[Federal Register Volume 78, Number 82 (Monday, April 29, 2013)]
[Proposed Rules]
[Pages 25041-25044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-09975]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket Nos. FWS-R4-ES-2012-0004; FWS-R4-ES-2013-0026; 4500030114]
RIN 1018-AY06; 1018-AZ48


Endangered and Threatened Wildlife and Plants; Endangered Status 
for the Fluted Kidneyshell and Slabside Pearlymussel and Designation of 
Critical Habitat

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 (Service), announce the 
reopening of the public comment period on our October 4, 2012, proposed 
listing and designation of critical habitat for the fluted kidneyshell 
(Ptychobranchus subtentum) and slabside pearlymussel (Pleuronaia 
dolabelloides) 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 
amended required determinations section. Comments previously submitted 
need not be resubmitted, as they will be fully considered in 
preparation of the final rule.

DATES: Written comments: We will consider comments received or 
postmarked on or before May 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.
    Public informational session and public hearing: We will hold a 
public informational session and hearing on this proposed rule on May 
14, 2013, from 6 to 9 p.m. (see ADDRESSES).

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-2012-0004 or FWS-R4-ES-
2013-0026, or by mail from the Tennessee Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).
    Written comments: You may submit written comments by one of the 
following methods, or at the public hearing:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. For comments on the proposed listing of these 
species, search for Docket No. FWS-R4-ES-2012-0004, which is the docket 
number for the listing portion of the proposed rulemaking. For comments 
on the proposed critical habitat designation for these species, search 
for Docket No. FWS-R4-ES-2013-0026, which is the docket number for the 
critical habitat portion of the proposed rulemaking.
    (2) By hard copy: For comments on the proposed listing of these 
species, submit by U.S. mail or hand-delivery to: Public Comments 
Processing, Attn: FWS-R4-ES-2012-0004; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203. For comments on the proposed 
critical habitat designation for these species (including the economic 
analysis), submit by U.S. mail or hand-delivery to: Public Comments 
Processing, Attn: FWS-R4-ES-2013-0026; 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 details).
    Public informational session and public hearing: The public 
informational session and hearing will be held at Virginia Highlands 
Community College, Learning Resource Center, 110 Opportunity Lane, 
Abingdon, Virginia 24212-0828. People needing reasonable accommodations 
in order to attend and participate in the public hearing should contact 
Mary Jennings, Field Supervisor, Tennessee Ecological Services Field 
Office, as soon as possible (see FOR FURTHER INFORMATION CONTACT).

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; telephone 931-528-6481; 
facsimile 931-528-7075. If you use a telecommunications device for the 
deaf (TDD), 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 fluted kidneyshell and slabside pearlymussel 
that was published in the Federal Register on October 4, 2012 (77 FR 
60803), 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 fluted kidneyshell and slabside 
pearlymussel. The final listing rule will publish under the existing 
docket number, FWS-R4-ES-2012-0004, and the final critical habitat 
designation will publish under new docket number FWS-R4-ES-2013-0026.
    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:
    (1) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to these species and regulations that may 
be addressing those threats.
    (2) Additional information concerning the historical and current 
status, range, distribution, and population size of these species, 
including the locations of any additional populations of these species.
    (3) Any information on the biological or ecological requirements of 
these species, and ongoing conservation measures for these species and 
its habitat.
    (4) Current or planned activities in the areas occupied by these 
species and possible impacts of these activities on these 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 (16 U.S.C. 1531 et 
seq.), including whether there are threats to these species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase

[[Page 25042]]

in threat outweighs the benefit of designation such that the 
designation of critical habitat is not prudent.
    (6) Specific information on:
    (a) The distribution of these two mussels;
    (b) The amount and distribution of their habitat;
    (c) What areas occupied by these species at the time of listing 
that contain features essential for the conservation of the species we 
should include in the designation and why;
    (d) 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
    (e) What areas not occupied at the time of listing are essential to 
the conservation of these 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 60803) during the initial comment period from October 4, 2012, to 
December 3, 2012, please do not resubmit them. We will incorporate them 
into the public record as part of this comment period, and we will 
fully consider them in the preparation of our final determination.
    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-R4-ES-2012-0004 for the proposed listing, and at Docket No. 
FWS-R4-ES-2013-0026 for the proposed critical habitat designation, 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 fluted kidneyshell and 
slabside pearlymussel. For more information on the fluted kidneyshell 
or slabside pearlymussel, their habitat, or previous Federal actions, 
refer to the proposed listing and designation of critical habitat 
published in the Federal Register on October 4, 2012 (77 FR 60803), 
which is available online at http://www.regulations.gov (at Docket No. 
FWS-R4-ES-2012-0004) or from the Tennessee Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

    On October 4, 2012, we published a proposed rule to list these two 
mussels as endangered and to designate critical habitat (77 FR 60803). 
We proposed to designate a total of approximately 2,218 river 
kilometers (1,380 river miles) of critical habitat in Alabama, 
Kentucky, Mississippi, Tennessee, and Virginia. That proposal had a 60-
day comment period, ending on December 3, 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 two mussels, the benefits of critical habitat include public 
awareness of the presence of these species and the importance of 
habitat protection, and, where a Federal nexus exists, increased 
habitat protection for these species 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.

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    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 these two mussels. 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 these species (including 
listing under the Act, as well as other Federal, State, and local 
regulations). The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for these 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, 
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, 
``Methodology,'' of the DEA.
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for these 
two species 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 fluted kidneyshell and 
slabside pearlymussel conservation efforts associated with the 
following categories of activity: (1) Road maintenance and 
construction; (2) dam operation; (3) commercial, industrial, 
residential, and associated utility development; (4) agricultural and 
recreational development; (5) mining; (6) Federal management plan 
administration; (7) State water quality standards; and (8) restoration 
and conservation.
    The present value of the total incremental cost of critical habitat 
designation is estimated at $3.5 million over 20 years assuming a 7 
percent discount rate, or $175,000 on an annualized basis. Road 
maintenance and construction activities are likely to be subject to the 
greatest incremental impacts at $1.94 million over 20 years, followed 
by commercial, industrial, residential, and associated utility 
development at $1.1 million; restoration and conservation at $221,000; 
mining at $132,000; agricultural and recreational development at 
$75,900; Federal management plan administration at $24,200; dam 
operation at $21,500; and State water quality standards at $6,800. 
Please refer to the DEA of the proposed critical habitat designation 
for a more detailed discussion of potential economic impacts.
    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 October 4, 2012, proposed rule (77 FR 60803), 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.s) 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 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 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

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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 fluted kidneyshell and slabside pearlymussel would affect a 
substantial number of small entities, we considered the number of small 
entities affected within particular types of economic activities, such 
as commercial, industrial, residential, and associated utility 
development; agricultural and recreational development; mining; and 
restoration and conservation. 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 these 
species, in areas where the fluted kidneyshell and slabside 
pearlymussel 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 these 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 fluted 
kidneyshell and slabside pearlymussel. In occupied critical habitat 
units, costs incurred are assumed to be limited to 15 percent of the 
project proponent's administrative cost of each projected section 7 
consultation: $1,524 per formal consultation and $571 per informal 
consultation. These costs do not represent significant impacts on small 
entities. In three unoccupied critical habitat units (i.e., FK 3--
Rockcastle River (Kentucky), FK 19--Holston River (Tennessee), and FK 
20--French Broad River (Tennessee)) the DEA estimates impacts of 
$908,000 over 20 years at a 7 percent discount rate. This represents an 
annualized cost of $45,400 across all entities in those proposed 
unoccupied units with the majority of the incremental costs associated 
with project modifications for development projects. 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 E.O. 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. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and the Service. 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 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.).

    Dated: April 12, 2013.
Rachel Jacobson,
Principal Deputy, Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-09975 Filed 4-26-13; 8:45 am]
BILLING CODE 4310-55-P