Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Contiguous U.S. Distinct Population Segment of the Canada Lynx and Revised Distinct Population Segment Boundary, 35303-35309 [2014-14400]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 79, Number 119 (Friday, June 20, 2014)]
[Proposed Rules]
[Pages 35303-35309]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-14400]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2013-0101: 4500030114]
RIN 1018-AZ77


Endangered and Threatened Wildlife and Plants; Revised 
Designation of Critical Habitat for the Contiguous U.S. Distinct 
Population Segment of the Canada Lynx and Revised Distinct Population 
Segment Boundary

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 September 26, 2013, 
proposed revised designation of critical habitat for the contiguous 
U.S. distinct population segment (DPS) of the Canada lynx (Lynx 
canadensis) under the Endangered Species Act of 1973, as amended (Act). 
We also announce the availability of a draft economic analysis (DEA) 
and a draft environmental assessment of the proposed revised 
designation of critical habitat for the contiguous U.S. DPS of the 
Canada lynx, and an amended required determinations section of the 
proposal. We are reopening the comment period to allow all interested 
parties an opportunity to comment simultaneously on the proposed rule, 
the associated DEA, the draft environmental assessment, and the amended 
required determinations section. Comments previously submitted need not 
be resubmitted, as they will be fully considered in preparation of the 
final rule.

DATES: In order to fully consider and incorporate public comment, the 
Service requests submittal of comments by close of business on July 21, 
2014. Comments submitted electronically using the Federal eRulemaking 
Portal

[[Page 35304]]

(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 its associated documents of the draft economic analysis and the 
draft environmental assessment on the Internet at https://www.regulations.gov at Docket No. FWS-R6-ES-2013-0101 or by mail from 
the Montana Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).
    Written Comments: You may submit written comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. Submit comments on the critical habitat proposal 
and associated DEA and draft environmental assessment by searching for 
Docket No. FWS-R6-ES-2013-0101, which is the docket number for this 
rulemaking.
    (2) By hard copy: Submit comments on the critical habitat proposal 
and associated DEA and draft environmental assessment by U.S. mail or 
hand-delivery to: Public Comments Processing, Attn: FWS-R6-ES-2013-
0101; 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: Jodi Bush, Field Supervisor, U.S. Fish 
and Wildlife Service, Montana Ecological Services Field Office, 585 
Shepard Way, Suite 1, Helena, MT 59601; telephone (406-449-5225); or 
facsimile (406-449-5339). Persons who use a telecommunications device 
for the deaf (TDD) may call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed revised designation of critical 
habitat for the contiguous U.S. DPS of the Canada lynx (which we refer 
to as the Canada lynx DPS in the remainder of this document) that was 
published in the Federal Register on September 26, 2013 (78 FR 59430), 
our DEA and draft environmental assessment of the proposed designation, 
and the amended required determinations provided in this document. We 
will consider information and recommendations from all interested 
parties. We are particularly interested in comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat is not 
prudent.
    (2) Specific information on:
    (a) The distribution of the Canada lynx in the contiguous United 
States;
    (b) The amount and distribution of Canada lynx habitat in the 
contiguous United States;
    (c) What areas occupied by the species at the time of listing that 
contain features essential for the conservation of the species we 
should include in the designation and why; and
    (d) What areas not occupied at the time of listing are essential to 
the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their probable impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the Canada lynx and proposed critical habitat.
    (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 the benefits of 
including or excluding areas that exhibit these impacts.
    (6) Information on the extent to which the description of economic 
impacts in the DEA is a reasonable estimate of the likely economic 
impacts and the description of the environmental impacts in the draft 
environmental assessment is complete and accurate.
    (7) 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.
    (8) Whether any areas we are proposing for critical habitat 
designation should be considered for exclusion under section 4(b)(2) of 
the Act, and whether the benefits of potentially excluding any specific 
area outweigh the benefits of including that area under section 4(b)(2) 
of the Act.
    (9) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    If you submitted comments or information on the proposed rule (78 
FR 59430) during the initial comment period from September 26, 2013, to 
December 26, 2013, please do not resubmit them. Any such comments are 
incorporated as part of the public record of this rulemaking, 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. The final decision may differ from 
the proposed rule, based on our review of all information we receive 
during the comment periods.
    You may submit your comments and materials concerning the proposed 
rule, DEA, or draft environmental assessment 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-R6-ES-2013-0101, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Montana Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may 
obtain copies of the proposed rule, the DEA, and the draft 
environmental assessment on the Internet at https://www.regulations.gov 
at Docket No. FWS-R6-ES-2013-0101, or by mail from the Montana 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT 
section).

[[Page 35305]]

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for the Canada lynx DPS in this 
document. For more information on previous Federal actions concerning 
the Canada lynx DPS, refer to the proposed revised designation of 
critical habitat published in the Federal Register on September 26, 
2013 (78 FR 59430). For more information on the Canada lynx DPS or its 
habitat, refer to the final listing rule published in the Federal 
Register on March 24, 2000 (65 FR 16052), the clarification of findings 
published in the Federal Register on July 3, 2003 (68 FR 40076), and 
the Recovery Outline for the Contiguous United States DPS of Canada 
Lynx, all of which are available online at the Service's Species 
Profile Web site (https://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=A073) or from the Montana Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

    On March 24, 2000, the Service published a final rule in the 
Federal Register designating Canada lynx in the contiguous United 
States as a distinct population segment (DPS) and listing the Canada 
lynx DPS as threatened under the Act (65 FR 16052). On July 3, 2003, we 
published a clarification of findings affirming the status of the DPS 
as threatened under the Act (68 FR 40076). On November 9, 2006, we 
published a final rule designating critical habitat for the Canada lynx 
DPS (71 FR 66008). On February 25, 2009, we published a final rule 
revising the designation of critical habitat for the Canada lynx DPS 
(74 FR 8616). On December 17, 2009, we published a 12-month warranted-
but-precluded finding on a petition to change the final listing of the 
Canada lynx DPS to include New Mexico (74 FR 66937). These documents 
and others addressing the status and conservation of Canada lynx in the 
contiguous United States may be viewed and downloaded from the 
Service's Web site at: https://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=A073 or https://www.fws.gov/mountain-prairie/species/mammals/lynx/index.htm.
    On September 26, 2013, we published a proposed rule to revise the 
designation of critical habitat for the Canada lynx DPS (78 FR 59430). 
We proposed to designate approximately 41,547 square miles (mi\2\) 
(107,607 square kilometers (km\2\)) of critical habitat in five units 
located in northern Maine (Unit 1), northeastern Minnesota (Unit 2), 
northwestern Montana and northeastern Idaho (Unit 3), north-central 
Washington (Unit 4), and southwestern Montana and northwestern Wyoming 
(Unit 5). That proposal had a 90-day comment period, ending December 
26, 2013. We will publish in the Federal Register a final revised 
critical habitat designation for the Canada lynx DPS on or before 
September 1, 2014.

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

    As we indicated in our September 26, 2013, proposed rule (78 FR 
59430), we are evaluating information from several national forests in 
Montana that have refined their mapped Canada lynx habitat. These 
refinements may result in changes (reductions, additions, or both) to 
the critical habitat boundaries designated in the final rule for units 
3 and 5. Additionally, the Service continues to work with the Bureau of 
Land Management (BLM) in Wyoming to determine the most appropriate 
boundary for the southern and southeastern critical habitat additions 
to Unit 5 that we described in the proposed rule. In the final rule, we 
anticipate some changes to units 3 and 5 because of these refinements, 
which are based on the best available habitat mapping information.

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 Canada lynx, the benefits of critical habitat 
include public awareness of the species' presence and the importance of 
habitat protection, and, where a Federal nexus exists, increased 
protection of Canada lynx habitat due to protection from adverse 
modification or destruction of critical habitat. In practice, actions 
with a Federal nexus exist primarily on Federal lands or for projects 
undertaken, authorized, funded, or otherwise permitted by Federal 
agencies.
    The final decision on whether to exclude any areas in accordance 
with section 4(b)(2) of the Act 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 DEA 
concerning the proposed revised critical habitat designation, 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 proposed for critical habitat

[[Page 35306]]

designation. 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 are those that would not be expected to occur in 
the absence of a critical habitat designation 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 
arising from the species' listing under the Act. 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 revised 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 Canada lynx DPS (Industrial Economics, Inc. 
2014). We began by conducting a screening analysis of the proposed 
revised designation of critical habitat 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. Ultimately, the screening analysis 
allows us to focus our analysis on evaluating the specific areas or 
sectors that may incur probable incremental economic impacts as a 
result of the designation. The screening analysis also assesses whether 
proposed critical habitat units are unoccupied by the species, may 
require additional management or conservation efforts as a result of 
the critical habitat designation, and may incur incremental economic 
impacts. This screening analysis and the information contained in our 
IEM are what we consider our DEA of the proposed revised critical 
habitat designation for the Canada lynx DPS, which is summarized in the 
narrative below.
    Executive Orders 12866 and 13563 direct Federal agencies to assess 
the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the Executive Orders' regulatory analysis requirements, our 
effects analysis under the Act may take into consideration both direct 
and indirect impacts to affected entities, where practicable and 
reasonable. If sufficient data are available, we assess, to the extent 
practicable, the probable impacts to both directly and indirectly 
affected entities. As part of our screening analysis, we considered the 
types of economic activities that are likely to occur within the areas 
proposed for revised critical habitat designation. In our evaluation of 
the probable incremental economic impacts that may result from the 
proposed designation of critical habitat for the Canada lynx DPS, we 
first identified, in the IEM dated April 18, 2014, probable incremental 
economic impacts associated with the following categories of 
activities: Agriculture, Border Protection, Conservation/Restoration, 
Development, Fire Management, Forest Management, Mining, Oil and Gas, 
Recreation, Renewable Energy, Silviculture/Timber, Transportation, 
Tribes, and Utilities. 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; it only affects 
activities conducted, funded, permitted, or authorized by Federal 
agencies.
    Because the Canada lynx DPS has been listed as threatened under the 
Act since 2000, Federal agencies already are required to consult with 
the Service under section 7 of the Act on activities they fund, permit, 
or implement in areas where Canada lynx may be present and that may 
affect the species. If we finalize this proposed revised critical 
habitat designation, consultations to avoid the destruction or adverse 
modification of critical habitat would be incorporated into the 
existing consultation process that already considers jeopardy to the 
listed DPS. Because all of the areas proposed as revised critical 
habitat are currently occupied by Canada lynx populations, their 
designation will not result in new areas in which section 7 
consultations would be required. Therefore, disproportionate impacts to 
any geographic area or sector are not likely as a result of the 
critical habitat designation.
    In our IEM, we attempted to clarify the distinction between the 
effects attributable to the Canada lynx DPS being listed and those 
likely to result from critical habitat designation (i.e., the 
difference between the jeopardy and adverse modification standards). 
Because the designation of critical habitat for the Canada lynx DPS was 
not proposed concurrently with the listing, we are better able to 
discern, based on a comparison of the history of section 7 
consultations in the absence of critical habitat and consultations 
since the previous designation in 2009, which impacts are attributable 
to the DPS's listing and which are likely to result solely from the 
revised critical habitat designation currently proposed. Additionally, 
the following specific circumstances in this case help to inform our 
evaluation: (1) The essential physical and biological features 
identified for critical habitat are the same features essential for the 
life requisites of the species; (2) all areas proposed for revised 
designation of critical habitat are currently occupied by Canada lynx 
populations; (3) 89 percent of the area currently proposed for 
designation has been designated as Canada lynx critical habitat since 
March 2009, and another 4.8 percent was designated lynx critical 
habitat from

[[Page 35307]]

March 2009 until September 2010, when critical habitat in Washington 
State was enjoined by the U.S. District Court for the District of 
Wyoming; and (4) any actions that would result in sufficient harm or 
harassment to constitute jeopardy to the Canada lynx DPS 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 and incremental impacts of 
critical habitat designation for this DPS. This evaluation of the 
incremental effects has been used as the basis to evaluate the probable 
incremental economic impacts of this proposed revised critical habitat 
designation.
    The proposed revised critical habitat designation for the Canada 
lynx DPS includes approximately 41,547 mi\2\ (107,607 km\2\) of 
Federal, State, Tribal, and private lands in five units located in 
northern Maine (Unit 1), northeastern Minnesota (Unit 2), northwestern 
Montana and northeastern Idaho (Unit 3), north-central Washington (Unit 
4), and southwestern Montana and northwestern Wyoming (Unit 5). All of 
the areas proposed as revised designated critical habitat were occupied 
by Canada lynx at the time of listing and currently support persistent 
Canada lynx populations.
    Unit 1 includes 11,162 mi\2\ located in northern Maine in portions 
of Aroostook, Franklin, Penobscot, Piscataquis, and Somerset Counties. 
Land ownership within Unit 1 is 91.7 percent private, 7.4 percent 
State, and 0.8 percent Tribal; there are no Federal lands. Unit 2 
includes 8,147 mi\2\ located in northeastern Minnesota in portions of 
Cook, Koochiching, Lake, and St. Louis Counties, and the Superior 
National Forest. Land ownership within Unit 2 is 47.4 percent Federal, 
33.5 percent State, 18.1 percent private, and 1.0 percent Tribal. Unit 
3 includes 10,474 mi\2\ located in northwestern Montana and a small 
portion of northeastern Idaho in portions of Boundary County in Idaho 
and Flathead, Glacier, Granite, Lake, Lewis and Clark, Lincoln, 
Missoula, Pondera, Powell, and Teton Counties in Montana. Land 
ownership within Unit 3 is 82.6 percent Federal, 3.6 percent State, 
10.2 percent private, and 3.5 percent Tribal. Unit 4 includes 1,999 
mi\2\ located in north-central Washington in portions of Chelan and 
Okanogan Counties and includes mostly Okanogan-Wenatchee National 
Forest lands as well as BLM lands in the Spokane District and Loomis 
State Forest lands. Land ownership within Unit 4 is 91.5 percent 
Federal, 8.2 percent State, and 0.2 percent private; there are no 
Tribal lands. Unit 5 includes 9,766 mi\2\ located in Yellowstone 
National Park and surrounding lands of the Greater Yellowstone Area in 
southwestern Montana and northwestern Wyoming. Proposed critical 
habitat in this unit is located in Carbon, Gallatin, Park, Stillwater, 
and Sweetgrass Counties in Montana; and Fremont, Lincoln, Park, 
Sublette, and Teton Counties in Wyoming. Land ownership within Unit 5 
is 96.9 percent Federal, 0.3 percent State, and 2.8 percent private; 
there are no Tribal lands.
    Because all the areas proposed as revised designated Canada lynx 
critical habitat are occupied by Canada lynx, consultation under 
section 7 of the Act is already required for projects in these areas 
that may affect Canada lynx. These consultations normally focus on 
potential impacts to Canada lynx foraging habitat, in particular winter 
snowshoe hare habitats. In these areas, any actions that may affect the 
Canada lynx or its habitat would also affect designated critical 
habitat. 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 Canada lynx DPS. Further, because most (89 
percent) of the proposed area has been designated as critical habitat 
for Canada lynx since 2009, consultations in these areas already must 
address the adverse modification standard, and no additional 
conservation measures or associated administrative or other costs are 
expected. Therefore, additional administrative costs are only expected 
in the 11 percent of the proposed critical habitat that is not already 
designated. While the additional analysis necessary to address adverse 
modification in these areas will require time and resources by both the 
Federal action agency and the Service, we believe that, in most 
circumstances, these costs would be predominantly administrative in 
nature and would not be significant.
    Areas proposed for designation that are not currently designated 
include: (1) All of Unit 4 (1,999 mi\2\ of predominantly Federal [U.S. 
Forest Service] lands in northern Washington); (2) an additional 521 
mi\2\ of mostly private commercial timber lands in Unit 1 (northern 
Maine); and (3) an additional 259 mi\2\ of mostly Federal (BLM and 
National Park Service) lands in Unit 5 (northwestern Wyoming). The 
entities most likely to incur incremental costs are parties to section 
7 consultations, including Federal action agencies and, in some cases, 
third parties, most frequently State agencies or municipalities. 
Activities we expect will be subject to consultations that may involve 
private entities as third parties are residential and commercial 
development that may occur on private lands. However, the cost to 
private entities within these sectors is expected to be relatively 
minor and, therefore, not significant.
    The annual administrative burden to address adverse modification in 
areas proposed but not currently designated as critical habitat is 
unlikely to reach $100 million. Therefore, 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 the proposed revised critical habitat 
designation.
    As we stated above, we are soliciting data and comments from the 
public on the DEA and the draft environmental assessment, 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 areas from critical 
habitat if we determine that the benefits of excluding the areas 
outweigh the benefits of including the areas, provided the exclusions 
will not result in the extinction of this DPS.

Required Determinations--Amended

    In our September 26, 2013, proposed rule (78 FR 59430), we 
indicated that we would defer our determination of compliance with 
several statutes and executive orders until we had evaluated the 
probable effects on landowners and stakeholders and the resulting 
probable economic impacts of the designation. Following our evaluation 
of the probable incremental economic impacts resulting from the 
designation of critical habitat for the Canada lynx DPS, we have 
affirmed or amended 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.), 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

[[Page 35308]]

incremental economic impacts of the proposed revised designation of 
critical habitat for the Canada lynx DPS, we are amending our required 
determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.), E.O. 12630 (Takings), and the National Environmental Policy 
Act (42 U.S.C. 4321 et seq.).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are only required to evaluate the potential incremental 
impacts of rulemaking on those entities directly regulated by the 
rulemaking itself, and, therefore, are not required to evaluate the 
potential impacts to indirectly regulated entities. The regulatory 
mechanism through which critical habitat protections are realized is 
section 7 of the Act, which requires Federal agencies, in consultation 
with the Service, to ensure that any action authorized, funded, or 
carried out by the agency is not likely to destroy or adversely modify 
critical habitat. Therefore, under section 7 only Federal action 
agencies are directly subject to the specific regulatory requirement 
(avoiding destruction and adverse modification) imposed by critical 
habitat designation. Consequently, it is our position that only Federal 
action agencies will be directly regulated by this designation. There 
is no requirement under the RFA to evaluate the potential impacts to 
entities not directly regulated. Moreover, Federal agencies are not 
small entities. Therefore, because no small entities are directly 
regulated by this rulemaking, the Service certifies that, if 
promulgated, the proposed revised 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 revised 
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 revised critical habitat designation would not have a 
significant economic impact on a substantial number of small business 
entities. Therefore, an initial RFA 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 Canada lynx DPS in a takings implications assessment. 
As discussed above, the designation of critical habitat affects only 
Federal actions. Although private parties that receive Federal funding 
or assistance or that require approval or authorization from a Federal 
agency for an action may be indirectly impacted by the designation of 
critical habitat, the legally binding duty to avoid destruction or 
adverse modification of critical habitat rests squarely on the Federal 
agency. The economic analysis found that no significant economic 
impacts are likely to result from the designation of critical habitat 
for the Canada lynx DPS. Because the Act's critical habitat protection 
requirements apply only to Federal agency actions, few conflicts 
between critical habitat and private property rights are anticipated 
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 the Canada lynx DPS would not pose significant 
takings implications for lands within or affected by the revised 
designation.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    When the range of a species includes States within the jurisdiction 
of the U.S. Court of Appeals for the Tenth Circuit, pursuant to that 
court's ruling in Catron County Board of Commissioners v. U.S. Fish and 
Wildlife Service, 75 F .3d 1429 (10th Cir. 1996), we complete an 
analysis on proposed critical habitat designations pursuant to the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 
(NEPA). The range of the Canada lynx DPS is partially within the States 
of Colorado, New Mexico, Utah, and Wyoming, which are within the Tenth 
Circuit. Accordingly, we have prepared a draft environmental assessment 
to identify and disclose the environmental consequences resulting from 
the proposed revised designation of critical habitat for the Canada 
lynx DPS.
    The draft environmental assessment presents the purpose of and need 
for critical habitat designation; the proposed action and alternatives; 
and an evaluation of the direct, indirect, and cumulative effects of 
the alternatives under the requirements of NEPA as implemented by the 
Council on Environmental Quality regulations (40 CFR part 1500 et seq.) 
and according to the Department of the Interior's NEPA procedures.
    The draft environmental assessment will be used by the Service to 
decide whether or not critical habitat will be designated as proposed; 
if the proposed action requires refinement, or if another alternative 
is appropriate; or if further analyses are needed through preparation 
of an environmental impact statement. If the proposed action is 
selected as

[[Page 35309]]

described (or is changed minimally) and no further environmental 
analyses are needed, then a finding of no significant impact (FONSI) 
would be the appropriate conclusion of this process. A FONSI would then 
be prepared for the environmental assessment. We are seeking data and 
comments from the public on the draft environmental assessment. 
Comments may be submitted by one of the methods listed in the ADDRESSES 
section.

Authors

    The primary authors of this notice are the staff members of the 
Montana Ecological Services Field Office, Region 6, U.S. Fish and 
Wildlife Service.

Authority

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

    Dated: June 13, 2014.
Rachel Jacobsen,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-14400 Filed 6-19-14; 8:45 am]
BILLING CODE 4310-55-P