[Federal Register Volume 73, Number 250 (Tuesday, December 30, 2008)]
[Proposed Rules]
[Pages 79770-79773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30750]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AV51
[FWS-R4-ES-2008-0058; 92210-1117-0000-FY08-B4]


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Alabama Sturgeon (Scaphirhyncus suttkusi)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Revised proposed rule; reopening of comment period, notice of 
availability of draft economic analysis, announcement of public 
hearing, 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 and the scheduling of a public 
hearing on the proposed revised designation of critical habitat for the 
Alabama sturgeon (Scaphirhyncus suttkusi) under the Endangered Species 
Act of 1973, as amended (Act). We also announce the availability for 
public comment of a draft economic analysis (DEA) and an amended 
required determinations section of the proposal. We also seek comment 
on our proposal to change the first primary constituent element (PCE) 
from its original description because we have determined that the 
original wording failed to indicate that the flow needs of the species 
are relative to the season of the year. 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: Written Comments: We will consider comments received on or 
before January 29, 2009.
    Public Hearings: We announce a public hearing to be held on January 
28, 2009, at the Nettles Auditorium at Alabama Southern Community 
College, 2800 South Alabama Avenue, Monroeville, AL 36460. The hearing 
is open to all who wish to provide formal, oral comments regarding the 
proposed revised critical habitat and will be held from 7 p.m. to 9 
p.m, central time, with an open house from 5:30 p.m. to 6:30 p.m., 
central time.

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-2008-0058; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
     Public Hearing: A public hearing will be held (see DATES) 
at the Nettles Auditorium at Alabama Southern Community College, 2800 
South Alabama Avenue, Monroeville, AL 36460.
    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: Jeff Powell, Aquatic Species 
Biologist, U.S. Fish and Wildlife Service, Alabama Field Office, 1208 
Main Street, Daphne, AL 36526; telephone: 251-441-5858; facsimile: 251-
441-6222. 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 Alabama sturgeon that was published in the Federal Register on 
May 27, 2008 (73 FR 30361), 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 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 Alabama sturgeon;
    (b) The amount and distribution of Alabama sturgeon 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 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 we can improve or modify our approach to designating 
critical habitat 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.
    (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.
    (9) Information on flow requirements (magnitude, seasonality, 
duration, and frequency) of the sturgeon.
    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 
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, Alabama Field Office (see FOR 
FURTHER INFORMATION CONTACT). You may obtain copies of the proposed 
rule and the DEA on the Internet at http://www.regulations.gov at 
Docket Number FWS-R4-ES-2008-0058, or by mail from the Alabama Field 
Office (see FOR FURTHER INFORMATION CONTACT section).

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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 Alabama sturgeon, refer to the proposed 
designation of critical habitat published in the Federal Register on 
May 27, 2008 (73 FR 30361). That proposal had a 60-day comment period, 
ending July 28, 2008.
    For more information on the threatened Alabama sturgeon or its 
habitat, refer to the proposed and final listing rules published in the 
Federal Register on March 26, 1999 (64 FR 14676), and on May 5, 2000 
(65 FR 26438), or from the Alabama 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 critical 
habitat rule is made final, section 7 of the Act will prohibit 
destruction or adverse modification of Alabama sturgeon 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.

Public Hearing

    Section 4(b)(5)(E) of the Act requires us to hold a public hearing 
if any person requests it within 45 days of the publication of a 
proposed rule. In response to requests from the public, the Service 
will conduct a public hearing for this proposed revision to critical 
habitat on the dates and times and at the addresses identified in the 
DATES and ADDRESSES sections above.
    People wishing to make an oral statement for the record are 
encouraged to provide a written copy of their statement and present it 
to us at the hearing. In the event there is a large attendance, the 
time allotted for oral statements may be limited. Oral and written 
statements receive equal consideration. There are no limits on the 
length of written comments submitted to us. If you have any questions 
concerning the public hearing, please contact the Alabama Field Office 
(see FOR FURTHER INFORMATION CONTACT).
    People needing reasonable accommodations in order to attend and 
participate in the public hearings should contact Jeff Powell, Alabama 
Ecological Services Office, at (251) 441-5858, as soon as possible. In 
order to allow sufficient time to process requests, please call no 
later than one week before the hearing date. Information regarding this 
notice is available in alternative formats upon request.

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 
27, 2008 (73 FR 30361), proposed rule to designate critical habitat for 
the Alabama sturgeon.
    The intent of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed critical habitat 
designation for the Alabama sturgeon. The DEA quantifies the economic 
impacts of all potential conservation efforts for the Alabama sturgeon; 
some of these costs will likely be incurred with or without critical 
habitat designated. 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 
sturgeon over the next 20 years. We determined 20 years is 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. The DEA quantifies economic 
impacts of Alabama sturgeon conservation efforts associated with the 
following categories of activity: (1) Potential economic impacts on 
activities that depend on water management; (2) potential economic 
impacts on activities that affect water quality; (3) potential economic 
impacts on dredging activities; and (4) potential impacts on other 
activities.
    The pre-designation (2000 to 2008) impacts associated with species 
conservation activities for the Alabama sturgeon in areas proposed as 
critical habitat are approximately $332,000, applying a 3 percent 
discount rate, and $367,000, applying a 7 percent discount rate. The 
potential post-designation (2009 to 2028) baseline impacts (those 
estimated to occur regardless of the critical habitat designation) 
associated with species conservation were estimated at $1.33 million 
applying a 3 percent discount rate, or $962,000 applying a 7 percent 
discount rate. Dredging accounted for 80.1 percent of the potential 
post-designation baseline impacts (discounted at 7 percent), followed 
by water management (8.3 percent), water quality (7.3 percent), and 
other activities (4.4 percent).
    We expect incremental impacts attributed to the proposed critical 
habitat designation will be associated with water quality, water 
management, dredging, and other activities. The DEA estimates the post-
designation incremental economic impacts for the next 20 years from 
$93,800 applying a 3 percent discount rate, or $71,200 applying a 7 
percent discount rate. Water quality accounted for 32.9 percent 
(discounted at 7 percent) of potential incremental impacts, followed by 
water management (37.3 percent), other activities (19.7 percent), and 
dredging (10.2 percent).
    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 
evaluating specific areas for potential economic exclusions from 
critical habitat; therefore, the methods for distinguishing these two 
categories of costs is important. In the absence of

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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.

Revision to Proposed Critical Habitat Designation (73 FR 30361)

    We are also proposing to change the first primary constituent 
element (PCE) from its original description because we have determined 
that the original wording failed to indicate that the water flow needs 
of the species are relative to the season of the year. For example, 
sturgeon likely need a higher flow in the spring to successfully spawn 
than the 4,640 cubic feet per second (cfs) flow indicated in the 
original PCE. Also, we have determined that it is more descriptive and 
helpful to potential action agencies to describe the habitat needs of 
the species in relation to flow seasonality and how seasonal flows 
allow for maintenance of all life stages. Lastly, we have determined 
that while we believe flows lower than 4,640 cfs may involve adverse 
effects to the species (and therefore we will continue to recommend 
consultation), depending upon other factors, lower flows may not result 
in measurable adverse effects. Therefore, focusing on 4,640 cfs in the 
PCE fails to account for the complexity of variables that need to be 
analyzed to determine effects to the sturgeon.
    Therefore, we have decided to revise the proposed PCE as stated 
below:

    A flow regime (i.e., the magnitude, frequency, duration, 
seasonality of discharge over time) necessary to maintain all life 
stages of the species in the riverine environment, including 
migration, breeding site selection, resting, larval development, and 
protection of cool water refuges (i.e., tributaries).

Required Determinations--Amended

    In our May 27, 2008, proposed rule (73 FR 30361), 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 below 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 
rulemaking.
    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 Alabama sturgeon would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities, such as activities that depend 
on water management, activities that affect water quality, dredging 
activities, and other activities such as construction of bridges and 
natural gas pipelines. 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

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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 Alabama 
sturgeon. Based on that analysis, only small business entities that 
rely on water management, water quality, dredging, or construction 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 pulp mills, wood pellet 
manufacturing, residential, commercial, or industrial development 
activities, construction activities, and dredging activities in areas 
proposed for final critical habitat for the Alabama sturgeon. These 
impacts would be expected to be borne by small businesses that rely on 
water management, water quality, dredging, or construction. The average 
cost to this type of small business over the next twenty years is 
estimated to range from $604 to $5,570, 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 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 Alabama Field Office and 
Southeast Regional Office, U.S. Fish and Wildlife Service.

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 amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as proposed to be 
amended at 73 FR 30361, May 27, 2008, as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Critical habitat for Alabama sturgeon (Scaphirhyncus suttkusi) 
in Sec.  17.95(e), which was proposed to be added on May 27, 2008, at 
73 FR 30373, is proposed to be amended by revising paragraph (2)(i) as 
follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes
* * * * *
    Alabama sturgeon (Scaphirhynchus suttkusi)
* * * * *
    (2) * * *
    (i) A flow regime (i.e., the magnitude, frequency, duration, 
seasonality of discharge over time) necessary to maintain all life 
stages of the species in the riverine environment, including migration, 
breeding site selection, resting, larval development, and protection of 
cool water refuges (i.e., tributaries).
* * * * *

Authority

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

    Dated: December 18, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-30750 Filed 12-29-08; 8:45 am]
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