[Federal Register Volume 75, Number 86 (Wednesday, May 5, 2010)]
[Proposed Rules]
[Pages 24545-24549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10512]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R7-ES-2009-0042; 92210-1117-0000-B4]
RIN 1018-AW56
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Polar Bear in the United States
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period, and announcement of
public hearings.
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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening
of the public comment period on the proposed designation of critical
habitat for the polar bear (Ursus maritimus) under the Endangered
Species Act of 1973, as amended (Act). We also announce the
availability of a draft economic analysis (DEA), corrections to our
proposed boundaries for sea-ice critical habitat, our intention to hold
two public hearings to provide the public with an opportunity to submit
testimony on the proposed designation of critical habitat for the polar
bear and on the DEA, and an amended required determinations section of
the proposal. We are reopening the comment period to allow all
interested parties an opportunity to provide additional comment on the
proposed rule, the associated DEA, corrections to our proposed
boundaries for sea-ice critical habitat, and the amended required
determinations section. If you submitted comments previously, you do
not need to resubmit them because we have already incorporated them
into the public record and will fully consider them in preparation of
the final rule.
DATES: Written Comments: We will consider comments we receive on or
before July 6, 2010.
Public Hearings: We will hold two public hearings, one on June 15,
2010, from 7-10 p.m. in Anchorage, Alaska, and another on June 17,
2010, from 7-10 p.m. in Barrow, Alaska. During the first hour of these
meetings (from 7-8 p.m.), we will present information on the DEA and
proposed critical habitat. Public comments will be taken from 8-10 p.m.
ADDRESSES: Written Comments: You may submit comments by one of the
following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Please follow the instructions for submitting comments on Docket No.
FWS-R7-ES-2009-0042.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R7-ES-2009-0042; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
Public Hearings:
The Barrow, Alaska, public hearing will be held at
I[ntilde]upiat Heritage Center, 5421 North Star Street, Barrow, Alaska.
The Anchorage, Alaska, public hearing will be held at Z.J.
Loussac Public Library, 3600 Denali Street, Anchorage, Alaska.
For more information on the public hearings, see the Public
Hearings section below.
We will post all comments, and transcripts of the public hearings
on http://www.regulations.gov. This generally means that we will post
any personal information you provide to us (see the Public Comments
section below for more information).
[[Page 24546]]
FOR FURTHER INFORMATION CONTACT: Thomas Evans, Wildlife Biologist, U.S.
Fish and Wildlife Service, Marine Mammals Management Office, 1011 East
Tudor Road, Anchorage, AK 99503; by telephone (907-786-3800); or by
facsimile (907-786-3816). 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 rule to designate critical
habitat for the polar bear that we published in the Federal Register on
October 29, 2009 (74 FR 56058), the DEA of the proposed designation,
corrections to our proposed boundaries for sea-ice critical habitat,
and the amended required determinations section 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 Endangered Species Act of 1973,
as amended (Act) (16 U.S.C. 1531 et seq.), including whether the
benefit of designation would outweigh threats to the species caused by
that designation, such that the designation of critical habitat is
prudent.
(2) Specific information on:
The amount and distribution of habitat used by polar bear
populations in the United States, specifically in the southern
Beaufort, Chukchi, and Bering Seas;
What areas occupied at the time of listing that contain
features essential for the conservation of the species we should
include in the designation and why; and
What areas not occupied at the time of listing, within the
jurisdiction of the United States, 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 features essential to the
conservation of the species within 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, and the benefits of including or excluding
areas that exhibit these impacts. Such impacts could include any
potential impacts on oil and gas development and exploration.
(5) Potential effects on oil and gas development and exploration
including those related to impacts referenced in (4), and those
relating to the opening of oil and gas lease sale areas in the Chukchi
and Beaufort Seas.
(6) Potential effects on native cultures and villages.
(7) Potential effects on commercial shipping through the Northern
Sea Route in anticipation of a longer navigable season.
(8) Special management considerations or protections that the
essential features, as identified in the proposed rule to designate
critical habitat (74 FR 56058), may require.
(9) Specific information on the incremental effects of the
designation of critical habitat for the polar bear. In particular, will
any aspect of the proposed critical habitat designation result in
consultations under section 7 of the Act with a different set of
protections than those afforded by the Marine Mammal Protection Act
(MMPA) (16 U.S.C. 1361 et seq.)?
(10) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
(11) Information on whether the DEA identifies all Federal, State,
and local costs and benefits attributable to the proposed designation
of critical habitat, and information on any costs that we may have
inadvertently overlooked.
(12) Information on whether the DEA makes appropriate assumptions
regarding current practices and any regulatory changes that likely may
occur if we designate critical habitat.
(13) Information on the accuracy of our methodology in the DEA for
distinguishing baseline and incremental costs, and the assumptions
underlying the methodology.
(14) Information on whether the DEA correctly assesses the effect
on regional costs associated with land use controls that may result
from the designation of critical habitat.
(15) Information on the likelihood of adverse social reactions to
the designation of critical habitat, as discussed in the DEA, and how
the consequences of such reactions, if likely to occur, would relate to
the conservation and regulatory benefits of the proposed critical
habitat designation.
(16) Information on areas that the members of the public have
recommended we exclude from or add to our proposed critical habitat
designation. Specifically, we may exercise our discretion to exclude
areas from critical habitat designation if we determine that the
benefits of excluding an area outweigh the benefits of including it,
provided the exclusions will not result in the extinction of the
species. In response to our Federal Register notice of October 29,
2009, the Service received comments recommending that we exclude
certain areas from the critical habitat designation as provided for
under the Act. The requested exclusions include the following:
Coastal villages that are either within or adjacent to
proposed critical habitat.
Alaska Native and privately-owned lands, e.g., Village
Corporations, organized municipalities, North Slope Borough land, and
Alaska Native allotments.
Lands under the control of the U.S. Department of Defense,
e.g., Long Range Radar Sites and Short Range Radar Sites.
Current and proposed oil and gas exploration, development,
and production sites, including transportation corridors; all active
and proposed oil and gas lease sale areas; and proposed sites for
mining and shipping operations.
Areas where polar bears den infrequently, such as barrier
islands that do not contain denning habitat; barrier islands in western
Alaska; and areas that do not contain the specific habitat
characteristics that allow for denning.
Areas where polar bears occur infrequently, such as the
proposed 1.6-kilometer (km) (1-mile) no-disturbance area around the
barrier islands; Norton Sound and Norton Bay; the Seward Peninsula; and
sea-ice habitat when sea ice concentrations are less than 15 percent.
The Service also received comments recommending that we include
additional areas in our proposed critical habitat designation,
including:
The entire coastal plain of the Arctic National Wildlife
Refuge.
Additional sea-ice habitat beyond the 300-meter (984-feet)
isobath to encompass the entire 321 km (200 miles) or the Exclusive
Economic Zone.
All lands known to contain terrestrial dens.
All comments we received in response to our October 29, 2009,
proposed rule (74 FR 56058) that recommended exclusion or inclusion of
lands from the designation of critical habitat are available for public
review and comment at the Federal
[[Page 24547]]
eRulemaking Portal: http://www.regulations.gov. Search under Docket No.
FWS-R7-ES-2009-0042.
You may submit your comments and materials concerning the proposed
rule, associated DEA, boundary corrections, or amended required
determinations by one of the methods listed in the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information that you
provide, such as your address, phone number and e-mail address--will be
posted on the Web site. 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. We will post all
hardcopy comments on http://www.regulations.gov.
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, or by appointment, during normal business hours,
at the U.S. Fish and Wildlife Service, Marine Mammals Management 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 No. FWS-R7-ES-2009-0042, or by mail from the Marine Mammals
Management Office (see FOR FURTHER INFORMATION CONTACT).
Public Hearings
Section 4(b)(5)(E) of the Act requires that we hold one public
hearing if any person requests it within 45 days of the publication of
a proposed rule. In response to requests from the public, the Service
will hold two public hearings on our proposed rule to designate
critical habitat for the polar bear on the dates and times shown in the
DATES section and at the locations shown in the ADDRESSES section. In
addition to having the opportunity to provide oral comments in person,
we will provide telephone access for the public hearing held in Barrow,
Alaska. Contact the Marine Mammals Management Office (see FOR FURTHER
INFORMATION CONTACT) for more information about obtaining telephone
access for the Barrow, Alaska, public hearing.
People wishing to make an oral statement for the record at a public
hearing are encouraged to provide a written copy of their statement and
present it to us at the hearing. In the event that attendance at the
public hearings is large, the time allotted for oral statements may be
limited. Oral and written statements receive equal consideration. There
are no limits on the length of written comments submitted to us. If you
have any questions concerning a public hearing, please contact the
Marine Mammals Management Office (see FOR FURTHER INFORMATION CONTACT).
People needing reasonable accommodations in order to attend and
participate in the public hearings should contact the Marine Mammals
Management Office (see FOR FURTHER INFORMATION CONTACT) as soon as
possible. In order to allow sufficient time to process requests, please
call no later than one week before the hearing date.
Correction to Total Area Proposed for Critical Habitat
The October 29, 2009, proposed rule (74 FR 56058) indicated a total
proposed designation of approximately 519,403 square kilometers (km\2\)
(200,541 square miles (mi\2\)). However, we incorrectly identified the
extent of U.S. territorial waters in that proposal; thus, we are
reducing the area we are proposing as critical habitat for the polar
bear to accurately reflect the U.S. boundary for proposed sea-ice
habitat. With this change, we are proposing to designate in total
approximately 484,764 km\2\ (187,166 mi\2\) of critical habitat for the
polar bear. We have updated our maps to reflect this change; you may
view revised maps on our Web site at: http://alaska.fws.gov/fisheries/mmm/polarbear/criticalhabitat.htm. You can obtain hard copies of maps
by contacting the Marine Mammals Management Office (see FOR FURTHER
INFORMATION CONTACT).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for the polar bear. On July 16,
2008, the Center for Biological Diversity, Natural Resources Defense
Council, and, Greenpeace, Inc., filed an amended complaint against the
Service for, in part, failing to designate critical habitat for the
polar bear concurrently with the final listing rule [Center for
Biological Diversity et al. v. Kempthorne et al., No. 08-2113-D.D.C.
(transferred from N.D. Cal.)]. On October 7, 2008, the U.S. District
Court for the Northern District of California entered an order
approving a stipulated settlement of the parties. The stipulated
settlement, in part, required the Service, on or before June 30, 2010,
to submit to the Federal Register a final critical habitat designation
for the polar bear. On March 24, 2010, the court approved a stipulation
extending this deadline to November 23, 2010. Comments or information
that we receive in response to the proposed rule will allow us to
comply with the court order and section 4(b)(2) of the Act. For more
information on previous Federal actions concerning the polar bear,
refer to the final listing rule and final special rule published in the
Federal Register on May 15, 2008 (73 FR 28212), and December 16, 2008
(73 FR 76249), respectively.
On October 29, 2009, we published a proposed rule to designate
critical habitat for the polar bear (74 FR 56058). With the boundary
change described above, we propose to designate approximately 484,764
km\2\ (187,166 mi\2\) in three units including sea-ice, denning, and
barrier island habitat. The proposed rule had an initial 60-day comment
period that closed on December 28, 2009.
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
that affect critical habitat must consult with us on the effects of
their proposed actions, under section 7(a)(2) of the Act.
Draft 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 impact, impact
on national security, or any other relevant impact of specifying any
particular area as critical habitat.
We have prepared a DEA that identifies and analyzes the potential
economic impacts associated with the proposed critical habitat
designation for the polar bear published in the Federal Register on
October 29, 2009 (74 FR 56058). The DEA quantifies the potential
economic impacts of critical habitat designation for the polar bear.
The economic impact of the proposed critical habitat designation is
analyzed
[[Page 24548]]
by comparing scenarios both ``with critical habitat'' and ``without
critical habitat.'' The ``without critical habitat'' scenario
represents the baseline for the analysis, and qualitatively considers
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 from polar bear conservation
efforts expected to occur 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 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. The
analysis forecasts incremental impacts likely to occur if we finalize
the proposed critical habitat designation.
The DEA provides estimated costs of the reasonably foreseeable
potential economic impacts of the proposed critical habitat designation
for the polar bear through 2039. This time horizon pertains to the
forecast of impacts to oil and gas exploration, development, and
production, and associated construction projects, as these are the
primary activities occurring within the proposed critical habitat area.
It identifies potential incremental costs as a result of the proposed
critical habitat designation, which are those costs attributed to
critical habitat over and above those costs attributed to listing and
the protections afforded the polar bear under the MMPA. The DEA
quantifies economic impacts of polar bear conservation efforts
associated with the following categories of activity: (1) Oil and gas
exploration and development; (2) marine and coastal construction
activities; (3) commercial shipping and marine transportation; and (4)
U.S Air Force and U.S. Coast Guard operations.
Polar bears and their habitat already receive significant
regulatory protection under the MMPA and under the Act (due to the
listing of the species as threatened). The incidental take regulations
(73 FR 33212, 71 FR 43925) address the direct effects of oil and gas
projects, and provide protection for habitats that are predictably
used, such as denning habitat. Longer term planning actions, such as
oil and gas lease sales, are reviewed under the section 7 jeopardy
standard of the Act. For example, U.S. Department of the Interior's
Bureau of Land Management National Petroleum Reserve-Alaska Integrated
Activity plans are reviewed under section 7 of the Act because polar
bears are listed as a threatened species. Oil spills are not
authorized; however, protections are provided through the Oil Pollution
Act of 1990 (33 U.S.C. 2701 et seq.), which mandates contingency
planning and enhanced capabilities for oil spill responses.
Additionally, the State of Alaska's Department of Natural Resources
Division of Oil and Gas permits, while lacking a federal nexus, adopt
and reiterate existing Federal requirements and protections, for
example, requiring permittees to document and report sightings of polar
bears to the Service, to maintain buffers of 1 mile around known polar
bear dens, and to report to the Service within 24 hours any new dens
identified. These existing regulatory requirements provide significant
protections for polar bears and their habitat, such that we anticipate
only minimal additional regulatory involvement under the Act resulting
from the designation of critical habitat. Costs associated with the
designation of polar bear critical habitat are therefore limited
primarily to the administrative costs of considering adverse
modification in future section 7 consultations under the Act (that is,
in addition to considering jeopardy, which is considered due to the
listing of the polar bear). The future (2010-2039) total present value
incremental impacts (those estimated to occur because of critical
habitat designation) are estimated to be $669,000 (an annualized impact
of $53,900) assuming a 7-percent discount rate.
On March 31, 2010, President Obama announced the opening of
additional lease sale areas along the Outer Continental Shelf,
including areas of the Eastern Gulf of Mexico and the Atlantic Ocean.
The announcement did not open additional lease sale areas in the
proposed critical habitat area for polar bears or the Arctic Ocean in
general. The existing 5-year plans for the Beaufort and Chukchi Seas
(2007-2012) both proposed a series of lease sales. The Administration's
announcement states that planned lease sales in these areas that have
not yet been conducted will be canceled. Exploration may continue on
existing leases in the Beaufort and Chukchi Seas, and the results of
exploration, along with information from current and planned scientific
studies, will help determine the extent to which additional lease sales
in these areas are both needed and appropriate in the next 5-year
program. (e.g., in the 2012-2017 5-year plan).
This announcement relates to Section 3.4 of the DEA, which
describes potential future oil and gas activity in the proposed
critical habitat area, 2010 through 2039. Given changes in OCS policy,
as described in the President's announcement, the DEA may overstate
future oil and gas development activity in areas proposed for critical
habitat. However, these changes are unlikely to have an effect on the
findings of the DEA. This is because, regardless of scope and scale of
future oil and gas development, critical habitat designation will not
result in changes to polar bear conservation requirements (i.e., the
FWS anticipates that polar bear conservation will continue to be driven
by the Marine Mammal Protection Act and the bear's listing status). In
addition, the discussion contained in Section 3.2 of the DEA, which
addresses the limited direct incremental economic impacts of critical
habitat designation and the potential for indirect impacts, remains
unchanged.
As stated earlier, we are requesting data and comments from the
public on the DEA, as well as all aspects of the proposed rule, our
boundary corrections, and our amended required determinations. We may
revise the proposed rule or supporting documents to incorporate or
address information we receive during the reopened 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 exclusions will not result
in the extinction of this species.
Required Determinations--Amended
In our October 29, 2009, proposed rule (74 FR 56058), 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 used
the DEA data to make these determinations. In this document, we affirm
the information in our proposed rule concerning Executive Order (E.O.)
12866 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O.
13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211
(Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform
Act, the Paperwork Reduction Act, the National Environmental Policy
Act, and the President's memorandum of April 29, 1994, ``Government-to-
Government
[[Page 24549]]
Relations with Native American Tribal Governments'' (59 FR 22951).
However, based on the DEA data, we revise our required determination
concerning the Regulatory Flexibility Act.
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 our DEA of the proposed designation, we provide our analysis
for determining whether the proposed rule would result in a significant
economic impact on a substantial number of small entities. Based on
comments we receive, we may revise this determination as part of our
final rulemaking.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations, 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: Oil and gas extraction and drilling, natural gas
distribution, and mining concerns with fewer than 500 employees; oil
and gas or mining support activities, water supply and irrigation
systems, land subdivision, air traffic control and airport operations,
and transportation support activities with annual average revenues of
less than $6.5 million; construction-related businesses with less than
$31 million in average annual revenues; and pipeline transportation of
crude oil businesses with less than 1,500 employees. 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
operations.
To determine if the proposed designation of critical habitat for
the polar bear would affect a substantial number of small entities, we
considered the number of small entities affected within particular
types of economic activities, i.e., oil and gas exploration and
development, and marine and coastal development activities.
Specifically, we identified 131 entities that may be impacted by the
designation of critical habitat, and of these, 112 entities meet the
small business threshold. These entities include local governments
(e.g., the North Slope Borough and the Northwest Arctic Borough),
construction companies, specialty trade contractors, airport operations
and support contractors, and other support contracting companies. In
estimating the numbers of small entities potentially affected, we
considered whether the activities of these entities may include any
Federal involvement, in particular, activities that may trigger a
consultation under section 7 of the Act. Critical habitat designation
will not affect activities that do not have any Federal involvement;
designation of critical habitat affects activities conducted, funded,
or authorized by Federal agencies.
If we finalize the proposed critical habitat designation, Federal
agencies must consult with us under section 7 of the Act if their
activities may affect designated critical habitat. Consultations to
avoid the destruction or adverse modification of critical habitat would
be incorporated into the existing consultation process.
As described in Appendix A of the DEA, the potential impacts to
small businesses are those associated with administrative costs
resulting from the need to conduct consultations under section 7 of the
Act. These costs associated with small businesses fall under two
primary component activities: (1) Oil and Gas Exploration, Development,
and Production, and (2) Construction and Development Activities. As
discussed in Appendix A of the DEA, we anticipate both of these primary
activities to be minimally impacted by a designation of critical
habitat because they are generally covered by existing regional
regulations (e.g., the MMPA's incidental take regulations at (73 FR
33212, 71 FR 43925)), or associated with section 7 consultation
processes. As a consequence, we anticipate only minimal additional
regulatory involvement under the Act resulting from the designation of
critical habitat.
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 designation
of critical habitat for the polar bear would not have a significant
economic impact on a substantial number of small business entities.
Therefore, an initial regulatory flexibility analysis is not required.
Authors
The primary authors of this notice are the staff members of the
Marine Mammals Management Office, Alaska Region, U.S. Fish and Wildlife
Service.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: March 19, 2010.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-10512 Filed 5-4-10; 8:45 am]
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