[Federal Register Volume 75, Number 61 (Wednesday, March 31, 2010)]
[Proposed Rules]
[Pages 16046-16049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7131]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2009-0019]
[MO 92210-0-0008 B2]
RIN 1018-AV91


Endangered and Threatened Wildlife and Plants; Listing Casey's 
June Beetle as Endangered and Designation of Critical Habitat

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 comment period on our July 9, 2009, proposed listing 
and critical habitat designation for Casey's June beetle (Dinacoma 
caseyi) under the Endangered Species Act of 1973, as amended (Act). We 
also announce the availability of the 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 critical habitat designation, the 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 that we receive on or before April 30, 
2010.

ADDRESSES: 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-R8-
ES-2009-0019.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R8-ES-2009-0019; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    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 Bartel, Field Supervisor, U.S. 
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 
Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone (760) 431-
9440; facsimile (760) 431-5901. 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 intend that any final action resulting from the proposed rule 
will be based on the best scientific data available and will be as 
accurate and as effective as possible. Therefore, we request comments 
or information from the public, other concerned government agencies, 
the scientific community, industry, or other interested party during 
this reopened comment period on the proposed rule to list the Casey's 
June beetle (Dinacoma caseyi) with critical habitat that was published 
in the Federal Register on July 9, 2009 (74 FR 32857), including the 
DEA of the proposed critical habitat designation and the amended 
required determinations section provided in this document. We are 
particularly interested in comments concerning:
    (1) Any available information on known or suspected threats and 
proposed or ongoing projects with the potential to threaten Casey's 
June beetle, specifically:
    (a) The present or threatened destruction, modification or 
curtailment of its habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; and
    (e) Other natural or manmade factors affecting its continued 
existence.
    (2) Additional information concerning the range, distribution, and 
population size of this species, including the locations of any 
additional populations of this species.
    (3) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Endangered Species Act of 
1973, as amended (Act; 16 U.S.C. 1531 et seq.), including whether there 
are threats to Casey's June beetle 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.
    (4) Specific information on areas that provide habitat for Casey's 
June beetle that we did not discuss in the proposed rule, whether such 
areas contain the physical and biological features essential to the 
conservation of Casey's June beetle, and what special management 
considerations or protections may be required to maintain or enhance 
the essential features.
    (5) Land-use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (6) Any foreseeable economic, national security, or other relevant 
impact that may result from designating particular areas as critical 
habitat, and, in particular, any impacts to small entities (such as 
small businesses or small governments), and the benefits of including 
or excluding areas from the proposed designation that exhibit these 
impacts.
    (7) Whether any particular area being proposed as critical habitat 
should be excluded under section 4(b)(2) of the Act, and whether the 
benefits of potentially excluding any particular area outweigh the 
benefits of including that area under section 4(b)(2) of the Act.
    (8) Whether inclusion of tribal lands of the Agua Caliente Band of 
Cahuilla Indians of the Agua Caliente Indian Reservation, California 
(preferred name ``Agua Caliente Band of Cahuilla Indians''), in 
Riverside County is appropriate and why.
    (9) The likelihood of adverse social reactions to the designation 
of critical habitat, and how the consequences of such reactions, if 
they occur, would relate to the conservation of the species and 
regulatory benefits of the proposed critical habitat designation.
    (10) Information on the extent to which the description of 
potential economic impacts in the DEA is complete and accurate.
    (11) The potential effects of climate change on this species and 
its habitat and whether the critical habitat may adequately account for 
these potential effects.
    (12) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide an opportunity for greater 
public participation and understanding, or to assist us in 
accommodating public concerns and comments.
    If you submitted comments or information on the proposed rule (74 
FR 32857) during the initial comment period from July 9, 2009, to 
September 8, 2009, please do not resubmit them. These comments are 
included in the public record for this rulemaking, and

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we will fully consider them in the preparation of our final 
determination. Our final determination concerning listing the Casey's 
June beetle as an endangered species and designating critical habitat 
will take into consideration all written comments and any additional 
information we receive during both comment periods. On the basis of 
public comments, we may, during the development of our final 
determination, find that areas within the proposed critical habitat 
designation do not meet the definition of critical habitat, that some 
modifications to the described boundaries are appropriate, or that 
areas may or may not be appropriate for exclusion under section 4(b)(2) 
of the Act.
    You may submit your comments and materials concerning the proposed 
rule and the DEA associated with the proposed critical habitat 
designation by one of the methods listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
submission--including any personal identifying information--will be 
posted on the website. If your submission is made via hard copy 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. 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 to prepare this notice, 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, Carlsbad 
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). You may 
obtain copies of the proposed listing and proposed critical habitat (74 
FR 32857) and the DEA on the Internet at http://www.regulations.gov at 
Docket No. FWS-R8-ES-2009-0019, or by mail from the Carlsbad Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the proposed designation of critical habitat for Casey's June beetle in 
this document. For more detailed information on the taxonomy, biology, 
and ecology of Casey's June beetle, please refer to the 90-day finding 
on the petition to list the species under the Act, published in the 
Federal Register on August 8, 2006 (71 FR 44960); the 12-month finding, 
published in the Federal Register on July 5, 2007 (72 FR 36635); or the 
proposed listing and designation of critical habitat rule, published in 
the Federal Register on July 9, 2009 (74 FR 32857). Alternatively, you 
may contact the Carlsbad Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).
    Section 3 of the Act defines critical habitat as ``(i) the specific 
areas within the geographical area occupied by the species, at the time 
it is listed in accordance with... [the Act], on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed . . 
. upon a determination by the Secretary that such areas are essential 
for the conservation of the species'' (16 USC 1532(5)(A)). 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 that may affect 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 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 prepared a DEA (Industrial Economics Inc. 2010) that identifies 
and analyzes the potential impacts associated with the proposed 
designation of critical habitat for Casey's June beetle that we 
published in the Federal Register on July 9, 2009 (74 FR 32857). The 
DEA quantifies the economic impacts of all potential conservation 
efforts for Casey's June beetle; some of these costs will likely be 
incurred regardless of whether or not we finalize the 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 that 
are already in place for the species or that will be in place for the 
species upon listing (such as protections under the Act 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 
critical habitat designation for Casey's June beetle. In other words, 
the incremental costs are those attributable solely to the designation 
of critical habitat above and beyond the baseline costs. The DEA also 
discusses the potential benefits associated with the designation of 
critical habitat, but does not monetize these benefits. The incremental 
impacts are the impacts we may consider in the final designation of 
critical habitat when evaluating the benefit of excluding particular 
areas under section 4(b)(2) of the Act. The analysis forecasts both 
baseline and incremental impacts likely to occur if we finalize the 
proposed designation of critical habitat.
    The primary intended benefit of critical habitat is to support the 
conservation of endangered and threatened species, such as the Casey's 
June beetle. Thus, attempts to develop monetary estimates of the 
benefits of this proposed critical habitat designation would focus on 
the public's willingness to pay to achieve the conservation benefits to 
the beetle resulting from this designation. Quantification and 
monetization of species conservation benefits requires information on 
the incremental change in the probability of Casey's June beetle 
conservation that is expected to result from the designation. No 
studies exist that provide such information for this species. Even if 
this information existed, the published valuation literature does not 
support monetization of incremental changes in conservation probability 
for this species. Because it is not possible to determine the 
probability that benefits will occur in this instance, the Service has 
decided not to include such estimates in the DEA. Rather than rely on 
economic measures, the Service believes that the direct benefits of the 
proposed rule are best expressed in biological terms that can be 
weighed against the expected cost impacts of the rulemaking.
    The DEA (made available with the publication of this notice and 
referred to throughout this document unless otherwise noted) estimates 
the foreseeable economic impacts of the proposed critical habitat 
designation for Casey's June beetle. The economic analysis identifies 
potential incremental

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costs as a result of the proposed critical habitat designation, which 
are those costs attributed to critical habitat over and above those 
baseline costs associated solely with the listing. It also discusses 
the potential economic benefits of the proposed designation. The DEA 
describes economic impacts of Casey's June beetle conservation efforts 
associated with the following categories of activity: (1) residential 
and commercial development, (2) tribal activities, (3) flood control 
activities, and (4) recreational activities.
    Baseline economic impacts are those impacts that result from 
listing and other conservation efforts for Casey's June beetle. 
Conservation efforts related to development activities constitute the 
majority of total baseline costs (approximately 80 percent) in areas of 
proposed critical habitat. Impacts to flood control activities comprise 
the remaining approximately 20 percent of impacts. Total future 
baseline impacts are estimated to be $12,703,600 ($1,182,600 
annualized) in present value terms using a 7 percent discount rate over 
the next 20 years (2010 to 2029) in areas proposed as critical habitat 
(Industrial Economics Inc. 2010, pp. ES-7).
    Almost all incremental impacts attributed to the proposed critical 
habitat designation are expected to be related to development 
activities (approximately 100 percent). The DEA estimates total 
potential incremental economic impacts in areas proposed as critical 
habitat over the next 20 years (2010 to 2029) to be $9,792,270 
($924,131 annualized) in present value terms using a 7 percent discount 
rate (Industrial Economics Inc. 2010, p. ES-8). This value is based on 
an assumption of total avoidance of designated areas and thus 
represents the upper-bound potential cost for each project. As such, it 
likely overstates the expected absolute cost of future actions to 
protect critical habitat.
    The DEA considers both economic efficiency and distributional 
effects. In the case of habitat conservation, efficiency effects 
generally reflect the ``opportunity costs'' associated with the 
commitment of resources to comply with habitat protection measures 
(such as lost economic opportunities associated with restrictions on 
land use). The DEA also addresses how potential economic impacts are 
likely to be distributed, including an assessment of any local or 
regional impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. The DEA measures lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. Decision-makers can use this information to assess whether 
the effects of the critical habitat designation might unduly burden a 
particular group or economic sector.

Required Determinations--Amended

    In our proposed rule that published in the Federal Register on July 
9, 2009 (74 FR 32857), we indicated 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 to make 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. 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), and E.O. 12630 (Takings). However, based 
on the DEA data, we revised our required determinations concerning the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the Unfunded 
Mandates Reform Act (2 U.S.C. 1501 et seq.), and E.O. 13211 (Energy 
Supply, Distribution, or Use).

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 (5 
U.S.C. 802(2)), 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 critical habitat designation, we 
provide our analysis for determining whether the proposed designation 
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 the 
proposed 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 
Casey's June beetle would affect a substantial number of small 
entities, we consider 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. If we finalize this 
proposed listing and proposed critical habitat designation, Federal 
agencies must consult with us under section 7 of the Act if their 
activities may affect the species or the designated critical habitat. 
Incremental impacts to small entities may occur as a direct result of a 
required consultation under section 7 of the Act. Additionally, even in 
the absence of a Federal nexus, indirect incremental impacts may still 
result because, for example, a city may request project modifications 
due to the designation of critical habitat via its review under the 
California Environmental Quality Act (CEQA).
    In the DEA of the proposed critical habitat designation, we 
evaluate the

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potential economic effects on small business entities resulting from 
implementation of conservation actions related to the proposed critical 
habitat for Casey's June beetle. The DEA identifies the estimated 
incremental impacts associated with the proposed rulemaking as 
described in Appendix A of the DEA, and evaluates the potential for 
economic impacts related to activity categories including residential 
and commercial development, tribal activities, flood control 
activities, and recreational activities (Industrial Economics, Inc. 
2010). The DEA concludes that the incremental impacts resulting from 
this rulemaking that may be borne by small businesses will be 
associated only with development. Incremental impacts are either not 
expected for the other types of activities considered or, if expected, 
will not be borne by small entities.
    As discussed in Appendix A of the DEA, the only impacts of the 
proposed rule on small businesses would potentially result from lost 
land values associated with the identified development projects. In the 
20-year timeframe for the analysis, three developers may experience 
impacts. The potential incremental costs are expected to vary by 
project, depending on the size and the value of the land. The total 
annualized incremental impacts are forecast at approximately $965,000 
(discounted at 7 percent). The SBREFA analysis estimates that three 
small businesses may be affected by the designation of critical habitat 
(Industrial Economics, Inc. 2010, pp. A-3-A-6). Because only three 
small businesses may be affected, we do not find that the number of 
small entities that would be significantly affected is substantial.
    In summary, we considered whether the proposed rule 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 adopted, the proposed critical habitat 
would not have a significant economic impact on a substantial number of 
small entities. Therefore, an initial regulatory flexibility analysis 
is not required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), we make the following findings:
    (a) This rule would not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments,'' with 
two exceptions. It excludes ``a condition of federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and Tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding'' and the State, local, 
or Tribal governments ``lack authority'' to adjust accordingly. 
``Federal private sector mandate'' includes a regulation that ``would 
impose an enforceable duty upon the private sector, except (i) a 
condition of Federal assistance; or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. Designation of critical habitat may indirectly 
impact non-Federal entities that receive Federal funding, assistance, 
or permits, or that otherwise require approval or authorization from a 
Federal agency for an action may be indirectly impacted by the 
designation of critical habitat. However, the legally binding duty to 
avoid destruction or adverse modification of critical habitat rests 
squarely on the Federal agency. Furthermore, to the extent that non-
Federal entities are indirectly impacted because they receive Federal 
assistance or participate in a voluntary Federal aid program, the 
Unfunded Mandates Reform Act would not apply, nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) As discussed in the DEA of the proposed designation of critical 
habitat for Casey's June beetle, we do not believe that the rule would 
significantly or uniquely affect small governments because it would not 
produce a Federal mandate of $100 million or greater in any year; that 
is, it is not a ``significant regulatory action'' under the Unfunded 
Mandates Reform Act. The DEA concludes incremental impacts may occur 
due to project modifications that may need to be made for development 
and flood control activities; however, these are not expected to affect 
small governments. Incremental impacts stemming from various species 
conservation and development controls are expected to be borne by the 
Riverside County Flood Control and Water Conservation District (FCWCD), 
which is not considered a small government based on the county's 
population. Consequently, we do not believe that the critical habitat 
designation would significantly or uniquely affect small government 
entities. As such, a Small Government Agency Plan is not required.

Executive Order 13211--Energy Supply, Distribution, and Use

    On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply, distribution, and use. 
Executive Order 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. The OMB's guidance for 
implementing this Executive Order outlines nine outcomes that may 
constitute ``a significant adverse effect'' when compared to no 
regulatory action. As discussed in Appendix A, the DEA finds that none 
of these criteria are relevant to this analysis. The DEA identified no 
potentially affected entities involved in the production of energy, and 
a Statement of Energy Effects is therefore not required.

References Cited

    A complete list of all references we cited in the proposed rule and 
in this document is available on the Internet at http://www.regulations.gov or by contacting the Carlsbad Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT section).

Author

    The primary authors of this notice are the staff members of the 
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Authority

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

    Dated: March 23, 2010
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-7131 Filed 3-30-10; 8:45 am]
BILLING CODE 4310-55-S