[Federal Register Volume 79, Number 117 (Wednesday, June 18, 2014)]
[Proposed Rules]
[Pages 34685-34696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14184]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2013-0088; 4500030114]
RIN 1018-AZ56


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Oregon Spotted Frog

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the August 29, 2013, proposed 
designation of critical habitat for the Oregon spotted frog (Rana 
pretiosa) under the Endangered Species Act of 1973, as amended (Act). 
We are proposing changes to four of the proposed critical habitat units 
based on new information we have received. We also announce the 
availability of a draft economic analysis (DEA) of the proposed 
designation of critical habitat for the Oregon spotted frog 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 designation of 
critical habitat, the associated DEA, the amended required 
determinations section, and the proposed changes to the critical 
habitat units described in this document. 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 August 29, 
2013 (at 78 FR 53538), is reopened. We will consider comments on that 
proposed rule or the changes to it proposed in this document that we 
receive or that are postmarked on or before July 18, 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.

ADDRESSES: Document availability: You may obtain copies of the proposed 
rule and the associated draft economic analysis on the Internet at 
http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0088 or by mail 
from the Washington 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. Submit comments on the critical habitat proposal 
and associated draft economic analysis by searching for Docket No. FWS-
R1-ES-2013-0088, which is the docket number for this rulemaking.
    (2) By hard copy: Submit comments on the critical habitat proposal 
and associated draft economic analysis U.S. mail or hand-delivery to: 
Public Comments Processing, Attn: FWS-R1-ES-2013-0088; 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: Ken S. Berg, Manager, U.S. Fish and 
Wildlife Service, Washington Fish and Wildlife Office, 510 Desmond 
Drive SE., Suite 102, Lacey, WA 98503; telephone 360-753-9440; or 
facsimile 360-753-9445. Persons who use a telecommunications device for 
the deaf (TDD) may call the

[[Page 34686]]

Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed designation of critical habitat 
for the Oregon spotted frog that was published in the Federal Register 
on August 29, 2013 (78 FR 53538), our revisions to the proposed 
designation of critical habitat described in this document, 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 the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threats outweighs the benefit 
of designation such that the designation of critical habitat is not 
prudent.
    (2) Specific information on:
    (a) The amount and distribution of Oregon spotted frog habitat;
    (b) What may constitute ``physical or biological features essential 
to the conservation of the species,'' within the geographical range 
currently occupied by the Oregon spotted frog;
    (c) Where these features are currently found;
    (d) Whether any of these features may require special management 
considerations or protection;
    (e) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of the species, should be included in the designation and 
why;
    (f) What areas not occupied at the time of listing are essential 
for the conservation of the species and why;
    (g) Whether there are any specific areas where the proposed 
critical habitat boundaries should be expanded to include adjacent 
riparian areas, what factors or features should be considered in 
determining an appropriate boundary revision, and why this would be 
biologically necessary or unnecessary; and
    (h) Additional research studies or information regarding the 
movement distances or patterns of Oregon spotted frogs.
    (3) Land use designations and current or planned activities in the 
areas proposed to be designated as critical habitat, and possible 
impacts of these activities on the proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the Oregon spotted frog within the proposed critical 
habitat areas.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, we seek information on any impacts on small 
entities or families, and the benefits of including or excluding areas 
from the proposed designation that exhibit 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 draft economic analysis is a reasonable estimate of the 
likely economic impacts.
    (8) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the associated documents of the 
draft economic analysis, 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.
    If you submitted comments or information on the proposed rule (78 
FR 53538) during the initial comment period from August 29, 2013, to 
November 12, 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 DEA, will be 
available for public inspection on http://www.regulations.gov at Docket 
No. FWS-R1-ES-2013-0088, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Washington Fish and 
Wildlife 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 Number FWS-R1-ES-2013-0088, or by mail 
from the Washington Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for Oregon spotted frog in this 
document. For more information on previous Federal actions concerning 
the Oregon spotted frog, refer to the proposed designation of critical 
habitat published in the Federal Register on August 29, 2013 (78 FR 
53538). For more information on the Oregon spotted frog or its habitat, 
refer to the proposed listing rule published in the Federal Register on 
August 29, 2013 (78 FR 53582), which is available online at http://www.regulations.gov (at Docket Number FWS-R1-ES-2013-0013) or from the 
Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).
    On August 29, 2013, we published a proposed rule to list the Oregon 
spotted frog as a threatened species (78 FR 53582) and a proposed rule 
to designate critical habitat for the Oregon spotted frog (78 FR 
53538). We proposed to designate approximately 68,192 acres (27,597 
hectares (ha)) and approximately 24 river miles (mi) (38 river 
kilometers (km)) in 14 units located in Washington and Oregon as 
critical habitat. That proposal had a 60-day comment period, to end 
October 28, 2013. On September 26, 2013, we extended the public comment 
period an additional 15 days, until November 12, 2013, to allow all 
interested parties additional time to comment on the

[[Page 34687]]

proposed rules, and we announced that we would hold a public hearing 
(78 FR 59334). The public hearing was held on October 21, 2013, in 
Lacey, Washington. We will submit for publication in the Federal 
Register a final critical habitat designation for the Oregon spotted 
frog after we receive public comment on the changes to the proposed 
critical habitat described in this document, the DEA, and the amended 
required determinations provided in this document.

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.

Changes From Previously Proposed Critical Habitat

    The Service received new information from Federal partners and the 
public that led to our refinement of four of the proposed critical 
habitat units in Oregon. We are proposing to expand the four units to 
include a total of 309 additional acres (125 additional ha). All of the 
additional areas are known to be occupied by Oregon spotted frogs and 
are subject to the same suite of activities described in our August 29, 
2013, proposed designation (78 FR 53538). The approximate acreages to 
be added to the four units, as well as the landownership, are shown 
below in Table 1. There are no changes being proposed in the other 10 
proposed critical habitat units.

Table 1--Approximate Area and Landownership of Changes to Proposed Critical Habitat Units for the Oregon Spotted Frog. All units in Table Are Located in
                                                                         Oregon
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                                                                                                Additional private/
                                             Additional     Additional state     Additional            local        Total additional  Total Proposed  ac
          Critical habitat unit           federal  ac (ha)       ac (ha)       county  ac (ha)  municipalities  ac    proposed  ac           (ha)
                                                                                                       (ha)               (ha)
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7. Lower Deschutes River................           27 (11)                 0                 0                   0           27 (11)             96 (39)
12. Williamson River....................           82 (33)                 0                 0             98 (40)          180 (73)      15,332 (6,205)
13. Upper Klamath Lake..................             7 (3)             3 (1)                 0             75 (30)           85 (34)         2,336 (946)
14. Upper Klamath.......................            15 (6)                 0                 0               2 (1)            17 (7)           262 (106)
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................          131 (53)             3 (1)                 0            175 (71)         309 (125)  ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding. Area estimates reflect all land and river miles within proposed critical habitat unit boundaries.

Changes to Proposed Critical Habitat Units

Critical Habitat Unit 7: Lower Deschutes River
    A comment we received from a peer reviewer indicated that the 
proposed critical habitat unit did not include overwintering habitat 
currently used by Oregon spotted frogs at Camas Prairie (Corkran 2013). 
Upon consideration of the information we received, we propose to 
include an additional 27 acres (11 ha) of the meadow and springs that 
provide overwintering habitat for the Oregon spotted frog. The 
additional acreage is occupied by the Oregon spotted frog, contains the 
physical or biological features essential to the conservation of the 
species, and occurs entirely on the Mt. Hood National Forest. The 
essential features within the additional acres may require special 
management considerations or protection to ensure maintenance or 
improvement of existing overwintering habitat, aquatic movement 
corridors, or refugia habitat, and to address any changes that could 
affect these features. The total acreage of proposed critical habitat 
in Unit 7, after this refinement, is 96 acres (39 ha) in Wasco County, 
Oregon.
Critical Habitat Unit 12: Williamson River
    New information we received from the U.S. Geological Survey 
indicated that the proposed critical habitat unit did not include the 
full extent of occupancy by Oregon spotted frogs along Jack Creek (C. 
Pearl, USGS, pers. comm. 2014). Therefore, we propose to include an 
additional 180 acres (73 ha) in this unit. Upon consideration of the 
information we received, this refinement includes approximately 3.1 
miles (5 km) of Jack Creek and its adjacent seasonally wetted areas 
south of U.S. Forest Service Road 88 through 1.32 mi (2.12 km) of 
O'Connor Meadow. The additional acreage is occupied by the Oregon 
spotted frog and contains the physical or biological features essential 
to the conservation of the species. Eighty-two acres (33 ha) are 
managed by the Fremont-Winema National Forest, and 98 acres (40 ha) are 
privately owned. The essential features within the additional acres may 
require special management considerations or protection to ensure 
maintenance or improvement of the existing nonbreeding, breeding, 
rearing, and overwintering habitat; aquatic movement corridors; or 
refugia habitat, and to address any changes that could affect these 
features. The total acreage of proposed critical habitat in Unit 12, 
after this refinement, is 15,332 acres (6,205 ha) in Klamath County, 
Oregon.
Critical Habitat Unit 13: Upper Klamath Lake
    New information we received from the U.S. Geological Survey and 
National Park Service indicated that the proposed critical habitat unit 
did not include the full extent of occupancy by Oregon spotted frogs 
(D. Hering, NPS, pers. comm. 2014; C. Pearl, pers. comm. 2013). Upon 
consideration of the information we received, we propose to include an 
additional 85 acres (34 ha) in this unit. This refinement includes 
approximately 0.75 mi (1.2 km) of Annie Creek and the associated, 
adjacent, seasonally wetted areas from the Annie Creek Sno-Park 
downstream to its junction with the Wood River;

[[Page 34688]]

approximately 1.19 mi (1.92 km) of Sun Creek and the associated, 
adjacent, seasonally wetted areas from the boundary of State and 
private property to the junction with Annie Creek; and approximately 
1.10 mi (1.77 km) of Blue Spring and the associated, adjacent, 
seasonally wetted areas from the spring origin to the junction of Short 
Creek. The additional acreage is occupied by the Oregon spotted frog 
and contains the physical or biological features essential to the 
conservation of the species. Seven acres (3 ha) are managed by the 
Bureau of Land Management and Fremont-Winema National Forest, 3 acres 
(1 ha) are managed by Oregon State Parks, and 75 acres (30 ha) are 
privately owned. The essential features within the additional acres may 
require special management considerations or protection to ensure 
maintenance or improvement of the existing nonbreeding, breeding, 
rearing, and overwintering habitat; aquatic movement corridors; or 
refugia habitat, and to address any changes that could affect these 
features. The total acreage of proposed critical habitat in Unit 13, 
after this refinement, is 2,336 acres (946 ha) in Klamath County, 
Oregon.
Critical Habitat Unit 14: Upper Klamath
    New information we received from the U.S. Forest Service indicated 
the proposed critical habitat unit did not include the full extent of 
occupancy by Oregon spotted frogs (T. Smith, USFS, pers. comm. 2014). 
Therefore, we propose to include an additional 17 acres (7 ha) in this 
unit. Upon consideration of the information we received, this 
refinement includes an additional portion of the Buck Lake drainage 
system of canals, as well as Spencer Creek from Buck Lake downstream 
approximately 1.6 miles (2.6 km), ending at the intersection of U.S. 
Forest Service Road 46 and Clover Creek Road. The additional acreage is 
occupied by the Oregon spotted frog and contains the essential physical 
or biological features. Fifteen acres (6 ha) are managed by the Bureau 
of Land Management and Fremont-Winema National Forest, and 2 acres (1 
ha) are privately owned. The essential features within the additional 
acres may require special management considerations or protection to 
ensure maintenance or improvement of the existing nonbreeding, 
breeding, rearing, and overwintering habitat; aquatic movement 
corridors; or refugia habitat, and to address any changes that could 
affect these features. The total acreage of proposed critical habitat 
in Unit 14, after this refinement, is 262 acres (106 ha) in Klamath and 
Jackson Counties, Oregon.

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; or implementation of a management 
plan. In the case of the Oregon spotted frog, the benefits of critical 
habitat include public awareness of the presence of the Oregon spotted 
frog and the importance of habitat protection, and, where a Federal 
nexus exists, increased habitat protection for the Oregon spotted frog 
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.
    The final decision on whether to exclude any areas will be based on 
the best scientific data available at the time of the final 
designation, including information obtained during the comment period 
and information about the economic impact of designation. Accordingly, 
we have prepared a draft economic analysis concerning the proposed 
critical habitat designation (DEA), which is available for review and 
comment (see ADDRESSES).

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios ``with critical 
habitat'' and ``without critical habitat.'' The ``without critical 
habitat'' scenario represents the baseline for the analysis, which 
includes the existing regulatory and socio-economic burden imposed on 
landowners, managers, or other resource users potentially affected by 
the designation of critical habitat (e.g., under the Federal listing as 
well as other Federal, State, and local regulations). The baseline, 
therefore, represents the costs of all efforts attributable to the 
listing of the species under the Act (i.e., conservation of the species 
and its habitat incurred regardless of whether critical habitat is 
designated). The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for the species. The incremental conservation efforts 
and associated impacts would not be expected without the designation of 
critical habitat for the species. In other words, the incremental costs 
are those attributable solely to the designation of critical habitat, 
above and beyond the baseline costs. These are the costs we use when 
evaluating the benefits of inclusion and exclusion of particular areas 
from the final designation of critical habitat should we choose to 
conduct an optional section 4(b)(2) exclusion analysis.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the

[[Page 34689]]

Oregon spotted frog (IEc, April 30, 2014). We began by conducting a 
screening analysis of the proposed designation of critical habitat in 
order to focus our analysis on the key factors that are likely to 
result in incremental economic impacts. The purpose of the screening 
analysis is to filter out the geographic areas in which the critical 
habitat designation is unlikely to result in probable incremental 
economic impacts. In particular, the screening analysis considers 
baseline costs (i.e., absent critical habitat designation) and includes 
probable economic impacts where land and water use may be subject to 
conservation plans, land management plans, best management practices, 
or regulations that protect the habitat area as a result of the Federal 
listing status of the species. The screening analysis filters out 
particular areas of critical habitat that are already subject to such 
protections and are, therefore, unlikely to incur incremental economic 
impacts. The screening analysis also assesses whether units are 
unoccupied by the species and may require additional management or 
conservation efforts as a result of the critical habitat designation 
and may incur incremental economic impacts. This screening analysis, 
combined with the information contained in our IEM, is what we consider 
our draft economic analysis of the proposed critical habitat 
designation for the Oregon spotted frog and is summarized in the 
narrative below.
    Executive Orders (E.O.) 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. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly impacted entities, where practicable and reasonable. We 
assess, to the extent practicable, the probable impacts, if sufficient 
data are available, to both directly and indirectly impacted entities. 
As part of our screening analysis, we considered the types of economic 
activities that are likely to occur within the areas likely affected by 
the critical habitat designation. In our evaluation of the probable 
incremental economic impacts that may result from the proposed 
designation of critical habitat for the Oregon spotted frog, first we 
identified, in the IEM dated January 14, 2014, and the IEM addendum 
dated February 13, 2014, probable incremental economic impacts 
associated with the following categories of activities: (1) Grazing, 
(2) water management, (3) land restoration and conservation, (4) 
agriculture, (5) recreation, and (6) transportation activities. We 
considered each industry or category individually. Additionally, we 
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. If the listing proposal is made final, in areas where 
the Oregon spotted frog is present, Federal agencies would be required 
to consult with the Service under section 7 of the Act on activities 
they fund, permit, or implement that may affect the species. If we also 
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. Therefore, 
disproportionate impacts to any geographic area or sector are not 
likely as a result of this critical habitat designation.
    In our IEM, we attempted to clarify the distinction between the 
effects that would result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the Oregon 
spotted frog's critical habitat. Because the designation of critical 
habitat for Oregon spotted frog was proposed concurrently with the 
listing, it has been our experience that it is more difficult to 
discern which conservation efforts are attributable to the species 
being listed and those which will result solely from the designation of 
critical habitat. However, the following specific circumstances in this 
case help to inform our evaluation: (1) The essential physical or 
biological features identified for critical habitat are the same 
features essential for the life history requisites of the species, and 
(2) any actions that would result in sufficient harm or harassment to 
constitute jeopardy to the Oregon spotted frog would also likely 
adversely affect the essential physical and biological features of 
critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
species. This evaluation of the incremental effects has been used as 
the basis to evaluate the probable incremental economic impacts of the 
proposed designation of critical habitat.
    The proposed critical habitat designation for the Oregon spotted 
frog totals approximately 68,500 acres (27,721 ha) and 24 river mi (38 
river km). The majority of these areas are occupied by the Oregon 
spotted frog, although approximately 365 acres (148 ha) and less than 1 
river mile are not known to be occupied by the species. In occupied 
areas, any actions that may affect the species or its habitat would 
also affect designated critical habitat, and it is unlikely that any 
additional conservation efforts would be recommended to address the 
adverse modification standard over and above those recommended as 
necessary to avoid jeopardizing the continued existence of the Oregon 
spotted frog. Additionally, in areas proposed as critical habitat that 
are not known to be occupied by the Oregon spotted frog, Federal action 
agencies are likely to treat these areas as potentially occupied due to 
their proximity to occupied areas, and any project modifications 
requested to avoid adverse modification are likely to be the same as 
those needed to avoid jeopardy. Therefore, only administrative costs 
are expected due to the proposed critical habitat designation. While 
this additional analysis will require time and resources by both the 
Federal action agency and the Service, it is believed that, in most 
circumstances, these costs would predominantly be administrative in 
nature and would not be significant. The unit likely to incur the 
largest incremental administrative costs is Unit 9 (Little Deschutes 
River) due to a relatively high number of anticipated consultations to 
consider grazing allotments intersecting the unit. The total 
incremental administrative costs associated with all known future 
actions are estimated to be $190,000. Thus, future probable incremental 
economic impacts are not likely to exceed $100 million in any single 
year and disproportionate impacts to any geographic area or sector are 
not likely as a result of this critical habitat designation.
    Therefore, the probable incremental economic impacts of the Oregon 
spotted frog critical habitat designation are expected to be limited to 
additional administrative effort in conducting future section 7 
consultations. This is due to three factors: (1) In occupied areas, 
activities with a Federal nexus would be subject to section 7 
consultation requirements regardless of critical habitat designation, 
due to the presence of the listed species; (2) In areas not known to be 
occupied, agencies would in most cases be likely

[[Page 34690]]

to treat areas as potentially occupied due to their proximity to 
occupied areas; and (3) project modifications requested to avoid 
adverse modification would be likely to be the same as those needed to 
avoid jeopardy.
    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 August 29, 2013, proposed rule (78 FR 53538), we determined 
our compliance with several statutes and executive orders. Following 
our evaluation of the probable incremental economic impacts resulting 
from the designation of critical habitat for the Oregon spotted frog, 
we have amended or affirmed our determinations below. Specifically, we 
affirm the information in our proposed rule concerning Executive Orders 
(E.O.s) 12866 and 13563 (Regulatory Planning and Review), E.O. 13132 
(Federalism), E.O. 12988 (Civil Justice Reform), 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 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 our evaluation of the probable incremental 
economic impacts of the proposed designation of critical habitat for 
the Oregon spotted frog, we are amending our required determinations 
concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and 
E.O. 12630 (Takings).

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.
    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.
    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 out 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 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.

E.O. 12630 (Takings)

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the Oregon spotted frog 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 Oregon spotted frog. 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 Oregon spotted frog does not pose significant 
takings implications for lands within or affected by the designation.

[[Page 34691]]

Authors

    The primary authors of this notice are the staff members of the 
Washington Fish and Wildlife Office, Oregon Fish and Wildlife Office-
Bend Field Office, and Klamath Falls Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as proposed to 
be amended on August 29, 2013, at 78 FR 53538, as set forth below:

PART 17--[AMENDED]

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

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

0
2. Amend Sec.  17.95(d) by revising paragraphs (12), (18), (19), and 
(20) in the entry proposed for ``Oregon Spotted Frog (Rana pretiosa)'' 
at 78 FR 53538 to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (d) Amphibians.
* * * * *
    Oregon Spotted Frog (Rana pretiosa)
* * * * *
    (12) Unit 7: Lower Deschutes River, Wasco County, Oregon. Map of 
Unit 7 follows:
BILLING CODE 4310-55-P

[[Page 34692]]

[GRAPHIC] [TIFF OMITTED] TP18JN14.001

* * * * *
    (18) Unit 12: Williamson River, Klamath County, Oregon. Map of Unit 
12 follows:

[[Page 34693]]

[GRAPHIC] [TIFF OMITTED] TP18JN14.002

    (19) Unit 13: Upper Klamath Lake, Klamath County, Oregon. Map of 
Unit 13 follows:

[[Page 34694]]

[GRAPHIC] [TIFF OMITTED] TP18JN14.003

    (20) Unit 14: Upper Klamath, Jackson and Klamath Counties, Oregon. 
Map of Unit 14 follows:

[[Page 34695]]

[GRAPHIC] [TIFF OMITTED] TP18JN14.004


[[Page 34696]]


* * * * *

    Dated: June 10, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-14184 Filed 6-17-14; 8:45 am]
BILLING CODE 4310-55-P