[Federal Register Volume 78, Number 87 (Monday, May 6, 2013)]
[Proposed Rules]
[Pages 26308-26315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10568]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2012-0053; Docket No. FWS-R6-ES-2013-0020; 
4500030114]
RIN 1018-AY11; 1018-AZ39


Endangered and Threatened Wildlife and Plants; Proposed 
Threatened Status for Coral Pink Sand Dunes Tiger Beetle and 
Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of the comment period.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening 
of the public comment period on our October 2, 2012, proposed listing 
decision and proposed designation of critical habitat for Coral Pink 
Sand Dunes tiger beetle under the Endangered Species Act of 1973, as 
amended. We announce the availability of a draft economic analysis 
(DEA), a draft environmental assessment (EA), an amendment to the 2009 
Conservation Agreement and Strategy for the Coral Pink Sand Dunes tiger 
beetle, and an amended required determinations section of the proposal. 
We also announce the availability of 2012 Coral Pink Sand Dunes tiger 
beetle survey results that were not available when the proposed rule 
was being written. We are reopening the comment period to allow all 
interested parties an opportunity to comment simultaneously on the 
proposed rule, the associated DEA, the Draft EA, the Conservation 
Agreement amendment, and the amended required determinations section. 
We also announce a public hearing to be held in Kanab, Utah.

DATES: Written Comments: We will consider all comments received or 
postmarked on or before June 5, 2013. 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.
    Public Information Meeting: We will hold a public information 
meeting in Kanab, Utah, on May 22, 2013, from 4 p.m. to 6 p.m. (see 
ADDRESSES section, below).
    Public Hearing: We will hold a public hearing in Kanab, Utah, on 
May 22, 2013, from 7 p.m. to 9 p.m. (see ADDRESSES section, below).

ADDRESSES: Document Availability: You may obtain copies of the proposed 
rule on the Internet at http://www.regulations.gov at Docket No. FWS-
R6-ES-2012-0053 or by contacting the U.S. Fish and Wildlife Service, 
Utah Field Office, Ecological Services Field Office directly (see FOR 
FURTHER INFORMATION CONTACT). You may obtain a copy of the draft 
economic analysis (DEA), the draft environmental assessment (Draft EA), 
the 2009 Conservation Agreement and Strategy for the Coral Pink Sand 
Dunes tiger beetle (Conservation Agreement) amendment, and the 2012 
Coral Pink Sand Dunes tiger beetle survey results at

[[Page 26309]]

http://www.regulations.gov at Docket Number FWS-R6-ES-2013-0020, or by 
contacting the U.S. Fish and Wildlife Service, Utah Field Office, 
Ecological Services Field Office directly (see FOR FURTHER INFORMATION 
CONTACT).
    Written Comments: You may submit comments by one of the following 
methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the listing proposal to Docket 
No. FWS-R6-ES-2012-0053, and submit comments on the critical habitat 
proposal and associated DEA and Draft EA to Docket No. FWS-R6-ES-2013-
0020. See SUPPLEMENTARY INFORMATION for an explanation of the two 
dockets.
    (2) By hard copy: Submit comments on the listing proposal by U.S. 
mail or hand-delivery to: Public Comments Processing, Attn: FWS-R6-ES-
2012-0053; Division of Policy and Directives Management; U.S. Fish and 
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 
22203. Submit comments on the critical habitat proposal, DEA, and Draft 
EA by U.S. mail or hand-delivery to: Public Comments Processing, Attn: 
FWS-R6-ES-2013-0020; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; 
Arlington, VA 22203.
    (3) Public Information Meeting and Public Hearing: Both the public 
information meeting and the public hearing will be held at the Kanab 
City Library, 374 North Main, Kanab, Utah 84741.
    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: Larry Crist, Field Supervisor, U.S. 
Fish and Wildlife Service, Utah Field Office, Ecological Services Field 
Office, 2369 West Orton Circle, Suite 50, West Valley City, Utah 84119; 
telephone 801-975-3330; or facsimile 801-975-3331. 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: (1) Our proposed listing as threatened and 
proposed critical habitat designation for Coral Pink Sand Dunes tiger 
beetle that was published in the Federal Register on October 2, 2012 
(77 FR 60208); (2) our DEA of the proposed designation; (3) our Draft 
EA; (4) the Conservation Agreement amendment; (5) 2012 Coral Pink Sand 
Dunes tiger beetle surveys and how this information should be 
considered in the designation of critical habitat; and (6) our 
amendment of required determinations. 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 
Coral Pink Sand Dunes tiger beetle. The final listing rule will publish 
under the existing Docket No. FWS-R6-ES-2012-0053, and the final 
critical habitat designation will publish under Docket No. FWS-R6-ES-
2013-0020.
    We request that you provide comments specifically on our listing 
determination under Docket No. FWS-R6-ES-2012-0053.
    We request that you provide comments specifically on the critical 
habitat determination and related DEA and Draft EA under Docket No. 
FWS-R6-ES-2013-0020. 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 these 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 Coral Pink Sand Dunes tiger 
beetle habitat;
    (b) What areas that are occupied and that contain features 
essential to the conservation of this species should be included in the 
designation and why;
    (c) Special management considerations or protection that may be 
needed in the critical habitat area we are proposing, including 
managing for the potential effects of climate change;
    (d) What areas not occupied at the time of listing are essential 
for the conservation of these species and why; and
    (e) Means to quantify the amount of natural and human-caused 
disturbance this species prefers or can tolerate.
    (3) Land use designations and current or planned activities in the 
subject area and their possible impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the Coral Pink Sand Dunes tiger beetle and proposed 
critical habitat.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, any impacts on small entities or families, 
and the benefits of including or excluding areas that exhibit these 
impacts.
    (6) 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.
    (7) 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 better accommodate public 
concerns and comments.
    (8) Information on the extent to which the description of potential 
economic impacts in the DEA is complete and accurate.
    (9) Whether the DEA makes appropriate assumptions regarding current 
practices and any regulatory changes that will likely occur if we 
designate critical habitat.
    (10) Whether the DEA correctly assesses the effect of regional 
costs associated with land use controls that may result from the 
designation of critical habitat.
    (11) Whether the DEA identifies all Federal, State, and local costs 
and benefits attributable to the proposed designation of critical 
habitat, and information on any costs that have been inadvertently 
overlooked.
    (12) Whether the Draft EA adequately presents the purpose of and 
need for the proposed action, the proposed action and alternatives, and 
the evaluation of the direct, indirect, and cumulative effects of the 
alternatives.
    (13) Whether the amended Conservation Agreement for the Coral Pink 
Sand Dunes tiger beetle provides sufficient conservation measures to 
reduce threats to the species.
    You may submit your comments and materials concerning our proposed 
rule or the associated DEA and draft EA by one of the methods listed in 
ADDRESSES.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including your personal identifying information--will be 
posted on the Web site. If you submit a hardcopy comment that includes

[[Page 26310]]

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. We will post all 
hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, DEA, and Draft 
EA, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R6-ES-2012-0053 and Docket No. 
FWS-R6-ES-2013-0020, or by appointment, during normal business hours, 
at the U.S. Fish and Wildlife Service, Utah Ecological Services Office 
(see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the 
proposed critical habitat, the DEA, the Conservation Agreement 
amendment, and the Draft EA on the Internet at http://www.regulations.gov at Docket No. FWS-R6-ES-2012-0053 and Docket No. 
FWS-R6-ES-2013-0020, or at http://www.fws.gov/mountain-prairie/species/invertebrates/CoralPinkSandDunesTigerBeetle/index.html, or by mail from 
the Utah Ecological Services Office (see FOR FURTHER INFORMATION 
CONTACT).

Background

Previous Federal Actions

    It is our intent to discuss only those topics directly relevant to 
the proposed designation of critical habitat for the Coral Pink Sand 
Dunes tiger beetle and our consideration of the Conservation Agreement 
amendment relative to the proposed listing rule. For more information 
on previous Federal actions and the biology of the Coral Pink Sand 
Dunes tiger beetle, refer to the proposed listing rule and proposed 
designation of critical habitat published in the Federal Register on 
October 2, 2012 (77 FR 60208), which is available online at http://www.regulations.gov (at Docket No. FWS-R6-ES-2012-0053 or Docket No. 
FWS-R6-ES-2013-0020).
    In total, we proposed approximately 921 hectares (ha) (2,276 acres 
(ac)) in Kane County, Utah, for designation as critical habitat in our 
October 2, 2012, proposed rule. However, the 2012 Coral Pink Sand Dunes 
tiger beetle surveys found beetle adults and larvae in habitat adjacent 
to the proposed critical habitat area (Knisley and Gowan 2013, pp. 12-
13). Therefore, based on the availability of this new information, we 
request that the public review this data and provide input on how it 
might be considered for the designation of critical habitat (see 2012 
Survey Information, below).
    The original proposal had a 60-day public comment period, ending 
November 16, 2012. We will publish in the Federal Register a final 
listing decision and final critical habitat designation for the Coral 
Pink Sand Dunes tiger beetle on or before the statutory deadline of 
October 2, 2013.
    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by the 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 the 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 
that affect critical habitat must consult with us on the effects of 
their proposed actions, under section 7(a)(2) of the Act.
    Our October 2, 2012, proposed rule evaluated the 2009 Conservation 
Agreement for the Coral Pink Sand Dunes tiger beetle. The 2009 
Conservation Agreement resulted in the establishment of two 
Conservation Areas that protect the Coral Pink Sand Dunes tiger beetle 
from off-road vehicle use. Based on new survey information, we have 
worked with the State of Utah and Bureau of Land Management to amend 
the 2009 Conservation Agreement and expand the protected habitats for 
the species (see Conservation Agreement Amendment, below). We are 
seeking public comment on this amendment, including whether it provides 
sufficient conservation measures to reduce threats to the species to 
the point it does not meet the definition of threatened or endangered 
under 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 the 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 the 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 Coral Pink Sand Dunes tiger beetle, the benefits 
of critical habitat designation include public awareness of the 
presence of these species and the importance of habitat protection, 
and, where a Federal action exists, increased habitat protection for 
these species due to protection from adverse modification or 
destruction of critical habitat. In practice, situations with a Federal 
action occur primarily on Federal lands or for projects implemented, 
funded, or permitted by Federal agencies.
    The final decision on whether to exclude any areas will be based on 
the best scientific data available at the time of the final 
designation, including information obtained during the comment period 
and information about the economic impact of designation. Accordingly, 
we have prepared a DEA concerning the economic effects of the proposed 
critical habitat designation, which is available for review and comment 
(see ADDRESSES).

Draft Economic Analysis

    The purpose of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed critical habitat 
designation for the Coral Pink Sand Dunes tiger beetle. The DEA also 
describes the economic impacts of all potential conservation efforts 
for the Coral Pink Sand Dunes tiger beetle. Some of these costs will 
likely be incurred regardless of whether or not we designate critical 
habitat.
    The economic impact of the proposed critical habitat designation is 
analyzed by comparing scenarios both ``with critical habitat'' and 
``without critical habitat.'' The ``without critical habitat'' scenario 
represents the baseline for the

[[Page 26311]]

analysis, considering protections already in place for the species 
(e.g., under the Federal listing and other Federal, State, and local 
regulations). Therefore, the baseline represents the costs incurred 
regardless of whether critical habitat is designated. The ``with 
critical habitat'' scenario describes the incremental impacts 
associated specifically with the designation of critical habitat for 
the species. The incremental conservation efforts and associated 
impacts are those not expected to occur absent the designation of 
critical habitat for the species. In other words, the incremental costs 
are those attributable solely to the designation of critical habitat 
above and beyond the baseline costs; these are the costs we may 
consider in the final designation of critical habitat. The analysis 
looks at baseline impacts incurred as a result of the species listing, 
and forecasts both baseline and incremental impacts likely to occur if 
we finalize the proposed critical habitat designation.
    In light of the 10th Circuit U.S. Court of Appeals ruling in New 
Mexico Cattle Growers Association v. United States Fish and Wildlife 
Service, the DEA also considers the coextensive cost impacts of the 
critical habitat's protection. Coextensive impacts include the baseline 
impacts, which are a result of the listing, and incremental impacts, 
which are solely attributable to the designation of critical habitat.
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for the 
Coral Pink Sand Dunes tiger beetle over the next 20 years, which was 
determined to be the appropriate period for analysis because planning 
information was available for most activities to reasonably forecast 
activity levels for projects for a 20-year timeframe. The DEA 
identifies potential incremental costs as a result of the proposed 
critical habitat designation; these are the costs attributed to 
critical habitat over and above those baseline costs attributed to 
listing. The DEA quantifies economic impacts of conservation efforts 
for the Coral Pink Sand Dunes tiger beetle associated with the 
following categories of activity: (1) Bureau of Land Management Kanab 
Field Office Resource Management Plan administration; (2) off-road 
vehicle (ORV) related consumer surplus losses (i.e., economic measure 
of consumer satisfaction--ORV restrictions might result in some 
consumers feeling like they were not receiving sufficient recreational 
enjoyment for the expenses of traveling to and staying in the area); 
(3) consultation on a Coral Pink Sand Dunes State Park incidental take 
permit; (4) other management activities; and (5) conservation 
activities.
    The proposed critical habitat designation for the Coral Pink Sand 
Dunes tiger beetle will result in minimal incremental costs because the 
proposed critical habitat is occupied by the species or likely used as 
a dispersal corridor between occupied habitats and we would expect 
costs beyond those attributable to the species listing (baseline costs) 
to be minimal (see discussion below). Furthermore, the baseline 
protections afforded by existing conservation activities partially 
address ORV use, which is one of the primary threats to the species and 
its habitat (77 FR 60208). Table 1 summarizes the coextensive economic 
impacts of the proposed listing and critical habitat.
    Coextensive impacts to economic activities are anticipated to be 
associated primarily with the administrative costs of Section 7 
consultations, development of incidental take permits, and consumer 
surplus losses from anticipated ORV restrictions in the Coral Pink Sand 
Dunes State Park. The cost of these impacts is estimated to be 
approximately $225,298 over the next 20 years, at an annualized cost of 
$13,416. Costs associated with conservation activities that are 
indirectly attributable to the listing are projected to be $538,441 
(Table 1). In addition, ORV visitors to BLM land adjacent to the State 
Park would potentially lose consumer surplus, but these costs are 
unquantified because of a lack of reliable visitation data. Additional 
information can be found in the DEA, which is available at http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0020 and at http://www.fws.gov/mountain-prairie/species/invertebrates/CoralPinkSandDunesTigerBeetle/index.html.

   Table 1--Summary of Coextensive Impacts to Economic Activities Over the Next 20 Years (Including a 7 Percent Discount Rate) Pertaining to Critical
                                             Habitat Designation for the Coral Pink Sand Dunes Tiger Beetle
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Economic activities
                                                         ----------------------------------------------------------------
                                                                            OHV-Related     State park         Other       Conservation        Total
                                                           Reinitiation      consumer       incidental      management      activities      coextensive
                                                            of BLM RMP    surplus losses    take permit     activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Undiscounted............................................         $29,655        $275,698          $2,263         $73,000        $950,000      $1,330,616
Net Present Vaule @ 7%..................................          25,400         156,260         a 2,263          41,375         538,441         763,738
Average Annual Discounted Cost..........................           1,270           7,813         a 2,263           2,069          26,922         40,337
--------------------------------------------------------------------------------------------------------------------------------------------------------
a Undiscounted because the action is expected to take place in 2013.

    Incremental costs associated with the designation of critical 
habitat are expected to be minimal. Designation of critical habitat for 
the Coral Pink Sand Dunes tiger beetle is not likely to result in 
additional consultations since the proposed designated critical habitat 
unit is occupied. Therefore, actions that would affect critical habitat 
would also affect the species present in the occupied Unit of critical 
habitat. However, the designation of critical habitat would result in 
direct incremental administrative costs to address adverse modification 
analyses, although these would be minimal. With no critical habitat 
designated outside the Coral Pink Sand Dunes habitat range, all 
indirect conservation costs or benefits are considered part of the 
baseline. No additional project modifications are expected relative to 
the baseline. Costs associated with reinitiating consultations will 
also be considered part of the baseline.
    We are seeking data and comments from the public on the DEA. 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

[[Page 26312]]

the exclusion will not result in the extinction of the species.

Draft Environmental Assessment; National Environmental Policy Act

    When the range of a species includes States within the U.S. Tenth 
Circuit Court of Appeals, pursuant to the ruling in Catron County Board 
of Commissioners v. U.S. Fish and Wildlife Service, 75 F .3d 1429 (10th 
Cir. 1996), we will complete an analysis under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (NEPA) on 
critical habitat designations. The range of Coral Pink Sand Dunes tiger 
beetle is entirely within the State of Utah, which is within the Tenth 
Circuit.
    The Draft EA presents the purpose of and need for critical habitat 
designation, the proposed action and alternatives, and an evaluation of 
the direct, indirect, and cumulative effects of the alternatives under 
the requirements of NEPA as implemented by the Council on Environmental 
Quality regulations (40 CFR 1500 through 1518) and according to the 
Department of the Interior's NEPA procedures.
    The Draft EA will be used by the Service to decide whether or not 
critical habitat will be designated as proposed; if the proposed action 
requires refinement, or if another alternative is appropriate; or if 
further analyses are needed through preparation of an environmental 
impact statement. If the proposed action is selected as described (or 
is changed minimally) and no further environmental analyses are needed, 
then a Finding of No Significant Impact (FONSI) would be the 
appropriate conclusion of this process. A FONSI would then be prepared 
for the environmental assessment. We are seeking data and comments from 
the public on the draft EA, which is available at http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0020 and at http://www.fws.gov/mountain-prairie/species/invertebrates/CoralPinkSandDunesTigerBeetle/index.html.

2012 Survey Information

    A survey for Coral Pink Sand Dunes tiger beetle was conducted south 
of Conservation Area A in 2012, and we request that the public review 
this data and provide input on how it is considered for the designation 
of critical habitat (Knisley and Gowan 2013, entire). Researchers found 
a total of 16 adults and 13 larvae singly or in small numbers 
throughout the area directly south of Conservation Area A (Knisley and 
Gowan 2013, pp. 12-13). Large numbers of adult tiger beetles were also 
found in this area in earlier years (1998-2000) (Knisley and Gowan 
2013, pp. 12-13), but this area was not included in our October 2, 
2012, proposed critical habitat designation because beetles were 
generally not observed there for a decade. As described in our October 
2, 2012, proposed rule, the area supports the following primary 
constituent elements: (1) Elevations from 5,610 to 6,857 feet (1,710 to 
2,090 meters); (2) appropriate levels of moisture and compaction to 
allow for burrowing (greater than 3 percent); and (3) vegetative cover 
of 23-57 percent that allows for ovipositing, adult thermoregulation, 
and abundant prey (77 FR 60208). Portions of this area are also 
included in the Conservation Agreement amendment (see Conservation 
Agreement Amendment, below). We seek comments from the public on the 
survey results, which are available at http://www.regulations.gov at 
Docket No. FWS-R6-ES-2013-0020 and at http://www.fws.gov/mountain-prairie/species/invertebrates/CoralPinkSandDunesTigerBeetle/index.html.

Conservation Agreement Amendment

    Initially formalized in 1997 (Conservation Committee 1997, entire), 
and revised in 2009 (Conservation Committee 2009, entire), the 
Conservation Agreement for the Coral Pink Sand Dunes Tiger Beetle is a 
partnership for the development and implementation of conservation 
measures to protect the tiger beetle and its habitat. The purpose of 
the partnership is to ensure the long-term persistence of the Coral 
Pink Sand Dunes tiger beetle within its historical range and provide a 
framework for future conservation efforts. The Utah Department of 
Natural Resources, Division of Parks and Recreation, Bureau of Land 
Management (BLM), U.S. Fish and Wildlife Service, and Kane County, 
Utah, are signatories to these agreements and comprise the conservation 
committee. The conservation committee has implemented conservation 
actions to benefit the Coral Pink Sand Dunes tiger beetle and its 
habitat, monitored their effectiveness, and adapted strategies as new 
information became available. Coordination under the Conservation 
Agreement resulted in the establishment of two Conservation Areas that 
protect the Coral Pink Sand Dunes tiger beetle from ORV use--
Conservation Areas A and B (see our proposed rule (77 FR 60208, October 
2, 2012) for more information on these Conservation Areas).
    On March 21, 2013, signatories to the Conservation Agreement signed 
an amendment (Amendment to the 2009 Conservation Agreement and Strategy 
for the Coral Pink Sand Dunes Tiger Beetle (Cicindela albissima)) 
(Conservation Committee 2013, entire) to the 2009 Conservation 
Agreement that outlines several new conservation actions that will be 
enacted to address the threats that were identified in the October 2, 
2012, proposed rule (77 FR 60208). The amendment evaluates the most 
recent tiger beetle survey information (Knisley and Gowan 2013, entire; 
see 2012 Survey Information, above) and concludes that modifications to 
the boundaries of the Conservation Areas are needed to ensure continued 
protection of the tiger beetle from ongoing threats (see below 
description of threats). The amendment enlarges Conservation Area A by 
29 percent from 84 to 108 ha (207 to 266 ac). The expansion of 
Conservation Area A protects 88 percent of the species' population from 
ORV use. In addition, the amendment provides protection for islands of 
habitat between Conservation Areas A and B (an additional 106 ha (263 
ac)), with the intent of providing dispersal habitat for the species.
    Overall, the Conservation Agreement amendment addresses the 
following threats to the Coral Pink Sand Dunes tiger beetle: (1) 
Habitat loss and degradation caused by off-road vehicle use; (2) small 
population effects, such as vulnerability to random chance events; (3) 
the effects of climate change and drought; and (4) cumulative 
interaction of individual factors such as off-road vehicle use, climate 
change, and drought (77 FR 60208, October 2, 2012) (Table 3). 
Additional information can be found in the Conservation Agreement 
amendment, which can be obtained as specified at the beginning of this 
document (see ADDRESSES: Document Availability).

[[Page 26313]]



Table 2--Threats to the Coral Pink Sand Dunes Tiger Beetle as Identified
     in the October 2, 2012, Proposed Listing Decision and Proposed
  Designation of Critical Habitat, and Planned Actions to Address Those
    Threats Through the Conservation Agreement and Strategy Amendment
------------------------------------------------------------------------
              Threat                           Planned action
------------------------------------------------------------------------
Habitat loss/degradation and         Utah Department of Natural
 mortality associated with ORV use.  Resources, Division of Parks and
                                     Recreation agrees to expand the
                                     boundary of Conservation Area A to
                                     protect additional habitat while
                                     addressing diversity in recreation
                                     and maintaining safety standards
                                     for dune visitors. This area will
                                     be expanded in the 2013 field
                                     season from 84 to 108 ha (207 to
                                     266 ac), thus increasing protection
                                     of tiger beetle occupied swales
                                     from 48 percent to 88 percent. All
                                     new or expanded habitat areas will
                                     be demarcated with carsonite
                                     marking posts to facilitate
                                     compliance by Park visitors.
                                     Utah Department of Natural
                                     Resources, Division of Parks and
                                     Recreation and the BLM will protect
                                     vegetated habitat islands of
                                     connectivity between the southern
                                     and northern conservation areas and
                                     monitor to ensure compliance. This
                                     action will occur in 2013 and will
                                     protect 106 ha (263 ac) of
                                     additional sand dune habitat
                                     comprising 14 individual habitat
                                     patches, which range in size from 1
                                     to 15 ha (2.6 to 37 ac). All new or
                                     expanded habitat areas will be
                                     demarcated with carsonite marking
                                     posts to facilitate compliance by
                                     Park visitors.
                                     Tiger beetle adults and
                                     larvae were found to the south of
                                     Conservation Area A in 2012. The
                                     conservation committee will visit
                                     this area in spring of 2013 to
                                     determine any additional habitats
                                     that should be protected to support
                                     the tiger beetle. The size and
                                     configuration of any protected
                                     areas will be determined during the
                                     2013 field season with input from
                                     all members of the conservation
                                     committee. All new or expanded
                                     habitat areas will be demarcated
                                     with carsonite posts to facilitate
                                     compliance by Park visitors.
                                     The conservation committee
                                     will analyze available historic
                                     aerial imagery and other data to
                                     better understand dune movement and
                                     associated vegetation changes as
                                     they relate to beetle occupation
                                     and suitable habitat over time.
                                     Knowledge of dune movement patterns
                                     will be used in adaptive management
                                     planning to accommodate dune
                                     changes and the need to alter
                                     conservation area boundaries.
                                     The conservation committee
                                     will conduct experimental
                                     vegetation treatments within
                                     existing conservation areas to
                                     determine if this activity could be
                                     an effective mechanism to increase
                                     suitable habitat.
                                     The conservation committee
                                     will revisit conservation area
                                     boundaries on a routine cycle
                                     (every 3 years) and make necessary
                                     adjustments as a result of shifting
                                     dunes, vegetation changes,
                                     population increases and decreases,
                                     and resulting changes to suitable
                                     habitat.
                                     Utah Department of Natural
                                     Resources, Division of Parks and
                                     Recreation and the BLM will
                                     continue efforts in law
                                     enforcement, education, and
                                     outreach.
Vulnerability to stochastic events   We are not aware of any
 due to small population size.       additional populations of Coral
                                     Pink Sand Dunes tiger beetles
                                     outside of the Coral Pink Sand
                                     Dunes geologic feature. However,
                                     the conservation committee believes
                                     it is appropriate to continue
                                     surveys for the species and
                                     suitable habitat in the area. The
                                     conservation committee will
                                     identify potential habitat within
                                     an 80-km (50-mi) radius of the
                                     Coral Pink Sand Dunes using aerial
                                     imagery, and survey for tiger
                                     beetle presence and habitat
                                     suitability. If appropriate habitat
                                     is found, the area will be
                                     considered for experimental
                                     introduction.
                                     The conservation committee
                                     will increase research efforts in
                                     experimental translocations in
                                     Conservation Area B and evaluate
                                     new habitat islands for
                                     appropriateness for reintroduction
                                     efforts.
                                     The conservation committee
                                     will introduce individuals into
                                     suitable habitats (potential sites
                                     have been identified), monitor
                                     these sites, and revise
                                     translocation activities via an
                                     adaptive management process.
Inadequacy of existing regulatory    The Utah Department of
 mechanisms.                         Natural Resources, Division of
                                     Parks and Recreation and the BLM
                                     have done a creditable job of
                                     enforcing the protection boundaries
                                     of Conservation Areas A and B for
                                     approximately the last 15 years.
                                     This amendment increases the size
                                     of Conservation Area A by 24 ha (59
                                     ac), and the conservation committee
                                     will consider further protection of
                                     habitats to the south of
                                     Conservation Area A (see Habitat
                                     loss/degradation and mortality
                                     associated with ORV use, above). In
                                     addition, the amendment establishes
                                     14 habitat patches to support
                                     dispersal of tiger beetles between
                                     Conservation Areas A and B,
                                     increasing the total protected area
                                     by an additional 106 ha (263 ac).
                                     Because these signatory agencies
                                     have complied with the Conservation
                                     Agreement and Strategy for the last
                                     15 years, we can reasonably
                                     conclude that the BLM and Utah
                                     Department of Natural Resources,
                                     Division of Parks and Recreation
                                     will continue to properly enforce
                                     the boundaries of all protected
                                     areas.
Climate change and drought........   The BLM is installing a
                                     weather station onsite in spring
                                     2013 to better correlate weather
                                     patterns with beetle abundance.
                                     Understanding the effects of
                                     weather patterns on Coral Pink Sand
                                     Dunes tiger beetle populations may
                                     help us develop adaptive management
                                     strategies by identifying important
                                     habitat use areas during
                                     particularly warm or dry years.
                                     The establishment of 14
                                     additional habitat patches totaling
                                     106 ha (263 ac) will occur at
                                     higher elevations in the sand dune
                                     area, and at locations that provide
                                     significant vegetated habitat. This
                                     effort has the potential to offset
                                     the drying and warming effects of
                                     climate change and drought on Coral
                                     Pink Sand Dunes tiger beetle
                                     habitat. In addition these habitat
                                     patches will provide dispersal
                                     habitat and connectivity between
                                     Conservation Areas A and B, which
                                     will better allow the tiger beetle
                                     to disperse to potentially cooler
                                     and wetter habitat that occurs in
                                     Conservation Area B.
Cumulative effects of the above...   Addressing the threats
                                     listed above independently will
                                     prevent these threats from acting
                                     cumulatively.
------------------------------------------------------------------------

Required Determinations--Amended

    In our October 2, 2012, proposed rule (77 FR 60208), we indicated 
that we would defer our determination of compliance with several 
statutes and Executive Orders (EOs) 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 in making these determinations. In this 
document, we affirm the information in our proposed rule concerning 
E.O. 12866 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 
13132 (Federalism), E.O. 12988 (Civil Justice Reform), the Paperwork 
Reduction Act, E.O. 12866 and E.O. 12988 (Clarity of the Rule), 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

[[Page 26314]]

Act (5 U.S.C. 601 et seq.), E.O. 13211 (Energy Supply, Distribution, or 
Use), and the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996), whenever an agency must 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. 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, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as 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 the 
rule, as well as the 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.
    A significant economic impact threshold is generally a 3 percent 
impact as measured by appropriate quantitative metrics, such as 
annualized cost of compliance as a percentage of sales, government 
revenue, or annual operating expenditures. In general, if more than 20 
percent of the affected small entities experience a significant 
economic impact, then there is considered to be a significant impact on 
a substantial number of small entities, and a regulatory flexibility 
analysis must be prepared.
    For there to be a significant impact on a substantial number of 
small entities associated with designating critical habitat, then the 
incremental direct compliance costs must exceed the 3 percent threshold 
for more than 20 percent of the affected small entities. Since the 
Service, BLM, and Coral Pink Sand Dunes State Park are the only 
entities with expected direct compliance costs and are not considered 
small entities, this rule will not result in a significant impact on a 
substantial number of small entities.
    However, small entities, such as Kane County, ORV tour and rental 
businesses, and other local tourism-related businesses, may be 
indirectly affected as a result of the proposed listing and critical 
habitat designation. Because motorized visitors to the dunes may be 
further restricted access in the dune area than under the current 
boundaries, ORV use and rentals may be displaced or reduced, impacting 
the ORV rental entities and any businesses the visitors might frequent 
as part of their overall trip.

Executive Order 13211--Energy Supply, Distribution, and Use

    E.O. 13211, Actions Concerning Regulations That Significantly 
Affect Energy Supply, Distribution, or Use, requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
The Office of Management and Budget's guidance for implementing this 
Executive order outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to no regulatory action. 
Critical habitat designation for Coral Pink Sand Dunes tiger beetle is 
not anticipated to affect energy supply, distribution, and use. 
Therefore, designation of critical habitat is not expected to lead to 
any adverse outcomes (such as a reduction in oil and natural gas 
production or distribution), and a Statement of Energy Effects is not 
required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments,'' with 
two exceptions. First, it excludes ``a condition of federal 
assistance.'' Second, it excludes ``a duty arising from participation 
in a voluntary Federal program,'' unless the regulation ``relates to a 
then-existing Federal program under which $500,000,000 or more is 
provided annually to State, local, and Tribal governments under 
entitlement authority,'' if the provision would ``increase the 
stringency of conditions of assistance'' or ``place caps upon, or 
otherwise decrease, the Federal Government's responsibility to provide 
funding'' and the State, local, or Tribal governments ``lack 
authority'' to adjust accordingly. At the time of enactment, these 
entitlement programs were: Medicaid; Aid to Families with Dependent 
Children work programs; Child Nutrition; Food Stamps; Social Services 
Block Grants; Vocational Rehabilitation State Grants; Foster Care, 
Adoption Assistance, and Independent Living; Family Support Welfare 
Services; and Child Support Enforcement. ``Federal private sector 
mandate'' includes a regulation that ``would impose an enforceable duty 
upon the private sector, except (i) a condition of Federal assistance; 
or (ii) a duty arising from participation in a voluntary Federal 
program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat

[[Page 26315]]

shift the costs of the large entitlement programs listed above on to 
State governments.
    (b) As discussed in the DEA of the proposed designation of critical 
habitat for Coral Pink Sand Dunes tiger beetle, we do not believe that 
the rule would significantly or uniquely affect small governments 
because it would not produce a Federal mandate of $100 million or 
greater in any year; that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The DEA concludes that 
incremental impacts may occur due to project modifications and 
administrative costs of consultation that may need to be made for 
grazing, maintenance, and recreational activities; however, these are 
not expected to affect small governments to the extent described above. 
Consequently, we do not believe that the proposed critical habitat 
designation would significantly or uniquely affect small government 
entities. As such, a Small Government Agency Plan is not required.

References Cited

    A complete list of all references we cited in the proposed rule and 
in this document is available on the Internet at http://www.regulations.gov or by contacting the Utah Ecological Services 
Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this document are the staff members of the 
Utah Ecological Services Office.

    Dated: April 26, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-10568 Filed 5-3-13; 8:45 am]
BILLING CODE 4310-55-P