[Federal Register Volume 76, Number 148 (Tuesday, August 2, 2011)]
[Proposed Rules]
[Pages 46234-46238]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-19222]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2010-0091; MO 92210-0-0009]
RIN 1018-AX11
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Nine Bexar County Invertebrates
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed Rule; reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the comment period on our February 22, 2011, proposal to
revise the designation of critical habitat for the Rhadine exilis
(ground beetle, no common name); Rhadine infernalis (ground beetle, no
common name); Helotes mold beetle (Batrisodes venyivi); Cokendolpher
Cave harvestman (Texella cokendolpheri); Robber Baron Cave meshweaver
(Cicurina baronia); Madla Cave meshweaver (Cicurina madla); and Braken
Bat Cave meshweaver (Cicurina venii); and the proposed designation of
critical habitat for the Government Canyon Bat Cave meshweaver
(Cicurina vespera) and Government Canyon Bat Cave spider (Neoleptoneta
microps) under the Endangered Species Act of 1973, as amended (Act).
These species are collectively known as the nine Bexar County
invertebrates. We also announce the availability of a draft economic
analysis (DEA), an amended required determinations section of the
proposal, and a public hearing. 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 on this
rulemaking do not need to be resubmitted, as they will be fully
considered in preparation of the final rule.
DATES: Comments: The comment period for the proposed rule published
February 22, 2011, at 76 FR 0872 is reopened. We will accept comments
received on or before September 1, 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.
Public Hearing: We will hold a public hearing on August 17, 2011,
at the Casa Helotes Senior Citizen Center, 12070 Leslie Road, Helotes,
Texas. The hearing is open to all who wish to provide formal, oral
comments regarding the proposed critical habitat rule, and will be held
from 6:15 p.m. to 7:50 p.m., with an informational session before the
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hearing from 5 p.m. to 6:15 p.m. During the informational session,
Service employees will be available to provide information and answer
questions.
ADDRESSES: Comments: You may submit written comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R2-ES-2010-0091, which
is the docket number for this rulemaking.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R2-ES-2010-0091; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; 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).
Information Session and Hearing:
The public informational session and hearing will be held at the
following location:
Casa Helotes Senior Citizen Center, 12070 Leslie Road, Helotes,
Texas 78023.
People needing reasonable accommodations in order to attend and
participate in the public hearing should contact Adam Zerrenner, Austin
Ecological Services Field Office, at 512-490-0057 x248 as soon as
possible (see FOR FURTHER INFORMATION CONTACT). In order to allow
sufficient time to process requests, please call no later than one week
before the hearing date.
FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S.
Fish and Wildlife Service, Austin Ecological Services Field Office,
10711 Burnet Road, Suite 200, Austin, TX 78758; by telephone at 512-
490-0057 x248; or by facsimile at 512-490-0974. If you use a
telecommunications device for the deaf (TDD), 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 critical habitat for the nine
Bexar County invertebrates that was published in the Federal Register
on February 22, 2011 (76 FR 9872), 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 Endangered Species Act of
1973, as amended (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 threats outweighs the benefit of designation such that
the designation of critical habitat may not be prudent.
(2) Specific information on:
(a) The distribution of the nine Bexar County invertebrates;
(b) The amount and distribution of any of the nine Bexar County
invertebrates' habitat;
(c) 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;
(d) Special management considerations or protections that the
features essential to the conservation of the nine Bexar County
invertebrates identified in this proposal may require, including
managing for the potential effects of climate change;
(e) What areas not occupied at the time of listing are essential
for the conservation of the species and why;
(f) Site-specific information on subsurface geologic barriers to
movement of the species or lack thereof; and
(g) The taxonomy and status of the ground beetle previously
identified as Rhadine exilis in Black Cat Cave (proposed Unit 13) and
the value of the cave and unit for conservation of the species.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Any reasonably 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.
(5) Information on whether the benefit of an exclusion of any
particular area outweighs the benefit of inclusion under section
4(b)(2) of the Act, in particular for those management plans covering
specified lands used as mitigation under the La Cantera Habitat
Conservation Plan (HCP) and lands on which impacts to the species have
been authorized under that HCP. Copies of the La Cantera HCP are
available from the Austin Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
(6) Information on the projected and reasonably likely impacts of
climate change on any of the nine Bexar County invertebrates and the
critical habitat areas we are proposing.
(7) Information related to our 90-day finding we made in the
February 22, 2011, Federal Register proposed rule (76 FR 9872) on the
July 8, 2010, petition to remove critical habitat Unit 13 from
designation.
(8) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
(9) Information on the extent to which the description of economic
impacts in the DEA is reasonable and accurate.
(10) 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.
If you submitted comments or information on the proposed rule (76
FR 9872) during the initial comment period from February 22, 2011, to
April 25, 2011, 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 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
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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-R2-ES-2010-0091, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Austin Ecological
Services Field 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-R2-ES-2010-0091, or by
mail from the Austin Ecological Services 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 the nine Bexar County
invertebrates in this document. For more information on previous
Federal actions concerning the invertebrates, refer to the proposed
critical habitat rule published in the Federal Register on February 22,
2011 (76 FR 9872). For more information on the nine Bexar County
invertebrates or their habitat, refer to the final listing rule
published in the Federal Register on December 30, 1998 (63 FR 71855),
which is available online at http://www.regulations.gov or from the
Austin Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Previous Federal Actions
On February 22, 2011, we published a proposed critical habitat rule
for the nine Bexar County invertebrates (76 FR 9872). We proposed to
designate as critical habitat approximately 6,906 acres (2,795
hectares) in 35 units located in Bexar County, Texas. That proposal had
a 60-day comment period, ending April 25, 2011. We will submit for
publication in the Federal Register a final critical habitat
designation for the nine Bexar County invertebrates on or before
February 7, 2012.
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.
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
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
the Bexar County invertebrates, the benefits of critical habitat
include public awareness of the presence of these species and the
importance of habitat protection, and, where a Federal nexus exists,
increased habitat protection for the invertebrates 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, authorized, or funded by Federal
agencies.
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 section).
Draft Economic Analysis
The DEA identifies and analyzes the potential economic impacts
associated with the proposed critical habitat designation for the nine
Bexar County invertebrates. The DEA describes the economic impacts of
all potential conservation efforts for the invertebrates; some of these
costs will likely be incurred regardless of whether we designate
critical habitat. The economic impact of the proposed critical habitat
designation is analyzed by comparing scenarios both ``with critical
habitat'' and ``without critical habitat.'' The ``without critical
habitat'' scenario represents the baseline for the analysis,
considering protections already in place for the species (e.g., under
the Federal listing and other Federal, State, and local regulations).
The baseline, therefore, represents the costs incurred regardless of
whether critical habitat is designated. The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species.
The incremental conservation efforts and associated impacts are
those not expected to occur absent the designation of critical habitat
for the species. In other words, the incremental costs are those
attributable solely to the designation of critical habitat, above and
beyond the baseline costs; these are the costs we may consider in the
final designation of critical habitat when evaluating the benefits of
excluding particular areas under section 4(b)(2) of the Act. The
analysis looks retrospectively at baseline impacts incurred since the
species were listed, and forecasts both baseline and incremental
impacts likely to occur if we finalize the proposed critical habitat
designation. For a further description of the methodology of the
analysis, see chapter 2 of the DEA.
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
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afforded to the nine Bexar County invertebrates (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). For a further description of the methodology of
the analysis, see chapter 2 of the DEA.
The DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed critical habitat designation for the
nine Bexar County invertebrates 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. It identifies
potential incremental costs as a result of the proposed critical
habitat designation; these are those costs attributed to critical
habitat over and above those baseline costs attributed to listing. The
DEA quantifies economic impacts of nine Bexar County invertebrates
conservation efforts associated with the following categories of
activity:
The DEA focused on quantifying the effect of critical habitat
designation on (1) Development, (2) transportation projects, (3)
utility projects, and (4) species/habitat management. The DEA estimates
that the present value impacts of critical habitat designation are
between $1.62 million to $35.6 million ($153,000 to $3,360,000 on an
annualized basis) over 20 years (2012 through 2031), assuming a seven
percent discount rate.
Impacts to development activities represent approximately 92 to 99
percent (low and high end scenarios, respectively) of the overall
impacts to areas proposed for designation during the first 20 years.
The present value incremental impact to transportation activities
in the areas proposed for designation range from $13,400 in the low-end
scenario to $2,770,000 in the high-end scenario (assuming a seven
percent discount rate). These figures represent an annualized impact of
approximately $1,270 to $262,000.
No incremental impacts are expected to utility project and species
and habitat management. No utility projects are currently planned
within the proposed critical habitat area. Based on the frequency of
past consultations and technical assistance efforts on utility projects
(i.e., one to two efforts per year), however, it is likely that other
projects will be proposed within critical habitat in the future. To
date, however, Service review of these projects has primarily been
technical assistance efforts that have determined the projects were not
likely to affect the species or habitat. We therefore anticipate that
any incremental impacts on unknown future utility projects would be
minor administrative impacts.
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 species.
Required Determinations--Amended
In our February 22, 2011, proposed rule (76 FR 9872), 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 to make these determinations. In this
document, we affirm the information in our proposed rule concerning
Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice
Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the
Unfunded Mandates Reform Act (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 determination concerning the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
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). However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. Based on our DEA of the proposed
designation, we provide our analysis for determining whether the
proposed rule would result in a significant economic impact on a
substantial number of small entities. Based on comments we receive, we
may revise this determination as part of our final rulemaking.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; 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 nine Bexar County invertebrates would affect a substantial number
of small entities, we considered the number of small entities
potentially affected within particular types of economic activities,
such as residential and commercial development. In order to determine
whether it is appropriate for our agency to certify that this proposed
rule would
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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 affects
only activities conducted, funded, permitted, or authorized by Federal
agencies. In areas where one or more of the nine Bexar County
invertebrates are 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. When 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 nine Bexar
County invertebrates. We estimate 20 to 218 small developers may be
affected by the proposed rule annually, and annualized per entity
impacts range from $6,400 to $8,660. This compares to average annual
sales of small developers of $6.36 million. So while there may be a
substantial number of developers affected, on average, the annualized
incremental impact per small developer represents only from 0.10 to
0.14 percent of small developers' average annual sales. We do not
believe this will have a significant impact to this small business
sector. Please refer to the DEA of the proposed critical habitat
designation for a more detailed discussion of potential economic
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
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.
Authors
The primary authors of this notice are staff members of the Austin
Ecological Services Field Office, Southwest 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: July 14, 2011.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-19222 Filed 8-1-11; 8:45 am]
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