[Federal Register Volume 78, Number 130 (Monday, July 8, 2013)]
[Proposed Rules]
[Pages 40669-40673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16239]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket Nos. FWS-R4-ES-2012-0076 and FWS-R4-ES-2013-0029; 4500030113]
RIN 1018-AY08; 1018-AZ51


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Cape Sable Thoroughwort, Florida Semaphore Cactus, and 
Aboriginal Prickly-Apple, and Designation of Critical Habitat for Cape 
Sable Thoroughwort

AGENCY: Fish and Wildlife Service, Interior.

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

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the October 11, 2012, 
proposed rule to list Chromolaena frustrata (Cape Sable thoroughwort), 
Consolea corallicola (Florida semaphore cactus), and Harrisia 
aboriginum (aboriginal prickly-apple) as endangered species under the 
Endangered Species Act of 1973, as amended (Act), and to designate 
critical habitat for Chromolaena frustrata under the Act. We also 
announce the availability of a draft economic analysis (DEA) of the 
proposed designation of critical habitat for Chromolaena frustrata 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 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 
August 7, 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. Any comments that we 
receive after the closing date may not be considered in the final 
decisions on these actions.

ADDRESSES: Document availability: You may obtain copies of the October 
11, 2012, proposed rule on the internet at http://www.regulations.gov 
at Docket No. FWS-R4-ES-2012-0076 or by mail from the South Florida 
Ecological Services Office (see FOR FURTHER INFORMATION CONTACT). You 
may obtain a copy of the draft economic analysis at Docket No. FWS-R4-
ES-2013-0029.
    Written Comments: 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-R4-ES-2012-0076, and submit comments on the critical habitat 
proposal and the associated draft economic analysis to Docket No. FWS-
R4-ES-2013-0029. See SUPPLEMENTARY INFORMATION for an explanation of 
the two dockets.
    (2) By hard copy: Submit comment on the listing proposal by U.S. 
mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-
2012-0076; Division of Policy and Directives Management; U.S. Fish and 
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 
22203. Submit comment on the critical habitat proposal and draft 
economic analysis by U.S. mail or hand-delivery to: Public Comments 
Processing, Attn: FWS-R4-ES-2013-0029; 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: Larry Williams, Field Supervisor, U.S. 
Fish and Wildlife Service, South Florida Ecological Services Office, 
1339 20th Street, Vero Beach, FL 32960; by telephone 772-562-3909; or 
by facsimile 772-562-4288. 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 are reopening the comment period for our proposed listing 
determination for Chromolaena frustrata, Consolea corallicola, and 
Harrisia aboriginum and our proposed critical habitat designation for 
Chromolaena frustrata that was published in the Federal Register on 
October 11, 2012 (77 FR 61836). We are also specifically seeking 
comments on the draft economic analysis, which is now available, for 
the critical habitat designation. We will consider information and 
recommendations from all interested parties. See ADDRESSES for 
information on where to send your comments.
    We are also notifying the public that we will publish two separate 
rules, one for the final listing determination for Chromolaena 
frustrata, Consolea corallicola, and Harrisia aboriginum and another 
for the final critical habitat determination for Chromolaena frustrata. 
The final listing rule will publish under the existing docket number, 
FWS-R4-ES-2012-0076, and the final critical habitat designation will 
publish under docket number FWS-R4-ES-2013-0029.
    We request that you provide comments that are specifically on our 
listing determination under the existing docket number FWS-R4-ES-2012-
0076. 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 
their habitats.
    (4) Current or planned activities in the areas occupied by these 
species and possible impacts of these activities on these species.
    We request that you provide comments that are specifically on the 
critical habitat determination and draft economic analysis under docket 
number FWS-R4-ES-2013-0029. 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

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there are threats to the species from human activity, the degree of 
which can be expected to increase due to the designation, and whether 
that increase in threat outweighs the benefit of designation such that 
the designation of critical habitat is not prudent.
    (6) Specific information on:
    (a) The amount and distribution of Chromolaena frustrata habitat;
    (b) What areas occupied by the species at the time of listing that 
contain features essential for the conservation of the species we 
should include in the designation and why; and
    (c) 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 
subject areas occupied by Chromolaena frustrata or proposed to be 
designated as critical habitat, and possible impacts of these 
activities on these species and proposed critical habitat.
    (8) Information on the projected and reasonably likely impacts of 
climate change on Chromolaena frustrata and proposed critical habitat.
    (9) Any probable 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 we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    (11) Information on the extent to which the description of economic 
impacts in the DEA is complete and accurate.
    (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) 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.
    If you submitted comments or information on the proposed rule (77 
FR 61836) during the initial comment period from October 11, 2012, to 
December 10, 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 determinations. Our 
final determinations will take into consideration all written comments 
and any additional information we receive during both comment periods.
    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-2012-0076 (for the proposed listings), and at Docket No. 
FWS-R4-ES-2013-0029 (for the proposed critical habitat and draft 
economic analysis) or by appointment, during normal business hours, at 
the U.S. Fish and Wildlife Service, South Florida Ecological Services 
Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of 
the proposed rule on the Internet at http://www.regulations.gov at 
Docket Number FWS-R4-ES-2012-0076 and the draft economic analysis at 
Docket No. FWS-R4-ES-2013-0029, or by mail from the South Florida 
Ecological Services Office (see FOR FURTHER INFORMATION CONTACT 
section).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for Chromolaena frustrata in this 
document. For more information on previous Federal actions concerning 
C. frustrata, the species, or its habitat, refer to the proposed 
listing rule and proposed designation of critical habitat published in 
the Federal Register on October 11, 2012 (77 FR 61836), which is 
available online at http://www.regulations.gov (at Docket Number FWS-
R4-ES-2012-0076) or from the South Florida Ecological Services Office 
(see FOR FURTHER INFORMATION CONTACT).
    On October 11, 2012, we published a proposed rule to designate 
critical habitat for Chromolaena frustrata (77 FR 61836). We proposed 
to designate approximately 3,466 hectares (8,565 acres) in nine units 
located in Miami-Dade and Monroe Counties, Florida, as critical 
habitat. That proposal had a 60-day comment period, ending December 10, 
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

[[Page 40671]]

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 
Chromolaena frustrata, the benefits of critical habitat include public 
awareness of the presence of C. frustrata and the importance of habitat 
protection, and, where a Federal nexus exists, increased habitat 
protection for C. frustrata due to protection from adverse modification 
or destruction of critical habitat. In practice, situations with a 
Federal nexus exist primarily on Federal lands or for projects 
undertaken by Federal agencies.
    We have not proposed to exclude any areas from critical habitat. 
However, the final decision on whether to exclude any areas will be 
based on the best scientific and commercial 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 
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 Chromolaena frustrata. 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 Chromolaena frustrata 
(e.g., under the Federal listing, if adopted, and under other Federal, 
State, and local regulations). The ``with critical habitat'' scenario 
describes the incremental impacts specifically due to designation of 
critical habitat for the species. In other words, these incremental 
conservation measures and associated economic impacts would not occur 
but for the designation. Conservation measures implemented under the 
baseline (without critical habitat) scenario are described 
qualitatively within the DEA, but economic impacts associated with 
these measures are not quantified. Economic impacts are only quantified 
for conservation measures implemented specifically due to the 
designation of critical habitat (i.e., incremental impacts). For a 
further description of the methodology of the analysis, see Chapter 2, 
``METHODOLOGY,'' of the DEA.
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for 
Chromolaena frustrata 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 attributable to listing.
    The DEA provides estimated costs of the probable economic impacts 
of the proposed critical habitat designation of Chromolaena frustrata 
associated with the following categories of activity: Commercial, 
residential and recreational development; Federal land management; and 
restoration and conservation.
    The DEA estimates that approximately $578,000 in direct incremental 
costs would result from the critical habitat designation over the next 
20 years (at a 7 percent discount rate). The DEA estimates 93 percent 
of the costs would be attributable to consultations regarding Federal 
land management and restoration and conservation activities, with the 
remaining 7 percent attributable to development in the area. Over half 
of the estimated incremental costs are expected to result from actions 
occurring with the Key Largo unit, in Monroe County, Florida.
    Overall, 92 percent of the area proposed as critical habitat is 
located within Federal, State, or local conservation areas. The DEA 
estimates that the administrative cost of consultations for Federal 
land management to be $61,474 for formal consultations and $1,138 for 
informal consultations. It estimates that the incremental costs of the 
proposed critical habitat designation on Federal land management would 
be approximately $299,000 over the next 20 years (7 percent discount 
rate). Over half of these costs are expected to occur within the 
Everglades National Park unit.
    The DEA estimates the administrative cost of consultations for 
commercial, residential, and recreational development to be $5,387 per 
formal consultation and $2,412 per informal consultation. It is 
estimated that the incremental costs of the proposed critical habitat 
designation on commercial, residential, and recreational development 
would be approximately $39,000 over the next 20 years (7 percent 
discount rate). The DEA provides an estimate that consultations in the 
Key Largo unit would account for 77 percent of these costs.
    The DEA estimates the administrative cost of consultations for 
restoration and conservation to be $22,437 for formal consultations and 
$7,492 for informal consultations. It is estimated that the incremental 
costs of the proposed critical habitat designation on restoration and 
conservation projects to be approximately $240,000 over the next 20 
years (7 percent discount rate). The majority, 91 percent, of these 
costs are estimated to occur within the Key Largo unit. Given the 
presence of other listed species that may trigger consultation 
requirements related to restoration and conservation projects, these 
costs for C. frustrata are likely overestimates of the incremental cost 
of the proposed critical habitat designation on restoration and 
conservation projects.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed rule and our 
amended required determinations. We may revise the proposed rule or 
supporting documents to incorporate or address information we receive 
during the public comment period. In particular, we may exclude an area 
from critical habitat if we determine that the benefits of excluding 
the area outweigh the benefits of including the area, provided the 
exclusion will not result in the extinction of this species.

Required Determinations--Amended

    In our October 11, 2012, proposed rule (77 FR 61836), 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, or 
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

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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 impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
Chromolaena frustrata 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, 
residential, and recreational development; Federal land management; and 
restoration and conservation. In order to determine whether it is 
appropriate for our agency to certify that the 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 a listed species is present, Federal 
agencies already are required to consult with us under section 7 of the 
Act on activities they fund, permit, or implement that may affect the 
species. If we finalize 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 Chromolaena 
frustrata. Based upon the results of the DEA, we do not anticipate 
significant adverse impacts to small entities as a result of the 
proposed critical habitat designation. 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. 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 
South Florida Ecological Services Office, Region 4, U.S. Fish and 
Wildlife Service.

Authority

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


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    Dated: June 20, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-16239 Filed 7-5-13; 8:45 am]
BILLING CODE 4310-55-P