        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R4-ES-2013-0031; 4500030113]
        RIN 1018-AZ59
        Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Florida Leafwing and Bartram's Scrub-Hairstreak Butterflies

          AGENCY:
          Fish and Wildlife Service, Interior.

          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 August 15, 2013, proposed designation of critical habitat for the Florida leafwing (Anaea troglodyta floridalis) and Bartram's scrub-hairstreak (Strymon acis bartrami) butterflies under the Endangered Species Act of 1973, as amended (Act). We are proposing to revise the previously proposed critical habitat for these species by including hydric pine flatwoods in their primary constituent elements and by increasing the size of the Everglades National Park Unit for each butterfly to 7,994 acres (ac) (3,235 hectares (ha)). In total, we are proposing to designate as critical habitat 10,561 ac (4,273 ha) in four units for the Florida leafwing, and 11,539 ac (4,670 ha) in seven units for the Bartram's scrub-hairstreak; all units are located within Miami-Dade and Monroe Counties, Florida. We also announce the availability of a draft economic analysis (DEA) and an amended required determinations section for the proposed determination. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the revised proposed rule, 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.

          DATES:

          We will consider comments received or postmarked on or before June 9, 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:

            Document availability: You may obtain copies of the proposed rule and the associated DEA on the internet at http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0031 or by mail from the South Florida Ecological Services 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 DEA by searching for Docket No. FWS-R4-ES-2013-0031, which is the docket number for this rulemaking.
          (2) By hard copy: Submit comments on the critical habitat proposal and associated DEA by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-2013-0031; 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:
          Craig Aubrey, Field Supervisor, U.S. Fish and Wildlife Service, South Florida Ecological Services Office, 1339 20th Street, Vero Beach, FL 32960, by telephone (772-562-3909), or by 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:
        Public Comments
        We will accept written comments and information during this reopened comment period on our revised proposed designation of critical habitat for the Florida leafwing and Bartram's scrub-hairstreak, 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 the species 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 distribution of the Florida leafwing and Bartram's scrub-hairstreak;
        (b) The amount and distribution of Florida leafwing and Bartram's scrub-hairstreak habitat; and
        (c) What areas occupied by either or both species at the time of listing contain features essential for the conservation of the species and why; and
        (d) What areas not occupied at the time of listing are essential to the conservation of the species and why.
        (3) Land use designations and current or planned activities in the subject areas and their probable impacts on proposed critical habitat of either or both species.
        (4) Information on the projected and reasonably likely impacts of climate change on the Florida leafwing and Bartram's scrub-hairstreak and proposed critical habitat.
        (5) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation; in particular, the benefits of including or excluding areas that exhibit these impacts.

        (6) Information on the extent to which the description of economic impacts in the DEA is a reasonable estimate of the likely economic impacts.

        (7) The likelihood of adverse social reactions or social welfare impacts to the designation of critical habitat, as discussed in the associated documents of the DEA, and how the consequences of such reactions or impacts, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation for either or both species.
        (8) Whether any areas we are proposing for critical habitat designation for either or both species 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.
        (9) 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.
        If you submitted comments or information on the proposed rule (78 FR 49832) during the initial comment period from August 15, 2013, to October 15, 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. However, new comments may be submitted. 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 or DEA by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.
        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 and DEA, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0031, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, South Florida Ecological Services 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-2013-0031, or by mail from the South Florida Ecological Services 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 the Florida leafwing and Bartram's scrub-hairstreak in this document. For more information on the Florida leafwing and Bartram's scrub-hairstreak and their habitats, refer to the proposed listing and critical habitat rule published in the Federal Register on August 15, 2013 (78 FR 49832), which is available online at http://www.regulations.gov (at Docket Number FWS-R4-ES-2013-0031) or from the South Florida Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).
        Previous Federal Actions
        On August 15, 2013, we published a proposed rule to designate critical habitat for the Florida leafwing and Bartram's scrub-hairstreak (78 FR 49832). We proposed to designate approximately 8,283 ac (3,351 ha) in four units for the Florida leafwing and 9,261 ac (3,748 ha) in seven units for the Bartram's scrub-hairstreak, located in Miami-Dade and Monroe Counties, Florida, as critical habitat. That proposal had a 60-day comment period, ending October 15, 2013.
        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.
        New Information and Changes From the Previously Proposed Critical Habitat
        In this document, we are notifying the public of changes to the proposed critical habitat rule. In the August 15, 2013, proposed rule (78 FR 49832), we discussed the current distribution of the Florida leafwing and Bartram's scrub-hairstreak. Our analysis indicated the Florida leafwing is known to actively disperse throughout the majority of the Long Pine Key region of Everglades National Park (ENP) (Salvato and Salvato 2010, p. 91; 2010c, p. 139). Similarly, Salvato and Salvato (2010b, p. 159) indicated that, while generally uncommon, the Bartram's scrub-hairstreak is widespread within the Long Pine Key region.
        Since publication of the proposed rule, we have obtained new information regarding the distribution of the Florida leafwing and Bartram's scrub-hairstreak documenting that their distribution, as well as the boundaries of pine rockland habitat within ENP in which they occur, is larger than we indicated in the proposed rule. Sadle (pers. comm. 2013c) and Salvato (pers. comm. 2013) indicate that several areas with recent Florida leafwing and Bartram's scrub-hairstreak observations, as well as areas with known hostplant populations, were not included within the critical habitat boundaries proposed for the ENP in the Miami-Dade County, Florida, Units of each butterfly.
        Accordingly, we are proposing to revise our proposed critical habitat designation for the Florida leafwing and Bartram's scrub-hairstreak by increasing the size of the ENP Miami-Dade County, Florida, Units of both butterflies from 5,716 ac (2,313 ha) to 7,994 ac (3,235 ha), to incorporate the additional pine rockland and associated habitats within the Long Pine Key region of ENP where additional recent sightings have been documented. These habitat patches in the expansion area of proposed critical habitat will ensure connectivity between viable populations within the Long Pine Key region of ENP.

        In total, we are proposing to designate critical habitat consisting of 10,561 ac (4,273 ha) in four units for the Florida leafwing and 11,539 ac (4,670 ha) in seven units for the Bartram's scrub-hairstreak, located in Miami-Dade and Monroe Counties, Florida. For a full description of the previously proposed units for these subspecies, please see the proposed critical habitat rule (78 FR 49832; August 15, 2013).
        We also received new information which indicates existing data do not support the necessity of including a specified return interval for disturbance (i.e., 3 to 5 years for fire), as indicated under primary constituent element (PCE) 4. Information indicates that the butterflies have been observed at varying densities within pine rocklands that have burned at intervals of up to 10 years. Observations of the Florida leafwing and Bartram's scrub-hairstreak within portions of Long Pine Key that have experienced fire or other disturbance regimes at intervals of up to 10 years (Salvato and Salvato 2010a, p. 91; 2010b, p. 154; Sadle pers. comm. 2013c) suggest further studies are required on the influence of these factors on butterfly ecologies. In addition, we received new information that indicates the physical and biological feature (PBF) 5 should be modified to mention storms, in addition to fire, as disturbance regimes for both butterflies (Cook 2013, pers. comm.).
        Because of this new information on the distribution of Florida leafwing and the Bartram's scrub-hairstreak, as well as additional comments we received on disturbance regimes and fire-return intervals in the pine rocklands of ENP, we are proposing to revise the physical and biological features (PBFs) and corresponding primary constituent elements (PCEs) for both butterflies to include the new habitats and disturbance regimes and to modify fire-return intervals. Therefore, for both butterflies, hydric pine flatwoods are being included in all habitats of the PBFs and the PCEs. Specific time intervals have been removed from the disturbance and fire-return intervals of the PCEs for both butterflies.
        Therefore, the purpose of this proposed revision to the proposed critical habitat is to include these new areas that are currently occupied by Florida leafwing and the Bartram's scrub-hairstreak, which contain the PBFs essential to the conservation of the species, and may require special management considerations or protection, and thus meet the definition of critical habitat. The expansion of the ENP unit included in the proposed designation would provide for the conservation of both butterflies by:
        (1) Maintaining the PBFs essential to the conservation of both butterflies where they are known to occur;
        (2) Maintaining their current distribution, thus preserving genetic variation throughout the range of the species and minimizing the potential effects of local extirpation; and
        (3) Maintaining connectivity between viable populations within the Long Pine Key region of ENP.
        Proposed Critical Habitat Designation
        We are proposing to revise the previously proposed critical habitat for the Florida leafwing and Bartram's scrub-hairstreak by increasing the size of the ENP Miami-Dade County, Florida, Units of both butterflies. The proposed critical habitat units constitute our current and best assessment of the areas that meet the definition of critical habitat for these subspecies. Except for the ENP units of Florida leafwing and Bartram's scrub-hairstreak, the proposed critical habitat for both butterflies are unchanged from our descriptions in the August 15, 2013, proposed rule (78 FR 49832), and are not repeated in this document. We present below brief descriptions of the revised ENP Miami-Dade County, Florida Unit, and reasons why it meets the definition of critical habitat for the Florida leafwing and Bartram's scrub-hairstreak.
        Everglades National Park Unit, Miami-Dade County, Florida
        The proposed ENP Miami-Dade County, Florida Unit for Florida leafwing and Bartram's scrub-hairstreak consists of 7,994 ac (3,235 ha) in Miami-Dade County. This unit is composed entirely of lands in Federal ownership, 100 percent of which are located within the Lone Pine Key region of ENP. This unit is currently occupied by both butterflies and contains all the PBFs, including suitable habitat (pine rockland and associated rockland and hydric pine flatwood habitats of sufficient size), hostplant presence, natural or artificial disturbance regimes, low levels of nonnative vegetation and larval parasitism, hostplant, and restriction of pesticides and contains the PCE of pine rockland (PCE #1 for both species).
        The PBFs in this unit may require special management considerations or protection to address threats of fire suppression, habitat fragmentation, poaching, and sea level rise. However, in most cases these threats are being addressed or coordinated with the National Park Service to implement needed actions.
        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 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 the Florida leafwing and Bartram's scrub-hairstreak, the benefits of critical habitat include public awareness of the presence of the Florida leafwing and Bartram's scrub-hairstreak and the importance of habitat protection, and where a Federal nexus exists, increased habitat protection for the Florida leafwing and Bartram's scrub-hairstreak 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 (DEA) concerning the proposed critical habitat designation, which is available for review and comment (see ADDRESSES).
        Consideration of Economic Impacts

        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. As part of this assessment we identify the geographic areas or specific activities that could experience the greatest impacts, measured in terms of changes in social welfare. To assess the probable economic impacts of a designation, we begin by identifying the specific land uses or activities and projects that may occur in areas proposed as critical habitat. We then evaluate the impacts that a specific critical habitat designation may have in terms of restricting or modifying these land uses or activities for the benefit of the species and its habitat. Next, we determine 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 “without critical habitat” and “with 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 costs, therefore, include 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 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. 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 the Florida leafwing and Bartram's scrub-hairstreak (IEc 2014, entire). 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. 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, is our DEA of the proposed critical habitat designation for the Florida leafwing and Bartram's scrub-hairstreak and is summarized in the narrative below.
        Executive Orders 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. 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 IEM dated November 26, 2013, we identified probable incremental economic impacts associated with the following categories of activities: (1) Fire management; (2) forest management; (3) conservation/restoration; (4) flood control; (5) recreation; (6) water quality/supply; (7) development; (8) utilities; (9) mosquito control; (10) transportation; and (11) tourism. We considered each industry or category individually for each butterfly. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; only activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the Florida leafwing and Bartram's scrub-hairstreak are present, Federal agencies already are required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize the proposed critical habitat designations, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
        In our IEM, we attempted to distinguish 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 the Florida leafwing and Bartram's scrub-hairstreak. Because the designation of critical habitat for Florida leafwing and Bartram's scrub-hairstreak 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 the Florida leafwing and Bartram's scrub-hairstreak 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 these subspecies.
        The proposed revised critical habitat designation for the Florida leafwing totals approximately 10,561 ac (4,273 ha), of which approximately 74 percent is currently occupied by the butterfly. The proposed critical habitat designation includes lands under Federal (85 percent), State (3 percent), and private and local municipal (12 percent) ownership.

        The proposed revised critical habitat designation for the Bartram's scrub-hairstreak totals approximately 11,539 ac (4,670 ha) of which 98 percent is currently occupied by the butterfly. The proposed critical habitat designation includes lands under Federal (80 percent), State (5 percent), and private and local municipalities (15 percent) ownership.
        In other words, approximately 98 percent of proposed revised critical habitat areas are considered to be occupied by one or both butterfly species, providing significant baseline protection. Any actions that may affect the Florida leafwing and Bartram's scrub-hairstreak would also affect designated critical habitat, and it is unlikely that any additional conservation efforts would be recommended to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the butterflies. For both butterflies, the quality of their habitat, especially when it includes the host plant, is closely linked to the species' survival. Therefore, in our DEA we determined that only administrative costs are expected in the proposed occupied critical habitat (for the Florida leafwing and Bartram's scrub-hairstreak). Thus, the Service believes that, in most circumstances, while this additional analysis will require time and resources by both the Federal action agency and the Service, these costs would predominantly be administrative in nature and would not be significant.
        Approximately 24 percent of the proposed critical habitat for the Florida leafwing butterfly is unoccupied. These areas were historically occupied, but are now unoccupied, and are essential for the conservation of the subspecies. Approximately 2 percent of the proposed critical habitat for Bartram's scrub-hairstreak is unoccupied. These areas are not known to be historically occupied by the subspecies; however they are within the historical range of the butterfly and are essential for the conservation of the subspecies. In the two units that are not occupied by either butterfly species, in the DEA we also conclude incremental impacts are likely limited to administrative costs, because of the existing baseline protections in these areas. Specifically:
        • BSHB Unit 6 consists of a mix of Federal, State, county, and private lands on the remote island of No Name Key, located in the Florida Keys. Of the acres proposed as critical habitat on No Name Key, 85 percent are currently managed for conservation purposes as part of the National Key Deer Refuge (NKDR). The remaining acres are privately owned and currently managed as part of Monroe County's Habitat Conservation Plan (HCP) related to the Federal Emergency Management Agency's National Flood Insurance Program (FEMA NFIP).
        • BSHB Unit 7 occurs entirely within the NKDR, managed by the Service for conservation purposes. Future activities that may result in section 7 consultation in this unit are limited to periodic fire management and insect control activities.
        Federal action agencies will most likely incur incremental costs associated with section 7 consultations. The economic costs of implementing the rule through section 7 of the Act will most likely be limited to the additional administrative effort required to consider adverse modification in a small number of future section 7 consultations. Approximately 98 percent of proposed critical habitat areas are considered to be occupied by one or both butterfly species (11,319 acres), providing significant baseline protection. Critical habitat designation is unlikely to result in incremental changes to conservation actions in currently occupied areas over and above those necessary to avoid jeopardizing of the species. Accordingly, only administrative costs are expected in those areas. In the proposed critical habitat not occupied by either butterfly species (about 2 percent), incremental impacts are also likely limited to administrative costs due to existing protections in these areas. Existing protections include Service management of the majority of the areas as part of NKDR operating under their CCP, and the remainder of the areas are privately owned and already regulated by a complex mix of Federal, State, and local land management regulations and policies.
        Based on the available information, we anticipate no more than eight to nine consultations per year in occupied and unoccupied critical habitat units. Unit costs of such administrative efforts range from approximately $400 to $9,000 per consultation (2013 dollars, total cost for all parties participating in a single consultation). Applying these unit cost estimates, this analysis conservatively estimates that the administrative cost of considering adverse modification in section 7 consultation will result in incremental costs of up to $72,000 (2013 dollars) in a given year.
        Regulatory uncertainty generated by critical habitat may result in landowners or buyers perceiving that the rule will restrict land or water use activities in some way and therefore value the resource less than they would have absent critical habitat. This is a perceptional, or stigma, effect of critical habitat on markets. Costs resulting from public perception of the impact of critical habitat, if they occur, are more likely to occur on private lands located in BSHB Units 2, 3, 4 and FLB Units 2 and 3 in Miami-Dade County.
        Therefore, the incremental administrative burden resulting from the designation is unlikely to reach $100 million in a given year based on the small number of anticipated consultations and pre-consultation costs. Under Executive Order 12866, agencies must assess the potential costs and benefits of regulatory actions and quantify those costs and benefits if that action may have an effect on the economy of $100 million or more annually.
        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 these subspecies.
        Required Determinations—Amended

        In our August 15, 2013, proposed rule (78 FR 49832), 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 in the DEA of the probable incremental economic impacts resulting from the designation of critical habitat for the Florida leafwing and Bartram's scrub-hairstreak, we have amended or affirmed our determinations below. Specifically, we affirm the information in our proposed rule concerning Executive Order (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 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 our evaluation of the probable incremental economic impacts of the proposed designation of critical habitat for the Florida leafwing and Bartram's scrub-hairstreak, we are amending our required determination concerning the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) and E.O. 12630 (Takings).
        Regulatory Flexibility Act

        Under the RFA, 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 required to evaluate the potential incremental impacts of rulemaking only on those entities directly regulated by the rulemaking itself and, therefore, are 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 would 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 Florida leafwing and Bartram's scrub-hairstreak 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 DEA found that no significant economic impacts are likely to result from the designation of critical habitat for Florida leafwing and Bartram's scrub-hairstreak. 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 assessment 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, we conclude that the designation of critical habitat for the Florida leafwing and Bartram's scrub-hairstreak does not pose significant takings implications for lands within or affected by the designation.
        Author

        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 (see FOR FURTHER INFORMATION CONTACT).
        Authority

        The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          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, which was proposed to be amended at 78 FR 49832, August 15, 2013, as set forth below:

          PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS

        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. In § 17.95 paragraph (i), amend the entries proposed at 78 FR 49832 on August 15, 2013, for “Bartram's Scrub-hairstreak Butterfly (Strymon acis bartrami)” and “Florida Leafwing Butterfly (Anaea troglodyta floridalis),” by revising paragraphs (i)(2), (i)(5), and (i)(6) for both entries, to read as follows::

          § 17.95
          Critical habitat—fish and wildlife.

          (i) Insects.

          Bartram's Scrub-Hairstreak Butterfly (Strymon acis bartrami)

          (2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the Bartram's scrub-hairstreak are:
          (i) Areas of pine rockland habitat, and in some locations, associated rockland hammocks and hydric pine flatwoods.
          (A) Pine rockland habitat contains:
          (1) Open canopy, semi-open subcanopy, and understory;
          (2) Substrate of oolitic limestone rock; and
          (3) A plant community of predominately native vegetation.
          (B) Rockland hammock habitat associated with the pine rocklands contains:
          (1) Canopy gaps and edges with an open to semi-open canopy, subcanopy, and understory;
          (2) Substrate with a thin layer of highly organic soil covering limestone or organic matter that accumulates on top of the underlying limestone rock; and
          (3) A plant community of predominately native vegetation.
          (C) Hydric pine flatwood habitat associated with the pine rocklands contains:
          (1) Open canopy with a sparse or absent subcanopy and dense understory;
          (2) Substrate with a thin layer of poorly drained sands and organic materials that accumulates on top of the underlying limestone or calcareous rock; and
          (3) A plant community of predominately native vegetation.
          (ii) The absence of competitive nonnative plant species or their existence in quantities low enough to have minimal effect on survival of Bartram's scrub-hairstreak butterfly.
          (iii) The presence of the butterfly's hostplant, pineland croton, in sufficient abundance for larval recruitment, development, and food resources, and for adult butterfly nectar source and reproduction.
          (iv) A dynamic natural disturbance regime or one that artificially duplicates natural ecological processes (e.g., fire, hurricanes, or other weather events, at appropriate intervals) that maintains the pine rockland habitat and associated hardwood hammock and hydric pine flatwood plant communities.
          (v) Pine rockland habitat and associated hardwood hammock and hydric pine flatwood plant communities that allow for connectivity and are sufficient in size to sustain viable populations of Bartram's scrub hairstreak butterfly.
          (vi) Pine rockland habitat and associated hardwood hammock and hydric pine flatwood plant communities with levels of pesticide low enough to have minimal effect on the survival of the butterfly or its ability to occupy the habitat.

          (5) Note: Index map of all critical habitat units for Bartram's scrub-hairstreak follows:

            EP08MY14.005

          (6) Unit BSHB1: Everglades National Park, Miami-Dade County, Florida.
          (i) General Description: Unit BSHB1 consists of 7,994 ha (3,235 ac) composed entirely of lands in Federal ownership, 100 percent of which are located within the Long Pine Key region of Everglades National Park.
          (ii) Map of Unit BSHB1 follows:

            EP08MY14.006

          Florida Leafwing Butterfly  (Anaea troglodyta floridalis)

          (2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the Florida leafwing butterfly consist of six components:
          (i) Areas of pine rockland habitat, and in some locations, associated rockland hammocks and hydric pine flatwoods.
          (A) Pine rockland habitat contains:
          (1) Open canopy, semi-open subcanopy, and understory;
          (2) Substrate of oolitic limestone rock; and
          (3) A plant community of predominately native vegetation.
          (B) Rockland hammock habitat associated with the pine rocklands contains:
          (1) Canopy gaps and edges with an open to semi-open canopy, subcanopy, and understory;
          (2) Substrate with a thin layer of highly organic soil covering limestone or organic matter that accumulates on top of the underlying limestone rock; and
          (3) A plant community of predominately native vegetation.

          (C) Hydric pine flatwood habitat associated with the pine rocklands contains:
          (1) Open canopy with a sparse or absent subcanopy and dense understory;
          (2) Substrate with a thin layer of poorly drained sands and organic materials that accumulates on top of the underlying limestone or calcareous rock; and
          (3) A plant community of predominately native vegetation.
          (ii) The absence of competitive nonnative plant species or their existence in quantities low enough to have minimal effect on survival of the Florida leafwing.

          (iii) The presence of the butterfly's hostplant, pineland croton, in sufficient abundance for larval recruitment, development, and food resources and for adult butterfly roosting habitat and reproduction.
          (iv) A dynamic natural disturbance regime or one that artificially duplicates natural ecological processes (e.g., fire, hurricanes, or other weather events, at appropriate intervals) that maintains the pine rockland habitat and associated hardwood hammock and hydric pine flatwood plant communities.
          (v) Pine rockland habitat and associated hardwood hammock and hydric pine flatwood plant communities sufficient in size to sustain viable Florida leafwing populations.
          (vi) Pine rockland habitat and associated hardwood hammock and hydric pine flatwood plant communities with levels of pesticide low enough to have minimal effect on the survival of the butterfly or its ability to occupy the habitat.

          (5) Note: Index map of all critical habitat units for Florida leafwing follows:
          BILLING CODE 4310-55-P

            EP08MY14.007

          (6) Note: Unit FLB1: Everglades National Park, Miami-Dade County, Florida.
          (i) General Description: Unit FLB1 consists of 7,994 ha (3,235 ac) in Miami-Dade County and is composed entirely of lands in Federal ownership, 100 percent of which are located within the Long Pine Key region of Everglades National Park.
          (ii) Map of Unit FLB1 follows:

            EP08MY14.008

          Dated:  April 10, 2014.
          Rachel Jacobson,
          Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 2014-10533 Filed 5-7-14; 8:45 am]
      BILLING CODE 4310-55-C


        DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
        24 CFR Part 232
        [Docket No. FR 6022-P-01]
        RIN 2502-AJ46
        Federal Housing Administration (FHA): Section 232 Healthcare Facility Insurance Program—Memory Care Residents

          AGENCY:
          Office of the Assistant Secretary for Housing, HUD.

          ACTION:
          Proposed rule.

          SUMMARY:
          HUD's Section 232 program insures mortgage loans to facilitate the construction, substantial rehabilitation, purchase, and refinancing of nursing homes, intermediate care facilities, board and care homes, and assisted-living facilities. Through this rule, HUD proposes changes to update the requirements for the location of bathrooms in board and care and assisted living facilities to allow providers to configure the facilities to meet the needs of memory care residents and allow for flexibility of the bathroom requirement when financing or refinancing existing facilities.

          DATES:

            Comment due date: November 12, 2019.

          ADDRESSES:
          Interested persons are invited to submit comments regarding this proposed rule. All submissions must refer to the above docket number and title. There are two methods for submitting public comments.
          1. Submission of Comments by Mail. Comments may be submitted by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410-0500.

          2. Electronic Submission of Comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at www.regulations.gov. HUD strongly encourages commenters to submit comments electronically. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt by HUD, and enables HUD to make them immediately available to the public. Comments submitted electronically through the www.regulations.gov website can be viewed by other commenters and interested members of the public. Commenters should follow the instructions provided on that site to submit comments electronically.

            Note: To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule.

            No Facsimile (FAX) Comments. FAX comments are not acceptable.

          Public Inspection of Public Comments. HUD will make available all properly submitted comments and communications for public inspection and copying between 8 a.m. and 5 p.m. weekdays at the above address. Due to security measures at the HUD Headquarters building, you must schedule an appointment in advance to review the public comments by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Relay Service at 800-877-8339. Copies of all comments submitted are available for inspection and downloading at www.regulations.gov.

          FOR FURTHER INFORMATION CONTACT:
          John M. Hartung, Director, Policy, Risk Analysis & Lender Relations Division, Office of Residential Care Facilities, Office of Healthcare Programs, Office of Housing, Department of Housing and Urban Development, 1222 Spruce Street, St. Louis, MO 63103-2836; telephone number 314-418-5238 (this is not a toll-free number). Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339 (this is a toll-free number).

        SUPPLEMENTARY INFORMATION:

        I. Background
        Under Section 232, 223(a)(7), and 223(f) of the National Housing Act (12 U.S.C. 1715w, 12 U.S.C. 1715n(a)(7), and 12 U.S.C. 1715n(f)(4), respectively), FHA insures mortgages to finance the purchase or refinance of nursing homes, intermediate care facilities, board and care homes, and assisted living facilities (collectively, residential healthcare facilities). To meet the needs of residents living in the Section 232 program facilities and those seeking to insure projects under the Section 232 program, HUD proposes to revise the current regulation at § 232.7 regarding bathroom requirements to meet the needs of memory care residents. Memory care residents are those patients in assisted living or board and care settings that have cognitive impairments, such as Alzheimer's disease and other dementias who require care in a secure setting. HUD proposes the revision to add flexibility for financing existing residential healthcare facilities.
        A. Memory Care Residents

        Residents of assisted living facilities need assistance with their “activities of daily living” (ADL). Activities of daily living include, but are not limited to, such things as bathing, dressing, eating, getting in or out of bed, using the toilet, preparing meals, taking medications, and performing light housework. Memory care residents' care is often provided on a separate floor or wing to address the residents' specific needs. The health and safety of persons with dementia and other cognitive impairments can be enhanced by environments with features designed to accommodate cognitive and physical impairments. For example, Alzheimer residents' living environments have secured areas to prevent wandering—a common symptom of the disease. Memory care provides intensive, long-term medical care to seniors or others with serious health and dementia conditions in a fully-staffed and monitored facility.1

            1 Office of the Assistant Secretary for Planning and Evaluation, “Measuring The Activities of Daily Living: Comparison Across National Surveys” https://aspe.hhs.gov/basic-report/measuring-activities-daily-living-comparisons-across-national-surveys.

        The research shows the growing need for memory care specific services. Based on estimates from the Aging, Demographics, and Memory study of a nationally representative sample of older adults, 13.9% of people aged 71 and over in the United States have Alzheimer's disease or other types of dementia.2
           A National Study of Long-Term Care Providers (NSLTCP) found that a sizeable portion of long-term care service users had a diagnosis of Alzheimer's disease or other dementias—almost one-third of adult day services center participants and home health patients, about four-tenths of residential care residents, and almost one-half of nursing home residents. The National Center for Assisted Living, a nonprofit entity within the American Health Care Association specializing in assisted living, developed a profile for the average resident of an assisted living facility 3
           which found the average resident of an assisted living facility to be nearly 87 years old. Whereas, Section 232 of the National Housing Act defines frail elderly to be individuals 62 years and older who are in need of support for three ADLs. The data and research suggest that Alzheimer's disease or other dementias is a common precipitating factor for using formal long-term care services.4

            2 Long-Term Care Services in the United States: 2013 Overview Vital and Heath Statistics, Series 2, no 37, Center for Disease Control and Prevention, National Center for Health Statistics, U.S. Department of Health and Human Services p.39 (citing Plassman BL, et al., Prevalence of Dementia in the United States: The aging, demographics, and memory study. Neuroepidemiology 29(1-2):125-32. 2007).

            3 Overview of Assisted Living, published by the American Association of Homes and Services for the Aging, American Seniors Housing Association, Assisted Living Federation of American, National Center for Assisted Living, and National Investment Center for the Seniors Housing & Care Industry (2009).

          Overview of Assisted Living, published by the American Association of Homes and Services for the Aging, American Seniors Housing Association, Assisted Living Federation of American, National Center for Assisted Living, and National Investment Center for the Seniors Housing & Care Industry (2009). Assisted Living Regulations and Policy: 2015 Edition 06/15/2015, Office of The Assistant Secretary for Planning and Evaluation, U.S. Department of Health & Human Services, https://aspe.hhs.gov/basic-report/compendium-residential-care-and-assisted-living-regulations-and-policy-2015-edition.

        B. State Regulation of Memory Care Facilities Bathing Arrangements
        Although many Federal laws affect assisted living, oversight generally occurs at the state level through state licensure, statutes, and standards. Federal regulations issued by the Centers for Medicare and Medicaid Services (CMS) for long-term care facilities simply require that each resident room must be equipped with or located near toilet and bathing facilities.5 State regulation is often much more precise, specifying minimum standards for toilet and bathing facilities locations and ratios. Thirty-five states have provisions for the physical features of dementia care units, including the residents' living units, access to bathrooms, and external locking doors or controlled methods of egress to prevent unsafe exits.6 It is important to also note that Federal civil rights laws and regulations also contain accessibility and nondiscrimination requirements that apply, including the Fair Housing Act (24 CFR part 100), the Americans with Disabilities Act (28 CFR parts 35 (Title II) and 36 (Title III)), and Section 504 of the Rehabilitation Act (24 CFR part 8), as applicable.
        II. This Proposed Rule
        HUD's Section 232 regulation at § 232.7 requires a specific number of bathrooms per residents and specifies the physical configuration of a board and care home or an assisted living facility. This regulation has not been updated in any substantial manner in over 20 years.
        HUD is proposing to revise the regulations that govern the number and location of bathrooms in board and care homes and assisted living facilities currently insured or to be insured under the Section 232 program. The revisions would allow providers to configure existing facilities to meet the needs of residents, such as frail elderly individuals who have Alzheimer's disease or related dementia, and who need specialized support, such as assistance with bathing. This revision will allow the financing of existing residential healthcare facilities that do not meet HUD's existing bathroom standards, but which are currently providing necessary care to residents with Alzheimer's disease or related dementia.
        This proposed rule would not be applicable to substantial rehab and new construction. A substantially rehabilitated or new facility would be constructed in a manner which allows it to provide services for assisted living residents and memory care residents and meet HUD's long-standing standards set forth in § 232.7.
        A. Configuration of Section 232 Insured Facilities To Meet Memory Care Residents' Needs
        Subpart A of part 232 codified regulations entitled “Eligibility Requirements,” contains requirements for the number of bathrooms per residents and access to those bathrooms for board and care homes and assisted living facilities in § 232.7. Specifically, the regulations provide that not less than one full bathroom must be provided for every four residents of a board and care home or assisted living facility, and bathroom access from any bedroom or sleeping area must not pass through a public corridor or area.
        Generally, owners of assisted living facilities that apply for FHA mortgage insurance meet the requirements of § 232.7, because those assisted living facilities serve seniors who seek an independent lifestyle and do not require the higher level of monitoring provided to memory care residents. Rather, these residents simply need assistance to meet ADLs. However, several facilities were unsuccessful when they sought HUD's assistance in refinancing their debt because they could not satisfy the bathroom requirements set forth in HUD's regulations, and several applicants have advised that the requirement regarding the number and location of bathrooms set forth in § 232.7 presented barriers to properly serving memory care residents, who need specialized support, including assistance with bathing. Accordingly, some owners seeking Section 232 financing sought and received waivers from the current requirements in § 232.7 to allow bathroom facility configurations that were better suited to meet the care of memory care residents. Over time, HUD realized that the current regulations are outdated and in need of revision.
        B. Proposed Changes

        HUD's current prohibition on designs that allow residents to “[pass] through public areas” to a bathroom precludes insurance of existing facilities that meet the needs of memory care residents requiring assistance in bathing, and at which the physical redesign of the facility would be infeasible. Consequently, to provide flexibility in accepting the existing design of bedrooms and bathrooms to meet the greater care required for memory care residents, HUD proposes to revise § 232.7 to provide exceptions. Excepted facilities must still comply with any applicable State or local standards and requirements, including requirements specific to memory care facilities. See § 232.2. State or local standards that are more stringent than these requirements would not be preempted by this rule.
        Exemption for Facilities Insured Under Section 223(f) or 223(a)(7)
        The exemption would apply to memory care facilities whose financing is being insured pursuant to Section 223(f) or 223(a)(7) of the National Housing Act, only when four considerations are satisfied: (1) Memory care residents must reside in a separate secured locked area of the board and care home or assisted living facility; (2) any bathroom access from a memory care resident's bedroom or sleeping area that passes through a public corridor or area must be in that separate, secured, and locked area of the board and care home or assisted living facility; (3) memory care residents of such areas require full assistance or supervision when bathing; and (4) wards serving memory care residents have no more than two beds per unit and a half-bath in each unit. Note that the codified rule prohibits bathroom access from a public area, and this section provides limited conditions under which access from public areas is allowable.
        This exemption would not apply to new construction or substantial rehabilitation insured under Section 232, and those projects must continue to follow the long-standing bathroom requirements for board and care home or assisted living units.
        III. Findings and Certifications
        Regulatory Review—Executive Orders 12866 and 13563
        Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made by the Office of Management and Budget regarding whether a regulatory action is significant and therefore subject to review in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. This rule allows additional flexibility for the financing of residential healthcare facilities.
        Executive Order 13771
        Executive Order 13771, entitled “Reducing Regulation and Controlling Regulatory Costs,” was issued on January 30, 2017. This proposed rule is expected to be an Executive Order 13771 deregulatory action by providing additional flexibility for healthcare facilities, as discussed above.
        Environmental Review
        A Finding of No Significant Impact (FONSI) with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement Section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The FONSI is available for public inspection between the hours of 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC, 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the FONSI by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Relay Service at 800-877-8339.
        Unfunded Mandates Reform Act
        The Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538) establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and on the private sector. This proposed rule does not impose any Federal mandate on any state, local, or tribal government, or on the private sector, within the meaning of UMRA.
        Regulatory Flexibility Act
        The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.
        HUD believes that this proposed rule imposes no additional requirements on small businesses. Currently, HUD has a total of 3,673 residential healthcare facilities in its portfolio and completes approximately 300 firm commitments each year for 223(f) and 223(a)(7) refinances. HUD is providing waivers on 3 percent of those applications and waiver requests continue to increase. As noted in the preamble of the proposed rule, applicants have advised that the requirement regarding the number and location of bathrooms presented barriers to properly serving memory care residents, who need specialize support. HUD believes this proposed rule will resolve the inadequacy of the current bathroom requirements, thus, easing the existing burden on those entities seeking to accommodate memory care residents and entities seeking to finance or refinance facilities. Additionally, both owners, small and large, and memory care residents will benefit from the opportunity to finance their facility in compliance with this new framework.
        Accordingly, the undersigned certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities. Notwithstanding HUD's determination that this rule will not have a significant effect on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this rule that will meet HUD's objectives as described in the preamble to this rule.
        Executive Order 13132, Federalism

        Executive Order 13132 (entitled “Federalism”) prohibits to the extent practicable and permitted by law, an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or preempts state law, unless the relevant requirements of Section 6 of the Executive Order are met. This rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

        Catalogue of Federal Domestic Assistance
        The Catalogue of Federal Domestic Assistance Number for the Mortgage Insurance Nursing Homes, Intermediate Care Facilities, Board and Care Homes and Assisted Living Facilities is 14.129.

          List of Subjects in 24 CFR Part 232
          Fire prevention, Health facilities, Loan programs-health, Loan programs-housing and community development, Mortgage insurance, Nursing homes, Reporting and recordkeeping requirements.

        Accordingly, for the reasons stated above, HUD proposes to amend 24 CFR part 232 as follows:

          PART 232—MORTGAGE INSURANCE FOR NURSING HOMES, INTERMEDIATE CARE FACILITIES, BOARD AND CARE HOMES, AND ASSISTED LIVING FACILITIES

        1. The authority citation for part 232 continues to read as follows:

          Authority:
           12 U.S.C. 1715b; 1715w; 1735d, and 1735f-19; 42 U.S.C. 3535(d).

          Subpart A—Eligibility Requirements

        2. Revise § 232.7 to read as follows:

          § 232.7
           Bathroom.
          (a) General requirement. For a board and care home or assisted living facility to be eligible for insurance under this part:
          (1) The board and care home or assisted living facility must have no less than one full bathroom provided for every four residents; and
          (2) Bathroom access from any bedroom or sleeping area must not pass through a public corridor or area.
          (b) Exemption for existing projects providing memory care. The following applies to a board and care home or assisted living facility that provides housing for residents in need of memory care, i.e., care for residents who have cognitive impairments, such as Alzheimer's disease or other dementias:
          (1) Subject to paragraph (b)(2) of this section, a project seeking insurance under subpart E, pursuant to Section 223(f) or 223(a)(7) of the National Housing Act, may be eligible for insurance without meeting the general requirement in paragraph (a) of this section, if the project meets the following four requirements:
          (i) Memory care residents are in a separate, secured, and locked area of the board and care home or assisted living facility;
          (ii) Any bathroom access from a memory care resident's bedroom or sleeping area that passes through a public corridor or area is in a separate, secured, and locked area of the board and care home or assisted living facility prescribed in paragraph (b)(1)(i) of this section;
          (iii) Memory care residents receive full assistance or supervision while bathing; and
          (iv) Memory care residents reside in wards that contain no more than two beds per unit and have a half-bath in each unit.
          (2) If a facility serving memory care residents also serves residents who are not in a separate, secured, and locked area of the board and care home or assisted living facility, this exemption applies only to the separate, secured, and locked area in which solely memory care residents reside.

          Dated: August 9, 2019.
          John L. Garvin,
          General Deputy Assistant Secretary for Housing.

      [FR Doc. 2019-19778 Filed 9-12-19; 8:45 am]
       BILLING CODE 4210-67-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        [I.D. 051302B]
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;  Comprehensive Amendment Addressing Sustainable Fisheries Act Definitions and Other Required Provisions in Fishery Management Plans of Puerto Rico and the U.S. Virgin Islands; Scoping Meetings

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Notice of intent to prepare a draft supplemental environmental impact statement (DSEIS); notice of scoping meetings; request for comments.

          SUMMARY:
          The Caribbean Fishery Management Council (Council) intends to prepare a DSEIS to assess the impacts on the natural and human environment of the various managed fisheries related to the management measures proposed under the draft Comprehensive Amendment Addressing Sustainable Fishery Act (SFA) Definitions and Other Required Provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) in the Fishery Management Plans (FMPs) of Puerto Rico and the U.S. Virgin Islands (Comprehensive SFA Amendment).

          DATES:

          Written comments on the scope of issues to be addressed in the DSEIS must be received by July 1, 2002.  The scoping meetings will be held in June 2002.  See SUPPLEMENTARY INFORMATION for specific dates and times for the scoping meetings.

          ADDRESSES:

          Written comments on the scope of the DSEIS and requests for additional information on the proposed management measures should be sent to the Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico  00918-1920; telephone: (787) 766-592; fax: (787) 766-6239; or you can send comments by e-mail to: miguel.a.rolon@noaa.gov or graciela.garcia-moliner@noaa.gov.  The scoping meetings will be held in Puerto Rico, St. Thomas, and St. Croix, USVI.  See SUPPLEMENTARY INFORMATION for specific meeting locations.

          FOR FURTHER INFORMATION CONTACT:
          Graciela Garcia-Moliner, phone: (787) 766-5926, e-mail: graciela.garcia-moliner@noaa.gov or Michael C. Barnette; phone: (727) 570-5305; fax: (727) 570-5583, e-mail: michael.barnette@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        The Caribbean fisheries for Corals and Reef Associated Plants and Invertebrates, Queen Conch, Reef Fish, and Spiny Lobster in the exclusive economic zone are managed under FMPs prepared by the Council and approved and implemented by NMFS.  In January 1985 NMFS prepared an Environmental Impact Statement (EIS) for the Spiny Lobster FMP.  In February 1985 NMFS prepared an EIS for the Reef Fish Fishery FMP.  In July 1994 NMFS prepared an EIS for the Corals and Reef Associated Plants and Invertebrates FMP.  In January 1996 NMFS prepared an EIS for the Queen Conch FMP.  This DSEIS would supplement all of the previous EISs.
        The Council is preparing to amend the FMPs for Corals and Reef Associated Plants and Invertebrates, Queen Conch, Reef Fish Fishery, and Spiny Lobster to: (1) Address the consistency with new definitions; (2) address bycatch management measures and bycatch reporting requirements; (3) provide descriptions of the commercial, recreational, and charter fisheries and quantify trends in landings and data specified for each sector; (4) address fishery impact statements to insure they incorporate the likely effects of management measures on fishing communities; and (5) address overfishing provisions specifying objective and measurable criteria for identifying whether a species is overfished and provide subsequent measures to rebuild overfished stocks.

        The DSEIS will describe the proposed management measures in the Comprehensive SFA Amendment and will assess the environmental impacts of these proposed and alternative measures.  To ensure compliance with the requirements of the SFA in the various FMPs, the Council intends to evaluate numerous management measures, such as permits, commercial reporting requirements (including species-specific and bycatch reporting), limited entry, time/area closures (including closures for spawning aggregations and habitat protection), size limits, trip limits, gear restrictions, mandatory and/or voluntary observers, the addition and/or deletion of species from the management unit, and recreational possession limits.  However, the Council is requesting written comments on the scope of the issues to be addressed in the DSEIS.

        Once the Council completes the DSEIS, it will submit it to NMFS for filing with the EPA.  The EPA will publish a notice of availability of the DSEIS for public comment in the Federal Register.  The DSEIS will have a 45-day comment period.  The procedure is pursuant to regulations issued by the Council on Environmental Quality (CEQ) (40 CFR parts 1500-1508) for implementing the procedural provisions of the National Environmental Policy Act (NEPA) and to NOAA’s Administrative Order 216-6 regarding NOAA’s compliance with NEPA and the CEQ regulations.  The Council will consider public comments received on the DSEIS before adopting final management measures for the Comprehensive SFA Amendment.  The Council intends to prepare a final supplemental environmental impact statement (FSEIS) in support of the final Comprehensive SFA Amendment and submit the final Comprehensive SFA Amendment and supporting FSEIS to NMFS for Secretarial review, approval, and implementation under the Magnuson-Stevens Act.  NMFS will announce availability of the Comprehensive SFA Amendment for public review during the Secretarial review period through a notice published in the Federal Register.  During Secretarial review, NMFS will also file the FSEIS with the EPA for a final 30-day public comment period.  This comment period will be concurrent with the Secretarial review period and will end prior to final agency action to approve, disapprove, or partially approve the Comprehensive SFA Amendment.  All public comment periods on the Comprehensive SFA Amendment, its proposed implementing regulations, and its associated FSEIS will be announced through a notice published in the Federal Register.  NMFS will consider all public comments received during the 60-day Secretarial review period, whether they are on the Comprehensive SFA Amendment, the FSEIS, or the proposed regulations, prior to final agency action.
        The scoping meetings will be held at the following dates and locations:
        1. June 4, 2002: Conference Room of Torres de la Parguera Hotel, Carr. Principal #304, La Parguera, Lajas, Puerto Rico, from 2 p.m. to 5 p.m.;
        2. June 6, 2002: Conference Room of the Best Western Pierre Hotel, De Diego Avenue, Santurce, Puerto Rico, from 2 p.m. to 5 p.m.;
        3. June 10, 2002: Conference Room of the Caravelle Hotel, 44A Queen Cross St., Christiansted, St. Croix, U.S.V.I., from 7 p.m. to 10 p.m.; and
        4. June 12, 2002: Conference Room of the Windward Passage Holiday Inn, Veterans Drive, Charlotte Amalie, St. Thomas, U.S.V.I., from 1 p.m. to 3 p.m.
        Special Accommodations

        These meetings are physically accessible to people with disabilities.  Requests for sign language interpretation or other auxiliary aids should be directed to Graciela Garcia-Moliner at the Council (see ADDRESSES).

          Dated: May, 2002.
          Virginia M. Fay,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 02-13707 Filed 5-30-02; 8:45 am]
      BILLING CODE  3510-22-S