Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Agave eggersiana, Gonocalyx concolor and Varronia rupicola, 29150-29154 [2014-11731]
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Federal Register / Vol. 79, No. 98 / Wednesday, May 21, 2014 / Proposed Rules
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R4–ES–2013–0040;
4500030113]
RIN 1018–AZ79
Endangered and Threatened Wildlife
and Plants; Designation of Critical
Habitat for Agave eggersiana,
Gonocalyx concolor and Varronia
rupicola
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 the October 22, 2013, proposed
designation of critical habitat for Agave
eggersiana (no common name),
Gonocalyx concolor (no common name),
and Varronia rupicola (no common
name) under the Endangered Species
Act of 1973, as amended (Act). We also
announce the availability of a draft
economic analysis (DEA) of the
proposed designation of critical habitat
for these species 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 the amended
required determinations section.
Comments previously submitted need
not be resubmitted, as they will be fully
considered in preparation of the final
rule.
SUMMARY:
We will consider comments
received or postmarked on or before
June 20, 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.
ADDRESSES:
Document availability: 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–2013–0040 or by mail
from the Caribbean 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. Submit comments
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DATES:
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on the critical habitat proposal and
associated draft economic analysis by
searching for Docket No. FWS–R4–ES–
2013–0040, which is the docket number
for this rulemaking.
(2) By hard copy: Submit comments
on the critical habitat proposal and
associated DEA by U.S. mail or handdelivery to: Public Comments
Processing, Attn: FWS–R4–ES–2013–
0040; Division of Policy and Directives
Management; U.S. Fish and Wildlife
Service; 4401 N. Fairfax Drive, MS
2042–PDM; Arlington, VA 22203.
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see the
Public Comments section below for
more information).
FOR FURTHER INFORMATION CONTACT:
Marelisa Rivera, Deputy Field
Supervisor, Caribbean Ecological
Services Field Office, P.O. Box 491,
´
Road 301 Km. 5.1, Boqueron, Puerto
Rico 00622; by telephone (787–851–
7297), or by facsimile (787–851–7440).
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 proposed
designation of critical habitat for Agave
eggersiana, Gonocalyx concolor, and
Varronia rupicola that was published in
the Federal Register on October 22,
2013 (78 FR 62529), 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
particularly interested in comments
concerning:
(1) The reasons why we should or
should not designate habitat as ‘‘critical
habitat’’ under section 4 of the Act (16
U.S.C. 1531 et seq.), including whether
there are threats to the species from
human activity, the degree of which can
be expected to increase due to the
designation, and whether that increase
in threat outweighs the benefit of
designation such that the designation of
critical habitat is not prudent.
(2) Specific information on:
(a) The amount and distribution of
Agave eggersiana, Gonocalyx concolor,
and Varronia rupicola (which we refer
to collectively as the three Caribbean
plants) and their habitat;
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(b) What areas occupied by the
species at the time of listing that contain
features essential for the conservation of
the species we should include in the
designation and why;
(c) Special management
considerations or protection that may be
needed in critical habitat areas we are
proposing, including managing for the
potential effects of climate change; and
(d) What areas not occupied at the
time of listing are essential to the
conservation of the species and why.
(3) Land use designations and current
or planned activities in the subject areas
and their probable impacts on proposed
critical habitat.
(4) Information on the projected and
reasonably likely impacts of climate
change on the three Caribbean plants
and proposed critical habitat.
(5) Any foreseeable economic,
national security, or other relevant
impacts of designating any area that
may be included in the final
designation. We are particularly
interested in any impacts on small
entities, and the benefits of including or
excluding areas from the proposed
designation that are subject to these
impacts.
(6) Information on the extent to which
the description of economic impacts in
the DEA is a reasonable estimate of the
likely economic impacts.
(7) The likelihood of adverse social
reactions to the designation of critical
habitat, as discussed in the associated
documents of 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.
(8) 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.
(9) Whether we could improve or
modify our approach to designating
critical habitat in any way to provide for
greater public participation and
understanding, or to better
accommodate public concerns and
comments.
If you submitted comments or
information on the proposed rule (78 FR
62529) during the initial comment
period from October 22, 2013, to
December 23, 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 determination. Our final
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determination concerning revised
critical habitat will take into
consideration all written comments and
any additional information we receive
during both comment periods. On the
basis of public comments, we may,
during the development of our final
determination, find that areas proposed
are not essential, are appropriate for
exclusion under section 4(b)(2) of the
Act, or are not appropriate for
exclusion.
You may submit your comments and
materials concerning the proposed rule
or DEA by one of the methods listed in
ADDRESSES. We request that you send
comments only by the methods
described in ADDRESSES.
If you submit a comment via https://
www.regulations.gov, your entire
comment—including any personal
identifying information—will be posted
on the Web site. We will post all
hardcopy comments on https://
www.regulations.gov as well. If you
submit a hardcopy comment that
includes personal identifying
information, you may request at the top
of your document that we withhold this
information from public review.
However, we cannot guarantee that we
will be able to do so.
Comments and materials we receive,
as well as supporting documentation we
used in preparing the proposed rule and
DEA, will be available for public
inspection on https://
www.regulations.gov at Docket No.
FWS–R4–ES–2013–0040, or by
appointment, during normal business
hours, at the U.S. Fish and Wildlife
Service, Caribbean Ecological Services
Field Office (see FOR FURTHER
INFORMATION CONTACT). You may obtain
copies of the proposed rule and the DEA
on the Internet at https://
www.regulations.gov at Docket Number
FWS–R4–ES–2013–0040, or by mail
from the Caribbean Ecological Services
Field Office (see FOR FURTHER
INFORMATION CONTACT section).
Background
It is our intent to discuss only those
topics directly relevant to the
designation of critical habitat for Agave
eggersiana, Gonocalyx concolor, and
Varronia rupicola in this document. For
more information on previous Federal
actions concerning the three Caribbean
plants, refer to the proposed designation
of critical habitat published in the
Federal Register on October 22, 2013
(78 FR 62529). For more information on
the three Caribbean plants or its habitat,
refer to the proposed listing rule
published in the Federal Register on
October 22, 2013 (78 FR 62560), which
is available online at https://
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www.regulations.gov (at Docket Number
FWS–R4–ES–2013–0103) or from the
Caribbean Ecological Services Field
Office (see FOR FURTHER INFORMATION
CONTACT).
Previous Federal Actions
On October 22, 2013, we published a
proposed rule to designate critical
habitat for Agave eggersiana, Gonocalyx
concolor, and Varronia rupicola (78 FR
62529). Specifically, we proposed to
designate approximately:
• 20.5 hectares (ha) (50.6 acres (ac))
in 6 units as critical habitat for Agave
eggersiana in St. Croix, USVI.
• 80.1 ha (198 ac) in 2 units as critical
habitat for Gonocalyx concolor in Puerto
Rico.
• 2,648 ha (6,548 ac) in 7 units as
critical habitat for Varronia rupicola in
Puerto Rico and Vieques Island.
That proposal had a 60-day comment
period, ending December 23, 2013.
Critical Habitat
Section 3 of the Act defines critical
habitat as the specific areas within the
geographical area occupied by a species,
at the time it is listed in accordance
with the Act, on which are found those
physical or biological features essential
to the conservation of the species and
that may require special management
considerations or protection, and
specific areas outside the geographical
area occupied by a species at the time
it is listed, upon a determination that
such areas are essential for the
conservation of the species. If the
proposed rule is made final, section 7 of
the Act will prohibit destruction or
adverse modification of critical habitat
by any activity funded, authorized, or
carried out by any Federal agency.
Federal agencies proposing actions
affecting critical habitat must consult
with us on the effects of their proposed
actions, under section 7(a)(2) of the Act.
Consideration of Impacts Under Section
4(b)(2) of the Act
Section 4(b)(2) of the Act requires that
we designate 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
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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 Agave
eggersiana, Gonocalyx concolor, and
Varronia rupicola, the benefits of
critical habitat include public awareness
of the presence of the three Caribbean
plants and the importance of habitat
protection, and, where a Federal nexus
exists, increased habitat protection for
the three Caribbean plants due to
protection from adverse modification or
destruction of critical habitat. In
practice, situations with a Federal nexus
exist primarily on Federal lands or for
projects undertaken by Federal agencies.
We have not proposed to exclude any
areas from critical habitat. However, the
final decision on whether to exclude
any areas will be based on the best
scientific data available at the time of
the final designation, including
information obtained during the
comment period and information about
the economic impact of designation.
Accordingly, we have prepared the
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
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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
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 Agave eggersiana, Gonocalyx
concolor, and Varronia rupicola (IEc
2014, entire). We began by conducting
a screening analysis of the proposed
designation of critical habitat in order to
focus our analysis on the key factors
that are likely to result in incremental
economic impacts. 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
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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 (DEA) of the
proposed critical habitat designation for
Agave eggersiana, Gonocalyx concolor,
and Varronia rupicola and is
summarized in the narrative below.
Executive Orders 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, first we identified the probable
incremental economic impacts
associated with the following categories
of activities: (1) Commercial or
residential developments; (2) permits
required when an activity results in the
discharge of dredge or fill material into
the waters of the United States; (3)
removal of unexploded ordnance that
involves vegetation removal; (4)
restoration of coastal habitat; (5) control
of invasive species; and (6) creation of
new trails. 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, but only activities
conducted, funded, permitted, or
authorized by Federal agencies. In areas
where Agave eggersiana, Gonocalyx
concolor, and Varronia rupicola are
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 this
proposed critical habitat designation,
consultations to avoid the destruction or
adverse modification of critical habitat
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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., the difference between
the jeopardy and adverse modification
standards) for Agave eggersiana,
Gonocalyx concolor, and Varronia
rupicola’s critical habitat. Because the
designation of critical habitat for three
Caribbean plants 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 Agave eggersiana,
Gonocalyx concolor, and Varronia
rupicola 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.
The proposed critical habitat
designation for Agave eggersiana,
Gonocalyx concolor, and Varronia
rupicola totals approximately 2,748 ha
(6795.6 ac) in 15 units. Of the 15 units,
11 are considered occupied (4 units for
A. eggersiana, 2 units for G. concolor,
and 5 units for V. rupicola). The
proposed critical habitat designation
includes lands under Federal (7.4
percent), U.S. Virgin Islands Territory
(St. Croix, 0.3 percent), Commonwealth
of Puerto Rico (30 percent), and private
(62 percent) land ownership. All of the
Federal lands are part of the Vieques
National Wildlife Refuge.
In the occupied areas (93 percent),
any actions that may affect designated
critical habitat would also affect the
species, and it is unlikely that any
additional conservation efforts would be
recommended to address the adverse
modification standard over and above
those recommended as necessary to
avoid jeopardizing the continued
existence of A. eggersiana, G. concolor,
and V. rupicola. Therefore, only
administrative costs are expected in
approximately 93 percent of the
proposed critical habitat designation.
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While this additional analysis will
require time and resources by both the
Federal action agency and the Service,
it is believed that, in most
circumstances, these costs would
predominantly be administrative in
nature and would not be significant.
The entities most likely to incur
incremental costs are parties to section
7 consultations, including Federal
action agencies and, in some cases, third
parties, most frequently State agencies
or municipalities. Activities we expect
will be subject to consultations that may
involve private entities as third parties
are residential and commercial
development that may occur on private
lands. However, based on coordination
efforts with State and local agencies, the
cost to private entities within these
sectors is expected to be relatively
minor (administrative costs from $400
to $9,000 per consultation effort).
The remaining 7 percent of the total
proposed critical habitat designation is
currently unoccupied habitat (two units
for A. eggersiana and two units for V.
rupicola) but is essential for the
conservation of the species. In these
unoccupied areas, any conservation
efforts or associated probable impacts
would be considered incremental effects
attributed to the critical habitat
designation. However, these unoccupied
areas are already managed for
conservation purposes, so few actions
are expected to occur that will require
section 7 consultation or associated
project modifications for protection of
critical habitat. In particular,
consultations in these areas are
anticipated to be associated with
restoration of coastal habitat,
minimization of trail creation and
expansion, and invasive species control.
Because the unoccupied areas are
already set aside for conservation
purposes, these anticipated activities are
expected to be generally consistent with
the needs of the species. Modifications
to accommodate the three plants are
expected to be relatively small and are
unlikely to exceed $100 million in any
single year.
The probable incremental economic
impacts of critical habitat designation
for A.eggersiana, G. concolor, and V.
rupicola are expected to be limited to
additional administrative effort as well
as minor costs of conservation efforts
resulting from a small number of future
section 7 consultations. This is due to
two factors: (1) A large portion of
proposed critical habitat area is
occupied by the species (93 percent),
and incremental economic impacts of
critical habitat designation, other than
administrative costs, are unlikely; and
(2) in proposed areas that are not
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occupied by the three Caribbean plants
(7 percent), few actions are anticipated
that will result in section 7 consultation
or associated project modifications. At
approximately $400 to $9,000 per
consultation, in order to reach the
threshold of $100 million of incremental
administrative impacts in a single year,
annual critical habitat designation
would have to result in more than
12,000 consultations in a single year.
Based on past consultation history
alone, this is highly unlikely. Therefore,
future probable incremental economic
impacts are not likely to exceed $100
million in any single year.
Required Determinations—Amended
In our October 22, 2013, proposed
rule (78FR62529), we indicated that we
would defer our determination of
compliance with several 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 Agave eggersiana, Gonocalyx
concolor, and Varronia rupicola, we
have amended or affirmed our
determinations below. Specifically, we
affirm the information in our proposed
rule concerning Executive Order (E.O.)
12866 (Regulatory Planning and
Review), E.O. 12630 (Takings), E.O.
13132 (Federalism), E.O. 12988 (Civil
Justice Reform), E.O. 13211 (Energy,
Supply, Distribution, and Use), the
Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.), the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.), the National Environmental
Policy Act (42 U.S.C. 4321 et seq.), and
the President’s memorandum of April
29, 1994, ‘‘Government-to-Government
Relations with Native American Tribal
Governments’’ (59 FR 22951). However,
based on our evaluation of the probable
incremental economic impacts of the
proposed designation of critical habitat
for Agave eggersiana, Gonocalyx
concolor, and Varronia rupicola, we are
amending our required determination
concerning the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) and Takings
(E.O. 12630).
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
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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
incremental impacts of rulemaking on
those entities directly regulated by the
rulemaking itself and, therefore, are 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 out 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
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emcdonald on DSK67QTVN1PROD with PROPOSALS
adverse modification) imposed by
critical habitat designation.
Accordingly, our position is 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 Agave
eggersiana, Gonocalyx concolor, and
Varronia rupicola 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 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
DEA found that no significant economic
impacts are likely to result from the
designation of critical habitat for Agave
eggersiana, Gonocalyx concolor, and
Varronia rupicola. 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 DEA 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 this
designation of critical habitat for Agave
VerDate Mar<15>2010
16:27 May 20, 2014
Jkt 232001
eggersiana, Gonocalyx concolor, and
Varronia rupicola does not pose
significant takings implications for
lands within or affected by the
designation.
Comments must be received on
or before June 20, 2014.
ADDRESSES: Copies of the framework,
including the Environmental
Assessment and Regulatory Impact
Review (EA/RIR) and other supporting
Authors
documents for the action are available
The primary authors of this notice are from Thomas A. Nies, Executive
the staff members of the Caribbean
Director, New England Fishery
Ecological Service Field Office,
Management Council, 50 Water Street,
Southeast Region, U.S. Fish and
Mill 2, Newburyport, MA 01950. The
Wildlife Service.
framework is also accessible via the
Internet at: https://www.nero.noaa.gov.
Authority
You may submit comments, identified
The authority for this action is the
by NOAA–NMFS–2014–0037, by any
Endangered Species Act of 1973, as
one of the following methods:
amended (16 U.S.C. 1531 et seq.).
• Electronic Submissions: Submit all
electronic public comments via the
Dated: May 9, 2014.
Federal e-Rulemaking portal. Go to
Michael J. Bean,
www.regulations.gov/
Acting Principal Deputy Assistant Secretary
#!docketDetail;D=NOAA-NMFS-2014for Fish and Wildlife and Parks.
0037, click the ‘‘Comment Now!’’ icon,
[FR Doc. 2014–11731 Filed 5–20–14; 8:45 am]
complete the required fields, and enter
BILLING CODE 4310–55–P
or attach your comments.
• Mail: NMFS, Greater Atlantic
Regional Fisheries Office, 55 Great
DEPARTMENT OF COMMERCE
Republic Drive, Gloucester, MA 01930.
National Oceanic and Atmospheric
Mark the outside of the envelope
Administration
‘‘Comments on Skate Framework 2.’’
Instructions: Comments must be
submitted by one of the above methods
50 CFR Part 648
to ensure that the comments are
[Docket No. 140220160–4160–01]
received, documented, and considered
RIN 0648–BD99
by NMFS. Comments sent by any other
method, to any other address or
Fisheries of the Northeastern United
individual, or received after the end of
States; Northeast Skate Complex
the comment period, may not be
Fishery; Framework Adjustment 2
considered. All comments received are
a part of the public record and will
AGENCY: National Marine Fisheries
generally be posted for public viewing
Service (NMFS), National Oceanic and
on www.regulations.gov without change.
Atmospheric Administration (NOAA),
All personal identifying information
Commerce.
(e.g., name, address) submitted
ACTION: Proposed rule; request for
voluntarily by the sender will be
comments.
publicly accessible. Do not submit
SUMMARY: This rule proposes regulations confidential business information, or
otherwise sensitive or protected
to approve and implement measures in
information. NMFS will accept
Framework Adjustment 2 to the
anonymous comments (enter ‘‘N/A’’ in
Northeast Skate Complex Fishery
Management Plan (FMP). The proposed the required fields if you wish to remain
anonymous). Attachments to electronic
action was developed by the New
comments will be accepted in Microsoft
England Fishery Management Council
Word or Excel, WordPerfect, or Adobe
to set specifications for the skate
PDF formats only.
fisheries for the 2014 and 2015 fishing
years, including a reduced annual catch FOR FURTHER INFORMATION CONTACT:
Tobey Curtis, Fishery Policy Analyst,
limit and total allowable landings.
(978) 281–9273.
Framework 2 would also modify
reporting requirements for skate fishing
SUPPLEMENTARY INFORMATION:
vessels and seafood dealers to improve
Background
species-specific data collection. The
action is necessary to update the Skate
The New England Fishery
FMP to be consistent with the best
Management Council is responsible for
available scientific information, and
developing management measures for
improve management of the skate
skate fisheries in the northeastern U.S.
fisheries. The proposed action is
through the Northeast Skate Complex
expected to help conserve skate stocks,
Fishery Management Plan (Skate FMP).
while maintaining economic
Seven skate species are managed under
opportunities for the skate fisheries.
the Skate FMP: Winter; little; thorny;
PO 00000
Frm 00017
Fmt 4702
Sfmt 4702
DATES:
E:\FR\FM\21MYP1.SGM
21MYP1
]]>Agencies
[Federal Register Volume 79, Number 98 (Wednesday, May 21, 2014)]
[Proposed Rules]
[Pages 29150-29154]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-11731]
[[Page 29150]]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2013-0040; 4500030113]
RIN 1018-AZ79
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Agave eggersiana, Gonocalyx concolor and Varronia
rupicola
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 the October 22, 2013,
proposed designation of critical habitat for Agave eggersiana (no
common name), Gonocalyx concolor (no common name), and Varronia
rupicola (no common name) under the Endangered Species Act of 1973, as
amended (Act). We also announce the availability of a draft economic
analysis (DEA) of the proposed designation of critical habitat for
these species 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 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: We will consider comments received or postmarked on or before
June 20, 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.
ADDRESSES:
Document availability: 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-2013-0040 or by mail from the Caribbean
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. Submit comments on the critical habitat proposal
and associated draft economic analysis by searching for Docket No. FWS-
R4-ES-2013-0040, which is the docket number for this rulemaking.
(2) By hard copy: Submit comments on the critical habitat proposal
and associated DEA by U.S. mail or hand-delivery to: Public Comments
Processing, Attn: FWS-R4-ES-2013-0040; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Marelisa Rivera, Deputy Field
Supervisor, Caribbean Ecological Services Field Office, P.O. Box 491,
Road 301 Km. 5.1, Boquer[oacute]n, Puerto Rico 00622; by telephone
(787-851-7297), or by facsimile (787-851-7440). 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 proposed designation of critical habitat
for Agave eggersiana, Gonocalyx concolor, and Varronia rupicola that
was published in the Federal Register on October 22, 2013 (78 FR
62529), 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 particularly
interested in comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat is not
prudent.
(2) Specific information on:
(a) The amount and distribution of Agave eggersiana, Gonocalyx
concolor, and Varronia rupicola (which we refer to collectively as the
three Caribbean plants) and their habitat;
(b) What areas occupied by the species at the time of listing that
contain features essential for the conservation of the species we
should include in the designation and why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential to
the conservation of the species and why.
(3) Land use designations and current or planned activities in the
subject areas and their probable impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the three Caribbean plants and proposed critical
habitat.
(5) Any foreseeable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation. We are particularly interested in any impacts on small
entities, and the benefits of including or excluding areas from the
proposed designation that are subject to these impacts.
(6) Information on the extent to which the description of economic
impacts in the DEA is a reasonable estimate of the likely economic
impacts.
(7) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the associated documents of 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.
(8) 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.
(9) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
If you submitted comments or information on the proposed rule (78
FR 62529) during the initial comment period from October 22, 2013, to
December 23, 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 determination. Our
final
[[Page 29151]]
determination concerning revised critical habitat will take into
consideration all written comments and any additional information we
receive during both comment periods. On the basis of public comments,
we may, during the development of our final determination, find that
areas proposed are not essential, are appropriate for exclusion under
section 4(b)(2) of the Act, or are not appropriate for exclusion.
You may submit your comments and materials concerning the proposed
rule or DEA by one of the methods listed in ADDRESSES. We request that
you send comments only by the methods described in ADDRESSES.
If you submit a comment via https://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. We will post all hardcopy comments on https://www.regulations.gov as well. If you submit a hardcopy comment that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule and DEA, will be
available for public inspection on https://www.regulations.gov at Docket
No. FWS-R4-ES-2013-0040, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Caribbean Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may
obtain copies of the proposed rule and the DEA on the Internet at
https://www.regulations.gov at Docket Number FWS-R4-ES-2013-0040, or by
mail from the Caribbean Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT section).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for Agave eggersiana, Gonocalyx
concolor, and Varronia rupicola in this document. For more information
on previous Federal actions concerning the three Caribbean plants,
refer to the proposed designation of critical habitat published in the
Federal Register on October 22, 2013 (78 FR 62529). For more
information on the three Caribbean plants or its habitat, refer to the
proposed listing rule published in the Federal Register on October 22,
2013 (78 FR 62560), which is available online at https://www.regulations.gov (at Docket Number FWS-R4-ES-2013-0103) or from the
Caribbean Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Previous Federal Actions
On October 22, 2013, we published a proposed rule to designate
critical habitat for Agave eggersiana, Gonocalyx concolor, and Varronia
rupicola (78 FR 62529). Specifically, we proposed to designate
approximately:
20.5 hectares (ha) (50.6 acres (ac)) in 6 units as
critical habitat for Agave eggersiana in St. Croix, USVI.
80.1 ha (198 ac) in 2 units as critical habitat for
Gonocalyx concolor in Puerto Rico.
2,648 ha (6,548 ac) in 7 units as critical habitat for
Varronia rupicola in Puerto Rico and Vieques Island.
That proposal had a 60-day comment period, ending December 23,
2013.
Critical Habitat
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed rule is
made final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting critical habitat must consult with us on the effects of their
proposed actions, under section 7(a)(2) of the Act.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that we designate 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 Agave eggersiana, Gonocalyx concolor, and Varronia
rupicola, the benefits of critical habitat include public awareness of
the presence of the three Caribbean plants and the importance of
habitat protection, and, where a Federal nexus exists, increased
habitat protection for the three Caribbean plants due to protection
from adverse modification or destruction of critical habitat. In
practice, situations with a Federal nexus exist primarily on Federal
lands or for projects undertaken by Federal agencies.
We have not proposed to exclude any areas from critical habitat.
However, the final decision on whether to exclude any areas will be
based on the best scientific data available at the time of the final
designation, including information obtained during the comment period
and information about the economic impact of designation. Accordingly,
we have prepared the 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
[[Page 29152]]
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 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 Agave eggersiana, Gonocalyx concolor, and Varronia rupicola (IEc
2014, entire). We began by conducting a screening analysis of the
proposed designation of critical habitat in order to focus our analysis
on the key factors that are likely to result in incremental economic
impacts. 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 (DEA) of the
proposed critical habitat designation for Agave eggersiana, Gonocalyx
concolor, and Varronia rupicola and is summarized in the narrative
below.
Executive Orders 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, first we identified the
probable incremental economic impacts associated with the following
categories of activities: (1) Commercial or residential developments;
(2) permits required when an activity results in the discharge of
dredge or fill material into the waters of the United States; (3)
removal of unexploded ordnance that involves vegetation removal; (4)
restoration of coastal habitat; (5) control of invasive species; and
(6) creation of new trails. 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, but only
activities conducted, funded, permitted, or authorized by Federal
agencies. In areas where Agave eggersiana, Gonocalyx concolor, and
Varronia rupicola are 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
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 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., the difference between the jeopardy
and adverse modification standards) for Agave eggersiana, Gonocalyx
concolor, and Varronia rupicola's critical habitat. Because the
designation of critical habitat for three Caribbean plants 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 Agave eggersiana, Gonocalyx
concolor, and Varronia rupicola 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.
The proposed critical habitat designation for Agave eggersiana,
Gonocalyx concolor, and Varronia rupicola totals approximately 2,748 ha
(6795.6 ac) in 15 units. Of the 15 units, 11 are considered occupied (4
units for A. eggersiana, 2 units for G. concolor, and 5 units for V.
rupicola). The proposed critical habitat designation includes lands
under Federal (7.4 percent), U.S. Virgin Islands Territory (St. Croix,
0.3 percent), Commonwealth of Puerto Rico (30 percent), and private (62
percent) land ownership. All of the Federal lands are part of the
Vieques National Wildlife Refuge.
In the occupied areas (93 percent), any actions that may affect
designated critical habitat would also affect the species, and it is
unlikely that any additional conservation efforts would be recommended
to address the adverse modification standard over and above those
recommended as necessary to avoid jeopardizing the continued existence
of A. eggersiana, G. concolor, and V. rupicola. Therefore, only
administrative costs are expected in approximately 93 percent of the
proposed critical habitat designation.
[[Page 29153]]
While this additional analysis will require time and resources by both
the Federal action agency and the Service, it is believed that, in most
circumstances, these costs would predominantly be administrative in
nature and would not be significant.
The entities most likely to incur incremental costs are parties to
section 7 consultations, including Federal action agencies and, in some
cases, third parties, most frequently State agencies or municipalities.
Activities we expect will be subject to consultations that may involve
private entities as third parties are residential and commercial
development that may occur on private lands. However, based on
coordination efforts with State and local agencies, the cost to private
entities within these sectors is expected to be relatively minor
(administrative costs from $400 to $9,000 per consultation effort).
The remaining 7 percent of the total proposed critical habitat
designation is currently unoccupied habitat (two units for A.
eggersiana and two units for V. rupicola) but is essential for the
conservation of the species. In these unoccupied areas, any
conservation efforts or associated probable impacts would be considered
incremental effects attributed to the critical habitat designation.
However, these unoccupied areas are already managed for conservation
purposes, so few actions are expected to occur that will require
section 7 consultation or associated project modifications for
protection of critical habitat. In particular, consultations in these
areas are anticipated to be associated with restoration of coastal
habitat, minimization of trail creation and expansion, and invasive
species control. Because the unoccupied areas are already set aside for
conservation purposes, these anticipated activities are expected to be
generally consistent with the needs of the species. Modifications to
accommodate the three plants are expected to be relatively small and
are unlikely to exceed $100 million in any single year.
The probable incremental economic impacts of critical habitat
designation for A.eggersiana, G. concolor, and V. rupicola are expected
to be limited to additional administrative effort as well as minor
costs of conservation efforts resulting from a small number of future
section 7 consultations. This is due to two factors: (1) A large
portion of proposed critical habitat area is occupied by the species
(93 percent), and incremental economic impacts of critical habitat
designation, other than administrative costs, are unlikely; and (2) in
proposed areas that are not occupied by the three Caribbean plants (7
percent), few actions are anticipated that will result in section 7
consultation or associated project modifications. At approximately $400
to $9,000 per consultation, in order to reach the threshold of $100
million of incremental administrative impacts in a single year, annual
critical habitat designation would have to result in more than 12,000
consultations in a single year. Based on past consultation history
alone, this is highly unlikely. Therefore, future probable incremental
economic impacts are not likely to exceed $100 million in any single
year.
Required Determinations--Amended
In our October 22, 2013, proposed rule (78FR62529), we indicated
that we would defer our determination of compliance with several
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 Agave eggersiana, Gonocalyx concolor, and Varronia
rupicola, we have amended or affirmed our determinations below.
Specifically, we affirm the information in our proposed rule concerning
Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice
Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National
Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's
memorandum of April 29, 1994, ``Government-to-Government Relations with
Native American Tribal Governments'' (59 FR 22951). However, based on
our evaluation of the probable incremental economic impacts of the
proposed designation of critical habitat for Agave eggersiana,
Gonocalyx concolor, and Varronia rupicola, we are amending our required
determination concerning the Regulatory Flexibility Act (5 U.S.C. 601
et seq.) and Takings (E.O. 12630).
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 incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself and, therefore, are 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 out 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
[[Page 29154]]
adverse modification) imposed by critical habitat designation.
Accordingly, our position is 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 Agave eggersiana, Gonocalyx concolor, and Varronia rupicola
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 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 DEA found that no
significant economic impacts are likely to result from the designation
of critical habitat for Agave eggersiana, Gonocalyx concolor, and
Varronia rupicola. 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 DEA 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 this designation of critical habitat for Agave
eggersiana, Gonocalyx concolor, and Varronia rupicola 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
Caribbean Ecological Service Field 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: May 9, 2014.
Michael J. Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2014-11731 Filed 5-20-14; 8:45 am]
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