[Federal Register Volume 77, Number 101 (Thursday, May 24, 2012)]
[Proposed Rules]
[Pages 30988-30992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12572]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2011-0074; 4500030114]
RIN 1018-AX76


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Cumberland Darter, Rush Darter, Yellowcheek 
Darter, Chucky Madtom, and Laurel Dace

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period and announcement of 
public hearing.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening 
of the public comment period on our October 12, 2011, proposed 
designation of critical habitat for the Cumberland darter (Etheostoma 
susanae), rush darter (Etheostoma phytophilum), yellowcheek darter 
(Etheostoma moorei), chucky madtom (Noturus crypticus), and laurel dace 
(Chrosomus saylori) 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 for 
these five fishes 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 revised 
proposed rule, the associated DEA, and the amended required 
determinations section. Comments previously submitted need not be 
resubmitted, as they will be fully considered in preparation of the 
final rule. We will also hold a public hearing (see DATES and 
ADDRESSES).

DATES: Comment submission: We will consider all comments received or 
postmarked on or before June 25, 2012.

[[Page 30989]]

Comments submitted electronically using the Federal eRulemaking Portal 
(see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on 
the closing date.
    Public hearing: We will hold a public hearing from 7:00 p.m. to 
9:00 p.m., on June 7, 2012, in Clinton, Arkansas.

ADDRESSES: Document availability: You may obtain copies of the proposed 
rule and the draft economic analysis on the Internet at http://www.regulations.gov at Docket Number FWS-R4-ES-2011-0074, or by mail 
from the Tennessee Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).
    Comment submission: You may submit written comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R4-ES-2011-0074, which 
is the docket number for this rulemaking.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R4-ES-2011-0074; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. 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).
    Public hearing: The public hearing will be held at the Clinton High 
School Auditorium, 115 Joe Bowling Road, Clinton, Arkansas 72031. 
People needing reasonable accommodations in order to attend and 
participate in the public hearing should contact Jim Boggs, Arkansas 
Ecological Services Field Office, at 501-513-4470 no later than 1 week 
before the hearing date (see DATES) to allow sufficient time to 
accommodate requests.

FOR FURTHER INFORMATION CONTACT: Mary Jennings, Field Supervisor, U.S. 
Fish and Wildlife Service, Tennessee Ecological Services Field Office, 
446 Neal Street, Cookeville, TN 38501; by telephone 931-525-4973; or by 
facsimile 931-528-7075. Persons who use a telecommunications device for 
the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 
800-877-8339.

SUPPLEMENTARY INFORMATION: 

Changes From the Proposed Rule

    We are making the following changes to the proposed rule of October 
12, 2011 (76 FR 63360). A change in mapping methodology resulted in a 
revision to the total number of river kilometers (km) for the proposed 
designation of yellowcheek darter critical habitat. The beginning and 
ending points of critical habitat, as well as the unit descriptions (as 
described in the proposed critical habitat rule) will remain the same. 
The change in mapping results from an oversight in methods used for 
estimating the unit lengths in the other units proposed for designation 
as critical habitat. This methodology uses a better technique for 
following the curve and meander of the river channel and results in an 
additional 6.6 river kilometers (rkm) (4.1 river miles (rm)) for the 
yellowcheek darter. In addition, a revision to the ownership of one 
property resulted in a change of the total number of river kilometers 
(miles) in private ownership, from 148 rkm (92 rm) to 162.7 rkm (101.1 
rm), as well as a corresponding downward revision to other ownership 
types.
    The following table shows the revised totals. The data in this 
table replaces the data provided in table 3 of the proposed rule at 76 
FR 63385 (October 12, 2011).

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                                                                 Private       State, county,
        Unit              Location           Occupied         ownership km     city ownership    Total length km
                                                                  (mi)             km (mi)            (mi)
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1..................  Middle Fork        Yes...............       73.2 (45.5)                 0       73.2 (45.5)
                      Little Red River.
2..................  South Fork Little  Yes...............       33.3 (20.7)         0.5 (0.3)       33.8 (21.0)
                      Red River.
3..................  Archey Fork        Yes...............       28.2 (17.5)         0.3 (0.2)       28.5 (17.7)
                      Little Red River.
4..................  Devil's Fork       Yes...............       28.0 (17.4)                 0       28.0 (17.4)
                      Little Red River.
                                       -------------------------------------------------------------------------
    Total..........  .................  ..................     162.7 (101.1)         0.8 (0.5)     163.5 (101.6)
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Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed designation of critical habitat 
for the Cumberland darter (Etheostoma susanae), rush darter (Etheostoma 
phytophilum), yellowcheek darter (Etheostoma moorei), chucky madtom 
(Noturus crypticus), and laurel dace (Chrosomus saylori) that was 
published in the Federal Register on October 12, 2011 (76 FR 63360), 
our draft economic analysis (DEA) of the proposed designation, and the 
amended required determinations provided in this document. Verbal 
testimony or written comments may also be presented during the public 
hearing. 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 amount and distribution of each species' 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; and
    (c) 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) The projected and reasonably likely impacts of climate change 
on the critical habitat we are proposing.
    (6) Whether our approach to designating critical habitat could be 
improved or modified in any way to

[[Page 30990]]

provide for greater public participation and understanding, or to 
assist us in accommodating public concerns and comments.
    (7) Information on the extent to which the description of economic 
impacts in the DEA is complete and accurate.
    (8) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the DEA, and how the consequences 
of such reactions, if likely to occur, would relate to the conservation 
and regulatory benefits of the proposed critical habitat designation.
    If you submitted comments or information on the proposed rule (76 
FR 63360) during the initial comment period from October 12, 2011, to 
December 12, 2011, please do not resubmit them. We have incorporated 
them into the public record as part of the original 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, 
including public testimony from the public hearing mentioned above. 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 ADDRESSES. We request that 
you send comments only by the methods described 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 
No. FWS-R4-ES-2011-0074, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Tennessee Ecological 
Services Field Office (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 Cumberland darter, rush 
darter, yellowcheek darter, chucky madtom, and laurel dace in this 
document. For more information on previous Federal actions concerning 
the five fishes, refer to the proposed designation of critical habitat 
published in the Federal Register on October 12, 2011 (76 FR 63360). 
For more information on the five fishes or their habitats, refer to the 
final listing rule published in the Federal Register on August 9, 2011 
(FR 48722), which is available online at http://www.regulations.gov (at 
Docket Number FWS-R4-ES-2011-0027) or from the Tennessee Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

    On October 12, 2011, we published a proposed rule to designate 
critical habitat for these five fishes (76 FR 63360). We proposed to 
designate approximately 85 river kilometers (rkm) (53 river miles 
(rmi)) of critical habitat for the Cumberland darter in McCreary and 
Whitley Counties, Kentucky, and Campbell and Scott Counties, Tennessee; 
42 rkm (27 rmi) and 19 hectares (ha) (22 acres (ac)) of critical 
habitat for the rush darter in Etowah, Jefferson, and Winston Counties, 
Alabama; 157 rkm (98 rmi) of critical habitat for the yellowcheek 
darter in Cleburne, Searcy, Stone, and Van Buren Counties, Arkansas; 32 
rkm (20 rmi) of critical habitat for the chucky madtom in Greene 
County, Tennessee; and 42 rkm (26 rmi) of critical habitat for the 
laurel dace in Bledsoe, Rhea, and Sequatchie Counties, Tennessee. That 
proposal had a 60-day comment period, ending December 12, 2011. We will 
submit for publication in the Federal Register a final critical habitat 
designation for these five fishes on or before October 12, 2012.

Critical Habitat

    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 
these five fishes, the benefits of critical habitat include public 
awareness of the presence of the fishes and the importance of habitat 
protection, and, where a Federal nexus exists, increased habitat 
protection for the five fishes 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

[[Page 30991]]

comment period and information about the economic impact of 
designation. Accordingly, our DEA concerning the proposed critical 
habitat designation 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 Cumberland darter, rush darter, yellowcheek darter, 
chucky madtom, and laurel dace. 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 five fishes (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 these 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). 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 
five fishes 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. 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 the five fishes conservation efforts associated with the 
following categories of activity: (1) Coal mining; (2) oil and natural 
gas development; (3) agriculture, ranching, and silviculture; (4) 
recreational uses; (5) dredging, channelization, impoundments, dams, 
and diversions; (6) transportation; and (7) residential and commercial 
development.
    The DEA concluded that the types of conservation efforts requested 
by the Service during section 7 consultation regarding the five fishes 
were not expected to change due to critical habitat designations. The 
Service believes that results of consultation under the adverse 
modification and jeopardy standards are likely to be similar because 
(1) the primary constituent elements that define critical habitat are 
also essential for the survival of the five fishes, (2) the five fishes 
are limited or severely limited in the respective ranges, and (3) 
numbers of individuals in the surviving populations are small or very 
small. In addition, although two of the proposed critical habitat units 
for the Cumberland darter are unoccupied, incremental impacts of the 
critical habitat designations will be limited for the following 
reasons: (1) Both units are currently occupied by the federally 
threatened blackside dace, Chrosomus cumberlandensis; (2) both units 
are situated at least partially within the Daniel Boone National 
Forest, which is managed according to a land and resource management 
plan that includes specific measures to protect sensitive species; and 
(3) both units are located within the same hydrologic unit as other 
occupied critical habitat units.
    The DEA concludes that incremental impacts of critical habitat 
designation are limited to additional administrative costs of 
consultations and that indirect incremental impacts are unlikely to 
result from the designation of critical habitat for the five fishes. 
The present value of the total direct (administrative) incremental cost 
of critical habitat designation is $644,000 over the next 20 years 
assuming a seven percent discount rate, or $56,800 on an annualized 
basis. Water quality management activities are likely to be subject to 
the greatest incremental impacts at $273,000 over the next 20 years, 
followed by transportation at $161,000; coal mining at $79,000; oil and 
natural gas development at $73,700; agriculture, ranching, and 
silviculture at $36,100; dredging, channelization, impoundments, dams, 
and diversions at $10,700; and recreation at $10,000.
    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 12, 2011, proposed rule (76 FR 63360), 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 (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 of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 effects 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 the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that 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

[[Page 30992]]

impact on a substantial number of small entities. Based on comments we 
receive, we may revise this determination as part of our final rule.
    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 five fishes would affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities, such as coal mining; oil and natural gas 
development; dredging, channelization, impoundments, dams, and 
diversions; and transportation. In order to determine whether it is 
appropriate for our agency to certify that this proposed 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 five fishes are 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. 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 five fishes. We 
anticipate that ten small entities could be affected by coal mining in 
a single year at a cost of $875 each, representing less than three 
percent of annual revenues. Two small entities could be affected by oil 
and natural gas development within a single year at a cost of $875 
each, representing less than three percent of annual revenues. One 
small entity could be affected by dredging, channelization, 
impoundments, dams, and diversions within a single year, at a cost of 
$2,630, representing less than one percent of annual revenues. One 
small entity could be affected by transportation within a single year, 
at a cost of $1,750, representing less than one percent of annual 
revenues. 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 14 small entities that may be impacted by the proposed 
critical habitat designation. For the above reasons and based on 
currently available information, we certify that, if promulgated, the 
proposed 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 
Tennessee Ecological Services Field 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: May 17, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-12572 Filed 5-23-12; 8:45 am]
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