Federal Register / Vol. 75, No. 239 / Tuesday, December 14, 2010 / Proposed Rules 77817 

References Cited 

A complete list of all references cited 

in this proposed rule is available on the 

Internet at http://www.regulations.gov 

or upon request from the Field 

Supervisor, New Mexico Ecological 

Services Field Office (see FOR FURTHER

INFORMATION CONTACT section). 

Authors 

The primary authors of this proposed 

rule are the staff members of the New 

Mexico Ecological Services Field 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 amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

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; Public Law 

99–625, 100 Stat. 3500; unless otherwise 

noted. 

2. Amend § 17.11(h) by adding an 

entry for ‘‘Lizard, dunes sagebrush’’ in 

an alphabetical order under REPTILES 

to the List of Endangered and 

Threatened Wildlife to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range Family Status When listed Critical 

habitat 

Special 

rules Common name Scientific name 

*******

REPTILES

* * * * * * * 

Lizard, dunes sagebrush.Sceloporus 

arenicolus.

U.S.A. (NM, TX) ..... Phrynosomatidae .... E .................... NA NA 

* * * * * * * 

* * * * * 

Dated: December 1, 2010. 

Rowan W. Gould, 

Acting Director, Fish and Wildlife Service. 

[FR Doc. 2010–31140 Filed 12–13–10; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2010–0024; MO 

92210–0–0009–B4] 

RIN 1018–AW89 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Mississippi Gopher Frog 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period, availability of draft 

economic analysis, and amended 

required determinations. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

availability of the draft economic 

analysis (DEA) for the June 3, 2010, 

proposed designation of critical habitat 

for the Mississippi gopher frog (Rana 

sevosa) [= Rana capito sevosa] under 

the Endangered Species Act of 1973, as 

amended (Act). We also announce the 

reopening of the comment period and 

an amended required determinations 

section of the proposal. We are 

reopening the comment period for an 

additional 30 days to allow all 

interested parties an opportunity to 

comment simultaneously on the 

proposed critical habitat designation, 

the associated DEA, and the 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 on or before January 

13, 2011. Comments must be received 

by 11:59 p.m. Eastern Time on the 

closing date. Any comments that we 

receive after the closing date may not be 

considered in the final decision on this 

action. 

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–2010–0024. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R4– 

ES–2010–0024; 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: 

Stephen Ricks, Field Supervisor, 

Mississippi Fish and Wildlife Office, 

6578 Dogwood View Parkway, Jackson, 

MS 39213; by telephone (601–321– 

1122); or by facsimile (601–965–4340). 

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 our proposed 

designation of critical habitat for the 

Mississippi gopher frog that was 

published in the Federal Register on 

June 3, 2010 (75 FR 31387), the DEA of 

the proposed designation of critical 

habitat for the Mississippi gopher frog, 

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 areas as ‘‘critical 

habitat’’ under section 4 of the Act (16 

U.S.C. 1531 et seq.), including whether 

there are threats to the Mississippi 

gopher frog from human activity, the 

degree of which can be expected to 

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77818 Federal Register / Vol. 75, No. 239 / Tuesday, December 14, 2010 / Proposed Rules 

increase due to the designation, and 

whether that increase in threat 

outweighs the benefit of designation, 

such that the designation of critical 

habitat is prudent. 

(2) Specific information on: 

(a) The amount and distribution of 

Mississippi gopher frog habitat; 

(b) What areas occupied by the 

species at the time of listing that contain 

features essential for the conservation of 

the species we should include in the 

designation and why; 

(c) Special management 

considerations or protection for the 

physical and biological features 

essential to Mississippi gopher frog 

conservation that have been identified 

in the proposed rule that may be 

needed, including managing for the 

potential effects of climate change; and 

(d) What areas not occupied by the 

species at the time of listing are 

essential to the conservation of the 

species and why. 

(3) Specific information on the 

Mississippi gopher frog and the physical 

and biological features essential to the 

conservation of the species. 

(4) Any information on the biological 

or ecological requirements of the 

species. 

(5) Land-use designations and current 

or planned activities in the subject areas 

and their possible impacts on the 

species and the proposed critical 

habitat. 

(6) Any foreseeable 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. 

(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) Information on the extent to which 

the description of economic impacts in 

the DEA is complete and accurate. 

(9) 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. 

(10) The appropriateness of the 

taxonomic name change of the 

Mississippi gopher frog from Rana 

capito sevosa to Rana sevosa. 

(11) 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 (75 FR 

31387) during the initial comment 

period from June 3, 2010, to August 2, 

2010, 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 

revised critical habitat will take into 

consideration all written comments and 

any additional information we receive 

during both comment periods. On the 

basis of public comments, we may, 

during the development of our final 

determination, find that areas proposed 

are not essential, are appropriate for 

exclusion under section 4(b)(2) of the 

Act, or are not appropriate for 

exclusion. 

You may submit your comments and 

materials concerning the proposed rule 

or DEA by one of the methods listed in 

the ADDRESSES section. We will not 

consider comments sent by e-mail or fax 

or to an address not listed in the 

ADDRESSES section. 

If you submit a comment via http:// 

www.regulations.gov, your entire 

comment—including your personal 

identifying information—will be posted 

on the Web site. We will post all hard 

copy comments on http:// 

www.regulations.gov as well. If you 

submit a hard copy 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, Mississippi 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– 

0024 or by mail from the Mississippi 

Field Office (see FOR FURTHER

INFORMATION CONTACT section). 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat for 

Mississippi gopher frog in this 

document. For more information on 

previous Federal actions concerning the 

Mississippi gopher frog, refer to the 

proposed designation of critical habitat 

published in the Federal Register on 

June 3, 2010 (75 FR 31387). For more 

information on the Mississippi gopher 

frog or its habitat, refer to the final 

listing rule published in the Federal 

Register on December 4, 2001 (66 FR 

62993), which is available online at 

http://www.regulations.gov (at Docket 

Number FWS–R4–ES–2010–0024) or 

from the Mississippi Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). 

On June 3, 2010, we published a 

proposed rule to designate critical 

habitat for the Mississippi gopher frog 

(75 FR 31387). We proposed to 

designate as critical habitat a total of 

792 hectares (1,957 acres) in 11 units 

within Forrest, Harrison, Jackson, and 

Perry Counties, Mississippi. That 

proposal had a 30-day comment period, 

ending August 2, 2010. We will submit 

for publication in the Federal Register 

a final critical habitat designation on or 

before May 30, 2011. 

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. 

Consideration of Impacts Under Section 

4(b)(2) of the Act 

Section 4(b)(2) of the Act requires that 

we designate or revise critical habitat 

based upon the best scientific data 

available, after taking into consideration 

the economic impact, impact on 

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Federal Register / Vol. 75, No. 239 / Tuesday, December 14, 2010 / Proposed Rules 77819 

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 the 

additional regulatory benefits that area 

would receive from the protection from 

adverse modification or destruction as a 

result of actions with a Federal nexus 

(activities conducted, funded, 

permitted, or authorized by Federal 

agencies), the educational benefits of 

mapping areas containing essential 

features that aid in the recovery of the 

listed species, and any benefits that may 

result from designation due to State or 

Federal laws that may apply to critical 

habitat. 

When considering the benefits of 

exclusion, we consider, among other 

things, whether exclusion of a specific 

area is likely to result in conservation; 

the continuation, strengthening, or 

encouragement of partnerships; or 

implementation of a management plan. 

In the case of Mississippi gopher frog, 

the benefits of critical habitat include 

public awareness of the presence of the 

Mississippi gopher frog and the 

importance of habitat protection, and, 

where a Federal nexus exists, increased 

habitat protection for Mississippi 

gopher frog due to protection from 

adverse modification or destruction of 

critical habitat. In practice, situations 

with a Federal nexus exist primarily on 

Federal lands or for projects undertaken 

by Federal agencies. 

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 period and information about 

the economic impact of designation. 

Accordingly, we have prepared a draft 

economic analysis concerning the 

proposed critical habitat designation 

(DEA), which is available for review and 

comment (see ADDRESSES section). 

Draft Economic Analysis 

The purpose of the DEA is to identify 

and analyze the potential economic 

impacts associated with the proposed 

critical habitat designation for the 

Mississippi gopher frog that we 

published in the Federal Register on 

June 3, 2010 (75 FR 31387). The DEA 

separates conservation measures into 

two distinct categories according to 

‘‘without critical habitat’’ and ‘‘with 

critical habitat’’ scenarios. The ‘‘without 

critical habitat’’ scenario represents the 

baseline for the analysis, considering 

protections otherwise afforded to the 

gopher frog (e.g., under the Federal 

listing and other Federal, State, and 

local regulations). The ‘‘with critical 

habitat’’ scenario describes the 

incremental impacts specifically due to 

designation of critical habitat for the 

species. In other words, these 

incremental conservation measures and 

associated economic impacts would not 

occur but for the designation. 

Conservation measures implemented 

under the baseline (without critical 

habitat) scenario are described 

qualitatively within the DEA, but 

economic impacts associated with these 

measures are not quantified. Economic 

impacts are only quantified for 

conservation measures implemented 

specifically due to the designation of 

critical habitat (i.e., incremental 

impacts). 

The DEA describes economic impacts 

associated with designation of critical 

habitat for the Mississippi gopher frog 

based on the following categories: (1) 

Costs associated with economic 

activities, including development and 

forestry; (2) costs associated with 

military activities; and (3) costs 

associated with active species 

management. The DEA provides 

estimated costs of the foreseeable 

potential economic impacts of the 

proposed critical habitat designation for 

the Mississippi gopher frog over the 

next 20 years, which was determined to 

be the appropriate period for analysis 

because limited planning information is 

available for most activities to forecast 

activity levels for projects beyond a 20- 

year timeframe. These incremental costs 

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. For a further description of the 

methodology of the analysis, see 

Chapter 2 (‘‘Framework for the 

Analysis’’) of the DEA. 

The DEA estimates the incremental 

impacts of conservation activities for the 

Mississippi gopher frog to be $102,000 

over the next 20 years ($9,610 in 

annualized impacts, assuming a 7 

percent discount rate). All of these 

impacts stem from the administrative 

cost of addressing adverse modification 

of critical habitat during section 7 

consultations. Parties involved in 

section 7 consultations include the 

Service, the action agency, and in some 

cases, a private entity involved in the 

project or land use activity. Incremental 

impacts stemming from additional 

gopher frog conservation measures 

requested by the Service during section 

7 consultation are not expected in 

occupied areas because project 

modifications that may be needed to 

minimize impacts to the species would 

coincidentally minimize impacts to 

critical habitat. In unoccupied areas, 

project modifications resulting from 

consultation would be considered 

incremental impacts of the critical 

habitat designation. 

The DEA also discusses the potential 

economic benefits associated with the 

designation of critical habitat. However, 

because the Service believes that the 

direct benefits of the designation are 

best expressed in biological terms, this 

analysis does not quantify or monetize 

benefits; only a qualitative discussion of 

economic benefits is provided. 

As we stated earlier, we are soliciting 

data and comments from the public on 

the DEA, as well as all aspects of the 

proposed rule and our amended 

required determinations. We may revise 

the proposed rule or supporting 

documents to incorporate or address 

information we receive during the 

public comment period. In particular, 

we may exclude an area from critical 

habitat if we determine that the benefits 

of excluding the area outweigh the 

benefits of including the area, provided 

the exclusion will not result in the 

extinction of this species. 

Required Determinations—Amended 

In our June 3, 2010, proposed rule (75 

FR 31387), 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 

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 (2 

U.S.C. 1501 et seq.), the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.), the National Environmental 

Policy Act (42 U.S.C. 4321 et seq.), and 

the President’s memorandum of April 

29, 1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951). However, 

based on the DEA data, we are 

amending our required determinations 

concerning the Regulatory Flexibility 

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

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77820 Federal Register / Vol. 75, No. 239 / Tuesday, December 14, 2010 / Proposed Rules 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act, 

as amended by the Small Business 

Regulatory Enforcement Fairness Act (5 

U.S.C. 802(2)), 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 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 the 

Mississippi gopher frog would affect a 

substantial number of small entities, we 

considered the number of small entities 

affected within particular types of 

economic activities, such as timber 

operations, and residential and 

commercial development along with the 

accompanying infrastructure associated 

with such projects including road, storm 

water drainage, bridge and culvert 

construction and maintenance. 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. In areas where the Mississippi 

gopher frog is present, Federal agencies 

already are required to consult with us 

under section 7 of the Act on activities 

they fund, permit, or implement that 

may affect the species, due to the 

endangered status of 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. 

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 the Mississippi gopher frog. As 

discussed in the DEA, the Service and 

any Federal action agency are the only 

entities with direct compliance costs 

associated with the proposed critical 

habitat designation. These Federal 

agencies are not considered small 

business entities under the Regulatory 

Flexibility Act. As a consequence, this 

rule will not result in a significant 

impact on small entities. Please refer to 

the DEA of the proposed critical habitat 

designation for a more detailed 

discussion of potential impacts. 

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. 

Authors 

The primary authors of this notice are 

the staff members of the Mississippi 

Fish and Wildlife Office, Southeast 

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: December 6, 2010. 

Will Shafroth, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 2010–31227 Filed 12–13–10; 8:45 am] 

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