[Federal Register Volume 76, Number 92 (Thursday, May 12, 2011)]
[Proposed Rules]
[Pages 27629-27632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11607]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2008-0107; MO 92210-0-0009-B2]
RIN 1018-AV88


Endangered and Threatened Wildlife and Plants; Listing of the 
Altamaha Spinymussel 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, announce the reopening 
of the public comment period on the October 6, 2010, proposed 
designation of critical habitat for the Altamaha spinymussel (Elliptio 
spinosa) under the Endangered Species Act of 1973, as amended (Act). We 
also announce the availability of a draft economic analysis (DEA) of 
the proposed designation of critical habitat and an amended required 
determinations section of the proposal. We are reopening the comment 
period to allow all interested parties an opportunity to comment 
simultaneously on the proposed rule, 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 comments received on or before June 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-2008-0107.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: Docket No. FWS-R4-ES-2008-0107; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 
2042-PDM; 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: Sandra Tucker, Field Supervisor, U.S. 
Fish and Wildlife Service, Georgia Ecological Services Office, 105 
Westpark Dr., Suite D, Athens, GA 30606; telephone 706-613-9493; 
facsimile 706-613-6059. 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 listing and designation of 
critical habitat for the Altamaha spinymussel that was published in the 
Federal Register on October 6, 2010 (75 FR 61664), our DEA of the 
proposed designation, and the amended required determinations provided 
in this document. We will consider information and recommendations from 
all interested parties. We are particularly interested in comments 
concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species 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.
    (2) Specific information on:
    (a) The distribution of the Altamaha spinymussel;
    (b) The amount and distribution of Altamaha spinymussel habitat; 
and
    (c) 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; and
    (d) What areas not occupied at the time of listing are essential to 
the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Any foreseeable economic, national security, or other relevant 
impacts that may result from 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.
    (5) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    (6) Information on the extent to which the description of economic 
impacts in the DEA is complete and accurate.
    (7) 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.
    (8) Which areas would be appropriate as critical habitat for the 
species.

[[Page 27630]]

    (9) Comments or information that may assist us in identifying or 
clarifying the primary constituent elements.
    (10) Whether any specific areas we are proposing as critical 
habitat should be considered for exclusion under section 4(b)(2) of the 
Act, and whether benefits of potentially excluding any specific area 
outweigh the benefits of including that area under section 4(b)(2) of 
the Act.
    (11) Information on the projected and reasonably likely impacts of 
climate change on the Altamaha spinymussel, and any special management 
needs or protections that may be needed in critical habitat areas we 
are proposing.
    If you submitted comments or information on the proposed rule (75 
FR 61664) during the initial comment period from October 6, 2010, to 
December 6, 2010, please do not resubmit them. 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 to the conservation of the species, 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 ADDRESSES. We will not 
consider comments sent by e-mail or fax or to an address not listed in 
ADDRESSES.
    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. 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.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the proposed rule and DEA, will be 
available for public inspection on http://www.regulations.gov at Docket 
Number FWS-R4-ES-2008-0107, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Georgia Ecological 
Services Office, Athens, Georgia (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-2008-0107, or 
by mail from the U.S. Fish and Wildlife Service, Georgia Ecological 
Services Office, Athens, Georgia (see FOR FURTHER INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for the Altamaha spinymussel in 
this document. For more information on previous Federal actions 
concerning the Altamaha spinymussel or its habitat, refer to the 
proposed listing and critical habitat rule published in the Federal 
Register on October 6, 2010 (75 FR 61664), which is available online at 
http://www.regulations.gov (at Docket Number FWS-R4-ES-2008-0107) or 
from the U.S. Fish and Wildlife Service, Georgia Ecological Services 
Office, Athens, Georgia (see FOR FURTHER INFORMATION CONTACT).
    On October 6, 2010, we published a proposed rule to designate 
critical habitat for the Altamaha spinymussel (75 FR 61664). We 
proposed to designate approximately 240 kilometers (149 miles) of 
mainstem river channel in four units as critical habitat in Appling, 
Ben Hill, Coffee, Jeff Davis, Long, Montgomery, Tattnall, Telfair, 
Toombs, Wayne, and Wheeler Counties, Georgia. That proposal had a 60-
day comment period, ending December 6, 2010.
    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If the proposed rule is 
made final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
affecting critical habitat must consult with us on the effects of their 
proposed actions, under section 7(a)(2) of the Act.

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 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 
the Altamaha spinymussel, the potential benefits of critical habitat 
include public awareness of the presence of the Altamaha spinymussel 
and the importance of habitat protection, and, where a Federal nexus 
exists, increased habitat protection for the Altamaha spinymussel 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, funded, or authorized by 
Federal agencies.
    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).

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 Altamaha spinymussel. The DEA describes the 
economic impacts of all potential conservation efforts for the Altamaha 
spinymussel; some of these costs will likely be incurred regardless of 
whether we designate critical habitat.

[[Page 27631]]

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 when 
evaluating the benefits of excluding particular areas under section 
4(b)(2) of the Act. 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 designation. For a further description of the 
methodology of the analysis, see Chapter 2, ``Framework for the 
Analysis,'' of the DEA.
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for the 
Altamaha spinymussel over the next 30 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 30-year timeframe. It identifies potential 
incremental costs as a result of the proposed critical habitat 
designation; these are those costs attributed to critical habitat over 
and above those baseline costs attributed to listing. The DEA 
quantifies economic impacts of Altamaha spinymussel conservation 
efforts associated with the following categories of activity: Electric 
power generation and transmission, transportation, and recreation. 
Applying a seven percent discount rate, electric power generation and 
transmission is estimated to incur the largest impact at $26,700 over 
the next 30 years (2011-2040); overall incremental impacts associated 
with the designation are estimated at $37,100 over the same time 
period.
    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 October 6, 2010, proposed rule (75 FR 61664), 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 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. 
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 determination concerning the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

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). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. Based on our DEA of the proposed 
designation, we provide our analysis for determining whether the 
proposed rule would result in a significant economic impact on a 
substantial number of small entities. Based on comments we receive, we 
may revise this determination as part of our final 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 Altamaha spinymussel would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities, such as transportation, 
electric power generation and transmission, and recreation. 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 Altamaha spinymussel 
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.

[[Page 27632]]

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 Altamaha 
spinymussel. Only the transportation industry included small entities 
likely to incur incremental costs associated with the designation and 
these costs, which are largely associated with formal consultation 
under section 7 of the Act, are expected to result in less than 0.01 
percent of the annual revenue threshold that small transportation 
entities must meet. Please refer to the DEA 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. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and the Service. We have 
identified one category of small entity 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 critical habitat 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 
U.S. Fish and Wildlife Service, Athens, Georgia Ecological Services 
Office.

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

    Dated: May 2, 2011.
Will Shafroth,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-11607 Filed 5-11-11; 8:45 am]
BILLING CODE 4310-55-P