[Federal Register Volume 78, Number 138 (Thursday, July 18, 2013)]
[Proposed Rules]
[Pages 42921-42927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-17205]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2012-0103; 4500030114]
RIN 1018-AY71


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Northwest Atlantic Ocean Distinct Population 
Segment of the Loggerhead Sea Turtle (Caretta caretta)

AGENCY: Fish and Wildlife Service, Interior.

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

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), 
announce the reopening of the comment period on the March 25, 2013, 
proposed rule to designate specific areas in the terrestrial 
environment as critical habitat for the Northwest Atlantic Ocean 
Distinct Population Segment (DPS) of the Loggerhead Sea Turtle (Caretta 
caretta) under the Endangered Species Act of 1973, as amended (Act). We 
also announce the availability of a draft economic analysis (DEA) of 
the proposed designation of critical habitat and an amended required 
determinations section of the proposal. We also announce that, based on 
a reevaluation of the applicable Habitat Conservation Plan, we are 
removing Unit LOGG-T-FL-04 from consideration for exclusion from 
critical habitat. 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: The comment period for the proposed rule published March 25, 
2013, at 78 FR 18000, is reopened. We will consider comments received 
or postmarked by September 16, 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 decision on this action.
    Public informational sessions and public hearings: We will hold 
three public informational sessions and public hearings on this 
proposed rule. We will hold a public informational session from 5:30 
p.m. to 6:30 p.m.,

[[Page 42922]]

followed by a public hearing from 7 p.m. to 9 p.m., in Charleston, 
South Carolina on Tuesday, August 6 (see ADDRESSES). We will hold a 
public informational session from 5:30 p.m. to 6:30 p.m., followed by a 
public hearing from 7 p.m. to 9 p.m., in Wilmington, North Carolina on 
Wednesday, August 7 (see ADDRESSES). We will hold a public 
informational session from 5:30 p.m. to 6:30 p.m., followed by a public 
hearing from 7 p.m. to 9 p.m., in Morehead City, North Carolina on 
Thursday, August 8 (see ADDRESSES). Registration to present oral 
comments on the proposed rule at the public hearings will begin at the 
start of each informational session.

ADDRESSES: You may submit written comments by one of the following 
methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for FWS-R4-ES-2012-0103, which is the 
docket number for this rulemaking.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R4-ES-2012-0103; 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).
    Document Availability: You may obtain copies of the proposed rule 
and draft economic analysis on the internet at http://www.regulations.gov at Docket No. FWS-R4-ES-2012-0103 or at http://www.fws.gov/northflorida, or by mail from the North Florida Ecological 
Services Office (see FOR FURTHER INFORMATION CONTACT).
    Public informational sessions and public hearings: The August 6, 
2013, public informational session and hearing will be held at the 
South Carolina Department of Natural Resources, Marine Resources 
Research Institute Auditorium, 217 Ft. Johnson Road, Charleston, SC 
29412. The August 7, 2013, public informational session and hearing 
will be held at the University of North Carolina--Wilmington, Warwick 
Center, Ballroom 5, 629 Hamilton Drive, Wilmington, NC 28403. The 
August 8, 2013, public informational session and hearing will be held 
at the Crystal Coast Civic Center, 3505 Arendell Street, Morehead City, 
NC 28557. People needing reasonable accommodations in order to attend 
and participate should contact Chuck Underwood, External Affairs 
Specialist, North Florida Ecological Services Office, as soon as 
possible (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Dawn P. Jennings, Acting Field 
Supervisor, U.S. Fish and Wildlife Service, North Florida Ecological 
Services Office, 7915 Baymeadows Way, Suite 200, Jacksonville, FL 
32256; by telephone 904-731-3336; or by facsimile 904-731-3045. People 
needing reasonable accommodations in order to attend and participate in 
the public informational sessions and hearings should contact Chuck 
Underwood, External Affairs Specialist, North Florida Ecological 
Services Office; by telephone 904-731-3336; or by email [email protected]. 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 
in the terrestrial environment for the Northwest Atlantic Distinct 
Population Segment (DPS) of the loggerhead sea turtle that we published 
in the Federal Register on March 25, 2013 (78 FR 18000), 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 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, including whether 
there are threats to the species from human activity, the degree of 
which can be expected to increase due to the designation, and whether 
that increase in threat outweighs the benefit of designation such that 
the designation of critical habitat may not be prudent.
    (2) Specific information on:
    (a) The distribution of the loggerhead sea turtle;
    (b) The amount and distribution of loggerhead sea turtle habitat; 
and
    (c) Which areas, occupied by the species at the time of listing (or 
currently occupied), that contain features essential for the 
conservation of the species we should include in the designation and 
why,
    (d) What areas not occupied at the time of listing are essential to 
the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Whether any of the exemptions we are considering, under section 
4(a)(3)(B) of the Act, of land on Department of Defense property at 
Marine Corps Base Camp Lejeune (Onslow Beach), Cape Canaveral Air Force 
Station, Patrick Air Force Base, and Eglin Air Force Base (Cape San 
Blas) are or are not appropriate, and why.
    (5) 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.
    (6) 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.
    (7) Information on the extent to which the description of economic 
impacts in the DEA is complete and accurate.
    (8) 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.
    (9) Special management considerations or protection that may be 
needed for the nesting beach habitat in critical habitat areas we are 
proposing, including managing for the potential effects of climate 
change.
    (10) Information on the projected and reasonably likely impacts of 
climate change on the loggerhead sea turtle and proposed terrestrial 
critical habitat.
    (11) Whether any of the areas we are considering for exclusion 
under section 4(b)(2) of the Act in St. Johns, Volusia, and Indian 
River Counties, Florida, because they are covered by an HCP that 
incorporates measures that provide a benefit for the conservation of 
the loggerhead sea turtle, are or are not appropriate, and why. The St. 
Johns County, Florida, Habitat Conservation Plan (``A Plan for the 
Protection of Sea Turtles and Anastasia Island Beach Mice on the 
Beaches of St. Johns County, Florida'') is available at http://
www.co.st-johns.fl.us/HCP/

[[Page 42923]]

HabitatConservation.aspx, the Volusia County, Florida, Habitat 
Conservation Plan (``A Plan for the Protection of Sea Turtles on the 
Beaches of Volusia County, Florida'') is available at http://www.volusia.org/core/fileparse.php/4145/urlt/VolusiaHCPDec2007small2.pdf, and the Indian River County, Florida, 
Habitat Conservation Plan (``Habitat Conservation Plan for the 
Protection of Sea Turtles on the Eroding Beaches of Indian River 
County, Florida'') is available at http://www.ecological-associates.com/IRC-Final-HCP-July-2003.pdf.
    (12) Whether any other 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 (78 
FR 18000) during the initial comment period from March 25, 2013, to May 
24, 2013, 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, as well as supporting 
documentation we used in preparing the proposed rule and the DEA, will 
be available for public inspection at http://www.regulations.gov at 
Docket No. FWS-R4-ES-2012-0103, or by appointment, during normal 
business hours, at the U.S. Fish and Wildlife Service, North Florida 
Ecological Services Office (see FOR FURTHER INFORMATION CONTACT). You 
may obtain copies of the proposed rule and the DEA on the Internet at 
http://www.regulations.gov at Docket No. FWS-R4-ES-2012-0103, or by 
mail from the North Florida Ecological Services Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    For more information on the Northwest Atlantic Ocean DPS of the 
loggerhead sea turtle, its habitat, or previous Federal actions, refer 
to the proposed designation of critical habitat published in the 
Federal Register on March 25, 2013 (78 FR 18000), which is available 
online at http://www.regulations.gov (at Docket No. FWS-R4-ES-2012-
0103) or the final listing rule published in the Federal Register on 
September 22, 2011 (76 FR 58868), which is available online at http://www.regulations.gov (at Docket Number 100104003-1068-02). Both 
documents are available from the North Florida Ecological Services 
Office (see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

    The proposed rule to designate areas in the terrestrial environment 
as critical habitat for the Northwest Atlantic Ocean DPS of the 
loggerhead sea turtle was published in the Federal Register on March 
25, 2013 (78 FR 18000), with a 60-day comment period ending May 24, 
2013.
    On May 10, 2013, the U.S. District Court of the Northern District 
of California approved a settlement agreement between USFWS and NMFS 
and the Center for Biological Diversity that stipulates: (1) On or 
before July 1, 2013, NMFS will complete a determination concerning the 
designation of marine critical habitat for the Northwest Atlantic Ocean 
DPS of the loggerhead sea turtle and submit it to the Federal Register 
for publication; (2) on or before July 1, 2014, USFWS will complete a 
final determination concerning the designation of terrestrial critical 
habitat for the Northwest Atlantic Ocean DPS of the loggerhead sea 
turtle and submit it to the Federal Register for publication; and (3) 
on or before July 1, 2014, NMFS will complete a final determination 
concerning the designation of marine critical habitat for the Northwest 
Atlantic Ocean DPS of the loggerhead sea turtle and submit it to the 
Federal Register for publication.

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 March 25, 2013, 
proposed rule is made final, section 7 of the Act will prohibit 
destruction or adverse modification of the designated 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. The Secretary may exclude an area from 
critical habitat if he determines 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 Northwest Atlantic Ocean DPS of the loggerhead sea turtle,

[[Page 42924]]

the benefits of critical habitat include public awareness of the 
presence of the species and the importance of habitat protection, and, 
where a Federal nexus exists, increased habitat protection for the 
species due to protection from adverse modification or destruction of 
critical habitat. In practice, situations with a Federal nexus exist 
primarily on Federal lands or for permits issued by or for projects 
undertaken by Federal agencies.
    As discussed in the proposed rule, we are considering whether to 
exclude areas in St. Johns, Volusia, and Indian River counties, 
Florida, that are covered under habitat conservation plans (HCP), 
because the HCPs incorporate measures that provide a benefit for the 
conservation of the loggerhead sea turtle. In the proposed rule, areas 
being considered for exclusion include areas within Units LOGG-T-FL-01, 
LOGG-T-FL-02, and LOGG-T-FL-03 that are covered under the St. Johns 
County HCP; areas within Units LOGG-T-FL-04 and LOGG-T-FL-05 that are 
covered under the Volusia County HCP; and areas within Unit LOGG-T-FL-
10 that are covered under the Indian River County HCP. Subsequent 
evaluation of the Volusia County HCP indicates that, although Unit 
LOGG-T-FL-04 is within the HCP's defined area, the only portion of this 
critical habitat unit that occurs in Volusia County is the North 
Peninsula State Park, over which Volusia County has no jurisdiction. 
The HCP covers only incidental take associated with County emergency 
vehicles accessing the North Peninsula State Park beaches and does not 
contain any specific conservation measures for the loggerhead sea 
turtle within the park. Therefore, we announce that we are no longer 
considering Unit LOGG-T-FL-04 for exclusion from critical habitat 
designation under section 4(b)(2) of the Act. We also have received 
comments on the proposed rule requesting that we exclude other areas 
based on economic or other concerns. We will evaluate these additional 
exclusion requests during our development of a final designation.

Draft Economic Analysis

    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 periods 
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 at http://www.regulations.gov at Docket No. FWS-R4-ES-2012-0103 (see ADDRESSES 
section). The DEA analyzes economic impacts from the proposed critical 
habitat designation, published in the Federal Register March 25, 2013 
(78 FR 18000).
    The purpose of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed terrestrial critical 
habitat designation for the Northwest Atlantic Ocean DPS of the 
loggerhead sea turtle. 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 loggerhead (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 loggerhead. 
In other words, these incremental conservation measures and associated 
economic impacts would not occur but for the designation. Conservation 
measures implemented under the baseline (without critical habitat) 
scenario are described qualitatively within the DEA, but economic 
impacts associated with these measures are not quantified. Economic 
impacts are only quantified for conservation measures implemented 
specifically due to the designation of critical habitat (i.e., 
incremental impacts). For a further description of the methodology of 
the analysis, see Chapter 2 ``Framework of the Analysis'' of the DEA.
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for the 
Northwest Atlantic Ocean DPS of the loggerhead sea turtle over the next 
10 years (2014 to 2023). This was determined to be an appropriate 
period for analysis because limited planning information is available 
for most economic activities in the area beyond a 10-year timeframe. It 
identifies potential incremental costs due to the proposed critical 
habitat designation; these are those costs attributable to critical 
habitat that are in addition to the baseline costs attributable to 
listing and other regulatory protections for the species.
    The DEA quantifies economic impacts of loggerhead conservation 
efforts associated with the following categories of activity: (1) 
Species and habitat management, (2) in-water and coastal construction, 
(3) sand placement, (4) recreation, (5) lighting management, (6) 
disaster response, and (7) oil and gas activities. The DEA considers 
both economic efficiency and distributional effects that may result 
from efforts to protect the loggerhead and its habitat. Economic 
efficiency effects generally reflect ``opportunity costs'' associated 
with the commitment of resources required to accomplish species and 
habitat conservation. The DEA also addresses how potential economic 
impacts are likely to be distributed.
    The DEA concludes that incremental impacts resulting from the 
critical habitat designation are limited to additional administrative 
costs of section 7 consultation. The primary source of uncertainty 
associated with the incremental effects analysis is that the actual 
rate and locations of future projects is unknown. The analysis does not 
identify any future projects beyond those covered by existing baseline 
projections. As a result, the analysis does not forecast incremental 
impacts due to conservation measures being implemented as a result of 
the designation of critical habitat.
    The DEA estimates total potential incremental economic impacts in 
areas proposed as critical habitat over the next 10 years (2014 to 
2023) to be approximately $1,200,000 ($150,000 annualized) in present-
value terms applying a 7 percent discount rate. Administrative costs 
associated with section 7 consultations are distributed as follows: in-
water and coastal construction is greatest (46 percent--$530,000), 
followed by sand placement (18 percent--$210,000), species and habitat 
management (17 percent--$200,000), recreation (10 percent--$120,000), 
disaster response (5 percent--$53,000), lighting management (3 
percent--$32,000), and oil and gas activities (1 percent--$6,600). In 
areas being considered for exclusion, quantified impacts to in-water 
and coastal construction are greatest (54 percent--$68,000), followed 
by species and habitat management (24 percent--$30,000), recreation (16 
percent--$21,000), disaster response (4 percent--$4,900), and sand 
placement (2 percent--$2,500), with minor quantified impacts expected 
for lighting management ($370) and oil and gas activities ($140).
    The incremental costs described above are further broken down by 
location of expected incremental costs within the proposed critical 
habitat units. The greatest incremental impacts are due to the cost of 
section 7 consultations forecast to occur for activities within LOGG-T-
AL-01 (approximately $86,000), comprising approximately seven percent 
of the overall incremental impacts. The second

[[Page 42925]]

largest incremental impacts are predicted to occur within LOGG-T-FL-40 
(approximately $83,000), also comprising approximately seven percent of 
the overall incremental impacts. Overall, however, quantified impacts 
in 58 of the proposed critical habitat units are expected to be under 
$10,000.
    The critical habitat units with the greatest level of 
administrative costs for section 7 consultations by activity are as 
follows: species and habitat management (LOGG-T-AL-01), in-water and 
coastal construction (LOGG-T-FL-40), sand placement (LOGG-T-SC-01), 
recreation (LOGG-T-FL-07), lighting management (LOGG-T-FL-07), disaster 
response (equally distributed across all units), and oil and gas 
activities (LOGG-T-MS-01 and 02; LOGG-T-AL-01 and 02).
    As stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as on 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 March 25, 2013, proposed rule (78 FR 18000), 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 Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice 
Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the 
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's 
memorandum of April 29, 1994, ``Government-to-Government Relations with 
Native American Tribal Governments'' (59 FR 22951). However, based on 
the DEA data, we are amending our required determination concerning the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Based on our DEA of the proposed designation, 
we provide our analysis for determining whether the proposed rule would 
result in a significant economic impact on a substantial number of 
small entities. Based on comments we receive, we may revise this 
determination as part of our final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    Of the seven categories of key activities (species and habitat 
management, in-water and coastal construction, sand placement, 
recreation, lighting management, disaster response, and oil and gas 
activities) identified in the DEA as those that may have an adverse 
impact on the physical and biological features of loggerhead 
terrestrial critical habitat, small entities are not anticipated to 
incur incremental costs associated with disaster response or oil and 
gas activities. This is due to the fact that the forecasted section 7 
consultations concerning these activities are expected to involve only 
USFWS and Federal agencies (Federal Emergency Management Agency and 
Bureau of Ocean Energy Management). The DEA also describes impacts 
associated with species and habitat management, in-water and coastal 
development, sand placement, recreation, and lighting management. While 
we expect that future section 7 consultations concerning these 
activities will primarily involve USFWS and Federal agencies, the 
potential exists for third parties to be involved in consultations. 
Specifically, for species and habitat management, sand placement, 
recreation, and lighting management, counties may be involved in future 
section 7 consultations. For in-water and coastal development, 
businesses may be involved in future section 7 consultations. 
Therefore, the DEA presents information on small governmental 
jurisdictions (counties) and small businesses that may be involved in 
the forecast consultations for these activities.
    To determine if the proposed designation of terrestrial critical 
habitat for the loggerhead would affect a substantial number of small 
entities, we considered the number of small entities affected within 
the categories of activities identified above. 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 loggerhead is 
present, Federal agencies already are required to consult with us

[[Page 42926]]

under section 7 of the Act on activities they fund, permit, or 
implement that may affect the species. If we finalize this proposed 
critical habitat designation, consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
existing consultation process.
    Of the county governments potentially involved in future section 7 
consultation on species and habitat management, lighting management, 
sand placement, and recreation, only one county is considered a small 
government jurisdiction as defined in Section 601(5) of the RFA. With a 
population of 15,844, Gulf County, Florida, is considered a small 
governmental jurisdiction. The total potential annualized incremental 
economic impact to Gulf County is $650 (seven percent discount rate), 
which represents less than 0.01 percent of the county's reported 
revenues in 2011. This impact is the total third party cost of 
forecasted section 7 consultations on species and habitat management 
(associated with the potential reinitiation of formal consultation on 
the Gulf County draft HCP should it be approved prior to final 
designation of terrestrial critical habitat), sand placement, 
recreation, and lighting management, which are expected to occur in the 
proposed critical habitat units located in Gulf County, Florida, as 
described in Chapters 3, 5, and 6 of the DEA. We exclude costs 
associated with programmatic consultations, as these are expected to 
involve only USFWS and a Federal agency. Note that proposed critical 
habitat unit LOGG-T-FL-41 contains areas in both Bay and Gulf Counties. 
For purposes of this analysis, the DEA conservatively assumed that the 
full third party costs associated with consultations in this unit are 
incurred by Gulf County, which may result in an overestimate of costs.
    In the DEA, we also evaluated the potential economic effects on 
small entities resulting from participation in section 7 consultation. 
Although we expect that Federal agencies are the only entities that 
will be directly regulated as a result of designation of terrestrial 
critical habitat for the loggerhead, we acknowledge that third party 
proponents of an action subject to Federal permitting or funding may be 
indirectly affected by critical habitat designation. The DEA, 
therefore, uses information from Dun and Bradstreet databases to 
determine the number of small businesses operating within potentially 
affected industry sectors in each county containing proposed critical 
habitat units and includes a brief evaluation of the potential number 
of third party small business entities likely to be affected if this 
critical habitat designation is finalized. 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 required to evaluate the potential impacts of 
rulemaking only 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 has a regulatory effect 
only 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. Within areas proposed for critical 
habitat designation, the quantified annualized impacts to small 
entities are estimated to be $15,000, or approximately 12 percent of 
total quantified incremental impacts anticipated as a result of 
designation of this proposed critical habitat. In areas being 
considered for exclusion, the quantified annualized impacts to small 
entities are estimated to be $1,800, or approximately 11 percent of 
total quantified incremental impacts anticipated as a result of 
designation of this proposed critical habitat. However, based on 
comments we receive, we may revise this estimate as part of our final 
rulemaking. 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 terrestrial 
critical habitat for the loggerhead 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 economic analysis found that no significant 
economic impacts are likely to result from the designation of critical 
habitat for loggerhead. 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 economic 
analysis assessment 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 loggerhead does not pose significant takings 
implications for lands within or affected by the designation.

Authors

    The primary authors of this notice are the staff members of the 
North Florida Ecological Services Office, Southeast Region, U.S. Fish 
and Wildlife Service.

[[Page 42927]]

Authority

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

    Dated: June 10, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-17205 Filed 7-17-13; 8:45 am]
BILLING CODE 3510-22-P