Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Oregon Spotted Frog, 34685-34696 [2014-14184]
Download as PDF
<![CDATA[
Federal Register / Vol. 79, No. 117 / Wednesday, June 18, 2014 / Proposed Rules
fees for patent applicants or patentees.
Therefore, the Office is not resubmitting
information collection packages to OMB
for its review and approval because the
changes in this rulemaking do not affect
the information collection requirements
associated with the information
collections approved under OMB
control number 0651–0020 or any other
information collections.
Notwithstanding any other provision
of law, no person is required to respond
to, nor shall any person be subject to a
penalty for failure to comply with, a
collection of information subject to the
requirements of the Paperwork
Reduction Act unless that collection of
information displays a currently valid
OMB control number.
List of Subjects in 37 CFR Part 1
Administrative practice and
procedure, Courts, Freedom of
information, Inventions and patents,
Reporting and recordkeeping
requirements, Small businesses.
For the reasons set forth in the
preamble, 37 CFR part 1 is proposed to
be amended as follows:
PART 1—RULES OF PRACTICE IN
PATENT CASES
respectively, and by adding a new
paragraph (c)(12) to read as follows:
§ 1.704 Reduction of period of adjustment
of patent term.
*
*
*
*
*
(c) * * *
(12) Submission of a request for
continued examination under 35 U.S.C.
132(b) after a notice of allowance under
35 U.S.C. 151 has been mailed, in which
case the period of adjustment set forth
in § 1.703 shall be reduced by the
number of days, if any, beginning on the
date of mailing of the notice of
allowance under 35 U.S.C. 151 and
ending on the date the request for
continued examination under 35 U.S.C.
132(b) was filed;
*
*
*
*
*
Dated: June 11, 2014.
Michelle K. Lee,
Deputy Under Secretary of Commerce for
Intellectual Property and Deputy Director of
the United States Patent and Trademark
Office.
[FR Doc. 2014–14186 Filed 6–17–14; 8:45 am]
BILLING CODE 3510–16–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
1. The authority citation for 37 CFR
part 1 continues to read as follows:
■
50 CFR Part 17
Authority: 35 U.S.C. 2(b)(2), unless
otherwise noted.
2. Section 1.703 is amended by
revising paragraph (b)(1) to read as
follows:
[Docket No. FWS–R1–ES–2013–0088;
4500030114]
RIN 1018–AZ56
■
Endangered and Threatened Wildlife
and Plants; Designation of Critical
Habitat for the Oregon Spotted Frog
*
emcdonald on DSK67QTVN1PROD with PROPOSALS
§ 1.703 Period of adjustment of patent
term due to examination delay.
AGENCY:
*
*
*
*
(b) * * *
(1) The number of days, if any, in the
period beginning on the date on which
a request for continued examination of
the application under 35 U.S.C. 132(b)
was filed and ending on the date of
mailing of a notice of allowance under
35 U.S.C. 151, unless prosecution in the
application is reopened, in which case
the period of adjustment under
§ 1.702(b) also does not include the
number of days, if any, in the period or
periods beginning on the date on which
a request for continued examination of
the application under 35 U.S.C. 132(b)
was filed or the date of mailing of an
action under 35 U.S.C. 132, whichever
occurs first, and ending on the date of
mailing of a subsequent notice of
allowance under 35 U.S.C. 151;
*
*
*
*
*
■ 2. Section 1.704 is amended by
redesignating paragraphs (c)(12) and
(13) as paragraphs (c)(13) and (14),
VerDate Mar<15>2010
17:25 Jun 17, 2014
Jkt 232001
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; reopening of
comment period.
We, the U.S. Fish and
Wildlife Service (Service), announce the
reopening of the public comment period
on the August 29, 2013, proposed
designation of critical habitat for the
Oregon spotted frog (Rana pretiosa)
under the Endangered Species Act of
1973, as amended (Act). We are
proposing changes to four of the
proposed critical habitat units based on
new information we have received. We
also announce the availability of a draft
economic analysis (DEA) of the
proposed designation of critical habitat
for the Oregon spotted frog 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
SUMMARY:
PO 00000
Frm 00045
Fmt 4702
Sfmt 4702
34685
proposed designation of critical habitat,
the associated DEA, the amended
required determinations section, and the
proposed changes to the critical habitat
units described in this document.
Comments previously submitted need
not be resubmitted, as they will be fully
considered in preparation of the final
rule.
The comment period for the
proposed rule published August 29,
2013 (at 78 FR 53538), is reopened. We
will consider comments on that
proposed rule or the changes to it
proposed in this document that we
receive or that are postmarked on or
before July 18, 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 the associated draft economic
analysis on the Internet at https://
www.regulations.gov at Docket No.
FWS–R1–ES–2013–0088 or by mail
from the Washington Fish and Wildlife
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–R1–ES–
2013–0088, which is the docket number
for this rulemaking.
(2) By hard copy: Submit comments
on the critical habitat proposal and
associated draft economic analysis U.S.
mail or hand-delivery to: Public
Comments Processing, Attn: FWS–R1–
ES–2013–0088; 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: Ken
S. Berg, Manager, U.S. Fish and Wildlife
Service, Washington Fish and Wildlife
Office, 510 Desmond Drive SE., Suite
102, Lacey, WA 98503; telephone 360–
753–9440; or facsimile 360–753–9445.
Persons who use a telecommunications
device for the deaf (TDD) may call the
DATES:
E:\FR\FM\18JNP1.SGM
18JNP1
34686
Federal Register / Vol. 79, No. 117 / Wednesday, June 18, 2014 / Proposed Rules
emcdonald on DSK67QTVN1PROD with PROPOSALS
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 the
Oregon spotted frog that was published
in the Federal Register on August 29,
2013 (78 FR 53538), our revisions to the
proposed designation of critical habitat
described in this document, our DEA of
the proposed designation, and the
amended required determinations
provided in this document. We will
consider information and
recommendations from all interested
parties. We are 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 threats 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
Oregon spotted frog habitat;
(b) What may constitute ‘‘physical or
biological features essential to the
conservation of the species,’’ within the
geographical range currently occupied
by the Oregon spotted frog;
(c) Where these features are currently
found;
(d) Whether any of these features may
require special management
considerations or protection;
(e) What areas, that were occupied at
the time of listing (or are currently
occupied) and that contain features
essential to the conservation of the
species, should be included in the
designation and why;
(f) What areas not occupied at the
time of listing are essential for the
conservation of the species and why;
(g) Whether there are any specific
areas where the proposed critical habitat
boundaries should be expanded to
include adjacent riparian areas, what
factors or features should be considered
in determining an appropriate boundary
revision, and why this would be
biologically necessary or unnecessary;
and
(h) Additional research studies or
information regarding the movement
distances or patterns of Oregon spotted
frogs.
(3) Land use designations and current
or planned activities in the areas
VerDate Mar<15>2010
17:25 Jun 17, 2014
Jkt 232001
proposed to be designated as critical
habitat, and possible impacts of these
activities on the proposed critical
habitat.
(4) Information on the projected and
reasonably likely impacts of climate
change on the Oregon spotted frog
within the proposed critical habitat
areas.
(5) Any probable economic, national
security, or other relevant impacts of
designating any area that may be
included in the final designation; in
particular, we seek information on any
impacts on small entities or families,
and the benefits of including or
excluding areas from the proposed
designation that exhibit these impacts.
(6) Whether our approach to
designating critical habitat could be
improved or modified in any way to
provide for greater public participation
and understanding, or to assist us in
accommodating public concerns and
comments.
(7) 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.
(8) 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.
If you submitted comments or
information on the proposed rule (78 FR
53538) during the initial comment
period from August 29, 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 determination. Our final
determination concerning 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
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
PO 00000
Frm 00046
Fmt 4702
Sfmt 4702
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–R1–ES–2013–0088, or by
appointment, during normal business
hours, at the U.S. Fish and Wildlife
Service, Washington Fish and Wildlife
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–R1–ES–2013–
0088, or by mail from the Washington
Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT).
Background
It is our intent to discuss only those
topics directly relevant to the
designation of critical habitat for Oregon
spotted frog in this document. For more
information on previous Federal actions
concerning the Oregon spotted frog,
refer to the proposed designation of
critical habitat published in the Federal
Register on August 29, 2013 (78 FR
53538). For more information on the
Oregon spotted frog or its habitat, refer
to the proposed listing rule published in
the Federal Register on August 29, 2013
(78 FR 53582), which is available online
at https://www.regulations.gov (at Docket
Number FWS–R1–ES–2013–0013) or
from the Washington Fish and Wildlife
Office (see FOR FURTHER INFORMATION
CONTACT).
On August 29, 2013, we published a
proposed rule to list the Oregon spotted
frog as a threatened species (78 FR
53582) and a proposed rule to designate
critical habitat for the Oregon spotted
frog (78 FR 53538). We proposed to
designate approximately 68,192 acres
(27,597 hectares (ha)) and
approximately 24 river miles (mi) (38
river kilometers (km)) in 14 units
located in Washington and Oregon as
critical habitat. That proposal had a 60day comment period, to end October 28,
2013. On September 26, 2013, we
extended the public comment period an
additional 15 days, until November 12,
2013, to allow all interested parties
additional time to comment on the
E:\FR\FM\18JNP1.SGM
18JNP1
Federal Register / Vol. 79, No. 117 / Wednesday, June 18, 2014 / Proposed Rules
proposed rules, and we announced that
we would hold a public hearing (78 FR
59334). The public hearing was held on
October 21, 2013, in Lacey, Washington.
We will submit for publication in the
Federal Register a final critical habitat
designation for the Oregon spotted frog
after we receive public comment on the
changes to the proposed critical habitat
described in this document, the DEA,
and the amended required
determinations provided in this
document.
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.
34687
Changes From Previously Proposed
Critical Habitat
The Service received new information
from Federal partners and the public
that led to our refinement of four of the
proposed critical habitat units in
Oregon. We are proposing to expand the
four units to include a total of 309
additional acres (125 additional ha). All
of the additional areas are known to be
occupied by Oregon spotted frogs and
are subject to the same suite of activities
described in our August 29, 2013,
proposed designation (78 FR 53538).
The approximate acreages to be added
to the four units, as well as the
landownership, are shown below in
Table 1. There are no changes being
proposed in the other 10 proposed
critical habitat units.
TABLE 1—APPROXIMATE AREA AND LANDOWNERSHIP OF CHANGES TO PROPOSED CRITICAL HABITAT UNITS FOR THE
OREGON SPOTTED FROG. ALL UNITS IN TABLE ARE LOCATED IN OREGON
Critical habitat unit
Additional
federal
ac (ha)
7. Lower Deschutes
River .....................
12. Williamson River
13. Upper Klamath
Lake ......................
14. Upper Klamath ...
Total ..................
Additional state
ac (ha)
Additional county
ac (ha)
Additional private/
local municipalities
ac (ha)
Total additional
proposed
ac (ha)
Total Proposed
ac (ha)
27 (11)
82 (33)
0
0
0
0
0
98 (40)
27 (11)
180 (73)
96 (39)
15,332 (6,205)
7 (3)
15 (6)
3 (1)
0
0
0
75 (30)
2 (1)
85 (34)
17 (7)
2,336 (946)
262 (106)
131 (53)
3 (1)
0
175 (71)
309 (125)
................................
Note: Area sizes may not sum due to rounding. Area estimates reflect all land and river miles within proposed critical habitat unit boundaries.
Changes to Proposed Critical Habitat
Units
emcdonald on DSK67QTVN1PROD with PROPOSALS
Critical Habitat Unit 7: Lower Deschutes
River
A comment we received from a peer
reviewer indicated that the proposed
critical habitat unit did not include
overwintering habitat currently used by
Oregon spotted frogs at Camas Prairie
(Corkran 2013). Upon consideration of
the information we received, we
propose to include an additional 27
acres (11 ha) of the meadow and springs
that provide overwintering habitat for
the Oregon spotted frog. The additional
acreage is occupied by the Oregon
spotted frog, contains the physical or
biological features essential to the
conservation of the species, and occurs
entirely on the Mt. Hood National
Forest. The essential features within the
additional acres may require special
management considerations or
protection to ensure maintenance or
improvement of existing overwintering
habitat, aquatic movement corridors, or
refugia habitat, and to address any
changes that could affect these features.
The total acreage of proposed critical
VerDate Mar<15>2010
17:25 Jun 17, 2014
Jkt 232001
habitat in Unit 7, after this refinement,
is 96 acres (39 ha) in Wasco County,
Oregon.
Critical Habitat Unit 12: Williamson
River
New information we received from
the U.S. Geological Survey indicated
that the proposed critical habitat unit
did not include the full extent of
occupancy by Oregon spotted frogs
along Jack Creek (C. Pearl, USGS, pers.
comm. 2014). Therefore, we propose to
include an additional 180 acres (73 ha)
in this unit. Upon consideration of the
information we received, this
refinement includes approximately 3.1
miles (5 km) of Jack Creek and its
adjacent seasonally wetted areas south
of U.S. Forest Service Road 88 through
1.32 mi (2.12 km) of O’Connor Meadow.
The additional acreage is occupied by
the Oregon spotted frog and contains the
physical or biological features essential
to the conservation of the species.
Eighty-two acres (33 ha) are managed by
the Fremont-Winema National Forest,
and 98 acres (40 ha) are privately
owned. The essential features within the
additional acres may require special
PO 00000
Frm 00047
Fmt 4702
Sfmt 4702
management considerations or
protection to ensure maintenance or
improvement of the existing
nonbreeding, breeding, rearing, and
overwintering habitat; aquatic
movement corridors; or refugia habitat,
and to address any changes that could
affect these features. The total acreage of
proposed critical habitat in Unit 12,
after this refinement, is 15,332 acres
(6,205 ha) in Klamath County, Oregon.
Critical Habitat Unit 13: Upper Klamath
Lake
New information we received from
the U.S. Geological Survey and National
Park Service indicated that the proposed
critical habitat unit did not include the
full extent of occupancy by Oregon
spotted frogs (D. Hering, NPS, pers.
comm. 2014; C. Pearl, pers. comm.
2013). Upon consideration of the
information we received, we propose to
include an additional 85 acres (34 ha) in
this unit. This refinement includes
approximately 0.75 mi (1.2 km) of
Annie Creek and the associated,
adjacent, seasonally wetted areas from
the Annie Creek Sno-Park downstream
to its junction with the Wood River;
E:\FR\FM\18JNP1.SGM
18JNP1
34688
Federal Register / Vol. 79, No. 117 / Wednesday, June 18, 2014 / Proposed Rules
approximately 1.19 mi (1.92 km) of Sun
Creek and the associated, adjacent,
seasonally wetted areas from the
boundary of State and private property
to the junction with Annie Creek; and
approximately 1.10 mi (1.77 km) of Blue
Spring and the associated, adjacent,
seasonally wetted areas from the spring
origin to the junction of Short Creek.
The additional acreage is occupied by
the Oregon spotted frog and contains the
physical or biological features essential
to the conservation of the species. Seven
acres (3 ha) are managed by the Bureau
of Land Management and FremontWinema National Forest, 3 acres (1 ha)
are managed by Oregon State Parks, and
75 acres (30 ha) are privately owned.
The essential features within the
additional acres may require special
management considerations or
protection to ensure maintenance or
improvement of the existing
nonbreeding, breeding, rearing, and
overwintering habitat; aquatic
movement corridors; or refugia habitat,
and to address any changes that could
affect these features. The total acreage of
proposed critical habitat in Unit 13,
after this refinement, is 2,336 acres (946
ha) in Klamath County, Oregon.
emcdonald on DSK67QTVN1PROD with PROPOSALS
Critical Habitat Unit 14: Upper Klamath
New information we received from
the U.S. Forest Service indicated the
proposed critical habitat unit did not
include the full extent of occupancy by
Oregon spotted frogs (T. Smith, USFS,
pers. comm. 2014). Therefore, we
propose to include an additional 17
acres (7 ha) in this unit. Upon
consideration of the information we
received, this refinement includes an
additional portion of the Buck Lake
drainage system of canals, as well as
Spencer Creek from Buck Lake
downstream approximately 1.6 miles
(2.6 km), ending at the intersection of
U.S. Forest Service Road 46 and Clover
Creek Road. The additional acreage is
occupied by the Oregon spotted frog and
contains the essential physical or
biological features. Fifteen acres (6 ha)
are managed by the Bureau of Land
Management and Fremont-Winema
National Forest, and 2 acres (1 ha) are
privately owned. The essential features
within the additional acres may require
special management considerations or
protection to ensure maintenance or
improvement of the existing
nonbreeding, breeding, rearing, and
overwintering habitat; aquatic
movement corridors; or refugia habitat,
and to address any changes that could
affect these features. The total acreage of
proposed critical habitat in Unit 14,
after this refinement, is 262 acres (106
VerDate Mar<15>2010
17:25 Jun 17, 2014
Jkt 232001
ha) in Klamath and Jackson Counties,
Oregon.
Consideration of Impacts Under Section
4(b)(2) of the Act
Section 4(b)(2) of the Act requires that
we designate or revise critical habitat
based upon the best scientific data
available, after taking into consideration
the economic impact, impact on
national security, or any other relevant
impact of specifying any particular area
as critical habitat. We may exclude an
area from critical habitat if we
determine that the benefits of excluding
the area outweigh the benefits of
including the area as critical habitat,
provided such exclusion will not result
in the extinction of the species.
When considering the benefits of
inclusion for an area, we consider
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 the
Oregon spotted frog, the benefits of
critical habitat include public awareness
of the presence of the Oregon spotted
frog and the importance of habitat
protection, and, where a Federal nexus
exists, increased habitat protection for
the Oregon spotted frog 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.
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).
PO 00000
Frm 00048
Fmt 4702
Sfmt 4702
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
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 section
4(b)(2) exclusion analysis.
For this particular 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
E:\FR\FM\18JNP1.SGM
18JNP1
emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 79, No. 117 / Wednesday, June 18, 2014 / Proposed Rules
Oregon spotted frog (IEc, April 30,
2014). 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
what we consider our draft economic
analysis of the proposed critical habitat
designation for the Oregon spotted frog
and is summarized in the narrative
below.
Executive Orders (E.O.) 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, the probable impacts, if
sufficient data are available, 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
evaluation of the probable incremental
economic impacts that may result from
the proposed designation of critical
habitat for the Oregon spotted frog, first
we identified, in the IEM dated January
14, 2014, and the IEM addendum dated
February 13, 2014, probable incremental
economic impacts associated with the
following categories of activities: (1)
VerDate Mar<15>2010
17:25 Jun 17, 2014
Jkt 232001
Grazing, (2) water management, (3) land
restoration and conservation, (4)
agriculture, (5) recreation, and (6)
transportation activities. 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. If the listing proposal is made
final, in areas where the Oregon spotted
frog is present, Federal agencies would
be 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 also
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.
Therefore, disproportionate impacts to
any geographic area or sector are not
likely as a result of this critical habitat
designation.
In our IEM, we attempted to clarify
the distinction between the effects that
would 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 the
Oregon spotted frog’s critical habitat.
Because the designation of critical
habitat for Oregon spotted frog 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 or biological features
identified for critical habitat are the
same features essential for the life
history requisites of the species, and (2)
any actions that would result in
sufficient harm or harassment to
constitute jeopardy to the Oregon
spotted frog 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. This evaluation of the
incremental effects has been used as the
basis to evaluate the probable
incremental economic impacts of the
proposed designation of critical habitat.
PO 00000
Frm 00049
Fmt 4702
Sfmt 4702
34689
The proposed critical habitat
designation for the Oregon spotted frog
totals approximately 68,500 acres
(27,721 ha) and 24 river mi (38 river
km). The majority of these areas are
occupied by the Oregon spotted frog,
although approximately 365 acres (148
ha) and less than 1 river mile are not
known to be occupied by the species. In
occupied areas, any actions that may
affect the species or its habitat would
also affect designated critical habitat,
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 the Oregon spotted frog.
Additionally, in areas proposed as
critical habitat that are not known to be
occupied by the Oregon spotted frog,
Federal action agencies are likely to
treat these areas as potentially occupied
due to their proximity to occupied
areas, and any project modifications
requested to avoid adverse modification
are likely to be the same as those needed
to avoid jeopardy. Therefore, only
administrative costs are expected due to
the proposed critical habitat
designation. 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 unit likely to incur the largest
incremental administrative costs is Unit
9 (Little Deschutes River) due to a
relatively high number of anticipated
consultations to consider grazing
allotments intersecting the unit. The
total incremental administrative costs
associated with all known future actions
are estimated to be $190,000. Thus,
future probable incremental economic
impacts are not likely to exceed $100
million in any single year and
disproportionate impacts to any
geographic area or sector are not likely
as a result of this critical habitat
designation.
Therefore, the probable incremental
economic impacts of the Oregon spotted
frog critical habitat designation are
expected to be limited to additional
administrative effort in conducting
future section 7 consultations. This is
due to three factors: (1) In occupied
areas, activities with a Federal nexus
would be subject to section 7
consultation requirements regardless of
critical habitat designation, due to the
presence of the listed species; (2) In
areas not known to be occupied,
agencies would in most cases be likely
E:\FR\FM\18JNP1.SGM
18JNP1
34690
Federal Register / Vol. 79, No. 117 / Wednesday, June 18, 2014 / Proposed Rules
to treat areas as potentially occupied
due to their proximity to occupied
areas; and (3) project modifications
requested to avoid adverse modification
would be likely to be the same as those
needed to avoid jeopardy.
As we stated earlier, we are soliciting
data and comments from the public on
the DEA, as well as all aspects of the
proposed rule and our amended
required determinations. We may revise
the proposed rule or supporting
documents to incorporate or address
information we receive during the
public comment period. In particular,
we may exclude an area from critical
habitat if we determine that the benefits
of excluding the area outweigh the
benefits of including the area, provided
the exclusion will not result in the
extinction of this species.
emcdonald on DSK67QTVN1PROD with PROPOSALS
Required Determinations—Amended
In our August 29, 2013, proposed rule
(78 FR 53538), we determined our
compliance with several statutes and
executive orders. Following our
evaluation of the probable incremental
economic impacts resulting from the
designation of critical habitat for the
Oregon spotted frog, 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, or 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 Oregon spotted frog, we are
amending our required determinations
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
VerDate Mar<15>2010
17:25 Jun 17, 2014
Jkt 232001
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, 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
adverse modification) imposed by
critical habitat designation. Under these
PO 00000
Frm 00050
Fmt 4702
Sfmt 4702
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 the
Oregon spotted frog in a takings
implications assessment. As discussed
above, the designation of critical habitat
affects only Federal actions. Although
private parties that receive Federal
funding, 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 economic analysis
found that no significant economic
impacts are likely to result from the
designation of critical habitat for the
Oregon spotted frog. 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 this
designation of critical habitat for Oregon
spotted frog does not pose significant
takings implications for lands within or
affected by the designation.
E:\FR\FM\18JNP1.SGM
18JNP1
Federal Register / Vol. 79, No. 117 / Wednesday, June 18, 2014 / Proposed Rules
Authors
The primary authors of this notice are
the staff members of the Washington
Fish and Wildlife Office, Oregon Fish
and Wildlife Office-Bend Field Office,
and Klamath Falls Fish and Wildlife
Office.
Proposed Regulation Promulgation
Accordingly, we propose to further
amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal
Regulations, as proposed to be amended
on August 29, 2013, at 78 FR 53538, as
set forth below:
PART 17—[AMENDED]
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
1. The authority citation for part 17
continues to read as follows:
■
Authority: 16 U.S.C. 1361–1407; 1531–
1544; 4201–4245, unless otherwise noted.
2. Amend § 17.95(d) by revising
paragraphs (12), (18), (19), and (20) in
emcdonald on DSK67QTVN1PROD with PROPOSALS
■
VerDate Mar<15>2010
17:25 Jun 17, 2014
Jkt 232001
PO 00000
Frm 00051
Fmt 4702
Sfmt 4702
34691
the entry proposed for ‘‘Oregon Spotted
Frog (Rana pretiosa)’’ at 78 FR 53538 to
read as follows:
§ 17.95
Critical habitat—fish and wildlife.
*
*
*
*
*
(d) Amphibians.
*
*
*
*
*
Oregon Spotted Frog (Rana pretiosa)
*
*
*
*
*
(12) Unit 7: Lower Deschutes River,
Wasco County, Oregon. Map of Unit 7
follows:
BILLING CODE 4310–55–P
E:\FR\FM\18JNP1.SGM
18JNP1
34692
*
*
VerDate Mar<15>2010
*
*
17:25 Jun 17, 2014
(18) Unit 12: Williamson River,
Klamath County, Oregon. Map of Unit
12 follows:
Jkt 232001
PO 00000
Frm 00052
Fmt 4702
Sfmt 4702
E:\FR\FM\18JNP1.SGM
18JNP1
EP18JN14.001</GPH>
emcdonald on DSK67QTVN1PROD with PROPOSALS
*
Federal Register / Vol. 79, No. 117 / Wednesday, June 18, 2014 / Proposed Rules
Federal Register / Vol. 79, No. 117 / Wednesday, June 18, 2014 / Proposed Rules
34693
VerDate Mar<15>2010
17:25 Jun 17, 2014
Jkt 232001
PO 00000
Frm 00053
Fmt 4702
Sfmt 4702
E:\FR\FM\18JNP1.SGM
18JNP1
EP18JN14.002</GPH>
emcdonald on DSK67QTVN1PROD with PROPOSALS
(19) Unit 13: Upper Klamath Lake,
Klamath County, Oregon. Map of Unit
13 follows:
34694
Federal Register / Vol. 79, No. 117 / Wednesday, June 18, 2014 / Proposed Rules
VerDate Mar<15>2010
17:25 Jun 17, 2014
Jkt 232001
PO 00000
Frm 00054
Fmt 4702
Sfmt 4702
E:\FR\FM\18JNP1.SGM
18JNP1
EP18JN14.003</GPH>
emcdonald on DSK67QTVN1PROD with PROPOSALS
(20) Unit 14: Upper Klamath, Jackson
and Klamath Counties, Oregon. Map of
Unit 14 follows:
VerDate Mar<15>2010
17:25 Jun 17, 2014
Jkt 232001
PO 00000
Frm 00055
Fmt 4702
Sfmt 9990
E:\FR\FM\18JNP1.SGM
18JNP1
34695
EP18JN14.004</GPH>
emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 79, No. 117 / Wednesday, June 18, 2014 / Proposed Rules
34696
*
*
Federal Register / Vol. 79, No. 117 / Wednesday, June 18, 2014 / Proposed Rules
*
*
*
Dated: June 10, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish
and Wildlife and Parks.
[FR Doc. 2014–14184 Filed 6–17–14; 8:45 am]
BILLING CODE 4310–55–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 130530519–4476–01]
RIN 0648–BD35
Fisheries of the Exclusive Economic
Zone Off Alaska; Bering Sea and
Aleutian Islands Management Area;
American Fisheries Act; Amendment
106
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS issues a proposed rule
to implement Amendment 106 to the
Fishery Management Plan for
Groundfish of the Bering Sea and
Aleutian Islands Management Area
(BSAI FMP). The proposed rule would
allow the owner of an American
Fisheries Act (AFA) vessel to rebuild or
replace the vessel without limitation on
the length, weight, or horsepower of the
rebuilt or replacement vessel when the
vessel is operating in the Bering Sea and
Aleutian Islands Management Area
(BSAI). The proposed rule would also
allow the owner of an AFA catcher
vessel that is a member of an inshore
cooperative to remove the vessel from
the Bering Sea directed pollock fishery
and assign the pollock catch history of
the removed vessel to one or more
vessels in the inshore cooperative to
which the removed vessel belonged.
This action is necessary to bring the
regulations implementing the BSAI FMP
into conformity with the AFA as
amended by the Coast Guard
Authorization Act of 2010. This action
would also improve vessel safety and
operational efficiency in the AFA fleet
by allowing the rebuilding or
replacement of AFA vessels with safer
and more efficient vessels and by
allowing the removal of inactive catcher
vessels from the AFA fishery. This
action is intended to promote the goals
and objectives of the Magnuson-Stevens
Fishery Conservation and Management
emcdonald on DSK67QTVN1PROD with PROPOSALS
SUMMARY:
VerDate Mar<15>2010
17:25 Jun 17, 2014
Jkt 232001
Act, the AFA, the BSAI FMP, and other
applicable laws.
DATES: Submit comments on or before
August 4, 2014.
ADDRESSES: You may submit comments,
identified by NOAA-NMFS-2013-0097,
by any one of the following methods:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking portal. Go to
https://www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20130097, click the ‘‘Comment Now!’’ icon,
complete the required fields, and enter
or attach your comments.
• Mail: Address written comments to
Glenn Merrill, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region NMFS, Attn:
Ellen Sebastian. Mail comments to P. O.
Box 21668, Juneau, AK 99802.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered. All comments received are
a part of the public record and will
generally be posted for public viewing
on https://www.regulations.gov without
change. All Personal Identifying
Information (for example, name,
address) voluntarily submitted by the
commenter will be publicly accessible.
Do not submit Confidential Business
Information or otherwise sensitive or
protected information. NMFS will
accept anonymous comments (enter N/
A in the required fields, if you wish to
remain anonymous). Attachments to
electronic comments will be accepted in
Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.
Written comments regarding the
burden-hour estimates or other aspects
of the collection-of-information
requirements contained in this proposed
rule may be submitted to NMFS at the
above address; emailed to OIRA_
Submission@omb.eop.gov; or faxed to
202–395–7285.
Electronic copies of Amendment 106
to the FMP, the Regulatory Impact
Review/Initial Regulatory Flexibility
Analysis (Analysis), and the Categorical
Exclusion prepared for this action may
be obtained from https://
www.regulations.gov or from the Alaska
Region Web site at https://
alaskafisheries.noaa.gov.
Additional analyses prepared for the
AFA include the Final Environmental
Impact Statement (FEIS) for American
Fisheries Act Amendments 61/61/13/8
(AFA FEIS) (February 2002); the FEIS
for Essential Fish Habitat Identification
and Conservation in Alaska (April
2005); the Alaska Groundfish Harvest
Specifications—FEIS (January 2007);
PO 00000
Frm 00056
Fmt 4702
Sfmt 4702
and the Bering Sea Chinook Salmon
Bycatch Management—FEIS (December
2009). These analyses are available on
the NMFS Alaska Region Web site at
https://alaskafisheries.noaa.gov/
analyses/default.htm.
FOR FURTHER INFORMATION CONTACT:
Mary Alice McKeen, 907–586–7228.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fisheries of the
BSAI in the Exclusive Economic Zone
off Alaska under the BSAI FMP. The
North Pacific Fishery Management
Council (Council) prepared, and the
Secretary of Commerce (Secretary)
approved, the BSAI FMP pursuant to
the Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act) and other
applicable laws. General regulations
that pertain to U.S. fisheries appear at
subpart H of 50 CFR part 600.
Regulations implementing the BSAI
FMP appear at 50 CFR part 679. Unless
noted otherwise, all references to
regulations in this proposed rule are to
regulations that are contained in Title
50 of the CFR.
Terms Used in the Preamble
This document uses several terms to
help the reader understand the
provisions of the proposed rule. The
definitions are provided here for ease of
reference.
The term ‘‘AFA vessel’’ means a
vessel that is named on an AFA catcher
vessel permit, an AFA catcher/processor
permit, or an AFA mothership permit
and is authorized by that permit to
participate in the directed pollock
fishery in the Bering Sea. The proposed
rule would add this definition to
§ 679.2.
The terms ‘‘directed pollock fishery’’
or ‘‘AFA fishery’’ mean directed fishing
for pollock in the Bering Sea subarea.
‘‘Directed fishing’’ is defined in
regulations at § 679.2.
The term ‘‘original AFA’’ means the
provisions of the AFA as adopted on
October 21, 1998. The original AFA was
contained in Division C, Title II—
Fisheries, Subtitles I and II, within the
Omnibus Appropriations Act FY 1999,
Public Law 105–277.
The terms ‘‘amended AFA’’ or ‘‘AFA’’
mean the American Fisheries Act as
amended since 1998, including the
amendments to the AFA made by
section 602 of the Coast Guard
Authorization Act of 2010 (Coast Guard
Act), Public Law. 111–281.
The term ‘‘original AFA vessel’’
means a vessel that became eligible to
participate in the directed pollock
fishery under the terms of the original
AFA.
E:\FR\FM\18JNP1.SGM
18JNP1
]]>Agencies
[Federal Register Volume 79, Number 117 (Wednesday, June 18, 2014)]
[Proposed Rules]
[Pages 34685-34696]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-14184]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2013-0088; 4500030114]
RIN 1018-AZ56
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Oregon Spotted Frog
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 August 29, 2013, proposed
designation of critical habitat for the Oregon spotted frog (Rana
pretiosa) under the Endangered Species Act of 1973, as amended (Act).
We are proposing changes to four of the proposed critical habitat units
based on new information we have received. We also announce the
availability of a draft economic analysis (DEA) of the proposed
designation of critical habitat for the Oregon spotted frog 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 designation of
critical habitat, the associated DEA, the amended required
determinations section, and the proposed changes to the critical
habitat units described in this document. Comments previously submitted
need not be resubmitted, as they will be fully considered in
preparation of the final rule.
DATES: The comment period for the proposed rule published August 29,
2013 (at 78 FR 53538), is reopened. We will consider comments on that
proposed rule or the changes to it proposed in this document that we
receive or that are postmarked on or before July 18, 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 the associated draft economic analysis on the Internet at
https://www.regulations.gov at Docket No. FWS-R1-ES-2013-0088 or by mail
from the Washington Fish and Wildlife 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-
R1-ES-2013-0088, which is the docket number for this rulemaking.
(2) By hard copy: Submit comments on the critical habitat proposal
and associated draft economic analysis U.S. mail or hand-delivery to:
Public Comments Processing, Attn: FWS-R1-ES-2013-0088; 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: Ken S. Berg, Manager, U.S. Fish and
Wildlife Service, Washington Fish and Wildlife Office, 510 Desmond
Drive SE., Suite 102, Lacey, WA 98503; telephone 360-753-9440; or
facsimile 360-753-9445. Persons who use a telecommunications device for
the deaf (TDD) may call the
[[Page 34686]]
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 the Oregon spotted frog that was published in the Federal Register
on August 29, 2013 (78 FR 53538), our revisions to the proposed
designation of critical habitat described in this document, our DEA of
the proposed designation, and the amended required determinations
provided in this document. We will consider information and
recommendations from all interested parties. We are 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 threats 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 Oregon spotted frog habitat;
(b) What may constitute ``physical or biological features essential
to the conservation of the species,'' within the geographical range
currently occupied by the Oregon spotted frog;
(c) Where these features are currently found;
(d) Whether any of these features may require special management
considerations or protection;
(e) What areas, that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of the species, should be included in the designation and
why;
(f) What areas not occupied at the time of listing are essential
for the conservation of the species and why;
(g) Whether there are any specific areas where the proposed
critical habitat boundaries should be expanded to include adjacent
riparian areas, what factors or features should be considered in
determining an appropriate boundary revision, and why this would be
biologically necessary or unnecessary; and
(h) Additional research studies or information regarding the
movement distances or patterns of Oregon spotted frogs.
(3) Land use designations and current or planned activities in the
areas proposed to be designated as critical habitat, and possible
impacts of these activities on the proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the Oregon spotted frog within the proposed critical
habitat areas.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, we seek information on any impacts on small
entities or families, and the benefits of including or excluding areas
from the proposed designation that exhibit these impacts.
(6) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
(7) 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.
(8) 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.
If you submitted comments or information on the proposed rule (78
FR 53538) during the initial comment period from August 29, 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 determination. Our
final determination concerning 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 the ADDRESSES section. We
request that you send comments only by the methods described in the
ADDRESSES section.
If you submit a comment via https://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. We will post all hardcopy comments on https://www.regulations.gov as well. If you submit a hardcopy comment that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule and DEA, will be
available for public inspection on https://www.regulations.gov at Docket
No. FWS-R1-ES-2013-0088, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Washington Fish and
Wildlife 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-R1-ES-2013-0088, or by mail
from the Washington Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for Oregon spotted frog in this
document. For more information on previous Federal actions concerning
the Oregon spotted frog, refer to the proposed designation of critical
habitat published in the Federal Register on August 29, 2013 (78 FR
53538). For more information on the Oregon spotted frog or its habitat,
refer to the proposed listing rule published in the Federal Register on
August 29, 2013 (78 FR 53582), which is available online at https://www.regulations.gov (at Docket Number FWS-R1-ES-2013-0013) or from the
Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
On August 29, 2013, we published a proposed rule to list the Oregon
spotted frog as a threatened species (78 FR 53582) and a proposed rule
to designate critical habitat for the Oregon spotted frog (78 FR
53538). We proposed to designate approximately 68,192 acres (27,597
hectares (ha)) and approximately 24 river miles (mi) (38 river
kilometers (km)) in 14 units located in Washington and Oregon as
critical habitat. That proposal had a 60-day comment period, to end
October 28, 2013. On September 26, 2013, we extended the public comment
period an additional 15 days, until November 12, 2013, to allow all
interested parties additional time to comment on the
[[Page 34687]]
proposed rules, and we announced that we would hold a public hearing
(78 FR 59334). The public hearing was held on October 21, 2013, in
Lacey, Washington. We will submit for publication in the Federal
Register a final critical habitat designation for the Oregon spotted
frog after we receive public comment on the changes to the proposed
critical habitat described in this document, the DEA, and the amended
required determinations provided in this document.
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.
Changes From Previously Proposed Critical Habitat
The Service received new information from Federal partners and the
public that led to our refinement of four of the proposed critical
habitat units in Oregon. We are proposing to expand the four units to
include a total of 309 additional acres (125 additional ha). All of the
additional areas are known to be occupied by Oregon spotted frogs and
are subject to the same suite of activities described in our August 29,
2013, proposed designation (78 FR 53538). The approximate acreages to
be added to the four units, as well as the landownership, are shown
below in Table 1. There are no changes being proposed in the other 10
proposed critical habitat units.
Table 1--Approximate Area and Landownership of Changes to Proposed Critical Habitat Units for the Oregon Spotted Frog. All units in Table Are Located in
Oregon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Additional private/
Additional Additional state Additional local Total additional Total Proposed ac
Critical habitat unit federal ac (ha) ac (ha) county ac (ha) municipalities ac proposed ac (ha)
(ha) (ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
7. Lower Deschutes River................ 27 (11) 0 0 0 27 (11) 96 (39)
12. Williamson River.................... 82 (33) 0 0 98 (40) 180 (73) 15,332 (6,205)
13. Upper Klamath Lake.................. 7 (3) 3 (1) 0 75 (30) 85 (34) 2,336 (946)
14. Upper Klamath....................... 15 (6) 0 0 2 (1) 17 (7) 262 (106)
---------------------------------------------------------------------------------------------------------------
Total............................... 131 (53) 3 (1) 0 175 (71) 309 (125) ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding. Area estimates reflect all land and river miles within proposed critical habitat unit boundaries.
Changes to Proposed Critical Habitat Units
Critical Habitat Unit 7: Lower Deschutes River
A comment we received from a peer reviewer indicated that the
proposed critical habitat unit did not include overwintering habitat
currently used by Oregon spotted frogs at Camas Prairie (Corkran 2013).
Upon consideration of the information we received, we propose to
include an additional 27 acres (11 ha) of the meadow and springs that
provide overwintering habitat for the Oregon spotted frog. The
additional acreage is occupied by the Oregon spotted frog, contains the
physical or biological features essential to the conservation of the
species, and occurs entirely on the Mt. Hood National Forest. The
essential features within the additional acres may require special
management considerations or protection to ensure maintenance or
improvement of existing overwintering habitat, aquatic movement
corridors, or refugia habitat, and to address any changes that could
affect these features. The total acreage of proposed critical habitat
in Unit 7, after this refinement, is 96 acres (39 ha) in Wasco County,
Oregon.
Critical Habitat Unit 12: Williamson River
New information we received from the U.S. Geological Survey
indicated that the proposed critical habitat unit did not include the
full extent of occupancy by Oregon spotted frogs along Jack Creek (C.
Pearl, USGS, pers. comm. 2014). Therefore, we propose to include an
additional 180 acres (73 ha) in this unit. Upon consideration of the
information we received, this refinement includes approximately 3.1
miles (5 km) of Jack Creek and its adjacent seasonally wetted areas
south of U.S. Forest Service Road 88 through 1.32 mi (2.12 km) of
O'Connor Meadow. The additional acreage is occupied by the Oregon
spotted frog and contains the physical or biological features essential
to the conservation of the species. Eighty-two acres (33 ha) are
managed by the Fremont-Winema National Forest, and 98 acres (40 ha) are
privately owned. The essential features within the additional acres may
require special management considerations or protection to ensure
maintenance or improvement of the existing nonbreeding, breeding,
rearing, and overwintering habitat; aquatic movement corridors; or
refugia habitat, and to address any changes that could affect these
features. The total acreage of proposed critical habitat in Unit 12,
after this refinement, is 15,332 acres (6,205 ha) in Klamath County,
Oregon.
Critical Habitat Unit 13: Upper Klamath Lake
New information we received from the U.S. Geological Survey and
National Park Service indicated that the proposed critical habitat unit
did not include the full extent of occupancy by Oregon spotted frogs
(D. Hering, NPS, pers. comm. 2014; C. Pearl, pers. comm. 2013). Upon
consideration of the information we received, we propose to include an
additional 85 acres (34 ha) in this unit. This refinement includes
approximately 0.75 mi (1.2 km) of Annie Creek and the associated,
adjacent, seasonally wetted areas from the Annie Creek Sno-Park
downstream to its junction with the Wood River;
[[Page 34688]]
approximately 1.19 mi (1.92 km) of Sun Creek and the associated,
adjacent, seasonally wetted areas from the boundary of State and
private property to the junction with Annie Creek; and approximately
1.10 mi (1.77 km) of Blue Spring and the associated, adjacent,
seasonally wetted areas from the spring origin to the junction of Short
Creek. The additional acreage is occupied by the Oregon spotted frog
and contains the physical or biological features essential to the
conservation of the species. Seven acres (3 ha) are managed by the
Bureau of Land Management and Fremont-Winema National Forest, 3 acres
(1 ha) are managed by Oregon State Parks, and 75 acres (30 ha) are
privately owned. The essential features within the additional acres may
require special management considerations or protection to ensure
maintenance or improvement of the existing nonbreeding, breeding,
rearing, and overwintering habitat; aquatic movement corridors; or
refugia habitat, and to address any changes that could affect these
features. The total acreage of proposed critical habitat in Unit 13,
after this refinement, is 2,336 acres (946 ha) in Klamath County,
Oregon.
Critical Habitat Unit 14: Upper Klamath
New information we received from the U.S. Forest Service indicated
the proposed critical habitat unit did not include the full extent of
occupancy by Oregon spotted frogs (T. Smith, USFS, pers. comm. 2014).
Therefore, we propose to include an additional 17 acres (7 ha) in this
unit. Upon consideration of the information we received, this
refinement includes an additional portion of the Buck Lake drainage
system of canals, as well as Spencer Creek from Buck Lake downstream
approximately 1.6 miles (2.6 km), ending at the intersection of U.S.
Forest Service Road 46 and Clover Creek Road. The additional acreage is
occupied by the Oregon spotted frog and contains the essential physical
or biological features. Fifteen acres (6 ha) are managed by the Bureau
of Land Management and Fremont-Winema National Forest, and 2 acres (1
ha) are privately owned. The essential features within the additional
acres may require special management considerations or protection to
ensure maintenance or improvement of the existing nonbreeding,
breeding, rearing, and overwintering habitat; aquatic movement
corridors; or refugia habitat, and to address any changes that could
affect these features. The total acreage of proposed critical habitat
in Unit 14, after this refinement, is 262 acres (106 ha) in Klamath and
Jackson Counties, Oregon.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific data available, after
taking into consideration the economic impact, impact on national
security, or any other relevant impact of specifying any particular
area as critical habitat. We may exclude an area from critical habitat
if we determine that the benefits of excluding the area outweigh the
benefits of including the area as critical habitat, provided such
exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider
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 the Oregon spotted frog, the benefits of critical
habitat include public awareness of the presence of the Oregon spotted
frog and the importance of habitat protection, and, where a Federal
nexus exists, increased habitat protection for the Oregon spotted frog
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.
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 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 section 4(b)(2) exclusion analysis.
For this particular 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
[[Page 34689]]
Oregon spotted frog (IEc, April 30, 2014). 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 what we consider
our draft economic analysis of the proposed critical habitat
designation for the Oregon spotted frog and is summarized in the
narrative below.
Executive Orders (E.O.) 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, the probable impacts, if sufficient
data are available, 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 evaluation of the probable
incremental economic impacts that may result from the proposed
designation of critical habitat for the Oregon spotted frog, first we
identified, in the IEM dated January 14, 2014, and the IEM addendum
dated February 13, 2014, probable incremental economic impacts
associated with the following categories of activities: (1) Grazing,
(2) water management, (3) land restoration and conservation, (4)
agriculture, (5) recreation, and (6) transportation activities. 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. If the listing proposal is made final, in areas where
the Oregon spotted frog is present, Federal agencies would be 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 also
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. Therefore,
disproportionate impacts to any geographic area or sector are not
likely as a result of this critical habitat designation.
In our IEM, we attempted to clarify the distinction between the
effects that would 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 the Oregon
spotted frog's critical habitat. Because the designation of critical
habitat for Oregon spotted frog 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 or
biological features identified for critical habitat are the same
features essential for the life history requisites of the species, and
(2) any actions that would result in sufficient harm or harassment to
constitute jeopardy to the Oregon spotted frog 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. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of the
proposed designation of critical habitat.
The proposed critical habitat designation for the Oregon spotted
frog totals approximately 68,500 acres (27,721 ha) and 24 river mi (38
river km). The majority of these areas are occupied by the Oregon
spotted frog, although approximately 365 acres (148 ha) and less than 1
river mile are not known to be occupied by the species. In occupied
areas, any actions that may affect the species or its habitat would
also affect designated critical habitat, 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 the Oregon
spotted frog. Additionally, in areas proposed as critical habitat that
are not known to be occupied by the Oregon spotted frog, Federal action
agencies are likely to treat these areas as potentially occupied due to
their proximity to occupied areas, and any project modifications
requested to avoid adverse modification are likely to be the same as
those needed to avoid jeopardy. Therefore, only administrative costs
are expected due to the proposed critical habitat designation. 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 unit likely to incur the
largest incremental administrative costs is Unit 9 (Little Deschutes
River) due to a relatively high number of anticipated consultations to
consider grazing allotments intersecting the unit. The total
incremental administrative costs associated with all known future
actions are estimated to be $190,000. Thus, future probable incremental
economic impacts are not likely to exceed $100 million in any single
year and disproportionate impacts to any geographic area or sector are
not likely as a result of this critical habitat designation.
Therefore, the probable incremental economic impacts of the Oregon
spotted frog critical habitat designation are expected to be limited to
additional administrative effort in conducting future section 7
consultations. This is due to three factors: (1) In occupied areas,
activities with a Federal nexus would be subject to section 7
consultation requirements regardless of critical habitat designation,
due to the presence of the listed species; (2) In areas not known to be
occupied, agencies would in most cases be likely
[[Page 34690]]
to treat areas as potentially occupied due to their proximity to
occupied areas; and (3) project modifications requested to avoid
adverse modification would be likely to be the same as those needed to
avoid jeopardy.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of the proposed rule and our
amended required determinations. We may revise the proposed rule or
supporting documents to incorporate or address information we receive
during the public comment period. In particular, we may exclude an area
from critical habitat if we determine that the benefits of excluding
the area outweigh the benefits of including the area, provided the
exclusion will not result in the extinction of this species.
Required Determinations--Amended
In our August 29, 2013, proposed rule (78 FR 53538), we determined
our compliance with several statutes and executive orders. Following
our evaluation of the probable incremental economic impacts resulting
from the designation of critical habitat for the Oregon spotted frog,
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, or 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 Oregon spotted frog, we are amending our required determinations
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 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 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 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 the Oregon spotted frog in a takings implications
assessment. As discussed above, the designation of critical habitat
affects only Federal actions. Although private parties that receive
Federal funding, 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 economic analysis found that no significant
economic impacts are likely to result from the designation of critical
habitat for the Oregon spotted frog. 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 this designation of
critical habitat for Oregon spotted frog does not pose significant
takings implications for lands within or affected by the designation.
[[Page 34691]]
Authors
The primary authors of this notice are the staff members of the
Washington Fish and Wildlife Office, Oregon Fish and Wildlife Office-
Bend Field Office, and Klamath Falls Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to further amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as proposed to
be amended on August 29, 2013, at 78 FR 53538, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.95(d) by revising paragraphs (12), (18), (19), and
(20) in the entry proposed for ``Oregon Spotted Frog (Rana pretiosa)''
at 78 FR 53538 to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(d) Amphibians.
* * * * *
Oregon Spotted Frog (Rana pretiosa)
* * * * *
(12) Unit 7: Lower Deschutes River, Wasco County, Oregon. Map of
Unit 7 follows:
BILLING CODE 4310-55-P
[[Page 34692]]
[GRAPHIC] [TIFF OMITTED] TP18JN14.001
* * * * *
(18) Unit 12: Williamson River, Klamath County, Oregon. Map of Unit
12 follows:
[[Page 34693]]
[GRAPHIC] [TIFF OMITTED] TP18JN14.002
(19) Unit 13: Upper Klamath Lake, Klamath County, Oregon. Map of
Unit 13 follows:
[[Page 34694]]
[GRAPHIC] [TIFF OMITTED] TP18JN14.003
(20) Unit 14: Upper Klamath, Jackson and Klamath Counties, Oregon.
Map of Unit 14 follows:
[[Page 34695]]
[GRAPHIC] [TIFF OMITTED] TP18JN14.004
[[Page 34696]]
* * * * *
Dated: June 10, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-14184 Filed 6-17-14; 8:45 am]
BILLING CODE 4310-55-P
