[Federal Register Volume 78, Number 61 (Friday, March 29, 2013)]
[Proposed Rules]
[Pages 19172-19176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07306]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2012-0045; 4500030113]
RIN 1018-AY12


Endangered and Threatened Wildlife and Plants; Endangered Status 
for the Diamond Darter and Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period and availability of 
draft economic analysis.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening 
of the public comment period on our July 26, 2012, proposed listing and 
designation of critical habitat for the diamond darter (Crystallaria 
cincotta) 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, associated DEA, and amended 
required determinations section. Comments previously submitted on the 
proposed rule need not be resubmitted, as they will be fully considered 
in preparation of the final rule.

DATES: We will consider all comments received or postmarked on or 
before April 29, 2013. 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.

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-R5-ES-2012-0045, or by mail 
from the West Virginia 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-R5-ES-2012-0045, 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-R5-ES-2012-0045; 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: John Schmidt, Acting Field Office 
Supervisor, U.S. Fish and Wildlife Service, West Virginia Field Office, 
694 Beverly Pike, Elkins, WV 26241; by telephone (304) 636-6586; or by 
facsimile (304) 636-7824. Any person who uses 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 diamond darter (Crystallaria cincotta) that 
was published in the Federal Register on July 26, 2012 (77 FR 43906), 
our DEA, and the amended required determinations provided in this 
document. We will consider information and recommendations from all 
interested parties.
    We are also notifying the public that we will publish two separate 
rules for the final listing determination and the final critical 
habitat determination for the diamond darter. The final listing rule 
will publish under the existing docket number, FWS-R5-ES-2012-0045, and 
the final critical habitat designation will publish under new docket 
number FWS-R5-ES-2013-0019.
    We will consider information and recommendations from all 
interested parties as to both determinations. As to the proposed 
listing determination, we are particularly interested in comments 
concerning:

[[Page 19173]]

    (1) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and regulations that may 
be addressing those threats.
    (2) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    (3) Any information on the biological or ecological requirements of 
the species, and ongoing conservation measures for the species and its 
habitat.
    (4) Current or planned activities in the areas occupied by the 
species and possible impacts of these activities on this species.
    As to the proposed critical habitat determination, we are 
particularly interested in comments concerning:
    (5) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act, 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.
    (6) Specific information on:
    (a) The amount and distribution of the 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;
    (c) Special management considerations or protection that may be 
needed 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 are essential to 
the conservation of the species and why.
    (7) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (8) 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.
    (9) Information on the extent to which the description of economic 
impacts in the DEA is complete and accurate.
    (10) 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.
    (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 (77 
FR 43906) during the initial comment period from July 26, 2012, to 
September 24, 2012, 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.
    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-R5-ES-2012-0045 for the proposed listing action and at Docket 
No. FWS-R5-ES-2013-0019 for the proposed critical habitat designation, 
or by appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, West Virginia Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    It is our intent to discuss in this document only those topics 
directly relevant to the designation of critical habitat for the 
diamond darter. For more information on the diamond darter, its 
habitat, or previous Federal actions, refer to the proposed listing and 
designation of critical habitat published in the Federal Register on 
July 26, 2012 (77 FR 43906), which is available online at http://www.regulations.gov (at Docket Number FWS-R5-ES-2012-0045) or from the 
West Virginia Field Office (see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

    On July 26, 2012, we published a proposed rule to list the diamond 
darter as endangered and to designate critical habitat (77 FR 43906). 
We proposed to designate a total of approximately 123 river miles of 
critical habitat in Kanawha and Clay Counties, West Virginia, and 
Edmonson, Hart, and Green Counties, Kentucky. That proposal had a 60-
day comment period, ending September 24, 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 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, among other things, 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

[[Page 19174]]

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 diamond darter, the benefits of critical habitat 
include public awareness of the presence of the fish and the importance 
of habitat protection, and, where a Federal nexus exists, increased 
habitat protection for the diamond darter 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, 
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 diamond darter. 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 diamond darter 
(including listing under the Act, as well as 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 
diamond darter 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. The DEA 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 diamond darter conservation efforts associated with the 
following categories of activity: (1) Resource extraction (coal, 
gravel, and rock mining, and oil and natural gas exploration) and 
utilities; (2) timber management, agriculture, and grazing; (3) other 
in-stream work; (4) transportation (roads, highways, bridges); and (5) 
water quality/sewage management.
    The DEA concludes that the types of conservation efforts requested 
by the Service during section 7 consultation regarding the diamond 
darter are not expected to change due to critical habitat designation. 
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 diamond darter; (2) the diamond 
darter is limited in its range; and (3) the number of individuals in 
the surviving population is very small. In addition, although one of 
the proposed critical habitat units for the diamond darter is 
unoccupied, incremental impacts of the critical habitat designation 
will be limited for the following reasons: (1) The unit is currently 
occupied by nine federally listed endangered mussel species: northern 
riffleshell (Epioblasma torulosa rangiana), snuffbox (E. triquetra), 
pink mucket (Lampsilis abrupta), ring pink (Obovaria retusa), rough 
pigtoe (Pleurobema plenum), clubshell (P. clava), fanshell (Cyprogenia 
stegaria), spectaclecase (Cumberlandia monodonta), and sheepnose 
(Plethobasus cyphyus); and (2) the unit is situated at least partially 
within the Mammoth Cave National Park, which is managed according to a 
land and resource management plan that includes specific measures to 
protect sensitive species.
    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 diamond darter. 
The present value of the total direct (administrative) incremental cost 
of critical habitat designation is $800,000 over the next 20 years 
assuming a 7 percent discount rate, or $70,000 on an annualized basis. 
Transportation activities are likely to be subject to the greatest 
incremental impacts at $320,000 over the next 20 years, followed by 
timber management, agriculture, and grazing at $260,000; resource 
extraction at $150,000; other in-stream work at $50,000; and water 
quality/sewage management at $18,000 (present values over 20 years 
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.

Required Determinations--Amended

    In our July 26, 2012, proposed rule (77 FR 43906), 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 Orders (E.O.) 12866 and 13563 (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.).

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.),

[[Page 19175]]

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.
    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 diamond darter would affect a substantial number of small entities, 
we considered the number of small entities affected within particular 
types of economic activities, such as resource extraction; timber 
management, agriculture, and grazing; other in-stream activities; 
transportation; and water quality/sewer management. 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. If we finalize the proposed listing 
for this species, in areas where the diamond darter are present, 
Federal agencies will be 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 the 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 diamond darter. 
We do not expect the critical habitat designation to result in impacts 
to small entities for transportation and water quality/sewer management 
activities, as consultations considering these activities do not 
involve third parties. We anticipate 12 small entities over 20 years, 
or less than 1 entity in a single year, could be affected by other in-
stream work at a cost of $875 to $8,800 each, representing less than 1 
percent of annual revenues. In the resource extraction category, 50 
small entities over 20 years, or 3 entities in a single year, could be 
affected by utility pipeline installation at a cost of $875 to $8,800 
each, representing less than 1 percent of annual revenues, and 6 small 
entities could be affected by bituminous coal and lignite surface 
mining within a single year, at a cost of $875 to $5,300 each, 
representing less than 1 percent of annual revenues. One hundred and 
ninety small entities could be affected by timber management, 
agriculture, and grazing within a single year, at a cost of $880 to 
$22,000 each, representing less than 1 percent of annual revenues. 
Please refer to the DEA of the proposed critical habitat designation 
for a more detailed discussion of potential economic impacts.
    The Service's current understanding of recent case law is that 
Federal agencies are only required to evaluate the potential impacts of 
rulemaking on those entities directly regulated by the rulemaking; 
therefore, they are not required to evaluate the potential impacts to 
those entities not directly regulated. The designation of critical 
habitat for an endangered or threatened species only has a regulatory 
effect where a Federal action agency is involved in a particular action 
that may affect the designated critical habitat. Under these 
circumstances, only the Federal action agency is directly regulated by 
the designation, and, therefore, consistent with the Service's current 
interpretation of RFA and recent case law, the Service may limit its 
evaluation of the potential impacts to those identified for Federal 
action agencies. Under this interpretation, there is no requirement 
under the RFA to evaluate the potential impacts to entities not 
directly regulated, such as small businesses. However, Executive Orders 
12866 and 13563 direct Federal agencies to assess costs and benefits of 
available regulatory alternatives in quantitative (to the extent 
feasible) and qualitative terms. Consequently, it is the current 
practice of the Service to assess to the extent practicable these 
potential impacts, if sufficient data are available, whether or not 
this analysis is believed by the Service to be strictly required by the 
RFA. In other words, while the effects analysis required under the RFA 
is limited to entities directly regulated by the rulemaking, the 
effects analysis under the Act, consistent with the EO regulatory 
analysis requirements, can take into consideration impacts to both 
directly and indirectly impacted entities, where practicable and 
reasonable.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if 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 
West Virginia Field Office (see FOR FURTHER INFORMATION CONTACT).

Authority

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


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    Dated: March 14, 2013.
Rachel Jacobson,
Principal Deputy, Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-07306 Filed 3-28-13; 8:45 am]
BILLING CODE 4310-55-P