Endangered and Threatened Wildlife and Plants; Threatened Species Status and Designation of Critical Habitat for Arabis georgiana (Georgia Rockcress), 26679-26684 [2014-10399]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 79, Number 90 (Friday, May 9, 2014)]
[Proposed Rules]
[Pages 26679-26684]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10399]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket Nos. FWS-R4-ES-2013-0100; FWS-R4-ES-2013-0030; 4500030113]
RIN 1018-AY72; 1018-AZ55


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status and Designation of Critical Habitat for Arabis georgiana 
(Georgia Rockcress)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rules; reopening of comment periods.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the September 12, 2013, 
proposed rule to list Arabis georgiana (Georgia rockcress) as a 
threatened species under the Endangered Species Act of 1973, as amended 
(Act); the reopening of the public comment period on the September 12, 
2013, proposed rule to designate critical habitat for A. georgiana; the 
amended required determinations section of the proposed rule to 
designate critical habitat; and the availability of a draft economic 
analysis (DEA) for the proposed designation of critical habitat. We are 
reopening both proposed rules' comment periods to allow all interested 
parties an opportunity to comment simultaneously on the proposed rules, 
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 rules.

DATES: Written comments: We will consider comments received or 
postmarked on or before June 9, 2014. 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.
    Public informational session and public hearing: We will hold a 
public informational session and public hearing on the proposed rules 
in Columbus, Georgia on May 28, 2014, from 7 p.m. to 9 p.m.

ADDRESSES: Document availability: For the proposed listing, you may 
obtain copies of the proposed rule and associated documents on the 
Internet at https://www.regulations.gov at Docket No. FWS-R4-ES-2013-
0100. For the proposed critical habitat designation, you may obtain 
copies of the proposed rule, associated documents, and the draft 
economic analysis on the Internet at https://www.regulations.gov at 
Docket No. FWS-R4-ES-2013-0030. You may also obtain copies of these 
materials by mail from the Ecological Services Office in Athens, 
Georgia (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. Submit comments on the proposed listing by 
searching for Docket No. FWS-R4-ES-2013-0100 or on the proposed 
critical habitat designation and its associated draft economic analysis 
by searching for Docket No. FWS-R4-ES-2013-0030.
    (2) By hard copy: Submit comments on the proposed listing by U.S. 
mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-
2013-0100; 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 proposed critical habitat designation and 
its associated draft economic analysis by U.S. mail or hand-delivery 
to: Public Comments Processing, Attn: FWS-R4-ES-2013-0030; 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

[[Page 26680]]

information you provide us (see the Public Comments section, below, for 
more information).
    Public informational session and public hearing: A public 
informational session and public hearing will be held in the Magnolia 
Room at Columbus State University, 4225 University Avenue, Columbus, GA 
31907. People needing reasonable accommodations to attend and 
participate in this public hearing should contact Robin Goodloe as soon 
as possible (see FOR FURTHER INFORMATION CONTACT, below).

FOR FURTHER INFORMATION CONTACT: Robin Goodloe, Assistant Field 
Supervisor, U.S. Fish and Wildlife Service, 105 Westpark Drive, Suite 
D, Athens, GA 30606; telephone 706-613-9493; facsimile 706-613-6059. 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on our September 12, 2013, proposed rule to 
list Arabis georgiana as a threatened species (78 FR 56192); our 
September 12, 2013, proposed rule to designate critical habitat for A. 
georgiana (78 FR 56506); our DEA of the proposed critical habitat 
designation; and the amended required determinations provided in this 
document for the proposed rule to designate critical habitat. We will 
consider information and recommendations from all interested parties. 
We are particularly interested in comments concerning:
    (1) Georgia rockcress's biology, range, and population trends, 
including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for growth and reproduction;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Factors that that may affect the continued existence of the 
species, which may include habitat modification or destruction, 
overutilization, disease, predation, the inadequacy of existing 
regulatory mechanisms, or other natural or manmade factors affecting 
its continued existence.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, of this species, including the locations of any additional 
populations of this species.
    (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 Arabis georgiana;
    (b) The amount and distribution of A. georgiana 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 probable impacts on proposed critical habitat.
    (8) Information on the projected and reasonably likely impacts of 
climate change on Arabis georgiana and 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 the benefits of 
including or excluding areas that exhibit these impacts.
    (10) Information on the extent to which the description of economic 
impacts in the draft economic analysis is a reasonable estimate of the 
likely economic impacts.
    (11) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the associated documents of the 
draft economic analysis, 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.
    (12) Whether any 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.
    (13) 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 rules (78 
FR 56192 or 78 FR 56506) during the initial comment period from 
September 12, 2013, to November 12, 2013, 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 
determinations. Our final determinations will take into consideration 
all written comments and any additional information we receive during 
both comment periods. On the basis of public comments, we may, during 
the development of our final critical habitat determination, find that 
areas proposed are not essential, are appropriate for exclusion under 
section 4(b)(2) of the Act, or are not appropriate for exclusion.
    You may submit your comments and materials concerning the proposed 
rules 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.
    For the proposed listing, you may obtain copies of the proposed 
rule and associated documents (including comments and materials we 
receive and supporting documentation we used in preparing the proposed 
rule) on the Internet at https://www.regulations.gov at Docket No. FWS-
R4-ES-2013-0100. For the proposed critical habitat designation, you may 
obtain copies of the proposed rule, associated documents (including 
comments and materials we receive and supporting documentation we used 
in preparing the proposed rule), and the draft economic analysis on the 
Internet at https://www.regulations.gov at Docket No. FWS-R4-ES-2013-
0030. You may also obtain copies of these materials by mail from the 
Ecological Services Office in

[[Page 26681]]

Athens, Georgia (see FOR FURTHER INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the listing or designation of critical habitat for Arabis georgiana in 
this document. On September 12, 2013, we published a proposed rule to 
list A. georgiana as threatened under the Act (78 FR 56192). In the 
proposed rule, we determined that the most serious threats to the 
species are habitat degradation and the subsequent invasion of exotic 
species. Specifically, disturbance associated with timber harvesting, 
road building, and grazing has created favorable conditions for the 
invasion of exotic weeds, especially Japanese honeysuckle (Lonicera 
japonica), in this species' habitat. These threaten the species 
throughout its range.
    On September 12, 2013, we published a proposed rule to designate 
critical habitat for the Arabis georgiana (78 FR 56506). In total, we 
proposed 323 hectares (ha) (786 acres (ac)). The proposed critical 
habitat is located in Georgia including parts of Gordon, Floyd, Harris, 
Muscogee, Chattahoochee, and Clay Counties; and in Alabama, including 
parts of Bibb, Dallas, Elmore, Monroe, Russell, Sumter, and Wilcox 
Counties. Under Corrections to Proposed Critical Habitat Designation 
for Arabis georgiana, below, we correct the acreage numbers provided in 
our September 12, 2013, proposed critical habitat designation.
    Both proposed rules had a 60-day comment period, ending November 
12, 2013. We intend to publish in the Federal Register final 
determinations concerning listing Arabis georgiana and designating 
critical habitat for the species on or before September 12, 2014.
    For more information on previous Federal actions concerning Arabis 
georgiana or its habitat, refer to the proposed listing rule published 
in the Federal Register on September 12, 2013 (78 FR 56192), which is 
available online at https://www.regulations.gov (at Docket No. FWS-R4-
ES-2013-0100) or from the office listed under FOR FURTHER INFORMATION 
CONTACT, above.

Critical Habitat

    The remainder of this document addresses our proposed critical 
habitat designation for Arabis georgiana.
    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.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act requires that we designate critical 
habitat based upon the best scientific data available, after taking 
into consideration the economic impact, impact on national security, or 
any other relevant impact of specifying any particular area as critical 
habitat. We may exclude an area from critical habitat if we determine 
that the benefits of excluding the area outweigh the benefits of 
including the area as critical habitat, provided such exclusion will 
not result in the extinction of the species.
    When considering the benefits of inclusion for an area we consider, 
among other factors, the additional regulatory benefits that an area 
would receive through the analysis under section 7 of the Act 
addressing the destruction or adverse modification of critical habitat 
as a result of actions with a Federal nexus (activities conducted, 
funded, permitted, or authorized by Federal agencies), the educational 
benefits of identifying areas containing essential features that aid in 
the recovery of the listed species, and any ancillary benefits 
triggered by existing local, State or Federal laws as a result of the 
critical habitat designation.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to 
incentivize or result in conservation; the continuation, strengthening, 
or encouragement of partnerships; or implementation of a management 
plan. In the case of Arabis georgiana, the benefits of critical habitat 
include public awareness of the presence of A. georgiana and the 
importance of habitat protection, and, where a Federal nexus exists, 
increased habitat protection for A. georgiana due to protection from 
adverse modification or destruction of critical habitat. In practice, 
situations with a Federal nexus exist primarily on Federal lands or for 
projects undertaken or authorized 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).

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios ``with critical 
habitat'' and ``without critical habitat.'' The ``without critical 
habitat'' scenario represents the baseline for the analysis, which 
includes the existing regulatory and socio-economic burden imposed on 
landowners, managers, or other resource users potentially affected by 
the designation of critical habitat (e.g., under the Federal listing as 
well as other Federal, State, and local regulations). The baseline, 
therefore, represents the costs of all efforts attributable to the 
listing of the species under the Act (i.e., conservation of the species 
and its habitat incurred regardless of whether critical habitat is 
designated). The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for the species. The incremental conservation efforts 
and associated impacts would not be expected without the designation of 
critical habitat for the species. In other words, the incremental costs 
are those attributable solely to the designation of critical habitat, 
above and

[[Page 26682]]

beyond the baseline costs. These are the costs we use when evaluating 
the benefits of inclusion and exclusion of particular areas from the 
final designation of critical habitat should we choose to conduct an 
optional 4(b)(2) exclusion analysis.
    For this designation, we developed an incremental effects 
memorandum (IEM) considering the probable incremental economic impacts 
that may result from this proposed designation of critical habitat. The 
information contained in our IEM was then used to develop a screening 
analysis of the probable effects of the designation of critical habitat 
for the Arabis georgiana (U.S. Fish and Wildlife Service 2013). The 
purpose of the screening analysis is to filter out the geographic areas 
in which the critical habitat designation is unlikely to result in 
probable incremental economic impacts. In particular, the screening 
analysis considers baseline costs (i.e., absent critical habitat 
designation) and includes probable economic impacts where land and 
water use may be subject to conservation plans, land management plans, 
best management practices, or regulations that protect the habitat area 
as a result of the Federal listing status of the species. The screening 
analysis filters out particular areas of critical habitat that are 
already subject to such protections and are therefore, unlikely to 
incur incremental economic impacts. The screening analysis also 
assesses whether units are unoccupied by the species and may require 
additional management or conservation efforts as a result of the 
critical habitat designation and may incur incremental economic 
impacts. This screening analysis, combined with the information 
contained in our IEM, is our draft economic analysis of the proposed 
critical habitat designation for the Arabis georgiana and is summarized 
in the narrative below.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly impacted entities, where practicable and reasonable. We 
assess, to the extent practicable and if sufficient data are available, 
the probable impacts to both directly and indirectly impacted entities. 
As part of our screening analysis, we considered the types of economic 
activities that are likely to occur within the areas likely affected by 
the critical habitat designation. In our IEM dated December 4, 2013, 
first we identified probable incremental economic impacts associated 
with the following categories of activities: (1) Transportation; (2) 
water quantity/supply; (3) conservation/restoration; (4) forest 
management; (5) hydropower; (6) mining; (7) in-water construction; and 
(8) utilities (U.S. Fish and Wildlife Service, 2013). We considered 
each industry or category individually. Additionally, we 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 Arabis georgiana is present, Federal agencies already are 
required to consult with the Service 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 our IEM, we attempted to distinguish between the effects that 
will result from the species being listed and those attributable to the 
critical habitat designation (i.e., difference between the jeopardy and 
adverse modification standards) for Arabis georgiana's critical 
habitat. Because the designation of critical habitat for A. georgiana 
was proposed concurrently with the listing, it has been our experience 
that it is more difficult to discern which conservation efforts are 
attributable to the species being listed and those which will result 
solely from the designation of critical habitat. However, the following 
specific circumstances in this case help to inform our evaluation: (1) 
The essential physical and biological features identified for critical 
habitat are the same features essential for the life requisites of the 
species, and (2) any actions that would result in sufficient harm or 
harassment to constitute jeopardy to A. georgiana would also likely 
adversely affect the essential physical and biological features of 
critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
species.
    Based on the available information, we anticipate fewer than five 
consultations per year in occupied units, with costs of administrative 
efforts ranging from approximately $400 to $9,000 per consultation 
(2014 dollars, total cost for all parties participating in a single 
consultation). Applying these unit cost estimates, this analysis 
conservatively estimates that the administrative cost of considering 
adverse modification in section 7 consultation will result in 
incremental costs of up to $45,000 (2014 dollars) in a given year.

Corrections to Proposed Critical Habitat Designation for Arabis 
georgiana

    In the proposed rule, Unit 7A was described as 12 hectares (ha) (29 
acres) in size, and Unit 9B was described as 13 ha (21 acres) in size. 
Unit 7A was incorrect due to a minor error in the analysis (within the 
Geographical Information System), and Unit 9B was a typographical 
error. The correct numbers are 11 ha (26 ac) for Unit 7A, and 13 ha (31 
ac) for Unit 9B with a total area of critical habitat of 322 ha (793 
ac), these values have been corrected in the table and information 
provided below.
    In total, we are proposing 18 critical habitat units encompassing 
approximately 322 hectares (ha) (793 acres (ac)). The proposed critical 
habitat is located in Georgia including parts of Gordon, Floyd, Harris, 
Muscogee, Chattahoochee, and Clay Counties; and in Alabama, including 
parts of Bibb, Dallas, Elmore, Monroe, Russell, Sumter, and Wilcox 
Counties. Unit name, location, and the approximate area of each 
proposed critical habitat unit, as corrected here, are shown in Table 
1.

                         Table 1--Proposed Critical Habitat Units for Georgia Rockcress
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
       Unit No.               Unit name          County/state          Ownership          Hectares      Acres
----------------------------------------------------------------------------------------------------------------
1.....................  Fort Tombecbee.......  Sumter/AL.......  State................            6           14
2.....................  Marshalls Bluff......  Monroe/AL.......  Private..............           11           27
3.....................  Prairie Bluff........  Wilcox/AL.......  Private..............           13           32

[[Page 26683]]

 
4.....................  Portland Landing       Dallas/AL.......  Private..............           12           31
                         River Slopes.
5.....................  Durant Bend..........  Dallas/AL.......  Private..............           12           28
6.....................  Murphys Bluff Bridge   Bibb/AL.........  Private..............           11           26
                         Cahaba River.
7A....................  Creekside Glades.....  Bibb/AL.........  Private..............           11           26
7B....................  Little Schulz Creek..  Bibb/AL.........  Private..............           12           28
8A....................  Cottingham Creek       Bibb/AL.........  Private..............           22           55
                         Bluff.
8B....................  Pratts Ferry.........  Bibb/AL.........  Private..............           11           28
9A....................  Fern Glade...........  Bibb/AL.........  Federal..............           14           34
9B....................  Sixmile Creek........  Bibb/AL.........  Private..............           13           31
10A...................  Browns Dam Glade       Bibb/AL.........  Private..............           14           35
                         North.
10B...................  Browns Dam Glade       Bibb/AL.........  Private..............           15           37
                         South.
11....................  McGuire Ford           Bibb/AL.........  Private..............            6           15
                          Limestone
                         Park.
12....................  Fort Toulouse State    Elmore/AL.......  State................            7           17
                         Park.
13....................  Fort Gaines Bluff....  Clay/GA.........  Private..............           17           42
14A...................  Fort Benning (GA)....  Chattahoochee/GA  Federal..............           14           35
14B...................  Fort Benning (AL)....  Russell/AL......  Federal..............           11           26
15A...................  Goat Rock North......  Harris/GA.......  Private..............            7           19
15B...................  Goat Rock South......  Harris, Muscogee/ Private..............           24           59
                                                GA.
16....................  Blacks Bluff Preserve  Floyd/GA........  Private..............           37           92
17....................  Whitmore Bluff.......  Floyd/GA........  Private..............           17           43
18....................  Resaca Bluffs........  Gordon/GA.......  Private..............            5           13
                                                                                       -------------------------
    Total.............  .....................  ................  .....................          322          793
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the critical habitat 
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 September 12, 2013, proposed rule (78 FR 56506), we 
indicated that we would defer our determination of compliance with 
certain statutes and executive orders until we had evaluated the 
probable effects on landowners and stakeholders and the resulting 
probable economic impacts of the designation. Following our evaluation 
of the probable incremental economic impacts resulting from the 
designation of critical habitat for Arabis georgiana, we have amended 
or affirmed our determinations below. Specifically, we affirm the 
information in our proposed rule concerning Executive Orders (E.O.s) 
12866 and 13563 (Regulatory Planning and Review), 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 our evaluation of the probable incremental 
economic impacts of the proposed designation of critical habitat for 
the A. georgiana, we are amending our required determination concerning 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and E.O. 12630 
(Takings).

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.
    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.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are only required to evaluate the potential

[[Page 26684]]

incremental impacts of rulemaking on those entities directly regulated 
by the rulemaking itself, and therefore, not required to evaluate the 
potential impacts to indirectly regulated entities. The regulatory 
mechanism through which critical habitat protections are realized is 
section 7 of the Act, which requires Federal agencies, in consultation 
with the Service, to ensure that any action authorized, funded, or 
carried by the agency is not likely to adversely modify critical 
habitat. Therefore, under these circumstances only Federal action 
agencies are directly subject to the specific regulatory requirement 
(avoiding destruction and adverse modification) imposed by critical 
habitat designation. Under these circumstances, it is our position that 
only Federal action agencies will be directly regulated by this 
designation. Federal agencies are not small entities, and to this end, 
there is no requirement under RFA to evaluate the potential impacts to 
entities not directly regulated. Therefore, because no small entities 
are directly regulated by this rulemaking, the Service certifies that, 
if promulgated, the proposed critical habitat designation will not have 
a significant economic impact on a substantial number of small 
entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. 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.

E.O. 12630 (Takings)

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for Arabis georgiana in a takings implications assessment. As 
discussed above, the designation of critical habitat affects only 
Federal actions. Although private parties that receive Federal funding 
or assistance, or that require approval or authorization from a Federal 
agency for an action, may be indirectly impacted by the designation of 
critical habitat, the legally binding duty to avoid destruction or 
adverse modification of critical habitat rests squarely on the Federal 
agency. The economic analysis found that no significant economic 
impacts are likely to result from the designation of critical habitat 
for A. georgiana. Because the Act's critical habitat protection 
requirements apply only to Federal agency actions, few conflicts 
between critical habitat and private property rights should result from 
this designation. Based on information contained in the economic 
analysis assessment and described within this document, it is not 
likely that economic impacts to a property owner would be of a 
sufficient magnitude to support a takings action. Therefore, the 
takings implications assessment concludes that the designation of 
critical habitat for A. georgiana does not pose significant takings 
implications for lands within or affected by the designation.

Authors

    The primary authors of this notice are the staff members of the 
Athens, Georgia, Ecological Services Office, Southeast Region, U.S. 
Fish and Wildlife Service.

Authority

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

    Dated: April 25, 2014.
Michael Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
Parks.
[FR Doc. 2014-10399 Filed 5-8-14; 8:45 am]
BILLING CODE 4310-55-P