[Federal Register Volume 79, Number 7 (Friday, January 10, 2014)]
[Proposed Rules]
[Pages 1805-1810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-00281]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket Nos. FWS-R8-ES-2012-0100; FWS-R8-ES-2012-0074; 4500030113]
RIN 1018-AZ21; RIN 1018-AY07


Endangered and Threatened Wildlife and Plants; Endangered Status 
for the Sierra Nevada Yellow-Legged Frog and the Northern Distinct 
Population Segment of the Mountain Yellow-Legged Frog, and Threatened 
Status for the Yosemite Toad and Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rules; reopening of the comment periods.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on our April 25, 2013, proposed 
rule to list the Sierra Nevada yellow-legged frog and the northern 
distinct population segment (DPS) of the mountain yellow-legged frog 
(populations that occur north of the Tehachapi Mountains) as endangered 
species, and the Yosemite toad as a threatened species under the 
Endangered Species Act of 1973, as amended (Act). We are also reopening 
the public comment period on our April 25, 2013, proposed rule to 
designate critical habitat for these species. We also announce the 
availability of a draft economic analysis (DEA) of the proposed 
designation of critical habitat for the Sierra Nevada yellow-legged 
frog, the northern DPS of the mountain yellow-legged frog, and the 
Yosemite toad and an amended required determinations section of the 
proposal. We are also announcing the location and time of a public 
hearing to receive public comments on the proposals, as well as the 
times and locations of two public meetings. We are reopening the 
comment periods to allow all interested parties an opportunity to 
comment simultaneously on the proposed rules, 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 on the proposed rules published April 
25, 2013 (78 FR 24472 and 78 FR 24516) received or postmarked on or 
before March 11, 2014. Comments submitted electronically using the 
Federal eRulemaking Portal (see ADDRESSES section, below) must be 
received by 11:59 p.m. Eastern Time on the closing date.
    Public Hearing: We will hold a public hearing on these proposed 
rules in Sacramento, California, on January 30, 2014, at 1:00 p.m. and 
again at 6:00 p.m. (see ADDRESSES).
    Public Meetings: We will hold two public meetings to provide 
information on these proposed rules in Bridgeport, California, on 
January 8, 2014, from 1:00 p.m. to 3:00 p.m. and in Fresno, California, 
on January 13, 2014, from 1:00 p.m. to 3:00 p.m. (see ADDRESSES).

ADDRESSES: 
    Document availability: You may obtain copies of the proposed rules 
and the associated documents of the draft economic analysis on the 
internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2012-
0100 and Docket No. FWS-R8-ES-2012-0074 or by mail from the Sacramento 
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
    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. Search for Docket No. FWS-R8-ES-2012-0100 (the 
docket number for the proposed listing rule) or FWS-R8-ES-2012-0074 
(the docket number for the proposed critical habitat rule).
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2012-0100 (if commenting on the 
proposed listing rule) or FWS-R8-ES-2012-0074 (if commenting on the 
proposed critical habitat rule); 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).
    Public informational sessions and public hearing: The public 
informational sessions and hearing will be held at Mono County Board of 
Supervisors Chambers in the Mono County Courthouse, State Highway 395 
North, Bridgeport, CA 93517, and the Fresno County Board of Supervisors 
Chambers in the Hall of Records, Room 301, 2281 Tulare Street, Fresno, 
CA 93721. The hearing will be held at the Sacramento Horsemen's 
Association, 3200 Longview Drive, Sacramento, CA 9582. People needing 
reasonable accommodations in order to attend and participate in the 
public hearing should contact Jennifer Norris, Field Supervisor, 
Sacramento Fish and Wildlife Office, as soon as possible (see FOR 
FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Jennifer Norris, Field Supervisor, 
U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 
2800 Cottage Way Room W-2605, Sacramento CA 95825; by telephone 916-
414-6600; or by facsimile 916-414-6712. 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 rule to list the Sierra Nevada 
yellow-legged frog, the northern DPS of the mountain yellow-legged frog 
as endangered species, and the Yosemite toad as a threatened species, 
that was published in the Federal Register on April 25, 2013 (78 FR 
24472). We will consider information and recommendations from all 
interested parties. We are particularly interested in comments 
concerning:

[[Page 1806]]

    (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) 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.
    (5) Land use designations and current or planned activities in the 
areas occupied by the species, and possible impacts of these activities 
on these species.
    (6) Information on the projected and reasonably likely impacts of 
climate change on the Sierra Nevada yellow-legged frog, the northern 
DPS of the mountain yellow-legged frog, and the Yosemite toad.
    (7) Input on whether we should retain the northern and southern 
DPSs of the mountain yellow-legged frog in the final rule or should we 
combine the two DPSs into one listed entity for the species.
    We will also accept written comments and information during this 
reopened comment period on our proposed designation of critical habitat 
for the Sierra Nevada yellow-legged frog, the northern DPS of the 
mountain yellow-legged frog, and the Yosemite toad, which was published 
in the Federal Register on April, 25, 2013 (78 FR 24516), 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 (16 U.S.C. 1531 et 
seq.), including whether there are threats to these species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat is not 
prudent.
    (2) Specific information on:
    (a) The amount and distribution of Sierra Nevada yellow-legged 
frog, the northern DPS of the mountain yellow-legged frog, and Yosemite 
toad, and their habitats;
    (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) Which areas currently occupied contain features essential to 
the conservation of these species should be included in the 
designation, and why; and
    (f) Which areas not currently occupied are essential for the 
conservation of these species, and why.
    (3) 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 these species and 
their proposed critical habitats.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the Sierra Nevada yellow-legged frog, the northern 
DPS of the mountain yellow-legged frog, and the Yosemite toad, and on 
their proposed critical habitats and whether the critical habitat may 
adequately account for these potential effects. We also seek 
information on special management considerations or protection that may 
be needed in the proposed critical habitat areas, including management 
for the potential effects of climate change.
    (5) Any probable economic, national security, or other relevant 
impacts that may result from designating any area as critical habitat 
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) Information on the extent to which the description of probable 
economic impacts in the DEA is complete and accurate, and specifically:
    (a) Whether there are incremental costs of critical habitat 
designation (for example, costs attributable solely to the designation 
of critical habitat for the Sierra Nevada yellow-legged frog, the 
northern DPS of the mountain yellow-legged frog, and the Yosemite toad) 
that have not been appropriately identified or considered in our 
economic analysis, including costs associated with future 
administrative costs or project modifications that may be required by 
Federal agencies related to section 7 consultation under the Act; and
    (b) Whether there are additional project modifications that may 
result from the designation of critical habitat for the Sierra Nevada 
yellow-legged frog, the northern DPS of the mountain yellow-legged 
frog, and the Yosemite toad, and what those potential project 
modifications might represent.
    (7) 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.
    (8) Whether any specific areas proposed 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.
    (9) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you submitted comments or information on the proposed rule (78 
FR 24516) during either of the previous comment periods from April 25, 
2013, to June 24, 1013, or July 19, 2013, to November 18, 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 the 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 
rules or DEA by one of the methods listed in ADDRESSES. We request that 
you send

[[Page 1807]]

comments only by the methods described in ADDRESSES.
    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 listing, proposed 
critical habitat, and DEA, will be available for public inspection on 
http://www.regulations.gov at Docket Number FWS-R8-ES-2012-0100 for the 
proposed listing and Docket Number FWS-R8-ES-2012-0074 for the proposed 
critical habitat, or by appointment, during normal business hours, at 
the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the 
proposed rule to designate critical habitat and the DEA on the Internet 
at http://www.regulations.gov at Docket Number FWS-R8-ES-2012-0100 for 
the proposed listing and Docket Number FWS-R8-ES-2012-0074 for the 
proposed critical habitat, or by mail from the Sacramento Fish and 
Wildlife 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 Sierra Nevada yellow-legged 
frog, the northern DPS of the mountain yellow-legged frog, and the 
Yosemite toad in this document. For more information on previous 
Federal actions concerning the Sierra Nevada yellow-legged frog, the 
northern DPS of the mountain yellow-legged frog, and the Yosemite toad, 
refer to the proposed designation of critical habitat published in the 
Federal Register on April 25, 2013 (78 FR 24516). For more information 
on the Sierra Nevada yellow-legged frog, the northern DPS of the 
mountain yellow-legged frog, and the Yosemite toad or its habitat, 
refer to the proposed listing rule published in the Federal Register on 
April 25, 2013 (78 FR 24472). Both are available online at http://www.regulations.gov (at Docket Number FWS-R8-ES-2012-0074 for the 
listing and Docket Number FWS-R8-ES-2012-0100 for the critical habitat 
designation) or from the Sacramento Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT).
    On April 24, 2013, we published a proposed rule to designate 
critical habitat for the Sierra Nevada yellow-legged frog, the northern 
DPS of the mountain yellow-legged frog, and the Yosemite toad (78 FR 
24516). We proposed to designate approximately 447,341 hectares 
(1,105,400 acres) as critical habitat for the Sierra Nevada yellow-
legged frog in Butte, Plumas, Lassen, Sierra, Nevada, Placer, El 
Dorado, Amador, Calaveras, Alpine, Mariposa, Mono, Madera, Tuolumne, 
Fresno, and Inyo Counties, California as critical habitat; 
approximately 89,637 hectares (221,498 acres) as critical habitat for 
the northern DPS mountain yellow-legged frog in Fresno and Tulare 
Counties, California; and approximately 303,889 hectares (750,926 
acres) as critical habitat for Yosemite toad in Alpine, Tuolumne, Mono, 
Mariposa, Madera, Fresno, and Inyo Counties, California. That proposal 
had an initial 60-day comment period, ending June 24, 2013; however, we 
reopened the comment period from July 19, 2013, to November 18, 2013 
(78 FR 45122). We anticipate submitting for publication in the Federal 
Register a final critical habitat designation for Sierra Nevada yellow-
legged frog, the northern DPS of the mountain yellow-legged frog, and 
the Yosemite toad on or before April 25, 2014, if we finalize our 
proposed rule to list the species under the Act.

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 
among other factors, the additional regulatory benefits that an area 
would receive through the analysis under section 7 of the Act 
addressing the destruction or adverse modification of critical habitat 
as a result of actions with a Federal nexus (activities conducted, 
funded, permitted, or authorized by Federal agencies), the educational 
benefits of identifying areas containing essential features that aid in 
the recovery of the listed species, and any ancillary benefits 
triggered by existing local, State or Federal laws as a result of the 
critical habitat designation.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to 
incentivize or result in conservation; the continuation, strengthening, 
or encouragement of partnerships; and the implementation of a 
management plan. In the case of the Sierra Nevada yellow-legged frog, 
the northern DPS of the mountain yellow-legged frog, and the Yosemite 
toad, the benefits of critical habitat include public awareness of the 
presence of these species, and the importance of habitat protection. 
Where a Federal nexus exists, critical habitat would benefit the Sierra 
Nevada yellow-legged frog, the northern DPS of the mountain yellow-
legged frog, and the Yosemite toad though increased habitat protection 
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.

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 Sierra Nevada yellow-legged frog, the northern DPS 
of the mountain yellow-legged frog, and the Yosemite toad. The DEA 
separates conservation measures into two distinct categories according 
to ``without critical habitat'' and ``with critical habitat'' 
scenarios. The ``without

[[Page 1808]]

critical habitat'' scenario represents the baseline for the analysis, 
considering protections otherwise afforded to the Sierra Nevada yellow-
legged frog, the northern DPS of the mountain yellow-legged frog, and 
the Yosemite toad (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 of critical habitat. 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 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 
Sierra Nevada yellow-legged frog, the northern DPS of the mountain 
yellow-legged frog, and the Yosemite toad over the next 17 years. This 
timeframe was determined to be the appropriate period for analysis 
because planning information is not available for most activities to 
forecast activity levels for projects beyond a 17-year timeframe. The 
DEA identifies potential incremental costs as a result of the proposed 
critical habitat designation. These incremental costs are associated 
with the designation of critical habitat and are above those baseline 
costs attributed to listing.
    The DEA quantifies economic impacts of the Sierra Nevada yellow-
legged frog, the northern DPS of the mountain yellow-legged frog, and 
the Yosemite toad conservation efforts associated with the following 
categories of activity: (1) Fish stocking/persistence; (2) dams and 
water diversions; (3) grazing; (4) fuels management; (5) timber 
harvests; (6) recreation; and (7) habitat and species management.
    The DEA concludes that incremental impacts resulting from the 
critical habitat designation are limited to the administrative costs of 
considering adverse modification in section 7 consultation. Estimating 
the impact of a regulation on future outcomes is inherently uncertain, 
as well as estimating the timing and duration of the administrative 
costs associated with section 7 consultation. Due to the uncertainty in 
the specifics of how Federal agencies will fulfill their section 7 
requirements, cost estimates were calculated for a low-end scenario 
(single range-wide consultation) and a high-end scenario (project-by-
project consultation). The DEA estimates total potential incremental 
economic impacts in areas proposed as critical habitat over the next 17 
years (2014 to 2030) to be approximately $630,000 ($60,000 annualized) 
under the low-end scenario and approximately $1.5 million ($140,000 
annualized) under the high-end scenario. These impact estimates are in 
present-value terms and apply a 7 percent discount rate (Industrial 
Economics Incorporated 2013, p. 4-1).
    Under the low-end scenario, costs related to dams and water 
diversions represent approximately 75 percent of overall incremental 
impacts, while costs for grazing and timber harvest activities 
represent approximately 8 and 5 percent of forecast impacts, 
respectively. In the high-end scenario, costs related to timber harvest 
activities represent approximately 49 percent of overall incremental 
impacts, with dams and water diversion activities representing 32 
percent, and grazing activities representing 15 percent.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed rules and our 
amended required determinations. We may revise the proposed rules 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 the species.

Required Determinations--Amended

    In our April 25, 2013, proposed rule (78 FR 24516), 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. 
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

[[Page 1809]]

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 Sierra Nevada yellow-legged frog, the northern DPS of the mountain 
yellow-legged frog, and the Yosemite toad would affect a substantial 
number of small entities, we considered the number of small entities 
affected within particular types of economic activities, such as fish 
stocking, dams and water diversions, grazing, fuels management, timber 
harvest activities, and recreation. 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 does not affect activities that do not 
have any Federal involvement; designation of critical habitat only 
affects activities conducted, funded, permitted, or authorized by 
Federal agencies. If the proposed listing is made final, in areas where 
the Sierra Nevada yellow-legged frog, the northern DPS of the mountain 
yellow-legged frog, or the Yosemite toad is present, Federal agencies 
will be required to consult with us under section 7(a)(2) 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 that 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 Sierra Nevada 
yellow-legged frog, the northern DPS of the mountain yellow-legged 
frog, and the Yosemite toad. Because the Service, the National Park 
Service, and the U.S. Forest Service are the only entities with 
expected direct compliance costs related to fish stocking, grazing, 
fuels management, and recreation, and these agencies are not considered 
small entities, this rule will not result in any impact to small 
entities regarding these activities. This rule has the potential to 
impact four small entities that operate dams and water diversion for 
power generation, and the impact is expected to range from 0.0003 to 
0.01 percent of the entities' reported annual revenues. This rule also 
has the potential to impact small entities engaged in timber harvest 
activities on Federal lands. Given the limited information available to 
specifically determine which small entities may be impacted, we 
conservatively estimate that approximately 358 small entities 
associated with timber harvest activities may be impacted by this rule. 
While there is insufficient information to accurately quantify the 
impact to these small entities, we anticipate that approximately 4 
percent of these entities will be impacted in any given year, and that 
the magnitude of impact will be small, as it is limited to the minor 
administrative costs of consultation. 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 the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are only required to evaluate the potential incremental 
impacts of rulemaking on those entities directly regulated by the 
rulemaking itself, and therefore, not required to evaluate the 
potential impacts to indirectly regulated entities. The regulatory 
mechanism through which critical habitat protections are realized is 
section 7 of the Act, which requires Federal agencies, in consultation 
with the Service, to ensure that any action authorized, funded, or 
carried by the Agency is not likely to adversely modify critical 
habitat. Therefore, under these circumstances only Federal action 
agencies are directly subject to the specific regulatory requirement 
(avoiding destruction and adverse modification) imposed by critical 
habitat designation. Under these circumstances, it is our position that 
only Federal action agencies will be directly regulated by this 
designation. Federal Agencies are not small entities and, to this end, 
there is no requirement under the RFA to evaluate the potential impacts 
to entities not directly regulated. Therefore, because no small 
entities are directly regulated by this rulemaking, the Service 
certifies that, if promulgated, the proposed critical habitat 
designation will not have a significant economic impact on a 
substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. 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.

Executive Order 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 the Sierra Nevada yellow-legged frog, the northern DPS of 
the mountain yellow-legged frog, and the Yosemite toad 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 the Sierra Nevada yellow-legged 
frog, the northern DPS of the mountain yellow-legged frog, and the 
Yosemite toad. 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 the Sierra 
Nevada yellow-legged frog, the northern DPS of the mountain yellow-
legged frog, and the Yosemite toad 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. OMB has provided guidance for

[[Page 1810]]

implementing this Executive Order that outlines nine outcomes that may 
constitute ``a significant adverse effect'' when compared to not taking 
the regulatory action under consideration. The DEA finds that impacts 
to the energy industry from this rule are expected to be limited to 
additional administrative costs. Thus, based on information in the DEA, 
energy-related impacts associated with the Sierra Nevada yellow-legged 
frog, the northern DPS of the mountain yellow-legged frog, and the 
Yosemite toad within critical habitat are not expected. As such, the 
designation of critical habitat is not expected 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 document are the staff members of the 
Sacramento Fish and Wildlife Office, Pacific Southwest Region, 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.).

    Dated: December 13, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-00281 Filed 1-8-14; 11:15 am]
BILLING CODE 4310-55-P