[Federal Register Volume 78, Number 88 (Tuesday, May 7, 2013)]
[Proposed Rules]
[Pages 26581-26586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10705]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2012-0065; FWS-R3-ES-2013-0016; 4500030113]
RIN 1018-AY16; 1018-AZ41


Endangered and Threatened Wildlife and Plants; Listing and 
Designation of Critical Habitat for the Grotto Sculpin

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 the September 27, 2012, 
proposed endangered status and designation of critical habitat for the 
grotto sculpin under the Endangered Species Act of 1973, as amended 
(Act). We also announce the availability of a draft economic analysis 
(DEA) of the proposed designation of critical habitat for the grotto 
sculpin and an amended required determinations section of the proposal. 
In addition, we announce our intention to recognize the grotto sculpin 
as Cottus specus. We are reopening the comment period to allow all 
interested parties an opportunity to comment simultaneously on the 
proposed rule, the associated DEA, and the amended required 
determinations section. Comments previously submitted need not be 
resubmitted, as they will be fully considered in preparation of the 
final rule.

DATES: We will consider comments received or postmarked on or before 
June 6, 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.

ADDRESSES: 
    Document availability: You may obtain copies of the proposed rule 
on the Internet at http://www.regulations.gov at Docket No. FWS-R3-ES-
2012-0065 and copies of the draft economic analysis at Docket No. FWS-
R3-ES-2013-0016, or by mail from the Missouri Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).
    You may submit written 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-R3-ES-2012-0065, and submit comments on the critical habitat 
proposal and associated draft economic analysis to Docket No. FWS-R3-
ES-2013-0016. See SUPPLEMENTARY INFORMATION for an explanation of the 
two dockets.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R3-ES-2012-0065 (for the listing 
proposal) or FWS-R3-ES-2013-0016 (for the critical habitat proposal and 
associated draft economic analysis); 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: Amy Salveter, Field Supervisor, U.S. 
Fish and Wildlife Service, Missouri Ecological Services Field Office, 
101 Park De Ville Drive, Suite A, Columbia, MO 65203; by telephone 573-
234-2132; or by facsimile 573-234-2181. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed designation of critical habitat 
for the grotto sculpin that was published in the Federal Register on 
September 27, 2012 (77 FR 59488), our DEA of the proposed designation, 
and the amended required determinations provided in this document. We 
will consider information and recommendations from all interested 
parties. We are also notifying the public that we will publish two 
separate rules for the final listing determination and the final 
critical habitat determination for the grotto sculpin. The final 
listing rule will publish under the existing Docket No. FWS-R3-ES-2012-
0065 and the final critical habitat designation will publish under 
Docket No. FWS-R3-ES-2013-0016.
    We request that you specifically provide comments on our listing 
determination under Docket No. FWS-R3-ES-2012-0065. We are particularly 
interested in comments concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat or both.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Act (16 U.S.C. 
1531 et seq.), which are:
    (a) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of this

[[Page 26582]]

species, including the locations of any additional populations of this 
species.
    We request that you provide comments specifically on the critical 
habitat designation and related draft economic analysis under Docket 
No. FWS-R3-ES-2013-0016. 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 the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threats 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 grotto sculpin and its habitat;
    (b) What may constitute ``physical or biological features essential 
to the conservation of the species,'' within the geographical range 
currently occupied by the species;
    (c) Where these features are currently found;
    (d) Whether any of these features may require special management 
considerations or protection;
    (e) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of the species, should be included in the designation and 
why; and
    (f) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (7) Land use designations and current or planned activities in the 
areas occupied by the species or proposed to be designated as critical 
habitat, and possible impacts of these activities on this species and 
proposed critical habitat.
    (8) Information on the projected and reasonably likely impacts of 
climate change on the grotto sculpin and proposed critical habitat.
    (9) 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.
    (10) 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.
    (11) The development and implementation of a conservation strategy 
by citizens, landowners, business entities, and government of Perry 
County, Missouri, for the grotto sculpin.
    (12) 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.
    (13) Information on the extent to which the description of economic 
impacts in the DEA is complete and accurate.
    (14) Information indicating that the potential impact to small 
business entities under our analysis of the Regulatory Flexibility Act 
in the DEA is complete and accurate.
    If you submitted comments or information on the proposed rule (77 
FR 59488) during the initial comment period from September 27, 2012, to 
November 26, 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. Our 
final determination concerning critical habitat will take into 
consideration all written comments and any additional information we 
receive during both comment periods. On the basis of public comments, 
we may, during the development of our final determination, find that 
areas proposed are not essential, are appropriate for exclusion under 
section 4(b)(2) of the Act, or are not appropriate for exclusion.
    You may submit your comments and materials concerning the proposed 
rule or DEA by one of the methods listed in the ADDRESSES section. We 
request that you send comments only by the methods described in the 
ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, supporting documentation we used 
in preparing the proposed rule and DEA, the proposed rule, and the DEA 
will be available for public inspection on http://www.regulations.gov 
at Docket No. FWS-R3-ES-2012-0065 or Docket No. FWS-R3-ES-2012-0065, or 
by appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Missouri 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 grotto sculpin in this 
document. For more information on the grotto sculpin, its habitat, or 
previous Federal actions for the species, refer to the proposed rule 
published in the Federal Register on September 27, 2012 (77 FR 59488), 
which is available online at http://www.regulations.gov (at Docket 
Number FWS-R3-ES-2012-0065) or from the Missouri Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

    On September 27, 2012, we published a proposed rule to list as 
endangered and to designate critical habitat for the grotto sculpin (77 
FR 59488). We proposed to designate as critical habitat underground 
aquatic habitat underlying approximately 94 square kilometers (km\2\) 
(36 square miles (mi\2\)) plus 31 kilometers (km) (19.2 miles (mi)) of 
surface stream in 4 units located in Perry County, Missouri. That 
proposal had a 60-day comment period, ending November 26, 2012. We held 
one public meeting on the proposal on October 30, 2012. We will submit 
for publication in the Federal Register a final critical habitat 
designation for the grotto sculpin on or before September 27, 2013.

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

[[Page 26583]]

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.

Changes From the Proposed Rule

    Prior to 2013, the grotto sculpin had been recognized as Cottus sp. 
nov. Adams et al. (2013) recently described the grotto sculpin as a new 
species and gave it the name Cottus specus. This taxonomic revision is 
accepted as the best available commercial or scientific data and will 
be used in all future documentation of the species. Cottus specus 
represents the first description of a cave species within the genus. 
This taxonomic revision is reflected in the revised proposed listing 
entry and the revised title of the proposed critical habitat 
designation for this species in the Proposed Regulation Promulgation 
section of this document.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from designation due 
to State or Federal laws that may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan. In the case of 
the grotto sculpin, the benefits of critical habitat include public 
awareness of the presence of the grotto sculpin and the importance of 
habitat protection, and, where a Federal nexus exists, increased 
habitat protection for the grotto sculpin 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.
    In the Service's September 27, 2012 proposal, we did not propose 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, as well as the implementation of conservation 
and management actions that address threats to the species. 
Accordingly, we have prepared a draft economic analysis (DEA) 
concerning the proposed critical habitat designation, which is 
available for review and comment (see ADDRESSES).
    Perry County is developing a conservation strategy to address 
threats to the grotto sculpin. The Service will be considering the plan 
in our final listing determination and our final decision as to whether 
there are areas that should be excluded from critical habitat. The 
Perry County Community Conservation Plan is available for public review 
and comment at http://www.regulations.gov under Docket No. FWS-R3-ES-
2013-0016, and on the Service's Midwest Endangered Species Web page 
(http://www.fws.gov/midwest/endangered/).

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 grotto sculpin. Economic impacts are considered for 
critical habitat designations, but not species listings. 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 grotto sculpin (e.g., under the Federal listing and other 
Federal, State, and local regulations). The ``with critical habitat'' 
scenario describes the incremental impacts specifically due to 
designation of critical habitat for the species. In other words, these 
incremental conservation measures and associated economic impacts would 
not occur but for the designation. Conservation measures implemented 
under the baseline (without critical habitat) scenario are described 
qualitatively within the DEA, but economic impacts associated with 
these measures are not quantified. Economic impacts are only quantified 
for conservation measures implemented specifically due to the 
designation of critical habitat (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 
grotto sculpin over the next 18 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 an 18-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 grotto sculpin conservation 
efforts associated with the following categories of activity: (1) 
Development, (2) agricultural and grazing, (3) transportation, (4) 
habitat and species management, and (5) sand mining. Economic impacts 
are estimated for development, agricultural and grazing, 
transportation, and habitat and species management activities. No 
impacts are forecast for sand mining activities because no projects 
with a Federal nexus were identified within the study area. Due to 
uncertainty in the amount of habitat and species management costs 
(through development and implementation of the Perry County land and 
resource management plan) attributable to critical habitat as opposed 
to the listing, cost estimates were calculated for a low-end scenario 
(all costs attributed to listing) and a high-end scenario (all costs 
attributed to critical habitat).
    Total present value impacts anticipated to result from the 
designation of all areas proposed as grotto sculpin critical habitat 
are approximately $140,000 for the low-end scenario and $13 million for 
the high-end scenario, over 18 years. In the low-end scenario, all 
incremental costs are administrative in nature and result from the 
consideration of adverse modification in section 7 consultations. In 
the high-end scenario, we also consider potential indirect incremental 
costs associated with development and implementation of the Perry 
County land and resource management plan.
    Proposed Unit 1 is likely to experience the greatest incremental

[[Page 26584]]

impacts under both the low-end and high-end scenarios. Impacts in 
proposed Unit 1 are estimated at $130,000 in present value terms (91 
percent of total present value impacts) under the low-end scenario, and 
result from approximately two formal consultations annually for 
development projects within the City of Perryville, a portion of two 
programmatic consultations regarding agricultural and grazing 
operations, and four formal consultations for transportation projects. 
In the high-end scenario, impacts also include costs associated with 
development and implementation of the Perry County land and resource 
management plan. This plan would recommend, among other things, that 
vegetated buffers be installed around sinkholes, potentially reducing 
the amount of land that could be used for crop production. Under the 
high-end scenario, impacts in proposed Unit 1 are estimated at $6.6 
million in present value terms (49 percent of total present value 
impacts). In the high-end scenario, similar impacts are anticipated in 
proposed Unit 2 ($6.4 million in present value terms, or 48 percent of 
total present value impacts), due to costs associated with development 
and implementation of the Perry County land and resource management 
plan. Overall, in the low-end scenario, consultations associated with 
development activities account for approximately 76 percent of the 
incremental impacts in this analysis; in the high-end scenario, 
approximately 98.9 percent of the incremental impacts in this analysis 
are associated with habitat and species management through development 
and implementation of the Perry County land and resource management 
plan.
    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. To incorporate or address information 
we receive during the public comment period, the final rule or 
supporting documents may differ from the proposed rule. In particular, 
we may exclude an area from critical habitat if we determine that the 
benefits of excluding the area outweigh the benefits of including the 
area, provided the exclusion will not result in the extinction of this 
species.

Required Determinations--Amended

    In our September 27, 2012, proposed rule (77 FR 59488), 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. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), 
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.), E.O. 12630 
(Takings), and E.O. 13211 (Energy, Supply, Distribution, and Use).

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 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 grotto sculpin would affect a substantial number of small entities, 
we considered the number of small entities affected within particular 
types of economic activities, such as development, agriculture and 
grazing, transportation, and habitat and species 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. In areas where the grotto sculpin is 
present, Federal agencies are required to consult with us under section 
7 of the Act on activities they fund, permit, or implement that may 
affect the species. If we finalize 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 grotto sculpin. 
Small entities may participate as third parties in section 7 
consultations with the Service on development and transportation 
projects. We estimate that fewer than two small, development-related 
entities

[[Page 26585]]

and one small government (the City of Perryville) would be affected in 
a single year. It is estimated in the DEA that impacts represent less 
than 1 percent of annual revenues on a per-entity basis. Indirect 
impacts resulting from the implementation of the proposed Perry County 
land and resource management plan are not considered in the analysis. 
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 potential impacts to entities not directly 
regulated, such as small businesses. However, Executive Orders 12866 
and 13563 direct Federal agencies to assess the 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; data and 
rationale for our determination is provided in the DEA. 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.

E.O. 12630 (Takings)

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for grotto sculpin in a takings implications assessment. As 
discussed above, the designation of critical habitat affects only 
Federal actions. Although private parties that receive Federal funding, 
assistance, or 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. 
The DEA found that no significant economic impacts are likely to result 
from the designation of critical habitat for grotto sculpin. Because 
the Act's critical habitat protection requirements apply only to 
Federal agency actions, few conflicts between critical habitat and 
private property rights should result from this designation. Based on 
information contained in the DEA and described within this document, it 
is not likely that economic impacts to a property owner would be of a 
sufficient magnitude to support a takings action. Therefore, the 
takings implications assessment concludes that this designation of 
critical habitat for grotto sculpin does not pose significant takings 
implications for lands within or affected by the designation.

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. We do not expect the designation of this proposed 
critical habitat to significantly affect energy supplies, distribution, 
or use. Currently, there are no active sand mining operations within 
the proposed designation. However, one mine site, the Brewer Quarry, is 
located adjacent to proposed Unit 1. This site received a permit from 
the Missouri Department of Natural Resources Land Reclamation Program 
in 2008. Expansion of this mine site could affect the proposed 
designation. However, communication with the Missouri Department of 
Natural Resources indicates that sand mining is not expected to expand 
into the area proposed as critical habitat for the sculpin. As a 
result, we do not expect any incremental impacts associated with sand 
mining activities over the analysis period of 18 years. If mining 
activities expand into the proposed designation, these activities will 
result in section 7 consultation only if the operation requires a Corps 
permit, or otherwise has a Federal nexus. No other activities 
associated with energy supply, distribution, or use are anticipated 
within the proposed critical habitat. We do not expect the designation 
of this proposed critical habitat to significantly affect energy 
supplies, distribution, or use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

Authors

    The primary authors of this package are the staff members of the 
Missouri Ecological Services Field Office, U.S. Fish and Wildlife 
Service.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, which we 
proposed to amend at 77 FR 59488 on September 27, 2012, as set forth 
below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.


Sec.  17.11  [Amended]

0
2. Amend Sec.  17.11(h), the proposed listing entry for ``Sculpin, 
grotto'', by removing the words ``Cottus sp. nov.'' from the Scientific 
name column for that species and by adding in their place the words 
``Cottus specus''.


Sec.  17.95  [Amended]

0
3. In Sec.  17.95(e), amend the title of the proposed critical habitat 
entry for the grotto sculpin by removing the words ``(Cottus sp. 
nov.)'' and by adding in their place the words ``(Cottus specus)''.


[[Page 26586]]


    Dated: April 26, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-10705 Filed 5-6-13; 8:45 am]
BILLING CODE 4310-55-P