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Proposed Rule

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Brickellia mosieri (Florida Brickell-bush) and Linum carteri var. carteri (Carter's Small-flowered Flax)

Action

Proposed Rule; Revision And Reopening Of Comment Period.

Summary

We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the October 3, 2013, proposed designation of critical habitat for Brickellia mosieri (Florida brickell-bush) and Linum carteri var. carteri (Carter's small-flowered flax) under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of a draft economic analysis (DEA) of the proposed designation and an amended required determinations section of the proposal. In addition, we have made minor amendments to the proposed critical habitat units based on information received from other Federal agencies and from the public during our initial public comment period. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the original proposed rule, the revisions to the proposal described in this document, 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.

Unified Agenda

Endangered and Threatened Wildlife and Plants; Critical Habitat Designation for Carter's Small-Flowered Flax and Florida Brickell-Bush

5 actions from October 3rd, 2013 to November 2014

  • October 3rd, 2013
  • December 2nd, 2013
    • NPRM Comment Period End
  • July 15th, 2014
  • August 14th, 2014
    • NPRM Comment Period Reopened End
  • November 2014
    • Final Action
 

Table of Contents Back to Top

Tables Back to Top

DATES: Back to Top

We will consider comments received or postmarked on or before August 14, 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: Back to Top

Document availability: You may obtain copies of the proposed rule and the draft economic analysis on the Internet at http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0108 or by mail from the South Florida Ecological Services Field 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-R4-ES-2013-0108, which is the docket number for this rulemaking.

(2) By hard copy: Submit comments on the critical habitat proposal and associated draft economic analysis by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-2013-0108; 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: Back to Top

Craig Aubrey, Field Supervisor, U.S. Fish and Wildlife Service, South Florida Ecological Services Field Office, 1339 20th Street, Vero Beach, FL 32960; telephone 772-562-3909; or facsimile 772-562-4288. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: Back to Top

Public Comments Back to Top

We will accept written comments and information during this reopened comment period on our proposed designation of critical habitat for Brickellia mosieri and Linum carteri var. carteri that was published in the Federal Register on October 3, 2013 (78 FR 61293), the revisions to the proposal 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 Brickellia mosieri or Linum carteri var. carteri 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 Brickellia mosieri and Linum carteri var. carteri 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 these plants;

(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 these plants, should be included in the designation and why; and

(f) What areas not occupied at the time of listing are essential for the conservation of these plants and why.

(3) Land use designations and current or planned activities in the areas occupied by Brickellia mosieri or Linum carteri var. carteri or proposed to be designated as critical habitat, and possible impacts of these activities on these plants and proposed critical habitat.

(4) Information on the projected and reasonably likely impacts of climate change on Brickellia mosieri and Linum carteri var. carteri and proposed critical habitat.

(5) Any probable economic, national security, or other relevant impacts that may result from designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas from the proposed designation that are subject to these impacts.

(6) 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.

(7) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.

(8) Information specific to the management of pine rocklands under Miami-Dade County's Environmentally Endangered Lands Covenant Program that might allow us to evaluate potential exclusions.

(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 61293) during the initial comment period from October 3, 2013, to December 2, 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, the revisions to the proposal described in this document, or the 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, this document, and the DEA, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0108, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, South Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule, this document, and the DEA on the Internet at http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0108, or by mail from the South Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Background Back to Top

It is our intent to discuss only those topics directly relevant to the designation of critical habitat for Brickellia mosieri and Linum carteri var. carteri in this document. On October 3, 2013, we published both a proposed rule to list B. mosieri and L. c. var. carteri as endangered (78 FR 61273) and a proposed rule to designate critical habitat for both plants (78 FR 61293).

In the proposed critical habitat rule, we proposed to designate a combined total of approximately 2,707 acres (ac) (1,096 hectares (ha)) in seven units located in Miami-Dade County, Florida, as critical habitat. That proposal had a 60-day comment period, ending December 2, 2013. We intend to submit for publication in the Federal Register a final critical habitat designation for Brickellia mosieri and Linum carteri var. carteri on or before October 3, 2014.

For more information on previous Federal actions concerning B. mosieri and L. c. var. carteri, refer to the proposed rules, which are available online at http://www.regulations.gov or from the South Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

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 Back to Top

In the proposed critical habitat rule (78 FR 61293), we proposed seven units (Units 1-7) as critical habitat for both Brickellia mosieri and Linum carteri var. carteri. In the final rule, we intend to change unit names to be specific to each plant; for example, Unit 1 would be Unit BM1 for B. mosieri and Unit LCC1 for L. c. var. carteri. Additionally, the large overall unit boundaries described in the original proposed rule encompass multiple, smaller designations within each unit; in the final rule, we would add subunit names that identify individual patches, or multiple patches having the same occupancy status that are only separated by a road. These changes would provide more detail to help clarify locations and needs for each plant within the larger unit areas. The unit naming conventions we intend to adopt in the final rule are summarized in Table 1.

Table 1—Naming conventions of units and subunits for the critical habitat designation of Brickellia mosieri and Linum carteri var. carteri. Back to Top
Unit name in October 3, 2013, proposed rule Brickellia mosieri critical habitat Linum carteri var. carteri critical habitat
Unit name for final rule Subunits Unit name for final rule Subunits
Unit 1: Trinity Pineland and surrounding areas BM1 BM1A, BM1B (2 subunits) LCC1 LCC1A-LCC1C (3 subunits)
Unit 2: Nixon Smiley Pineland Preserve and surrounding areas BM2 BM2A-BM2G (7 subunits) LCC2 LCC2A-LCC2F (6 subunits)
Unit 3: U.S. Department of Agriculture (USDA) Subtropical Horticultural Research Station and surrounding areas BM3 BM3A-BM3G (7 subunits) LCC3 LCC3A-LCC3H (8 subunits)
Unit 4: Richmond Pinelands and surrounding areas BM4 BM4A-BM4G (7 subunits) LCC4 LCC4A-LCC4C (3 subunits)
Unit 5: Quail Roost Pineland and surrounding areas BM5 BM5A-BM5K (11 subunits) LCC5 LCC5A-LCC5J (10 subunits)
Unit 6: Camp Owaissa Bauer and surrounding areas BM6 BM6A-BM6L (12 subunits) LCC6 LCC6A-LCC6U (21 subunits)
Unit 7: Navy Wells Pineland Preserve and surrounding areas BM7 BM7A-BM7I (9 subunits) LCC7 LCC7A-LCC7G (7 subunits)

Finally, as a result of coordination meetings and our initial public comment period, we received new information concerning the current habitat condition of proposed areas, as well as information regarding additional areas of suitable habitat that were not included in the proposed designation but that meet the definition of critical habitat. Based on this new information, we are proposing to substantively revise the critical habitat designation as follows:

Proposed Deletion

We propose to remove State-owned Navy Wells #23 from Unit 7 of the proposed critical habitat designation for Brickellia mosieri. This area is unoccupied, and is composed of State-owned and neighboring private land (totaling approximately 45.0 ac (18.2 ha)). We propose this change based on new information regarding the current condition of these lands. Recent observations indicate that Navy Wells #23 has a dense understory of hammock trees and shrubs, and that the neighboring private land is not native habitat (i.e., it is an exotic-dominated, disturbed area). Based on this new information, we have determined that the area is no longer essential to the conservation of the species.

Proposed Revisions

We propose to revise the boundaries of three previously proposed, unoccupied areas: Camp Matecumbe (in Unit 2 for both plants), Tamiami Pineland Complex Addition (in Unit 2 for Linum carteri var. carteri), and U.S. Coast Guard (USCG) lands (in Unit 4 for both plants), as a result of information we received from partners and other Federal agencies. These revisions reflect the best scientific information on current site conditions within individual units. Because the following changes are fairly small and are not likely to be discernable at the scale of the published critical habitat maps, we instead describe these proposed revisions by text as follows:

  • Addition of two small, suitable, unoccupied pine rockland areas, totaling approximately 2.7 ac (1.1 ha) and managed by Miami-Dade County, located adjacent to the east boundary of Camp Matecumbe, to the critical habitat designation for both Brickellia mosieri and Linum carteri var. carteri. Based on onsite observations, these two areas consist of suitable habitat for both plants as well as functioning as buffers to the previously proposed, adjacent habitat within Camp Matecumbe, and are considered essential to the conservation of both plants. Their inclusion in the unit is also consistent with the habitat delineation methodology used for proposed critical habitat, as well as with our approach to supplemental areas (i.e., where the addition of the habitat increases conservation quality of adjacent proposed critical habitat).
  • Inclusion of suitable unoccupied habitat for Linum carteri var. carteri within a utility corridor, totaling approximately 11.2 ac (4.5 ha) and owned by Florida Power and Light, located adjacent to the north boundary of Tamiami Pineland Complex, in the critical habitat designation for L. c. var. carteri. Based on onsite observations, this area is suitable habitat for L. c. var. carteri, and is considered essential to the conservation of the plant. Its inclusion in the unit is also consistent with the habitat delineation methodology used for proposed critical habitat, which includes cleared areas occurring over pine rockland soils.
  • Revision of unoccupied critical habitat on USCG land for both Brickellia mosieri and Linum carteri var. carteri to remove a recreational area from the critical habitat polygon (approximately 7.0 ac (2.8 ha)). This revision is based on our recent coordination with the USCG, during which we learned that the subject area was an existing park with high use, including military training, sporting events, and camping throughout the area. Based on this new information, we believe the removed area is unlikely to serve as suitable habitat for either plant, and we have determined that it is no longer essential to the conservation of either plant. This revision is also consistent with the habitat delineation methodology used for proposed critical habitat, which avoids delineating areas with existing high human use (such as parks).

Proposed Additions

We also propose to add three small, unoccupied areas as a result of new information received since the publication of the proposed rule. These areas are adjacent to or near previously proposed areas. Revised maps, set forth in the Proposed Regulation Promulgation section of this document, indicate these additional areas, as well as areas already proposed in only those relevant units; the revised maps of those units use the naming conventions we intend to adopt in the final rule (described above under Changes from Previously Proposed Critical Habitat) for all of the critical habitat units. A description of the three areas follows:

  • Addition of suitable, unoccupied pine rocklands within Bill Sadowski Park, totaling approximately 19.5 ac (7.9 ha) and owned and managed by Miami-Dade County, to the critical habitat designation for both Brickellia mosieri and Linum carteri var. carteri. Bill Sadowski Park is shown on the revised maps for Units BM3 and LCC3, as subunits BM3H and LCC3I, respectively. Onsite observations indicate that the habitat quality of these pine rocklands is higher than previously assessed (using aerial imagery) in our analysis for the proposed critical habitat rule. Based on this new information, we have determined that the habitat is essential to the conservation of both plants.
  • Addition of suitable unoccupied pine rockland within Eachus Pineland, totaling approximately 17.3 ac (7.0 ha) and owned and managed by Miami-Dade County, to the critical habitat designation for both Brickellia mosieri and Linum carteri var. carteri. Eachus Pineland is shown on the revised maps for Units BM4 and LCC4, as subunits BM4H and LCC4D, respectively. Onsite observations indicate that the habitat quality of this pine rockland is higher than previously assessed (using aerial imagery) in our analysis for the proposed critical habitat rule. Based on this new information, we have determined that the habitat is essential to the conservation of both plants.
  • Addition of up to three unoccupied areas on Department of Defense lands (Homestead Air Reserve Base and U.S. Special Operations Command South) was also suggested during the initial comment period. Onsite observations indicate that these areas consist of suitable pine rockland habitat for both plants. One of these areas (approximately 12.9 ac (5.2 ha)) meets the criteria used in our methodology for designating proposed unoccupied critical habitat for Brickellia mosieri, and is considered essential to the conservation of the species. This area is shown on the revised map for Unit BM6, as subunit BM6M. All three areas (totaling approximately 17.3 ac (7.0 ha)) meet the criteria used in our methodology for designating proposed unoccupied critical habitat for Linum carteri var. carteri, and are considered essential to the conservation of the plant. These areas are shown on the revised map for Unit LCC6, as subunits LCC6V and LCC6W. However, all three areas may be subject to an integrated natural resources management plan (INRMP), as described in the October 3, 2013, proposed rule. We are currently reviewing relevant INRMPs and want to notify the public that these areas may be exempted from the final rule under section 4(a)(3) of the Act.

As a result of the deletions and revisions described above, we are now proposing approximately 1,067 ha (2,637 ac) of critical habitat for Brickellia mosieri, and 1,079 ha (2,666 ac) for Linum carteri var. carteri.

Consideration of Impacts Under Section 4(b)(2) of the Act Back to Top

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 Brickellia mosieri and Linum carteri var. carteri, the benefits of critical habitat include public awareness of the presence of B. mosieri and L. c. var. carteri and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for B. mosieri and L. c. var. carteri due to protection from adverse modification or destruction of critical habitat. In practice, situations with a Federal nexus exist primarily on Federal lands or for projects undertaken by Federal agencies.

We have not proposed to exclude any areas from critical habitat. However, the final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment periods and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis concerning the proposed critical habitat designation (DEA), which is available for review and comment (see ADDRESSES).

Consideration of Economic Impacts Back to Top

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 designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from the proposed designation of critical habitat as published in the Federal Register on October 3, 2013. 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 Brickellia mosieri and Linum carteri var. carteri (Industrial Economics, Incorporated, March 25, 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. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. 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, constitutes our draft economic analysis (DEA) of the proposed critical habitat designation for B. mosieri and L. c. var. carteri and is summarized in the narrative below.

Executive Orders (E.O.s) 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.s' 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 and if sufficient data are available, the probable impacts 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 Brickellia mosieri and Linum carteri var. carteri, we first identified, in the IEM and its subsequent revision, dated February 7, 2014, and March 11, 2014, respectively, probable incremental economic impacts associated with the following categories of activities: (1) Federal lands management (U.S. Department of Agriculture, U.S. Coast Guard; National Oceanic and Atmospheric Administration; U.S. Prisons Bureau; and the U. S. Army Corps of Engineers); (2) inadequate fire management; (3) roadway and bridge construction; (4) agriculture; (5) groundwater pumping; (6) commercial or residential development; and (7) recreation. 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. In areas where B. mosieri and L. c. var. carteri are present, Federal agencies already are required to confer with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process. 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 Brickellia mosieri and Linum carteri var. carteri. Because the designation of critical habitat for B. mosieri and L. c. var. carteri 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 would 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 and biological features identified for critical habitat are the same features essential for the life requisites of the species, and (2) any actions that would result in sufficient harm or harassment to constitute jeopardy to B. mosieri and L. c. var. carteri 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.

To prepare the screening analysis, Industrial Economics, Inc., relied on: (1) The proposed rule and associated geographic information systems (GIS) data layers provided by the Service; (2) the Service's incremental effects memorandum; (3) the results of the Service's outreach efforts to other Federal agencies concerning the likely effects of critical habitat; and (4) limited interviews with relevant stakeholders.

The screening analysis determined that critical habitat designation for Brickellia mosieri and Linum carteri var. carteri is unlikely to generate costs exceeding $100 million in a single year. Data limitations prevent the quantification of benefits.

In occupied areas, the economic impacts of implementing the rule through section 7 of the Act would most likely be limited to additional administrative effort to consider adverse modification. This finding is based on the following factors:

  • Upon listing of the species, any activities with a Federal nexus occurring within occupied habitat would be subject to section 7 consultation requirements regardless of critical habitat designation, due to the presence of the listed species; and
  • In most cases, project modifications requested to avoid adverse modification are likely to be the same as those needed to avoid jeopardy in occupied habitat.

In unoccupied areas, incremental section 7 costs would include both the administrative costs of consultation and the costs of developing and implementing conservation measures needed to avoid adverse modification of critical habitat. Therefore, this analysis focuses on the likely impacts to activities occurring in unoccupied areas of the proposed critical habitat designation.

This analysis forecasts the total number and administrative cost of future consultations likely to occur for transportation and land management activities undertaken by or funded by Federal agencies within unoccupied habitat. In addition, the analysis forecasts costs associated with conservation efforts that may be recommended in consultation for those activities occurring in unoccupied areas. The total incremental section 7 costs associated with the proposed designation are estimated to be $120,000 (2013 dollars) in a single year for both administrative and conservation effort costs.

The designation of critical habitat is unlikely to trigger additional requirements under State or local regulations. This assumption is based on the protective status currently afforded pine rocklands habitat. Additionally, the designation of critical habitat may cause developers to perceive that private lands would be subject to use restrictions, resulting in perceptional effects. Such costs, if they occur, are unlikely to result in costs reaching $100 million when combined with anticipated annual section 7 costs.

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, the revisions described in this document, 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 these species.

Required Determinations—Amended Back to Top

In our October 3, 2013, proposed rule (78 FR 61293), we indicated that we would defer our determination of compliance with several statutes and executive orders until we had evaluated the probable effects on landowners and stakeholders and the resulting probable economic impacts of the designation. Following our evaluation of the probable incremental economic impacts resulting from the designation of critical habitat for Brickellia mosieri and Linum carteri var. carteri, we have affirmed or amended 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 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 B. mosieri and L. c. var. carteri, we are amending our required determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), Takings (E.O. 12630), and the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.).

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

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

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 are, 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 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 will 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 Brickellia mosieri and Linum carteri var. carteri 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 B. mosieri and L. c. var. carteri. 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 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 B. mosieri and L. c. var. carteri does not pose significant takings implications for lands within or affected by the designation.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

Based on our review and the results of our economic analysis, we do not believe that this rule will significantly or uniquely affect small governments because it would not produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act . The designation of critical habitat imposes no obligations on State or local governments. Consequently, we do not believe that the critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.

Authors Back to Top

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

List of Subjects in 50 CFR Part 17 Back to Top

Proposed Regulation Promulgation Back to Top

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 October 3, 2013, at 78 FR 61293, as set forth below:

begin regulatory text

PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS Back to Top

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.

2.Amend § 17.96(a) by:

a. Revising paragraphs (8), (9), and (11) in the entry proposed at 78 FR 61293 for “Family Asteraceae: Brickellia mosieri (Florida brickell-bush)” to read as follows; and

b. Revising paragraphs (1) and (3) and adding paragraphs (4), (5), and (6) to the entry proposed at 78 FR 61293 for “Family Linaceae: Linum carteri var. carteri (Carter's small-flowered flax)” to read as follows.

§ 17.96 Critical habitat—plants.

(a) Flowering plants.

* * * * *

Family Asteraceae: Brickellia mosieri (Florida brickell-bush)

* * * * *

(8) Unit BM3: Miami-Dade County, Florida. Map of Unit BM3 follows:

BILLING CODE 4310-55-P

(9) Unit BM4: Miami-Dade County, Florida. Map of Unit BM4 follows:

* * * * *

(11) Unit BM6: Miami-Dade County, Florida. Map of Unit BM6 follows:

BILLING CODE 4310-55-C

* * * * *

Family Linaceae: Linum carteri var. carteri (Carter's small-flowered flax)

(1) Critical habitat units for Linum carteri var. carteri in Miami-Dade County, Florida, are set forth on the maps in paragraphs (4), (5), and (6) of this entry and in paragraphs (6), (7), (10), and (12) of the entry for Family Asteraceae: Brickellia mosieri (Florida brickell-bush) in this paragraph (a). The index map of all of the critical habitat units is provided at paragraph (5) of the entry for Family Asteraceae: Brickellia mosieri (Florida brickell-bush) in this paragraph (a).

* * * * *

(3) Critical habitat map units. Unit maps were developed using ESRI ArcGIS mapping software along with various spatial data layers. ArcGIS was also used to calculate the size of habitat areas. The projection used in mapping and calculating distances and locations within the units was North American Albers Equal Area Conic, NAD 83. The maps in this entry, and the relevant maps in the entry for Family Asteraceae: Brickellia mosieri (Florida brickell-bush) in this paragraph (a), as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation for Linum carteri var. carteri. The coordinates or plot points or both on which each map is based are available to the public at the Service's Internet site at http://www.fws.gov/verobeach/, at the Federal eRulemaking Portal (http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0108), and at the field office responsible for this designation. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2.

(4) Unit LCC3: Miami-Dade County, Florida. Map of Unit LCC3 follows:

BILLING CODE 4310-55-P

(5) Unit LCC4: Miami-Dade County, Florida. Map of Unit LCC4 follows:

(6) Unit LCC6: Miami-Dade County, Florida. Map of Unit LCC6 follows:

BILLING CODE 4310-55-C

* * * * *

end regulatory text

Dated: June 13, 2014.

Rachel Jacobson,

Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 2014-16164 Filed 7-14-14; 8:45 am]

BILLING CODE 4310-55-P

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