[Federal Register Volume 75, Number 239 (Tuesday, December 14, 2010)]
[Proposed Rules]
[Pages 77817-77820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31227]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2010-0024; MO 92210-0-0009-B4]
RIN 1018-AW89


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Mississippi Gopher Frog

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, 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 
availability of the draft economic analysis (DEA) for the June 3, 2010, 
proposed designation of critical habitat for the Mississippi gopher 
frog (Rana sevosa) [= Rana capito sevosa] under the Endangered Species 
Act of 1973, as amended (Act). We also announce the reopening of the 
comment period 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 critical habitat designation, 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.

DATES: We will consider public comments received on or before January 
13, 2011. Comments must be received by 11:59 p.m. Eastern Time on the 
closing date. Any comments that we receive after the closing date may 
not be considered in the final decision on this action.

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-R4-ES-2010-0024.
     U.S. mail or hand-delivery: Public Comments 
Processing, Attn: FWS-R4-ES-2010-0024; 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: Stephen Ricks, Field Supervisor, 
Mississippi Fish and Wildlife Office, 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 our proposed designation of critical habitat 
for the Mississippi gopher frog that was published in the Federal 
Register on June 3, 2010 (75 FR 31387), the DEA of the proposed 
designation of critical habitat for the Mississippi gopher frog, 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 areas as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the Mississippi gopher 
frog from human activity, the degree of which can be expected to

[[Page 77818]]

increase due to the designation, and whether that increase in threat 
outweighs the benefit of designation, such that the designation of 
critical habitat is prudent.
    (2) Specific information on:
    (a) The amount and distribution of Mississippi gopher frog habitat;
    (b) What areas occupied by the species at the time of listing that 
contain features essential for the conservation of the species we 
should include in the designation and why;
    (c) Special management considerations or protection for the 
physical and biological features essential to Mississippi gopher frog 
conservation that have been identified in the proposed rule that may be 
needed, including managing for the potential effects of climate change; 
and
    (d) What areas not occupied by the species at the time of listing 
are essential to the conservation of the species and why.
    (3) Specific information on the Mississippi gopher frog and the 
physical and biological features essential to the conservation of the 
species.
    (4) Any information on the biological or ecological requirements of 
the species.
    (5) Land-use designations and current or planned activities in the 
subject areas and their possible impacts on the species and the 
proposed critical habitat.
    (6) Any foreseeable economic, national security, or other relevant 
impacts that may result from designating any area that may be included 
in the final designation. We are particularly interested in any impacts 
on small entities and the benefits of including or excluding areas from 
the proposed designation 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) Information on the extent to which the description of economic 
impacts in the DEA is complete and accurate.
    (9) 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.
    (10) The appropriateness of the taxonomic name change of the 
Mississippi gopher frog from Rana capito sevosa to Rana sevosa.
    (11) 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.
    If you submitted comments or information on the proposed rule (75 
FR 31387) during the initial comment period from June 3, 2010, to 
August 2, 2010, please do not resubmit them. We will incorporate them 
into the public record as part of this comment period, and we will 
fully consider them in the preparation of our final determination. Our 
final determination concerning revised 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 proposed are not essential, are appropriate for exclusion under 
section 4(b)(2) of the Act, or are not appropriate for exclusion.
    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 your personal identifying information--will be 
posted on the Web site. We will post all hard copy comments on http://www.regulations.gov as well. If you submit a hard copy 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 the 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-2010-0024 or by mail from the Mississippi 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 Mississippi gopher frog in this 
document. For more information on previous Federal actions concerning 
the Mississippi gopher frog, refer to the proposed designation of 
critical habitat published in the Federal Register on June 3, 2010 (75 
FR 31387). For more information on the Mississippi gopher frog or its 
habitat, refer to the final listing rule published in the Federal 
Register on December 4, 2001 (66 FR 62993), which is available online 
at http://www.regulations.gov (at Docket Number FWS-R4-ES-2010-0024) or 
from the Mississippi Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).
    On June 3, 2010, we published a proposed rule to designate critical 
habitat for the Mississippi gopher frog (75 FR 31387). We proposed to 
designate as critical habitat a total of 792 hectares (1,957 acres) in 
11 units within Forrest, Harrison, Jackson, and Perry Counties, 
Mississippi. That proposal had a 30-day comment period, ending August 
2, 2010. We will submit for publication in the Federal Register a final 
critical habitat designation on or before May 30, 2011.
    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.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on

[[Page 77819]]

national security, or any other relevant impact of specifying any 
particular area as critical habitat. We may exclude an area from 
critical habitat if we determine that the benefits of excluding the 
area outweigh the benefits of including the area as critical habitat, 
provided such exclusion will not result in the extinction of the 
species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from designation due 
to State or Federal laws that may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan. In the case of 
Mississippi gopher frog, the benefits of critical habitat include 
public awareness of the presence of the Mississippi gopher frog and the 
importance of habitat protection, and, where a Federal nexus exists, 
increased habitat protection for Mississippi gopher frog due to 
protection from adverse modification or destruction of critical 
habitat. In practice, situations with a Federal nexus exist primarily 
on Federal lands or for projects undertaken by Federal agencies.
    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).

Draft Economic Analysis

    The purpose of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed critical habitat 
designation for the Mississippi gopher frog that we published in the 
Federal Register on June 3, 2010 (75 FR 31387). The DEA separates 
conservation measures into two distinct categories according to 
``without critical habitat'' and ``with critical habitat'' scenarios. 
The ``without critical habitat'' scenario represents the baseline for 
the analysis, considering protections otherwise afforded to the gopher 
frog (e.g., under the Federal listing and other Federal, State, and 
local regulations). The ``with critical habitat'' scenario describes 
the incremental impacts specifically due to designation of critical 
habitat for the species. In other words, these incremental conservation 
measures and associated economic impacts would not occur but for the 
designation. Conservation measures implemented under the baseline 
(without critical habitat) scenario are described qualitatively within 
the DEA, but economic impacts associated with these measures are not 
quantified. Economic impacts are only quantified for conservation 
measures implemented specifically due to the designation of critical 
habitat (i.e., incremental impacts).
    The DEA describes economic impacts associated with designation of 
critical habitat for the Mississippi gopher frog based on the following 
categories: (1) Costs associated with economic activities, including 
development and forestry; (2) costs associated with military 
activities; and (3) costs associated with active species management. 
The DEA provides estimated costs of the foreseeable potential economic 
impacts of the proposed critical habitat designation for the 
Mississippi gopher frog over the next 20 years, which was determined to 
be the appropriate period for analysis because limited planning 
information is available for most activities to forecast activity 
levels for projects beyond a 20-year timeframe. These incremental costs 
are the costs we may consider in the final designation of critical 
habitat when evaluating the benefits of excluding particular areas 
under section 4(b)(2) of the Act. For a further description of the 
methodology of the analysis, see Chapter 2 (``Framework for the 
Analysis'') of the DEA.
    The DEA estimates the incremental impacts of conservation 
activities for the Mississippi gopher frog to be $102,000 over the next 
20 years ($9,610 in annualized impacts, assuming a 7 percent discount 
rate). All of these impacts stem from the administrative cost of 
addressing adverse modification of critical habitat during section 7 
consultations. Parties involved in section 7 consultations include the 
Service, the action agency, and in some cases, a private entity 
involved in the project or land use activity. Incremental impacts 
stemming from additional gopher frog conservation measures requested by 
the Service during section 7 consultation are not expected in occupied 
areas because project modifications that may be needed to minimize 
impacts to the species would coincidentally minimize impacts to 
critical habitat. In unoccupied areas, project modifications resulting 
from consultation would be considered incremental impacts of the 
critical habitat designation.
    The DEA also discusses the potential economic benefits associated 
with the designation of critical habitat. However, because the Service 
believes that the direct benefits of the designation are best expressed 
in biological terms, this analysis does not quantify or monetize 
benefits; only a qualitative discussion of economic benefits is 
provided.
    As we 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 
exclusion will not result in the extinction of this species.

Required Determinations--Amended

    In our June 3, 2010, proposed rule (75 FR 31387), 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 (2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.), the National Environmental Policy Act (42 U.S.C. 
4321 et seq.), and the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951). However, based on the DEA data, we are 
amending our required determinations concerning the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).

[[Page 77820]]

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 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 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 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 Mississippi gopher frog would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities, such as timber operations, and 
residential and commercial development along with the accompanying 
infrastructure associated with such projects including road, storm 
water drainage, bridge and culvert construction and maintenance. 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. In areas where the Mississippi 
gopher frog is present, Federal agencies already are required to 
consult with us under section 7 of the Act on activities they fund, 
permit, or implement that may affect the species, due to the endangered 
status of the species. If we finalize this proposed critical habitat 
designation, 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 Mississippi 
gopher frog. As discussed in the DEA, the Service and any Federal 
action agency are the only entities with direct compliance costs 
associated with the proposed critical habitat designation. These 
Federal agencies are not considered small business entities under the 
Regulatory Flexibility Act. As a consequence, this rule will not result 
in a significant impact on small entities. 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.

Authors

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

Authority

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

    Dated: December 6, 2010.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-31227 Filed 12-13-10; 8:45 am]
BILLING CODE 4310-55-P