[Federal Register Volume 73, Number 219 (Wednesday, November 12, 2008)]
[Proposed Rules]
[Pages 66831-66834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26733]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AV52
[FWS-R4-ES-2008-0047]


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Louisiana Black Bear

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, notice of 
availability of draft economic analysis, and amended required 
determinations.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the proposed designation of 
critical habitat for the Louisiana black bear (Ursus americanus 
luteolus) under the Endangered Species Act of 1973, as amended (Act). 
We also announce the availability of a draft economic analysis (DEA) 
and an amended required determinations section of the proposal. We are 
reopening the comment period to allow all interested parties an 
opportunity to comment simultaneously on the revised proposed rule, the 
associated DEA, and the amended required determinations section. If you 
submitted comments previously, you do not need to resubmit them because 
we have already incorporated them into the public record and will fully 
consider them in preparation of the final rule.

DATES: We will consider comments received on or before December 12, 
2008.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R4-ES-2008-0047; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://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: Jim Boggs, Supervisor, U.S. Fish and 
Wildlife Service, Louisiana Field Office, 646 Cajundome Blvd., Suite 
400, Lafayette, LA 70506; telephone: 337-291-3100; facsimile: 337-291-
3139. If you use a telecommunications device for the deaf (TDD), call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed designation of critical habitat 
for the Louisiana black bear that was published in the Federal Register 
on May 6, 2008 (73 FR 25354), our draft economic analysis 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.).
    (2) Specific information on:
    (a) The distribution of the Louisiana black bear;
    (b) The amount and distribution of Louisiana black bear habitat; 
and
    (c) Which habitat contains the features essential for the 
conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Any foreseeable economic, national security, or other relevant 
impacts that may result from the proposed designation and, in 
particular, any impacts on small entities, and the benefits of 
including or excluding areas that exhibit these impacts.
    (5) 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;
    (6) Whether the benefits of excluding any particular area from 
critical habitat outweigh the benefits of including that area as 
critical habitat under section 4(b)(2) of the Act, after considering 
the potential impacts and benefits of the proposed critical habitat 
designation, and more specifically, whether U.S. Department of 
Agriculture (USDA) Wetland Reserve Program permanent easements on 
privately owned lands provide sufficient protection and management to 
justify their exclusion from critical habitat on that basis.
    (7) Information on the extent to which the description of economic 
impacts in the DEA is complete and accurate.
    (8) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the DEA, and how the consequences 
of such reactions, if likely to occur, would relate to the conservation 
and regulatory benefits of the proposed critical habitat designation.
    You may submit your comments and materials concerning the proposed 
rule or DEA by one of the methods listed in the ADDRESSES section. We 
will not consider comments sent by e-mail or fax or to an address not 
listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. 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. We will post all 
hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule and draft 
economic analysis, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, 
at the U.S. Fish and Wildlife Service, Louisiana Field Office (see FOR 
FURTHER INFORMATION CONTACT). You may obtain copies of the proposed 
rule and the DEA on the Internet at http://

[[Page 66832]]

www.regulations.gov at Docket Number FWS-R4-ES-2008-0047, or by mail 
from the Louisiana Field Office (see FOR FURTHER INFORMATION CONTACT 
section).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat. For more information on previous 
Federal actions concerning the Louisiana black bear, refer to the 
proposed designation of critical habitat published in the Federal 
Register on May 6, 2008 (73 FR 25354). On December 2, 1993, we proposed 
critical habitat for the Louisiana black bear (58 FR 63560). That 
proposal had a 90-day comment period, ending March 2, 1994. We then 
reopened the public comment period from March 7, 1994 (59 FR 10607) 
through April 4, 1994. During that reopened comment period, we held a 
public hearing in New Iberia, Louisiana, on March 23, 1994. On April 1, 
1994, we extended the reopened comment period through May 25, 1994, and 
announced two more public hearings (May 10, 1994, in West Monroe, 
Louisiana, and May 11, 1994, in New Iberia, Louisiana) (59 FR 15366). 
We never published a final rule designating critical habitat.
    On September 6, 2005, Mr. Harold Schoeffler and Louisiana Crawfish 
Producers Association-West filed suit in U.S. District Court for the 
Western District of Louisiana (Civil Action No. CV05-1573 (W.D. La.)) 
challenging the Service's failure to designate critical habitat for the 
Louisiana black bear. On June 26, 2007, the District Court ordered the 
Service to withdraw the December 2, 1993, proposed critical habitat 
rule and create a new proposed critical habitat designation by no later 
than 4 months from the date of the judgment and to publish a final 
designation by no later than 8 months from the date of the proposed or 
new rule. On September 5, 2007, following a settlement agreement, the 
Court revised its order to require the Service to: (1) Withdraw the 
December 2, 1993, proposed rule and submit a prudency determination 
and, if prudent, a new proposed critical habitat designation to the 
Office of the Federal Register by April 26, 2008; and (2) submit a 
final critical habitat determination, if applicable, to the Office of 
the Federal Register by February 26, 2009. On May 6, 2008, we published 
our proposed rule to designate critical habitat for the Louisiana black 
bear (73 FR 25394) in accordance with section 4(b)(2) of the Act. We 
concurrently withdrew the 1993 proposal and made a new prudency 
determination. In total, we proposed approximately 1,330,000 acres 
(538,894 hectares (ha)) of critical habitat located in Avoyelles, East 
Carroll, Catahoula, Concordia, Franklin, Iberia, Iberville, Madison, 
Pointe Coupee, Richland, St. Martin, St. Mary, Tensas, West Carroll, 
and West Feliciana Parishes, Louisiana. For more information on the 
threatened Louisiana black bear or its habitat, refer to the final 
listing rule published in the Federal Register on January 7, 1992 (57 
FR 588), and to our 1995 final recovery plan for the bear, which is 
available online at http://www.regulations.gov (at Docket Number FWS-
R4-ES-2008-0047) or from the Louisiana Field Office (see FOR FURTHER 
INFORMATION CONTACT).
    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.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial 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 have prepared a DEA of our May 
6, 2008 (73 FR 25354), proposed rule to designate critical habitat for 
the Louisiana black bear.
    The intent of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed critical habitat 
designation for the Louisiana black bear. The DEA quantifies the 
economic impacts of all potential conservation efforts for the 
Louisiana black bear; some of these costs will likely be incurred 
regardless of whether we designate critical habitat. The economic 
impact of the proposed critical habitat designation is analyzed by 
comparing scenarios both ``with critical habitat'' and ``without 
critical habitat.'' The ``without critical habitat'' scenario 
represents the baseline for the analysis, considering protections 
already in place for the species (e.g., under the Federal listing and 
other Federal, State, and local regulations). The baseline, therefore, 
represents the costs 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 not expected to occur absent 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 may consider in the final designation of critical habitat. The 
analysis looks retrospectively at baseline impacts incurred since the 
species was listed, and forecasts both baseline and incremental impacts 
likely to occur if we finalize the proposed critical habitat.
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for the 
bear over the next 20 years, which was determined to be the appropriate 
period for analysis because limited planning information was available 
for most activities to forecast activity levels for projects beyond a 
20-year timeframe. It identifies potential incremental costs as a 
result of the proposed critical habitat designation; these are those 
costs attributed to critical habitat over and above those baseline 
costs attributed to listing. The DEA quantifies economic impacts of 
Louisiana black bear conservation efforts associated with the following 
categories of activity: (1) Oil and gas exploration and development; 
(2) species/habitat management; (3) recreational and residential 
development; (4) agriculture; (5) transportation; and (6) forestry. Due 
to uncertainty in the amount of oil and gas development over the next 
20 years, cost estimates were calculated for a low scenario of oil and 
gas development (one-third of the historical rate) and a high scenario 
(continuation of the historical rate).
    The pre-designation (1992 to 2008) impacts associated with species 
conservation activities for the Louisiana black bear in areas proposed 
as critical habitat are approximately $68.4 to $76.6 million applying a 
3 percent discount rate, and $84.9 to $97.0 million applying a 7 
percent discount rate. The post-designation (2009 to 2028) baseline 
impacts (those estimated to occur

[[Page 66833]]

regardless of the critical habitat designation) associated with species 
conservation were estimated to range from $9.0 million to $19.0 million 
applying a 3 percent discount rate, or $6.7 million to $14 million 
applying a 7 percent discount rate). Under a low oil and gas 
development scenario, over 50 percent of post-designation baseline 
economic impacts are related to species management and 28 percent are 
related to oil and gas development. Under the high scenario, oil and 
gas exploration and development accounted for 65 percent of post-
designation baseline economic impacts and species management accounted 
for 25 percent. Development and agriculture related impacts comprise 
approximately 20 to 11 percent of the impacts, under the low and high 
scenarios, respectively.
    All incremental impacts attributed to the proposed critical habitat 
designation are expected to be associated with oil and gas activities. 
The DEA estimates the post-designation incremental economic impacts for 
the next 20 years to range from $1.5 million to 8.6 million, applying a 
3 percent discount rate, or $1.1 million to $6.3 million applying a 7 
percent discount rate. The range in values of incremental costs is a 
result of the uncertainty in forecasting the number of new wells that 
are likely to be drilled in the next 20 years. Incremental impacts are 
not anticipated for other activities (including areas considered for 
exclusion) potentially affected by the critical habitat designation.
    Post-designation baseline impacts for areas proposed for exclusion 
were calculated separately from areas proposed as critical habitat. 
Those impacts are related to the purchase of Wetlands Reserve Program 
easements and associated habitat management practices by the USDA 
Natural Resources Conservation Service, and are estimated to be 
approximately $98.7, million applying a 3 percent discount rate, and 
$73.0 million, applying a 7 percent discount rate.
    Only the incremental costs that may result from the designation of 
critical habitat, over and above the costs associated with species 
protection under the Act more generally, may be considered in 
designating critical habitat; therefore, the methodology for 
distinguishing these two categories of costs is important. In the 
absence of critical habitat, Federal agencies must ensure that any 
actions they authorize, fund, or carry out are not likely to jeopardize 
the continued existence of any endangered species or threatened 
species--costs associated with such actions are considered baseline 
costs. Once an area is designated as critical habitat, proposed actions 
that have a Federal nexus in this area also will require consultation 
and potential modification to ensure that the action does not result in 
the destruction or adverse modification of designated critical 
habitat--costs associated with these actions are considered incremental 
costs. Incremental consultation that takes place as a result of 
critical habitat designation may fall into one of three categories: (1) 
Additional effort to address adverse modification in a new 
consultation; (2) re-initiation of consultation to address effects to 
critical habitat; and (3) incremental consultation resulting entirely 
from critical habitat designation (i.e., where a proposed action may 
affect unoccupied critical habitat). However, because no unoccupied 
habitat is being proposed for designation, no consultations in category 
3 are projected.
    As 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 
exclusions will not result in the extinction of this species.

Required Determinations--Amended

    In our May 6, 2008, proposed rule (73 FR 25354), we indicated that 
we would defer our determination of compliance with several statutes 
and Executive Orders until the information concerning potential 
economic impacts of the designation and potential effects on landowners 
and stakeholders became available in the DEA. We have now made use of 
the DEA data in making these determinations. In this document, we 
affirm the information in our proposed rule concerning Executive Order 
(E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings), 
E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 
(Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform 
Act, the Paperwork Reduction Act, the National Environmental Policy 
Act, and the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR 
22951). However, based on the DEA data, we revise our required 
determination concerning the Regulatory Flexibility Act.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), 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 effect 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 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. Based on our DEA of 
the proposed designation, we provide our analysis for determining 
whether the proposed rule would result in a significant economic impact 
on a substantial number of small entities. Based on comments we 
receive, we may revise this determination as part of our final rule 
making.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as 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.
    To determine if the proposed designation of critical habitat for 
the Louisiana black bear would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities, such as oil and gas

[[Page 66834]]

exploration and development, species management, residential 
development, forestry, agriculture, and transportation. In order to 
determine whether it is appropriate for our agency to certify that this 
rule would not have a significant economic impact on a substantial 
number of small entities, we considered each industry or category 
individually. In estimating the numbers of small entities potentially 
affected, we also considered whether their activities have any Federal 
involvement. Critical habitat designation will not affect activities 
that do not have any Federal involvement; designation of critical 
habitat affects activities conducted, funded, permitted, or authorized 
by Federal agencies.
    If we finalize this proposed critical habitat designation, Federal 
agencies must consult with us under section 7 of the Act if their 
activities may affect designated critical habitat. Consultations to 
avoid the destruction or adverse modification of critical habitat would 
be incorporated into the existing consultation process.
    In the DEA, we evaluated the potential economic effects on small 
entities resulting from implementation of conservation actions related 
to the proposed designation of critical habitat for the Louisiana black 
bear. Based on that analysis, only small business entities that rely on 
oil and gas exploration and development were identified as entities 
that could be affected by the incremental impacts from the proposed 
rule. Impacts described in Appendix A of the DEA are predominantly 
associated with crude petroleum and natural gas extraction; liquid 
natural gas exploration; and oil and gas well drilling activities in 
areas proposed for final critical habitat for the Louisiana black bear. 
These impacts would be expected to be borne by 45 small businesses that 
operate in the oil and gas exploration and development industry at the 
time of final critical habitat designation. The average cost to a small 
business over the next 20 years is estimated to range from $25,000 to 
$141,000, discounted at 7 percent. Please refer to our Draft Economic 
Analysis of the proposed critical habitat designation for a more 
detailed discussion of potential economic impacts.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. We have identified 45 small entities that may be 
impacted by the proposed critical habitat designation. For the above 
reasons and based on currently available information, we certify that 
if promulgated, the proposed designation would not have a significant 
economic impact on a substantial number of small business entities. 
Therefore, an initial regulatory flexibility analysis is not required.

Authors

    The primary authors of this notice are the staff members of the 
Louisiana Field Office, Southeast Region, U.S. Fish and Wildlife 
Service.

Authority

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

    Dated: October 30, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-26733 Filed 11-10-08; 8:45 am]
BILLING CODE 4310-55-P