee Ecological Services Field Office, as soon as possible (see FOR FURTHER INFORMATION CONTACT). FOR FURTHER INFORMATION CONTACT: Mary Jennings, Field Supervisor, U.S. Fish and Wildlife Service, Tennessee Ecological Services Field Office, 446 PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 25041 Neal Street, Cookeville, TN 38501; telephone 931–528–6481; facsimile 931–528–7075. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: Public Comments We will accept written comments and information during this reopened comment period on our proposed listing and designation of critical habitat for the fluted kidneyshell and slabside pearlymussel that was published in the Federal Register on October 4, 2012 (77 FR 60803), our DEA, and the amended required determinations provided in this document. We will consider information and recommendations from all interested parties. 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 the fluted kidneyshell and slabside pearlymussel. The final listing rule will publish under the existing docket number, FWS–R4–ES–2012–0004, and the final critical habitat designation will publish under new docket number FWS–R4–ES–2013–0026. We will consider information and recommendations from all interested parties as to both determinations. As to the proposed listing determination, 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 its habitat. (4) Current or planned activities in the areas occupied by these species and possible impacts of these activities on these species. As to the proposed critical habitat determination, 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 E:\FR\FM\29APP1.SGM 29APP1

Agencies

[Federal Register Volume 78, Number 82 (Monday, April 29, 2013)]
[Proposed Rules]
[Pages 25033-25041]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-09974]

=======================================================================
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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket Nos. FWS-R4-ES-2012-0068; FWS-R4-ES-2013-0010; 4500030114]
RIN 1018-AY19; 1018-AZ42

Endangered and Threatened Wildlife and Plants; Threatened Status
for the Spring Pygmy Sunfish and Designation of Critical Habitat

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 2, 2012, proposed
listing and designation of critical habitat for the spring pygmy
sunfish (Elassoma alabamae) under the Endangered

[[Page 25034]]

Species Act of 1973, as amended (Act). In this document, we propose a
slight reduction to the size of the proposed designation based on
public input. We also announce the availability of a draft economic
analysis (DEA) of the proposed designation of critical habitat for
spring pygmy sunfish 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.

DATES: Written comments: We will consider comments received or
postmarked on or before May 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.

ADDRESSES: Document availability: You may obtain copies of the revised
proposed rule and the draft economic analysis on the Internet at https://www.regulations.gov at Docket Number FWS-R4-ES-2012-0068, or by mail
from the Mississippi Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
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. For comments on the proposed listing of this
species, search for Docket No. FWS-R4-ES-2012-0068, which is the docket
number for the listing portion of the proposed rulemaking. For comments
on the proposed critical habitat designation for this species, search
for Docket No. FWS-R4-ES-2013-0010, which is the docket number for the
critical habitat portion of the proposed rulemaking.
(2) By hard copy: For comments on the proposed listing of this
species, submit by U.S. mail or hand-delivery to: Public Comments
Processing, Attn: FWS-R4-ES-2012-0068; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203. For comments on the proposed
critical habitat designation for this species (including the economic
analysis), submit by U.S. mail or hand-delivery to: Public Comments
Processing, Attn: FWS-R4-ES-2013-0010; 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 details).

FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor,
Mississippi Ecological Services Field Office, 6578 Dogwood View
Parkway, Jackson, MS 39213; by telephone (601-321-1122); or by
facsimile (601-965-4340). If you use a telecommunications device for
the deaf (TDD), please call the Federal Information Relay Service
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

We will accept written comments and information during this
reopened comment period on our proposed listing and designation of
critical habitat for the spring pygmy sunfish that was published in the
Federal Register on October 2, 2012 (77 FR 60180), the revision to the
proposed critical habitat boundaries of Unit 1 described in this
document, our DEA of the proposed designation, and the amended required
determinations provided in this document. We will consider information
and recommendations from all interested parties.
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 the Spring pygmy sunfish. The final listing
rule will publish under the existing docket number, FWS-R4-ES-2012-
0068, and the final critical habitat designation will publish under new
docket number FWS-R4-ES-2013-0010.
We will consider information and recommendations from all
interested parties on both determinations. As to the proposed listing
determination, 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
this species, and ongoing conservation measures for these species and
its habitat.
(4) Current or planned activities in the areas occupied by this
species and possible impacts of these activities on this species.
As to the proposed critical habitat determination, 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 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.
(6) Specific information on:
(a) The distribution of the spring pygmy sunfish;
(b) The amount and distribution of spring pygmy sunfish habitat;
(c) 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
(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) 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.
(9) Information on the extent to which the description of economic
impacts in the DEA is complete and accurate.
(10) 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.
(11) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
If you submitted comments or information on the proposed rule (77
FR 60180) during the initial comment period from October 2, 2012, to

[[Page 25035]]

December 3, 2012, please do not resubmit them. We will incorporate them
into the public record as part of this comment period, and we will
fully consider them in the preparation of our final determination.
You may submit your comments and materials concerning the proposed
rule or DEA 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 in preparing the proposed rule and DEA, will be
available for public inspection on https://www.regulations.gov at Docket
No. FWS-R4-ES-2012-0068 for the proposed listing, and at Docket No FWS-
R4-ES-2013-0010 for the proposed critical habitat, or by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service,
Mississippi 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 spring pygmy sunfish in
this document. For more information on previous Federal actions
concerning the spring pygmy sunfish, or information regarding its
biology, status, distribution, and habitat, refer to the proposed
designation of critical habitat published in the Federal Register on
October 2, 2012 (77 FR 60180), which is available online at https://www.regulations.gov (at Docket No. FWS-R4-ES-2012-0068) or from the
Mississippi Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).

Previous Federal Actions

On October 2, 2012, we published a 12-month finding and a proposed
rule to list the spring pygmy sunfish as threatened with critical
habitat (77 FR 60180). We proposed to designate approximately 8 stream
miles (mi) (12.9 kilometers (km)) and 1,617 acres (ac) (654.4 hectares
(ha)) of spring pool and spring-influenced wetland in Limestone County,
Alabama, for designation as critical habitat. We will submit for
publication in the Federal Register a final listing decision and
critical habitat designation for the sunfish on or before October 2,
2013. In 2012, Belle Mina Farms, the owner of Beaverdam Spring, Moss
Spring, and the upper reach of Beaverdam Creek, in Limestone County,
Alabama, and the Service entered into a candidate conservation
agreement with assurances (CCAA) for a population of spring pygmy
sunfish. We are currently negotiating additional CCAAs with other
landowners in the Beaverdam Spring system.

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.

New Information and Changes From the Previously Proposed Critical
Habitat

The owner of property adjacent to the southwestern boundary of the
proposed critical habitat contacted the Service by phone, and later
through public comment, in regard to a boundary error in the proposed
rule. In the proposed rule, we mistakenly included about 67.6 acres
(27.3 ha) of his land as critical habitat, believing this land was part
of Federal Government land within the Wheeler National Wildlife Refuge
(Refuge). After being contacted by the landowner, we rechecked our
records and verified land ownership with the Refuge. We have no records
that this land was occupied historically by the species, and upon
examination, we determined that it does not presently contain any of
the primary constituent elements identified in the proposed rule. We
therefore find that this land is not essential to the conservation of
the spring pygmy sunfish. After this 67.6-acre reduction, the total
proposed critical habitat acreage is reduced from 1,617 ac to 1,549.4
ac (627.02 ha). The revised map of proposed critical habitat for Unit 1
is provided below in the Proposed Regulation Promulgation section of
this document.
We are also providing an updated index map of the critical habitat
to reflect the changes to Unit 1 described above, and an updated map of
Unit 2 that uses a revised map legend. We are not proposing any changes
to the proposed boundaries of Unit 2 in this document. The revised
index map and map of Unit 2 are also provided below in the Proposed
Regulation Promulgation section of this document.

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
the spring pygmy sunfish, the benefits of critical habitat include
public awareness of the presence of the species and the importance of
habitat protection, and, where a Federal nexus exists, increased
habitat protection for this species due to protection from adverse
modification or destruction of critical habitat. In practice,
situations with a Federal nexus exist primarily on

[[Page 25036]]

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 comment period
and information about the economic impact of designation. Accordingly,
we have prepared a draft economic analysis concerning the proposed
critical habitat designation (DEA), which is available for review and
comment (see ADDRESSES).

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 spring pygmy sunfish. 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 that would be otherwise afforded
to the spring pygmy sunfish (e.g., if we list the species as threatened
and under 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 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 methods
employed, see Section 1.4, ``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
spring pygmy sunfish 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 spring pygmy sunfish
conservation efforts associated with the following categories of
activity: (1) Residential, commercial and industrial development; (2)
transportation and utilities; (3) groundwater and surface water
extraction; (4) silviculture, agriculture, and grazing; and (5)
dredging, channelization, and impoundment. Employing a 7 percent
discount rate, the DEA estimates that the total incremental cost of the
designation will be $150,000 over the next 20 years, or approximately
$13,000 annually. The DEA states that in both units, the incremental
impacts of the critical habitat designation would be limited to
additional administrative costs to the Service, Federal agencies, and
private third parties. Most of these impacts ($82,000) are associated
with Unit 1 (Beaverdam Spring/Creek), with the remainder associated
with Unit 2 (Pryor Spring/Branch). As Unit 1 is occupied by the
sunfish, any conservation efforts the Service would recommend to avoid
adverse modification of critical habitat would most likely be
recommended to avoid jeopardy. Since Unit 2 is not occupied by the
sunfish, impacts of any conservation efforts implemented for the
benefit of the sunfish would be due solely to the designation of
critical habitat. Transportation and utility activities are likely to
be subject to the greatest incremental administrative impacts (forecast
to be $85,000); followed by development ($49,000) and silviculture,
agriculture, and grazing ($18,000) (all estimates expressed as present
values over 20 years, assuming a 7 percent discount rate). No
incremental impacts are anticipated for dredging, impoundment, and
channelization, as these activities have not occurred within the study
area for the past 10 years, and are not forecast to occur in the
future. Please refer to the DEA for a more detailed discussion of study
results.
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.

Required Determinations--Amended

In our October 2, 2012, proposed rule (77 FR 60180), 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 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.), 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 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

[[Page 25037]]

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 spring pygmy sunfish would affect a substantial number of small
entities, we considered the number of small entities affected within
particular types of economic activities, such as agricultural
producers. 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. If we
finalize the proposed listing for this species, in areas where the
spring pygmy sunfish is present, Federal agencies would be 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 spring pygmy
sunfish. The only costs expected to be borne by third parties as a
result of the proposed rule are portions of the total cost of each
section 7 consultation action forecast for development activities. The
DEA concludes that the proportion of small entities that may be
affected is approximately 0.6 percent (one entity per year), and that
the average cost incurred by each entity being affected is
approximately 0.01 percent of estimated annual revenues. Please refer
to the DEA 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. 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 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 costs 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 have
estimated that approximately one entity per year may be impacted by the
proposed critical habitat designation, at a cost of an estimated $510
per entity. These cost estimates are based on administrative costs
associated with the proposed 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
Mississippi Ecological Services Field Office, Southeast Region, U.S.
Fish and Wildlife Service.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

Accordingly, we propose to further amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, which was
proposed to be amended at 77 FR 60180, October 2, 2012, as follows:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

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

0
2. In Sec. 17.95(e), in the proposed entry for ``Spring Pygmy Sunfish
(Elassoma alabamae),'' revise paragraphs (e)(5), (e)(6), and (e)(7)(ii)
to read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(e) Fishes.
* * * * *
Spring Pygmy Sunfish (Elassoma alabamae)
* * * * *
(5) Index map of critical habitat for the spring pygmy sunfish
follows:
BILLING CODE 4310-55-P

[[Page 25038]]

[GRAPHIC] [TIFF OMITTED] TP29AP13.000

(6) Unit 1: Beaverdam Spring/Creek, Limestone County, Alabama.
(i) General Description: Unit 1 includes a total of 9.5 km (5.9 mi)
of Beaverdam Spring/Creek, northeast of Greenbrier, Alabama, from the
spring head, 5.6 km (3.5 mi) north of Interstate 565 (Lat. 34.703162,
Long. -86.82899) to 3.9 km (2.4 mi) south of Interstate 565 (Lat.
34.625896, Long. -86.82505). Unit 1 encompasses Moss, Horton, and
Thorsen springs. This includes a total of 553.2 hectares (1,367 acres).
(ii) Map of Unit 1 follows:

[[Page 25039]]

[GRAPHIC] [TIFF OMITTED] TP29AP13.001

(7) * * *
(i) * * *
(ii) Map of Unit 2 follows:

[[Page 25040]]

[GRAPHIC] [TIFF OMITTED] TP29AP13.002

[[Page 25041]]

* * * * *

Dated: April 12, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-09974 Filed 4-26-13; 8:45 am]
BILLING CODE 4310-55-C

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