2010-18760. Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Carex lutea

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Revised proposed rule; reopening of comment period.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on our March 10, 2010 (75 FR 11080), proposed rule to designate critical habitat for Carex lutea (golden sedge) under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of the draft economic analysis (DEA) associated with the proposed rule. In addition, in this document, we propose to enlarge two previously proposed subunits of critical habitat because we discovered that Carex lutea occupies an area at these two subunits that is greater than what we believed when we were preparing the March 10, 2010 proposed rule. We are reopening the comment period on the proposal for an additional 30 days to allow interested parties an opportunity to comment simultaneously on the revised proposed critical habitat designation, the associated DEA, and our amended required determinations section. Comments previously submitted need not be resubmitted and will be fully considered in preparation of the final rule.

DATES:

We will consider public comments received or postmarked on or before September 2, 2010. Please note that if you are using the Federal eRulemaking Portal (see ADDRESSES section, below) the deadline for submitting an electronic comment is 11:59 p.m. Eastern Daylight Savings Time on this date.

ADDRESSES:

You may submit comments by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments to Docket No. FWS-R4-ES-2010-0003.
• U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R4-ES-2010-0003; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

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:

Pete Benjamin, Field Supervisor, U.S. Fish and Wildlife Service, Raleigh Fish and Wildlife Office, P.O. Box 33726, Raleigh, NC 27636-3726; by telephone [phone]; or by facsimile 919-856-4556. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

We will accept written comments and information during this reopened comment period on the proposed designation of critical habitat for Carex lutea that we published in the Federal Register on March 10, 2010 (75 FR 11080), the two expanded subunits proposed as critical habitat and our amended required determinations section provided in this document, and the draft economic analysis (DEA) of the proposed designation of critical habitat for Carex lutea. 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 areas as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether there are threats to Carex lutea from human activity, the degree of which can be expected to increase due to the designation, and whether the benefit of designation would outweigh threats to the species caused by the designation, such that the designation of critical habitat is prudent.

(2) Specific information on:

• The amount and distribution of Carex lutea;
• What areas containing features essential to the conservation of the species should be included in the designation and why;
• Special management considerations or protections for the physical and biological features essential to Carex lutea conservation that have been identified in the proposed rule that may be needed, including managing for the potential effects of climate change; and
• What areas not currently occupied by the species are essential to the conservation of the species and why.

(3) Specific information on Carex lutea and the habitat components (physical and biological features) essential to the conservation of this species.

(4) Any information on the biological or ecological requirements of this species.

(5) Land-use designations and current or planned activities in areas occupied by the species, and their possible impacts on the species and the proposed critical habitat.

(6) Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities and the benefits of including or excluding areas that are subject to these impacts.

(7) Whether the benefits of excluding any particular area from critical habitat outweigh the benefits of including that area as critical habitat under section 4(b)(2) of the Act, after considering the potential impacts and benefits of the proposed critical habitat designation.

(8) 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.

(9) Information on the extent to which the description of potential economic impacts in the DEA is complete and accurate.

You may submit your comments and materials concerning the proposed rule, this document, or the DEA by one of the methods listed in the ADDRESSES section.

If you submitted comments or information on the proposed critical habitat rule for Carex lutea that we published on March 10, 2010 (75 FR 11080), you do not have to resubmit them. Your comments are included in the public record for this rulemaking, and we will fully consider them in the preparation of our final determination.

If you submit a comment via http://www.regulations.gov, your entire comment—including your personal identifying information—will be posted on the website. 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. Please include sufficient information with your comments to allow us to verify any scientific or commercial information you include.

Comments and materials we receive, as well as supporting documentation used in preparing the proposed rule and DEA, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service's Raleigh 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-R4-ES-2010-0003, or by mail from the Raleigh Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Background

Species Information

Carex lutea is a perennial member of the sedge family (Cyperaceae). The species is endemic to the Black River section of the Coastal Plain Province of North Carolina. The North Carolina Natural Heritage Program (NCNHP) recognizes eight populations, all within a 16-by-5-mile (26-by-8-kilometer) area, extending southwest from the community of Maple Hill.

Carex lutea occurs in the Pine Savanna (Very Wet Clay Variant) natural community type characterized by an open to sparse canopy dominated by pond pine (Pinus serotina), and usually with some longleaf pine (P. palustris) and pond cypress (Taxodium ascendens).

Carex lutea is threatened by fire suppression; habitat alteration, such as land conversion for residential, commercial, or industrial development; mining; drainage for silviculture and agriculture; highway expansion; and herbicide use along utility and highway rights-of-way.

Previous Federal Actions

We listed Carex lutea as an endangered species on January 23, 2002 (67 FR 3120). We found that the designation of critical habitat was not prudent in the proposed listing rule (64 FR 44470, August 16, 1999). Upon reconsideration, we found that a critical habitat designation was prudent in the final listing rule (67 FR 3120, January 23, 2002); however, at that time, we deferred proposal of critical habitat due to budgetary and workload constraints.

On December 19, 2007, the Center for Biological Diversity filed a complaint for declaratory and injunctive relief challenging the Service's continuing failure to timely designate critical habitat for this species as well as three other plant species (Center for Biological Diversity v. Kempthorne, C-04-3240 JL (N. D. Cal.)). In a settlement agreement dated April 11, 2008, the Service agreed to submit for publication in the Federal Register a proposed designation of critical habitat, if prudent and determinable, on or before February 28, 2010, and a final determination by February 28, 2011. The Service determined that critical habitat was prudent for Carex lutea and published a proposed critical habitat designation on March 10, 2010 (75 FR 11080).

In total, approximately 189 acres (ac) (76 hectares (ha)) of land in Onslow and Pender Counties, North Carolina, fall within the areas that we proposed as critical habitat for this species on March 10, 2010.

Proposed Critical Habitat Designation—Amended

Additional field surveys at two extant Carex lutea subpopulations indicate that the extent of the golden sedge at those sites is actually greater than what was originally believed (Suiter 2010, pers. obs.). These two areas contain all of the primary consitutent elements that were identified in our previously published critical habitat designation for Carex lutea. Therefore, we propose the following changes to units 5 and 8.

Proposed Changes to Unit 5, Onslow County, North Carolina

Additional Carex lutea plants were found on the north side of the private sand road immediately adjacent to the area previously defined as subunit 5D (Sandy Run Savannas) in Onslow County, North Carolina. Due to their close proximity to each other, these plants are considered an extension of the subpopulation at subunit 5D. Although not discovered until 2010, it is extremely likely that this subpopulation was present at the time of listing. The area where the additional plants were found has been fire suppressed for several years, and it is believed that recent prescribed fires in the winter of 2010 opened this area to sunlight, allowing the Carex lutea plants to flourish. The fire also removed some thick, woody vegetation and allowed easy access for Service biologists to conduct surveys. This remnant pine savanna contains all of the primary constituent elements (PCEs) identified for Carex lutea.

Excluding the roadbed, subunit 5D, which was 0.3 ac (0.1 ha) in our March 10, 2010, proposed rule (75 FR 11080), would increase by 4.6 ac (1.9 ha) to a total of 4.9 ac (2.0 ha) in size. Based on this new information and the adjustment to our previously proposed critical habitat areas, Unit 5, all of which is owned by the N.C. Division of Parks and Recreation and managed as the Sandy Run Savannas State Natural Area, would increase from 20.6 ac (8.3 ha) to 25.2 ac (10.2 ha) of proposed critical habitat.

Proposed Changes to Unit 8, Pender County, North Carolina

The area we identified in our March 10, 2010, proposed rule (75 FR 11080), as subunit 8C (McLean Savanna) in Pender County, North Carolina, is owned by The Nature Conservancy (TNC) and a private company; however, TNC anticipates acquiring the privately owned section in the next 12 months. The Carex lutea plants in subunit 8C occupy an area larger than what was originally known (Suiter 2010, pers. obs.). Based on what we know about the biology of the species, we believe that the additional plants have been present for many years, but they were not discovered until May 2010, when the Service first thoroughly surveyed the site. Accordingly, the Service has expanded the area of proposed subunit 8C from 1.6 ac (0.6 ha) to 9.8 ac (4.0 ha), for an increase of 8.2 ac (3.3 ha). The revised proposed critical habitat area contains all of the PCEs identified for Carex lutea. Unit 8 would increase from 44.4 ac (17.9 ha) to 52.6 ac (21.3 ha) of proposed critical habitat.

With the inclusion of these additional areas, the Service is now proposing 8 units (21 subunits) totaling approximately 201.8 ac (81.7 ha) in Onslow and Pender Counties, North Carolina, as critical habitat for Carex lutea.

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 are required to consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.

Possible Exclusions from Critical Habitat and Draft Economic Analysis

Section 4(b)(2) of the Act requires that we designate 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. We have not proposed to exclude any areas from critical habitat for Carex lutea. 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 period and information about the economic impact of designation. Accordingly, we have prepared a DEA concerning the proposed critical habitat designation, which is available for review and comment (see ADDRESSES).

The intent of the DEA is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for Carex lutea that we published in the Federal Register on March 10, 2010 (75 FR 11080) and the two additional areas proposed in this document. The DEA quantifies the economic impacts of all potential conservation efforts for Carex lutea, some of which will likely be incurred whether or not we designate critical habitat. The economic impact of the proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether we designate critical habitat. 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 are those not expected to occur absent 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 may consider in the final designation of critical habitat when evaluating the benefits of excluding particular areas under section 4(b)(2) of the Act. The analysis forecasts both baseline and incremental impacts likely to occur if we finalize the proposed designation of critical habitat.

The DEA describes economic impacts of Carex lutea conservation efforts associated with the following categories of activity: (1) Residential development, (2) silviculture activities, and (3) transportation and utilities projects. The DEA estimates that no economic impacts are likely to result from the designation of critical habitat for Carex lutea. This determination is based on the fact that more than 80 percent of the proposed critical habitat is already subject to conservation measures that benefit the plant. Economic impacts are unlikely in the remaining 20 percent, given the limited potential for future economic activity and the low probability of a Federal nexus that would require consultation with the Service.

The DEA also discusses the potential benefits associated with the designation of critical habitat. The primary intended benefit of critical habitat is to support the conservation of endangered and threatened species, such as Carex lutea. Quantification and monetization of species conservation benefits requires information on the incremental change in the probability of Carex lutea conservation that is expected to result from the designation. As described in the DEA, modifications to future projects are unlikely given the extensive baseline protections already provided to Carex lutea habitat and the lack of anticipated economic activity and a Federal nexus on privately-owned, unprotected parcels.

Required Determinations—Amended

In our March 10, 2010, proposed rule (75 FR 11080), we indicated that we would defer our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. We have now made use of the DEA data in making this determination. In this document, we affirm the information in our proposed rule concerning: Regulatory Planning and Review (E.O. 12866), E.O. 12630 (Takings), Executive Order (E.O.) 13132 (Federalism), E.O. 12988 (Civil Justice Reform), the Paperwork Reduction Act, the National Environmental Policy Act, and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). However, based on the DEA data, we are updating our required determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), and E.O. 13211 (Energy Supply, Distribution, or Use).

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 (i.e., small businesses, small organizations, and small government jurisdictions), as described below. However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based on the DEA of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of a final rulemaking.

According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

To determine if the proposed designation of critical habitat for Carex lutea 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. In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies.

If we finalize this proposed critical habitat designation, Federal agencies must consult with us under section 7 of the Act if their activities may affect designated critical habitat. In areas where Carex lutea is present, Federal agencies would also be required to consult with us under section 7 of the Act, due to the endangered status of the species. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the same consultation process.

In the DEA, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for Carex lutea. The DEA estimates that no economic impacts are likely to result from the designation of critical habitat for Carex lutea. This determination is based on the fact that more than 80 percent of the proposed critical habitat is already subject to conservation measures that benefit the plant. Economic impacts are unlikely in the remaining 20 percent, given the limited potential for future economic activity and the low probability of a Federal nexus that would require consultation with the Service. Based on that analysis, no impacts to small entities are expected as a result of the proposed critical habitat designation. Please refer to Appendix A of the DEA of the proposed critical habitat designation for a more detailed discussion of our analysis.

In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. Information for this analysis was gathered from the Small Business Administration, stakeholders, and the Service. For the reasons discussed above, and based on currently available information, we certify that if promulgated, the proposed 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.

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

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings:

(a) This revised rule would 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 jeopardize the continued existence of the species, or destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise 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. 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 onto State governments.

(b) As discussed in the DEA of the proposed designation of critical habitat for Carex lutea, we do not believe that this rule would 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 Refrom Act . The lands being proposed for critical habitat designation are owned by private individuals, The Nature Conservancy and the State of North Carolina (Division of Parks and Recreation, Department of Transportation and Wildlife Resources Commission). None of these government entities fit the definition of “small governmental jurisdiction.” The DEA also identified no cost resulting from the critical habitat designation. Because no incremental costs are anticipated, no small entities are expected to be affected by the rule. Therefore, a Small Government Agency Plan is not required.

Energy Supply, Distribution, or Use

On May 18, 2001, the President issued an Executive Order (E.O. 13211; Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) 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. The OMB's guidance for implementing this Executive Order outlines nine outcomes that may constitute “a significant adverse effect” when compared to no regulatory action. As discussed in Appendix A, the DEA finds that none of these criteria are relevant to this analysis. The DEA concludes that since no modifications are anticipated to result from the designation of critical habitat, energy-related impacts are not expected. Since no incremental impacts are forecast associated specifically with this rulemaking on the production, distribution, or use of energy, designation of critical habitat for Carex lueta is not expected to lead to any adverse outcomes (such as a reduction in electricity production or an increase in the cost of energy production or distribution). A Statement of Energy Effects is not required.

Authors

The primary authors of this document are the staff members of the Raleigh Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

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 at 75 FR 11080 (March 10, 2010), as follows:

PART 17—[AMENDED]

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Critical habitat for Carex lutea (golden sedge) in § 17.96, which was proposed to be added to paragraph (a) on March 10, 2010, at 75 FR 11080, is proposed to be amended by revising the maps in paragraphs (5), (10)(vi), and (13)(iv), to read as follows:

§ 17.96

Critical habitat—plants.

(a) Flowering plants.

* * * * *

Family Cyperaceae: Carex lutea (golden sedge)

* * * * *

(5) Note: Index Map (Map 1) follows:

* * * * *

(10) * * *

(vi) Map of Unit 5 (Sandy Run Savannas) follows:

(13) * * *

(iv) Map of Unit 8 (McLean Savanna) follows:

Dated: July 20, 2010

Thomas L. Strickland

Assistant Secretary for Fish and Wildlife and Parks