[Federal Register Volume 75, Number 27 (Wednesday, February 10, 2010)]
[Proposed Rules]
[Pages 6613-6616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2870]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2008-0104]
[MO 92210-0-0009-B4]
[RIN 1018-AU88]


Endangered and Threatened Wildlife and Plants; Listing with 
Designation of Critical Habitat for the Georgia Pigtoe Mussel, 
Interrupted Rocksnail, and Rough Hornsnail

AGENCY: Fish and Wildlife Service, Interior.

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

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the 
availability of the draft economic analysis for the proposed 
designation of critical habitat for 3 mollusks, Georgia pigtoe mussel 
(Pleurobema hanleyianum), interrupted rocksnail (Leptoxis foremani), 
and rough hornsnail (Pleurocera foremani), 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 for an 
additional 30 days to allow all interested parties an opportunity to 
comment simultaneously on the proposed listing and designation of 
critical habitat for the 3 mollusks, the associated DEA, and the 
amended required determinations section. Comments previously submitted 
need not be resubmitted and will be fully considered in preparation of 
the final rule. We also announce a public hearing; the public is 
invited to review and comment on any of the above actions associated 
with the proposed listing and critical habitat designation at the 
public hearing or in writing.

DATES: Written Comments: We will consider public comments received or 
postmarked on or before March 12, 2010.
    Public Hearing: We will hold a public hearing from 7 to 10 p.m. 
Central Time, on Tuesday, March 2, 2010, on the campus of Auburn 
University Montgomery, 7440 East Drive, Montgomery, Alabama, at the 
Taylor Center in conference room 223.
    Maps of the critical habitat units and information on the species 
will be available for public review at the hearing location for 1 hour 
prior to the public hearing (6 to 7 p.m.).

ADDRESSES: Written Comments: You may submit comments by one of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-R4-
ES-2008-0104.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R4-ES-2008-0104; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    Public Hearing: We will hold the public hearing on March 2, 2010 at 
7 p.m. Central Time, at the campus of Auburn University Montgomery, 
Taylor Center-conference room 223, 7440 East Drive, Montgomery, 
Alabama. We will post all comments and the public hearing transcript on 
http://www.regulations.gov. This generally means that we will post any 
personal

[[Page 6614]]

information you provide us (see the Public Comments section below for 
more information).

FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor, 
Mississippi Fish and Wildlife Office at 6578 Dogwood View Parkway, 
Jackson, MS 39213; by telephone (601-321-1122); or by facsimile (601-
965-4340). 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 the proposed listing and designation of 
critical habitat for Georgia pigtoe mussel, interrupted rocksnail, and 
rough hornsnail that was published in the Federal Register on June 29, 
2009 (74 FR 31114), the DEA of the proposed designation of critical 
habitat for Georgia pigtoe mussel, interrupted rocksnail, and rough 
hornsnail, and the amended required determinations provided in this 
rule. Verbal testimony or written comments may also be presented during 
the public hearing (see the Public Hearing section below for more 
information). 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 areas as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to Georgia pigtoe mussel, 
interrupted rocksnail, and rough hornsnail from human activity, the 
degree of which can be expected to increase due to the designation, and 
whether the benefit of designation would outweigh threats to the 
species caused by the designation, such that the designation of 
critical habitat is prudent.
    (2) Specific information on:
     The amount and distribution of Georgia pigtoe mussel, 
interrupted rocksnail, and rough hornsnail habitat;
     What areas containing features essential to the 
conservation of the species should be included in the designation and 
why;
     Special management considerations or protections for the 
features essential to Georgia pigtoe mussel, interrupted rocksnail, and 
rough hornsnail conservation that have been identified in the proposed 
rule may need, including managing for the potential effects of climate 
change; and
     What areas not currently occupied by the 3 species are 
essential to the conservation of the species and why.
    (3) Specific information on Georgia pigtoe mussel, interrupted 
rocksnail, and rough hornsnail and the habitat components (physical and 
biological features) essential to the conservation of these species.
    (4) Any information on the biological or ecological requirements of 
these species.
    (5) Land-use designations and current or planned activities in 
areas occupied by the species, and their possible impacts on the 
species and the proposed critical habitat.
    (6) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities and the benefits of including or excluding 
areas that are subject to these impacts.
    (7) 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.
    (8) 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.
    You may submit your comments and materials concerning this proposed 
rule or DEA by one of the methods listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including your personal identifying information--will be 
posted on the website. We will post all hardcopy comments on http://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. Please 
include sufficient information with your comments to allow us to verify 
any scientific or commercial information you include.
    Comments and materials we receive, as well as supporting 
documentation used in preparing this proposed rule and DEA, 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, Mississippi Fish and Wildlife 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-2008-0104, or by mail from the Mississippi Field Office (see 
FOR FURTHER INFORMATION CONTACT section).

Public Hearing

    We are holding a public hearing on the date listed in the DATES 
section at the address listed in the ADDRESSES section. We are holding 
this public hearing to provide interested parties an opportunity to 
provide verbal testimony (formal, oral comments) or written comments 
regarding the proposed critical habitat designation, the associated 
DEA, and the amended required determinations section. An informational 
session will be held on the day of the hearing from 6:00 p.m. to 7:00 
p.m. Central Time. During this session, Service biologists will be 
available to provide information and address questions on the proposed 
rule in advance of the formal hearing.
    People needing reasonable accommodations in order to attend and 
participate in the public hearings should contact Stephen Ricks, 
Mississippi Fish and Wildlife Office, at 601-321-1122, as soon as 
possible (see FOR FURTHER INFORMATION CONTACT section). In order to 
allow sufficient time to process requests, please call no later than 1 
week before the hearing date. Information regarding this notice is 
available in alternative formats upon request.

Background

    We proposed to list the Georgia pigtoe mussel (Pleurobema 
hanleyianum), interrupted rocksnail (Leptoxis foremani), and rough 
hornsnail (Pleurocera foremani), as endangered species, with critical 
habitat under the Act, on June 29, 2009 (74 FR 31114).
    The Georgia pigtoe, interrupted rocksnail, and rough hornsnail are 
endemic to the Coosa River drainage within the Mobile River Basin of 
Alabama, Tennessee, and Georgia. These 3 species have disappeared from 
large portions of their natural ranges due to the construction of dams 
that eliminated or reduced water currents and caused changes in habitat 
and water quality. The surviving populations are small, localized, and 
highly vulnerable to water quality and habitat deterioration.
    We proposed to designate critical habitat concurrently with listing 
for the Georgia pigtoe, interrupted rocksnail, and rough hornsnail 
under the Act. In total, approximately 258 kilometers

[[Page 6615]]

(km) (160 miles (mi)) of stream and river channels fall within the 
boundaries of the proposed critical habitat designation for the 3 
species: 153 km (95 mi) for the Georgia pigtoe, 101 km (63 mi) for the 
interrupted rocksnail, and 28 km (17 mi) for the rough hornsnail. The 
proposed critical habitat is located in Cherokee, Clay, Coosa, Elmore 
and Shelby Counties, Alabama; Gordon, Floyd, Murray, and Whitfield 
Counties, Georgia; and Bradley and Polk Counties, Tennessee.
    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 are required to 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 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. We have not proposed to 
exclude any areas from critical habitat. However, the final decision on 
whether to exclude any areas will be based on the best scientific data 
available at the time of the final designation, including information 
obtained during the comment period and information about the economic 
impact of designation. Accordingly, we have prepared a draft economic 
analysis concerning the proposed critical habitat designation (DEA), 
which is available for review and comment (see ADDRESSES section).
    The intent of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed critical habitat 
designation for the 3 mollusks. The DEA quantifies the economic impacts 
of all potential conservation efforts for the 3 mollusks, some of which 
will likely be incurred whether or not 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 DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for the 
species over the next 30 years, which we 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 30-year timeframe. The DEA estimates the baseline 
costs associated with potential future conservation efforts for the 3 
mollusks to be $8.89 million to $9.16 million annually, assuming a 
seven percent discount rate. Ninety-six percent of baseline costs 
quantified in this analysis are conservation efforts related to lost 
hydropower production value at 3 facilities. The remaining four percent 
of potential post-designation baseline costs are related to 
transportation activities, water quality management activities, and 
National Forest management activities. The DEA anticipates that 
incremental costs associated with this rulemaking will be 
administrative in nature because the consideration of adverse 
modification for the 3 mollusks is not expected to result in 
significant additional conservation efforts and measures for the 
mollusks above the consideration of jeopardy in occupied habitat. 
Additionally, designated critical habitat for 11 other mussels with 
similar primary constituent elements and threats as the 3 mollusks 
overlap with all but 5 river miles of the proposed critical habitat for 
these 3 mussel species. Therefore, activities that are already 
considered and planned for the 11 other mussels are considered in the 
baseline cost verses the incremental cost of this proposed designation. 
As a result, the total incremental costs associated with this rule are 
estimated to be $354,000 over 30 years, or $43,000 annually, discounted 
at seven percent.

Required Determinations--Amended

    In our June 29, 2009, proposed rule (74 FR 31114), 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 this determination. In this 
document, we affirm the information in our proposed rule concerning: 
Executive Order (E.O.) 13132 (Federalism), E.O. 12988 (Civil Justice 
Reform), the Paperwork Reduction Act, the National Environmental Policy 
Act, the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR 
22951), E.O. 12866 (Regulatory Planning and Review), E.O. 13211 (Energy 
Supply, Distribution, and Use), E.O. 12630 (Takings), and the Unfunded 
Mandates Reform Act (2 U.S.C. 1501 et seq.). However, based on the DEA 
data, we are amending our required determinations concerning the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

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), 
as described below. 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

[[Page 6616]]

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 a final rulemaking.
    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.
    To determine if the proposed designation of critical habitat for 
the Georgia pigtoe mussel (Pleurobema hanleyianum), interrupted 
rocksnail (Leptoxis foremani), and rough hornsnail (Pleurocera 
foremani) would affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities, such as residential and commercial 
development. 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 only affects activities conducted, 
funded, permitted, or authorized by Federal agencies.
    If we finalize this proposed listing rule and critical habitat 
designation, Federal agencies must consult with us under section 7 of 
the Act if their activities may affect designated critical habitat. In 
areas where the 3 mollusks are present, Federal agencies will also be 
required to consult with us under section 7 of the Act, due to the 
endangered status of the species. Consultations to avoid the 
destruction or adverse modification of critical habitat would be 
incorporated into the same 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 Georgia pigtoe 
mussel (Pleurobema hanleyianum), interrupted rocksnail (Leptoxis 
foremani), and rough hornsnail (Pleurocera foremani). Based on that 
analysis, impacts on small entities due to this rule are expected to be 
modest because the incremental costs of the rule are estimated to be 
administrative in nature. The only incremental impacts associated with 
this rulemaking are administrative costs of consultation under section 
7 of the Act. The administrative costs described in Appendix B of the 
DEA are predominantly associated with water management, water quality, 
National Forest, and construction. The following percentages are 
estimated annualized incremental impacts by activities discounted at 7 
percent: 42 percent transportation construction, 33 percent water 
quality, 18 percent national forest activities, and 7 percent water 
management. Tribal lands are not expected to be affected by the 
designation. Incremental costs to all parties are not expected to 
exceed $43,600 annualized (discounted at seven percent). Third parties 
(some of which may be small entities) would bear significantly less 
than this total--approximately $5,060 annualized, or less than 1 
percent impact for all sectors. These potential impacts may result from 
consultations on changes in water management, actions that affect water 
quality, dredging activities, or other activities in the region. Please 
refer to the DEA of the proposed critical habitat designation for a 
more detailed discussion of potential impacts.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and the Service. For the 
reasons discussed above, 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.

Author

    The primary author of this document is the staff of the Mississippi 
Fish and Wildlife Office (see ADDRESSES section).

Authority

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

    Dated: January 25, 2010
Thomas L. Strickland
Assistant Secretary for Fish and Wildlife and Parks
[FR Doc. 2010-2870 Filed 2-9-10; 8:45 am]
BILLING CODE 4310-55-S