[Federal Register Volume 77, Number 144 (Thursday, July 26, 2012)]
[Proposed Rules]
[Pages 43796-43799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18198]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2011-0097; 4500030114]
RIN 1018-AX41


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Lost River Sucker and Shortnose Sucker

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening 
of the public comment period on the December 7, 2011, proposed 
designation of critical habitat for the Lost River sucker (Deltistes 
luxatus) and shortnose sucker (Chasmistes brevirostris) 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 Lost River sucker and shortnose 
sucker and an amended required determinations section of the proposal.

DATES: We will consider all comments received or postmarked on or 
before August 27, 2012. Comments submitted electronically using the 
Federal eRulemaking Portal (see ADDRESSES section, below) must be 
received by 11:59 p.m. Eastern Time on the closing date.

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-R8-ES-2011-0097, or by mail 
from the Klamath Falls Fish and Wildlife 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. In the Search box, enter FWS-R8-ES-2010-0097, 
which is the docket number for this rulemaking. Then, on the left side 
of the screen, under the Document Type heading, click on the Proposed 
Rules link to locate this document and submit a comment.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2011-0097; 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).

FOR FURTHER INFORMATION CONTACT: Laurie R. Sada, Field Supervisor, U.S. 
Fish and Wildlife Service, Klamath Falls Fish and Wildlife Office, 1936 
California Avenue, Klamath Falls, OR 97601, by telephone (541-885-
8481), or by facsimile (541-885-7837). 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 Lost River sucker and shortnose sucker that was published in 
the Federal Register on December 7, 2011 (76 FR 76337), 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 may not be 
prudent.
    (2) Specific information on:
    (a) The amount and distribution of Lost River sucker and shortnose 
sucker habitat;
    (b) What areas that were occupied at the time of listing and 
contain physical and biological features essential to the conservation 
of the species should be included in the designation and why;
    (c) Special management considerations or protection that may be 
needed for the physical and biological features essential to the 
conservation of the species in critical habitat areas we are proposing, 
including managing for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing meet our 
criteria for being essential for the conservation of the species and, 
therefore, should be included in the designation and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the Lost River sucker and shortnose sucker, the 
features essential to their conservation, and the areas proposed as 
critical habitat.
    (5) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act.
    (6) Any probable economic, national security, environmental, 
cultural, or other relevant impacts of designating as critical habitat 
any area that may be included in the final designation. In particular, 
we seek information on any impacts on small entities, and the benefits 
of including or excluding areas that exhibit these impacts.
    (7) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    (8) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the draft economic analysis, 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 76337) during the initial comment period from December 7, 2011, to 
February 6, 2012, please do not resubmit them. We have incorporated 
them into the public record, and we will fully consider them in the 
preparation of our final determination. Our final determination 
concerning revised

[[Page 43797]]

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 
request that you send comments only by the methods described in the 
ADDRESSES section.
    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-R8-ES-2011-0097, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Klamath Falls 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-R8-ES-2011-0097, or by mail 
from the Klamath Falls Fish and Wildlife 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 Lost River sucker and 
shortnose sucker in this document. For more information on the Lost 
River sucker and shortnose sucker or their habitat, refer to the final 
listing rule published in the Federal Register on July 18, 1988 (53 FR 
27130), the 2007 5-year reviews completed for the Lost River sucker and 
shortnose sucker (Service 2007a and 2007b), and the Draft Revised Lost 
River Sucker and Shortnose Sucker Recovery Plan (Service 2011). These 
documents are available on the Klamath Falls Fish and Wildlife Office 
web site at http://www.fws.gov/klamathfallsfwo/, on the Environmental 
Conservation Online System (http://ecos.fws.gov/ecos/indexPublic.do), 
at http://www.regulations.gov (at Docket Number FWS-R8-ES-2011-0097), 
or from the Klamath Falls Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).
    Lost River sucker and shortnose sucker are members of the fish 
family Catostomidae and are endemic to the upper Klamath River basin 
(National Research Council of the National Academies ((NRC) 2004, pp. 
184, 189). Both species predominantly inhabit lake environments but 
also utilize riverine, marsh, and shoreline habitats for portions of 
their life history. Lost River sucker are distributed within Upper 
Klamath Lake and its tributaries (Klamath County, Oregon), Clear Lake 
Reservoir and its tributaries (Modoc County, California), Tule Lake 
(Siskiyou and Modoc Counties, California), Lost River (Klamath County, 
Oregon, and Modoc County, California), Link River (Klamath County, 
Oregon), and the Klamath River mainstem, including Keno, J.C. Boyle, 
Copco, and Iron Gate Reservoirs (Klamath County, Oregon, and Siskiyou 
County, California; Moyle 2002, p. 199; NRC 2004, pp. 190-192). The 
distribution of shortnose sucker overlaps with that of Lost River 
sucker, but shortnose sucker also occurs in Gerber Reservoir (Klamath 
County, Oregon) and upper Willow Creek (Modoc County, California, and 
Lake County, Oregon), a tributary to Clear Lake Reservoir (Buettner and 
Scoppettone 1991, p. 18; Moyle 2002, p. 203; NRC 2004, pp. 190-192).

Previous Federal Actions

    On December 7, 2011, we published a proposed rule to designate 
critical habitat for the Lost River sucker and shortnose sucker (76 FR 
76337). We proposed to designate approximately 146 miles (mi) (234 
kilometers (km)) of streams and 117,848 acres (ac) (47,691 hectares) 
(ha) of lakes and reservoirs for Lost River sucker and approximately 
128 mi (207 km) of streams and 123,590 ac (50,015 ha) of lakes and 
reservoirs for shortnose sucker in 2 units located in Klamath and Lake 
Counties, Oregon, and Modoc County, California, as critical habitat. 
That proposal was a reproposal of a proposed rule we published December 
1, 1994 (59 FR 61744), and had a 60-day comment period, ending February 
6, 2012. We will submit for publication in the Federal Register a final 
critical habitat designation for the Lost River sucker and shortnose 
sucker on or before November 30, 2012. For further discussion on 
previous Federal actions please see the December 7, 2011, revised 
proposed rule (76 FR 76337).

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 
the Lost River sucker and shortnose sucker, the benefits of critical 
habitat include public awareness of the

[[Page 43798]]

presence of the Lost River sucker and shortnose sucker and the 
importance of habitat protection, and, where a Federal nexus exists, 
increased habitat protection for the Lost River sucker and shortnose 
sucker 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 Lost River sucker and shortnose sucker. 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 Lost River sucker and shortnose sucker (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). 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 
Lost River sucker and shortnose sucker 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 Lost River sucker and 
shortnose sucker conservation efforts associated with the following 
categories: (1) Activities affecting water supply--these activities may 
include water management activities such as dam operation and 
hydropower production within the reservoirs comprising critical 
habitat, particularly the Klamath Project on Upper Klamath Lake; (2) 
activities affecting water quality--these activities may include 
agricultural activities, including livestock grazing, as well as in-
water construction activities; and (3) activities affecting fish 
passage--these activities may include flood control or water diversions 
that may result in entrainment or lack of access to spawning habitat.
    No significant economic impacts are likely to result from the 
designation of critical habitat. Incremental costs are limited to 
additional administrative effort to consider potential adverse 
modification of critical habitat as part of future section 7 
consultations for the suckers. In total, incremental administrative 
efforts are estimated at $586,000, or $51,700 on an annualized basis 
(assuming a 7 percent discount rate).
    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 December 7, 2011, proposed rule (76 FR 76337), 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 impact on a substantial number of 
small entities. Based on comments we receive, we may revise this 
determination as part of our final rule making.
    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

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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 Lost River sucker and shortnose sucker would affect a substantial 
number of small entities, we considered the number of small entities 
affected within particular types of economic activities, such as water 
management, grazing, transportation, herbicide and pesticide 
application, forest management, or stream restoration activities. 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 Lost River sucker 
and shortnose sucker 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. 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 Lost River 
sucker and shortnose sucker. Only the impacts which may be associated 
with grazing activities are considered to be borne by small entities 
and are the focus of the draft economic analysis (Industrial Economics 
Incorporated (IEc) 2012, p. A-4). Across the study area, 125 businesses 
are engaged in the beef cattle ranching and farming industry. Of these, 
121, or 97 percent, have annual revenues at or below the small business 
threshold of $750,000, and thus are considered small. A section 7 
consultation on grazing activity may cover one or more grazing 
allotments, and a small entity may be permitted to graze on one or more 
of these allotments. Because the number of allotments and grazing 
permittees varies from consultation to consultation, the economic 
analysis made the simplifying assumption that 1 small entity is 
affected in each of the 20 allotments adjacent to proposed critical 
habitat. To estimate average annual revenues per grazing entity, the 
economic analysis relied on data from the National Agricultural 
Statistics Service, which provides information on the value of calf and 
cattle sales as well as the number of farms. Using these data, the 
economic analysis estimated a value of calf and cattle sales per farm 
for all the counties in the study area. The economic analysis then 
averaged this value across the counties to estimate annual revenues per 
grazing entity of $132,000. The economic analysis noted that this 
average is significantly below the threshold level defining a small 
entity. The economic analysis estimated total annualized impacts to the 
20 entities that may incur administrative costs of approximately 
$24,600, or annualized impacts of $2,170. Assuming 20 affected small 
business entities and that each entity has annual revenues of $132,000, 
these annualized impacts per small entity are expected to comprise 0.08 
percent of annual revenues. Please refer to the DEA of the proposed 
critical habitat designation for a more detailed discussion of 
potential economic impacts to small businesses (IEc 2012, pp. A-1-A-6).
    Following our evaluation of potential effects to small business 
entities from this rulemaking, we do not believe that the 20 small 
business entities in the affected sector represent a substantial 
number. However, we will further evaluate the potential effects to 
these small businesses after we receive comments on the draft economic 
analysis and as we develop our final rulemaking.
    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 20 small entities that may be impacted by the proposed 
critical habitat designation. However, the potential impacts on those 
entities are expected to comprise only 0.08 percent of their annual 
revenues. 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 
Klamath Falls Fish and Wildlife Office, Region 8, 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: July 17, 2012.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-18198 Filed 7-25-12; 8:45 am]
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