[Federal Register Volume 71, Number 152 (Tuesday, August 8, 2006)]
[Proposed Rules]
[Pages 44976-44980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12317]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU46
Endangered and Threatened Wildlife and Plants; Revised
Designation of Critical Habitat for the Endangered Alabama Beach Mouse
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Revised proposed rule; reopening of comment period, notice of
availability of draft economic analysis, acreage corrections, and
notice of public hearing.
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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening
of the public comment period, a public hearing on the proposed revision
of critical habitat for the Alabama beach mouse (Peromyscus polionotus
ammobates) (ABM), and the availability of the draft economic analysis
of the proposed designation of critical habitat under the Endangered
Species Act of 1973, as amended (Act). We are also using this comment
period to correct minor acreage calculation errors in the February 1,
2006, proposed rule (71 FR 5516), announce the inclusion of an
additional 6 acres (distributed among proposed critical habitat units
1, 2, and 3), and solicit further comments on the proposed rule. The
draft economic analysis forecasts that costs associated with
conservation activities for the ABM would range from $18.3 million to
$51.8 million in undiscounted dollars over the next 20 years. Adjusted
for possible inflation, the costs would range from $16.1 million to
$46.8 million over 20 years, or $1.1 million to $3.1 million annually
using a 3 percent discount; or $14.2 million to $41.7 million over 20
years, or $1.3 million to $3.9 million annually using a 7 percent
discount. We are reopening the public comment period to allow all
interested parties an opportunity to comment simultaneously on the
proposed rule and the associated draft economic analysis. Comments
previously submitted need not be resubmitted as they will be
incorporated into the public record and fully considered in preparation
of the final rule.
DATES: We will accept public comments until September 7, 2006. See
Public Hearings, under SUPPLEMENTARY INFORMATION, for further details.
ADDRESSES: If you wish to comment, you may submit your comments and
information concerning this proposal, identified by ``Attn: Alabama
Beach Mouse Critical Habitat,'' by any one of several methods:
(1) Mail or hand-deliver to: Field Supervisor, U.S. Fish and
Wildlife Service, Daphne Fish and Wildlife Office, 1208-B Main Street,
Daphne, Alabama 36526.
(2) Send by electronic mail (e-mail) to [email protected].
Please see the Public Comments Solicited section below for file format
and other information about electronic filing.
(3) Provide oral or written comments at the public hearing.
(4) Fax your comments to: 251-441-6222.
5. Submit comments on Federal eRulemaking portal: http://www.regulations.gov. Follow the instructions for submitting comments.
Public Hearings
We have scheduled a public hearing on the proposed critical habitat
revision and the draft economic analysis. The hearing will take place
from 7 to 9 p.m. on August 24, 2006, at the Adult Activity Center
located at 260 Clubhouse Drive, Gulf Shores, Alabama 36542. This will
be preceded by a public information session from 6 to 7 p.m. at the
same location. Maps of the proposal and other materials will be
available for public review.
Comments and materials received, as well as supporting
documentation used in the preparation of this proposed rule, will be
available for public inspection by appointment during normal business
hours at the Daphne Fish and Wildlife Field Office at the above
address.
FOR FURTHER INFORMATION CONTACT: Field Supervisor, U.S. Fish and
Wildlife Service, Daphne, Alabama (telephone 251-441-5181; facsimile
251-441-6222).
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule are hereby solicited. Comments
particularly are sought concerning:
(1) The reasons any habitat should or should not be determined to
be critical habitat as provided by section 4 of the Act, including
whether the benefit of designation will outweigh any adverse impacts to
the species due to designation;
(2) Specific information on the presence of Alabama beach mouse
habitat, particularly what areas should be included in the designations
that were occupied at the time of listing that contain features that
are essential for the conservation of the species and why; and what
areas that were not occupied at 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) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation and, in particular, any
impacts on small entities;
(5) Whether the draft economic analysis identifies all State and
local costs attributable to the proposed critical habitat designation,
and information on any costs that have been inadvertently overlooked;
(6) Whether the draft economic analysis makes appropriate
assumptions regarding current practices and likely regulatory changes
imposed as a result of the designation of critical habitat;
(7) Whether the draft economic analysis correctly assesses the
effect on regional costs associated with any land use controls that may
derive from the designation of critical habitat;
(8) Whether the draft economic analysis appropriately identifies
all
[[Page 44977]]
costs and benefits that could result from the designation; and
(9) Whether our approach to critical habitat designation could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concern and comments.
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods (see ADDRESSES
section). Please note that comments merely stating support or
opposition to the actions under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) directs that
determinations to be made ``solely on the basis of the best scientific
and commercial data available.'' Please submit comments electronically
to [email protected] in ASCII file format and avoid the use of
special characters or any form of encryption. Please also include
``Attn: Alabama Beach Mouse Critical Habitat'' in your e-mail subject
header and your name and return address in the body of your message. If
you do not receive a confirmation from the system that we have received
your electronic message, contact us directly by calling the Daphne Fish
and Wildlife Office at phone number 251-441-5181. Please note that the
e-mail address [email protected] will be closed out at the
termination of the public comment period.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. We will not consider anonymous comments and we will
make all comments available for public inspection in their entirety.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the U.S.
Fish and Wildlife Service Office at the above address.
Copies of the draft economic analysis and the proposed rule for
critical habitat designation are available on the Internet at http://www.fws.gov/daphne or from the Daphne Fish and Wildlife Office at the
address and contact numbers above.
Our final designation of critical habitat will take into
consideration all comments and any additional information we received
during both comment periods. Previous comments and information
submitted during the initial comment period on the February 1, 2006,
proposed rule (71 FR 5516) need not be resubmitted. On the basis of
information received during the public comment period, we may during
the development of our final critical habitat 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. An
area may be excluded from critical habitat if it is determined that the
benefits of such exclusion outweigh the benefits of including a
particular area as critical habitat, unless the failure to designate
such area as critical habitat will result in the extinction of the
species. We may exclude an area from designated critical habitat based
on economic impacts, national security, or any other relevant impact.
Background
On February 1, 2006, we published a proposed rule to designate
critical habitat for the ABM (71 FR 5516), revising the original
designation for the subspecies (50 FR 23872; June 6, 1985). The
proposed revision outlined five coastal dune areas (units), totaling
approximately 1,298 total acres (ac) (525 hectares (ha)) in southern
Baldwin County, Alabama, as critical habitat for the ABM. These five
units consist of a mix of primary, secondary, and scrub sand dunes and
interdunal swales and generally include an inland expansion of 1985
designated units to include more scrub dune habitat. Also in our
February 2006 rule, we proposed exclusion of approximately 1,229 ac
(497 ha) that, following our analysis under sections 4(b)(2) and
3(5)(A) of the Act, did not warrant designation of critical habitat
because they are either protected by existing habitat conservation
plans or do not require special management considerations or
protection. The five proposed revised units, combined with these areas
proposed for exclusion, constitute our best assessment of those areas
essential to the conservation of the subspecies. As a result of
revisions and corrections outlined in this revised proposed rule, these
five units now total 1,326 ac (537 ha). We are also proposing inclusion
of six residential lots to critical habitat (see Acreage Corrections).
Other than the changes just described, the proposed rule of February 1,
2006, remains intact. We will submit for publication in the Federal
Register a final revised critical habitat designation for ABM on or
before January 15, 2007.
Critical habitat is defined in section 3 of the Act as the specific
areas within the geographic 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 geographic 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 areas designated as critical habitat must consult with us on
the effects of their proposed actions, pursuant to section 7(a)(2) of
the Act.
Economic Analysis
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific and commercial data
available, after taking into consideration the economic or any other
relevant impact of specifying any particular area as critical habitat.
We have prepared a draft economic analysis based on the February 1,
2006, proposed rule (71 FR 5516) that revises the currently designated
critical habitat for the ABM; subsequent corrections are included.
The draft economic analysis estimates the foreseeable economic
impacts of ABM conservation measures within the proposed critical
habitat designation on government agencies and private businesses and
individuals. The analysis measures lost economic efficiency associated
with residential and commercial development, and public projects and
activities, such as economic impacts on transportation projects, the
energy industry, and State and Federal lands. It is difficult to
separate costs attributed to the listing of a species from costs
associated solely with a critical habitat designation. Therefore, the
draft economic analysis considers the potential economic effects of all
actions relating to the conservation of the ABM, including costs
associated with sections 4, 7, and 10 of the Act, and those
attributable to designating critical habitat. This may result in an
overestimate of the potential economic impacts of the designation.
The draft economic analysis forecasts that costs associated with
conservation activities for the ABM would range from $18.3 million to
$51.8 million in undiscounted dollars over the next 20 years. Adjusted
for possible inflation, the costs would range from $16.1 million to
$46.8 million over 20 years, or $1.1 million to $3.1 million annually
using a 3 percent discount; or $14.2 million to $41.7 million over 20
years,
[[Page 44978]]
or $1.3 million to $3.9 million annually, using a 7 percent discount.
Overall, the residential and commercial development industry is
calculated to experience the highest estimated costs (99 percent).
The draft economic analysis considers the potential economic
effects of all actions relating to the conservation of the ABM,
including costs coextensive with listing. It further considers the
economic effects of protective measures taken as a result of other
Federal, State, and local laws that aid habitat conservation for the
ABM in proposed critical habitat areas. The draft analysis considers
both economic efficiency and distributional effects. In the case of
habitat conservation, efficiency effects generally reflect lost
economic opportunities associated with restrictions on land use
(opportunity costs). This analysis also addresses how potential
economic impacts are likely to be distributed, including an assessment
of any local or regional impacts of habitat conservation and the
potential effects of conservation activities on small entities and the
energy industry. This information can be used by decision makers to
assess whether the effects of the designation might unduly burden a
particular group or economic sector. Finally, this draft analysis looks
retrospectively at costs that have been incurred since the date the
subspecies was listed as endangered and considers those costs that may
occur in the 20 years following revision of critical habitat.
As stated earlier, we solicit data and comments from the public on
this draft economic analysis, as well as on all aspects of the
proposal. We may revise the proposal, or its supporting documents, to
incorporate or address new information received during the comment
period.
Acreage Corrections
By this notice, we are also advising the public of two changes to
the February 1, 2006, proposed rule (71 FR 5516). First, we regret that
an error was inadvertently made in the proposed rule concerning the 49
single-family homes proposed for exclusion under section 4(b)(2) of the
Act based upon habitat conservation plans (HCPs). Owners of six lots
that were proposed for exclusion do not have approved HCPs. Undeveloped
portions of these lots, totaling approximately 6 ac (2 ha) and
distributed between Units 1 (3.3 ac), 2 (2.3 ac), and 3 (0.5 ac),
contain both the habitat known to be occupied at the time of listing
and the physical and biological characteristics essential to the
conservation of the subspecies. Therefore, they are now proposed for
inclusion in the revised designation.
Second, there were also slight acreage discrepancies in the
proposed rule due to an inadvertent calculation error. An 18-acre
discrepancy in Unit 1 was identified and accounted for in the draft
economic analysis. Table 1 contains the corrected acreage values,
including the six additional acres proposed for inclusion discussed
above. These acreage differences do not change the legal description
published in the February 1, 2006, proposed rule, which are a true
representation of the updated acreage identified in Table 1 below.
TABLE 1.--Areas Proposed as Critical Habitat for the Alabama Beach Mouse
[Totals may not sum due to rounding]
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Local and
Federal State private Total
Critical Habitat Units--Alabama beach mouse acres acres acres acres
(hectares) (hectares) (hectares) (hectares)
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1. Fort Morgan.................................................. 44 (18) 337 (136) 66 (27) 446 (180)
2. Little Point Clear........................................... 16 (6) 82 (33) 170 (69) 268 (108)
3. Gulf Highlands............................................... 11 (4) 48 (19) 331 (134) 390 (158)
4. Pine Beach................................................... 11 (4) 0 20 (8) 31 (13)
5. Gulf State Park.............................................. 0 190 (77) 0 190 (77)
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Total....................................................... 82 (32) 657 (265) 587 (238) 1326 (537)
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Required Determinations--Amended
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule because it may raise novel legal and policy issues.
However, it is not anticipated to have an annual effect on the economy
of $100 million or more or affect the economy in a material way. Due to
the timeline for publication in the Federal Register, the Office of
Management and Budget (OMB) did not formally review the proposed rule.
Further, Executive Order 12866 directs Federal Agencies
promulgating regulations to evaluate regulatory alternatives (Office of
Management and Budget, Circular A-4, September 17, 2003). Pursuant to
Circular A-4, once it has been determined that the Federal regulatory
action is appropriate, the agency will need to consider alternative
regulatory approaches. Since the determination of critical habitat is a
statutory requirement pursuant to the Endangered Species Act of 1973,
as amended (16 U.S.C. 1531 et seq.), we must then evaluate alternative
regulatory approaches, where feasible, when promulgating a designation
of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweighs the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. We believe that the evaluation of the inclusion or
exclusion of particular areas, or combination thereof, in a designation
constitutes our regulatory alternative analysis.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), 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 effect of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic impact
[[Page 44979]]
on a substantial number of small entities. In our proposed rule, we
withheld our determination of whether this designation would result in
a significant effect as defined under SBREFA until we completed our
draft economic analysis of the proposed designation so that we would
have the factual basis for our determination.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
To determine if the proposed ABM critical habitat designation would
affect a substantial number of small entities, we considered the number
of small entities affected within particular types of economic
activities (such as residential and commercial development). We
considered each industry or category individually to determine if
certification is appropriate. In estimating the numbers of small
entities potentially affected, we also considered whether their
activities have any Federal involvement; some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
the designation of critical habitat. Designation of critical habitat
only affects activities conducted, funded, permitted, or authorized by
Federal agencies.
In our draft economic analysis, we evaluated the potential economic
effects on small business entities resulting from conservation actions
related to the listing of ABM and proposed designation of their
critical habitat. This analysis estimated prospective economic impacts
due to the implementation of beach mouse conservation efforts in five
categories: Private development activities; recreation; tropical storms
and hurricanes; species management and habitat protection activities;
and road construction. We determined from our analysis that in four of
these five categories, impacts of ABM conservation efforts are not
anticipated to impact small business. The only category of small
business entities that may be affected is private development firms.
Costs associated with residential-commercial development comprise 99
percent of the total quantified future impacts. Total costs of
conservation efforts related to development activities are estimated to
be $18.1 million to $51.2 million in undiscounted dollars over the next
20 years, on approximately 587 acres of developable private lands.
Adjusted for possible inflation, the costs would range from $16.1
million to $46.8 million over 20 years, or $1.1 million to $3.1 million
annually using a 3 percent discount; or $14.2 million to $41.7 million
over 20 years, or $1.3 million to $3.9 million annually, using a 7
percent discount. Conservation effort costs include land preservation
(set asides), monitoring, and predator control that may be required of
new development activity on private land. Assuming each parcel of land
is owned by a unique landowner, approximately 137 landowners could be
impacted by the ABM conservation efforts. This analysis assumes that,
in general, landowners are private citizens and not developers. Thus,
although 137 landowners may be affected by this designation, few are
anticipated to be small entities. Therefore, we do not believe that the
designation of critical habitat for the ABM will result in a
disproportionate effect to small business entities.
Please refer to our draft economic analysis of the proposed
critical habitat designation for a more detailed discussion of
potential economic impacts.
Executive Order 13211
On May 18, 2001, the President issued Executive Order (E.O.) 13211
on regulations that significantly affect energy supply, distribution,
and use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This proposed rule is
considered a significant regulatory action under E.O. 12866 because it
raises novel legal and policy issues, but it is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant action, and no Statement of Energy
Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments,'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and tribal governments under entitlement authority,''
if the provision would ``increase the stringency of conditions of
assistance'' or ``place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding'' and the State, local,
or tribal governments ``lack authority'' to adjust accordingly. At the
time of enactment, these entitlement programs were: Medicaid; Aid to
Families with Dependent Children work programs; Child Nutrition; Food
Stamps; Social Services Block Grants; Vocational Rehabilitation State
Grants; Foster Care, Adoption Assistance, and Independent Living;
Family Support Welfare Services; and Child Support Enforcement.
``Federal private sector mandate'' includes a regulation that ``would
impose an enforceable duty upon the private sector, except (i) a
condition of Federal assistance; or (ii) a duty arising from
participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. Non-Federal entities that receive Federal
funding, assistance, permits, or otherwise require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical
[[Page 44980]]
habitat. However, the legally binding duty to avoid destruction or
adverse modification of critical habitat rests squarely on the Federal
agency. Furthermore, to the extent that non-Federal entities are
indirectly impacted because they receive Federal assistance or
participate in a voluntary Federal aid program, the Unfunded Mandates
Reform Act would not apply; nor would critical habitat shift the costs
of the large entitlement programs listed above on to State governments.
(b) As discussed in the draft economic analysis of the proposed
designation of critical habitat for the ABM, the impacts on nonprofits
and small governments are expected to be negligible. It is likely that
small governments involved with developments and infrastructure
projects will be interested parties or involved with projects involving
section 7 consultations for the ABM within their jurisdictional areas.
Any costs associated with this activity are likely to represent a small
portion of a local government's budget. Consequently, we do not believe
that the designation of critical habitat for this subspecies will
significantly or uniquely affect these small governmental entities. As
such, a Small Government Agency Plan is not required.
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
proposing critical habitat for the ABM. Critical habitat designation
does not affect landowner actions that do not require Federal funding
or permits, nor does it preclude development of habitat conservation
programs or issuance of incidental take permits to permit actions that
do require Federal funding or permits to go forward. In conclusion, the
designation of critical habitat for this subspecies does not pose
significant takings implications.
Author
The primary author of this notice is Rob Tawes of the Daphne Fish
and Wildlife Office (see ADDRESSES section).
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: July 17, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-12317 Filed 8-7-06; 8:45 am]
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