FR Doc E8-28752

From: Subject: FR Doc E8-28752 Date: Tue, 9 Dec 2008 08:48:02 -0500 MIME-Version: 1.0 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://edocket.access.gpo.gov/2008/E8-28752.htm X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.3350 FR Doc E8-28752
[Federal Register: December 9, 2008 (Volume 73, Number =
237)]
[Proposed Rules]              =20
[Page 74675-74681]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09de08-21]                        =20

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R2-ES-2008-0055; 92210-1117-0000-B4]
RIN 1018-AV46

=20
Endangered and Threatened Wildlife and Plants; Revised=20
Designation of Critical Habitat for the Wintering Population of the=20
Piping Plover (Charadrius melodus) in Texas

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, notice of=20
availability of draft economic analysis and draft environmental=20
assessment, correction, and amended required determinations.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the=20
reopening of the comment period on the proposed revised designation of=20
critical habitat for the wintering population of the piping plover=20
(Charadrius melodus) in Texas under the Endangered Species Act of 1973,=20
as amended (Act). We also announce the availability of a draft economic=20
analysis (DEA) and a draft environmental assessment of the proposed=20
critical habitat designation and a corrected area estimated for 19=20
critical habitat units vacated by the court, and amended required=20
determinations. We are reopening the comment period to allow all=20
interested parties an opportunity to comment simultaneously on the=20
proposed rule, the associated DEA, the draft environmental assessment,=20
the corrected acreage figures, and our amended required determinations.=20
Comments previously submitted on this rulemaking do not need to be=20
resubmitted, as they will be

[[Page 74676]]

incorporated into the public record and fully considered when preparing=20
our final determination.

DATES: Written Comments: We will accept comments received or postmarked=20
on or before January 8, 2009. Any comments received after the closing=20
date may not be considered in the final designation of critical=20
habitat.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://fr=
webgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3DleavingFR.html&log=3D=
linklog&to=3Dhttp://www.regulations.gov.=20
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing,=20
Attn: RIN 1018-AV46, Division of Policy and Directives Management, U.S.=20
Fish and Wildlife Service, 4401 N. Fairfax Drive, Suite 222, Arlington,=20
VA 22203.
    We will not accept e-mail or faxes. We will post all comments on=20
http://fr=
webgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3DleavingFR.html&log=3D=
linklog&to=3Dhttp://www.regulations.gov. This generally means =
that we will post any=20
personal information you provide us (see the Public Comments section=20
below for more information).

FOR FURTHER INFORMATION CONTACT: Allan Strand, Field Supervisor, U.S.=20
Fish and Wildlife Service, Corpus Christi Ecological Services Field=20
Office, 6300 Ocean Drive TAMU-CC, Unit 5837, Corpus Christi, TX 78412;=20
telephone 361/994-9005; facsimile 361/994-8262. If you use a=20
telecommunications device for the deaf (TDD), call the Federal=20
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this=20
reopened comment period on our May 20, 2008, proposed revised critical=20
habitat designation for the wintering population of the piping plover=20
(Charadrius melodus) in Texas (73 FR 29294), the DEA of the proposed=20
revised designation, the draft environmental assessment of the proposed=20
revised designation, the corrected acreage estimates provided in this=20
document, and our amended required determinations for the proposed=20
revised designation. We will consider information and recommendations=20
from all interested parties. We are particularly interested in comments=20
concerning:
    (1) Specific information on:
     The amount and distribution of wintering piping plover=20
habitat in the 19 court-vacated units and areas adjacent to those 19=20
units in Texas, and
     What areas occupied at the time of listing, but located=20
within or adjacent to these specific units, are essential to the=20
conservation of the species and why.
    (2) Information on the effects of Hurricane Ike in 2008, if any, on=20
the status of the wintering piping plover and its habitat in coastal=20
Texas from Brazoria County to Cameron County and information on the=20
impact of hurricanes in general on future development and beach cleanup=20
following hurricanes.
    (3) Land use designations and current or planned activities in the=20
subject areas and their possible impacts on proposed revised critical=20
habitat.
    (4) Information on whether the DEA identifies all State and local=20
costs and benefits attributable to the proposed revised critical=20
habitat designation, and information on any costs or benefits that we=20
have overlooked.
    (5) Information on whether the DEA uses appropriate methods and=20
assumptions to estimate the impacts of future oil and gas development,=20
including the frequency, type, location, and amount of seismic activity=20
and drilling activity. In particular:
     Whether the conclusions of the DEA are sufficiently=20
reliable to be useful in assessing the benefits of excluding particular=20
areas from the final designation, and
     Information that would allow us to make a more reliable=20
prediction of the impacts on future oil and gas development of=20
designation of any particular area as critical habitat.
    (6) Any foreseeable economic, national security, or other potential=20
impacts resulting from the proposed revised designation and, in=20
particular, any impacts on small entities, and the benefits of=20
including or excluding areas that exhibit these impacts.
    (7) The appropriateness of the possible exclusion of approximately=20
28,474 acres (ac) (11,523 hectares (ha)) of wintering piping plover=20
habitat from the final designation based on the benefits to the=20
conservation of the species and its habitat provided by the=20
Comprehensive Conservation Plans (CCPs) being drafted for National=20
Wildlife Refuge (NWR) lands (see the Areas Considered for Exclusion=20
Under Section 4(b)(2) of the Act section for further discussion).=20
Specifically:
    (a) The benefits to the conservation of the species provided by a=20
CCP;
    (b) How the CCPs address the physical and biological features in=20
the absence of designated critical habitat;
    (c) The specific conservation benefits to the wintering piping=20
plover that would result from designation;
    (d) The certainty of implementation of the CCPs; and
    (e) The benefits of excluding from the critical habitat designation=20
the areas covered by the CCPs.
    We are particularly interested in knowing how existing or future=20
NWR partnerships may be positively or negatively affected by a=20
designation, or through exclusion from critical habitat;
    (8) Whether we could improve or modify our approach to designating=20
critical habitat in any way to provide for greater public participation=20
and understanding, or to better accommodate public concerns and=20
comments.
    (9) Whether there are areas we previously designated, but are not=20
proposing for revised designation here, that we should include in our=20
critical habitat designation.
    (10) The existence of any conservation or management plans being=20
implemented by public or private land management agencies or owners on=20
lands proposed for designation that we should consider in connection=20
with possible exclusion of those lands from the designation under=20
section 4(b)(2) of the Act. Please include information on any benefits=20
(educational, regulatory, etc.) of including or excluding lands from=20
this proposed designation. We are interested in knowing how=20
partnerships may be positively or negatively affected by a designation,=20
or through exclusion from critical habitat, and costs and other=20
relevant impacts associated with the designation.
    (11) Whether we should exclude any other areas from critical=20
habitat, and why, including an analysis of the benefits of including=20
and excluding any such area from the designation.
    (12) Any foreseeable impacts on energy supplies, distribution, and=20
use resulting from the proposed revised designation and, in particular,=20
any impacts on seismic studies for oil and gas drilling, and the=20
benefits of including or excluding areas that exhibit these impacts.
    If you submitted comments or information during the initial comment=20
period from May 20, 2008, to July 21, 2008, on the proposed rule, they=20
need not be resubmitted. Comments previously submitted are included in=20
the public record, and we will fully consider them in the preparation=20
of our final determination. Our final determination concerning revised=20
designation of critical habitat for the wintering population of the=20
piping plover in Texas will take into consideration all written=20
comments we receive and any additional information we receive during=20
the comment period. On the basis of public comments, we may, during the=20
development of our

[[Page 74677]]

final determination, find that areas proposed do not meet the=20
definition of critical habitat, are not essential, or are appropriate=20
for exclusion under section 4(b)(2) of the Act.
    You may submit your comments and materials concerning our proposed=20
rule, the associated DEA, the associated draft environmental=20
assessment, the corrected area estimates, and our amended required=20
determinations by one of the methods listed in the ADDRESSES section.=20
We will not consider comments sent by e-mail or fax or to an address=20
not listed in the ADDRESSES section.
    If you submit a comment via http://fr=
webgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3DleavingFR.html&log=3D=
linklog&to=3Dhttp://www.regulations.gov your entire=20
comment--including your personal identifying information--will be=20
posted on the Web site. If you submit personal identifying information,=20
you may request at the top of your document that we withhold this=20
information from public review. However, we cannot guarantee that we=20
will be able to do so. We will post all hardcopy comments on http://fr=
webgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3DleavingFR.html&log=3D=
linklog&to=3Dhttp://www.regulations.gov.
    Comments and materials we receive, as well as supporting=20
documentation we used in preparing this notice, will be available for=20
public inspection on http://fr=
webgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3DleavingFR.html&log=3D=
linklog&to=3Dhttp://www.regulations.gov, or by appointment,=20
during normal business hours, at the U.S. Fish and Wildlife Service,=20
Corpus Christi Ecological Services Field Office (see FOR FURTHER=20
INFORMATION CONTACT).
    You may obtain copies of the revised proposed rule, the DEA, and=20
the draft environmental assessment on the Internet at http://fr=
webgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3DleavingFR.html&log=3D=
linklog&to=3Dhttp://www.regulations.gov, or by mail from the =
Corpus Christi Ecological=20
Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Background

    The piping plover was listed as endangered in the Great Lakes=20
watershed and threatened elsewhere in its range on December 11, 1985=20
(50 FR 50726); critical habitat was not designated at the time of=20
listing. On July 10, 2001, we designated 137 areas along the coasts of=20
North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi,=20
Louisiana, and Texas as critical habitat for the wintering population=20
of the piping plover (66 FR 36038). On March 20, 2006, the Texas=20
General Land Office filed suit against the Service challenging=20
designation of 19 of 37 units of critical habitat along the Texas=20
coast. In a July 26, 2006, stipulated settlement agreement and court=20
order, the court vacated and remanded the designation of Units 3, 4, 7,=20
8, 9 ,10, 14, 15, 16, 17, 18, 19, 22, 23, 27, 28, 31, 32, and 33 for us=20
develop a new rule. The settlement stipulated that, if prudent, a=20
proposed rule would be submitted to the Federal Register for=20
publication on or before May 8, 2008, and a final rule by May 8, 2009.
    On May 20, 2008, we published a proposed rule (73 FR 29294) to=20
revise designation for 18 of the 19 vacated units of critical habitat=20
for wintering piping plovers in Texas; we did not re-propose Unit TX-17=20
for designation. (Please refer to our proposed rule for the reason why=20
lands within this unit were not reproposed.) The proposed revised=20
critical habitat is located along nine coastal Texas counties (Cameron,=20
Willacy, Kenedy, Kleberg, Nueces, Aransas, Calhoun, Matagorda, and=20
Brazoria), totaling approximately 138,881 acres (ac) (56,206 hectares=20
(ha)). Units that were not vacated remain as described in the 2001=20
final designation.
    In our 2008 revised proposed rule, we also stated that we intend to=20
consider the possible exclusion of federally owned National Wildlife=20
Refuge lands in units TX-3, TX-4, TX-16, TX-18, TX-19, and TX-31 from=20
the final critical habitat designation under section 4(b)(2) of the=20
Act. These lands are to be covered under Comprehensive Conservation=20
Plans (CCPs) that are currently being drafted. We will further consider=20
the possible exclusion of the areas covered by the CCPs being drafted=20
once the drafts are released and if they are released within a=20
timeframe that is reasonable for evaluation for this final designation.=20
We will also consider exclusions of any other areas identified in the=20
proposed rule, based on comments we receive and our assessments of the=20
benefits of inclusion and the benefits of exclusion of those areas.
    The 18 proposed revised units constitute our best assessment of=20
those areas containing features essential to the conservation of the=20
species. We will submit for publication in the Federal Register a final=20
revised critical habitat designation for the wintering population of=20
the piping plover on or before May 8, 2009.
    Also, we acknowledge that Hurricane Ike, which struck the Texas=20
coast on September 13, 2008, may have rearranged some critical habitat=20
features essential to the species. We have reviewed recent information,=20
including imagery available from the National Oceanic and Atmospheric=20
Administration, and found little or no effect of the hurricane on the=20
proposed designated areas. We are requesting additional information=20
from the public on possible changes due to Hurricane Ike.
    Section 3 of the Act defines critical habitat as the specific areas=20
within the geographical area occupied by a species, at the time it is=20
listed in accordance with the Act, on which are found those physical or=20
biological features essential to the conservation of the species and=20
that may require special management considerations or protection, and=20
specific areas outside the geographic area occupied by a species at the=20
time it is listed, upon a determination that such areas are essential=20
for the conservation of the species. If the proposed rule is made=20
final, section 7 of the Act will prohibit destruction or adverse=20
modification of critical habitat by any activity funded, authorized, or=20
carried out by any Federal agency. Federal agencies proposing actions=20
affecting areas designated as critical habitat must consult with us on=20
the effects of their proposed actions, under section 7(a)(2) of the=20
Act.
    Under section 4(b)(2) of the Act, we may exclude an area from=20
critical habitat if we determine that the benefits of such exclusion=20
outweigh the benefits of including that particular area as critical=20
habitat, unless failure to designate that specific area as critical=20
habitat will result in the extinction of the species. We may exclude an=20
area from designated critical habitat based on economic impacts,=20
national security, or any other relevant impact.

Corrected Area Estimates for Vacated Critical Habitat Units

    By this notice, we are notifying the public of a correction in area=20
estimates vacated by the court. In our 2008 proposed revised critical=20
habitat designation, we published a table (Table 1) showing the number=20
of acres (hectares) in each unit vacated by the court and the area=20
proposed for those units. The area estimates for the vacated units were=20
incorrect. We have revised Table 1 with the correct acres (hectares)=20
that were published in the July 10, 2001, rule designating critical=20
habitat for the wintering population of the piping plover in eight=20
Southeastern states (66 FR 36038). The total acreage proposed remains=20
unchanged.

[[Page 74678]]



   Table 1--Acres (Hectares) of Vacated and Proposed Revised Critical
Habitat Units for the Wintering Population of the Piping Plover in Texas
------------------------------------------------------------------------
                                            Acres (hectares)
             Unit              -----------------------------------------
                                      Vacated              Proposed
------------------------------------------------------------------------
TX-03.........................      26,983 (10,924)     107,673 (43,574)
TX-04.........................       12,307 (4,980)       17,218 (6,969)
TX-07.........................             104 (42)            295 (120)
TX-08.........................             239 (97)            620 (251)
TX-09.........................            323 (130)             171 (69)
TX-10.........................             216 (87)            344 (139)
TX-14.........................            481 (194)            590 (239)
TX-15.........................          1,106 (447)            805 (325)
TX-16.........................            463 (187)          1,376 (557)
TX-17.........................               14 (5)                (\1\)
TX-18.........................        7,539 (3,051)          2,467 (999)
TX-19.........................            976 (395)          2,419 (979)
TX-22.........................          1,114 (450)            545 (221)
TX-23.........................            769 (311)          1,808 (732)
TX-27.........................            728 (295)            906 (367)
TX-28.........................            321 (129)            478 (193)
TX-31.........................            410 (166)            399 (161)
TX-32.........................            269 (108)            555 (225)
TX-33.........................            388 (157)             212 (86)
                               -----------------------------------------
    Total.....................      54,750 (22,155)    138,881 (56,206)
------------------------------------------------------------------------
\1\ N/A.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise=20
critical habitat based upon the best scientific and commercial data=20
available, after taking into consideration the economic impact, impact=20
on national security, or any other relevant impact of specifying any=20
particular area as critical habitat. We have prepared a DEA of the=20
proposed revised critical habitat designation based on our May 20,=20
2008, proposed revised rule to designate critical habitat for the=20
wintering piping plover in Texas.
    The purpose of the DEA is describe and, if possible, quantify the=20
baseline and incremental economic impacts of all potential conservation=20
efforts for the wintering piping plover in Texas in the proposed=20
revised units. Baseline impacts represent the existing state of=20
regulation prior to the designation of critical habitat and include the=20
potential economic impacts of all actions relating to the conservation=20
of the wintering piping plover already accorded the species under the=20
Federal listing (including costs associated with sections 4, 7, and 10=20
of the Act) and other Federal, State, and local laws that aid habitat=20
conservation in the study area. Baseline costs will occur regardless of=20
whether we designate critical habitat. Incremental impacts are those=20
potential future economic impacts of conservation actions relating to=20
the designations of critical habitat; these impacts would not be=20
expected to occur without the designation of critical habitat for the=20
wintering piping plover. The DEA describes economic impacts of=20
wintering piping plover conservation efforts on the following=20
categories of activity: (1) Oil and gas development activities, (2)=20
residential and commercial development, (3) recreation, and (4) marine=20
construction and other activities. In addition, analysis of the=20
estimated baseline and incremental impacts include administrative costs=20
of section 7 compliance for all affected activities.
    The DEA estimates total pre-designation baseline impacts (1985 to=20
2007) for all 18 proposed revised units to be equivalent to a present=20
value of $1.7 to $3.6 million, assuming a 3 percent discount rate, and=20
$2.6 to $5.4 million, assuming a 7 percent discount rate. Post-
designation baseline impacts (2009 to 2028) for all proposed revised=20
units are estimated to be $0.2 to $1.2 million annually, assuming a 3=20
percent discount rate, and $0.2 to $1.3 million annually, assuming a 7=20
percent discount rate. Oil and gas industry impacts represent 40=20
percent of the total high-end, post-designation baseline costs.
    The post-designation incremental impacts (2009 to 2028) for all=20
proposed revised units are estimated to range from $0.6 to $4.9 million=20
annually, assuming a 3 percent discount rate, and $0.6 to $5.1 million=20
annually, assuming a 7 percent discount rate. The majority of=20
incremental impacts associated with the proposed revised rule (98=20
percent) are anticipated to be associated with oil and gas development=20
activities. However, no incremental impacts were associated with=20
seismic survey efforts related to those activities. Due to the short-
term nature of those impacts, the DEA assigns any costs of seismic=20
survey efforts attributable to plover conservation to the baseline, as=20
those costs would be incurred regardless of the designation of critical=20
habitat.
    Because oil and gas development activities make up such a large=20
percentage of the estimated incremental impacts associated with the=20
proposed revised rule, we are specifically seeking comment on whether=20
the estimates in the DEA are sufficiently reliable to be useful in=20
assessing the benefits of including or excluding particular areas from=20
the final designation. As noted in the DEA, the level oil and gas=20
activities generally are highly variable, in part due to fluctuations=20
in the price of oil and gas. Even more difficult to predict is the=20
precise location of oil and gas activities. The figures in the DEA are=20
based on a variety of assumptions, which may turn out not to be true.=20
In particular, the DEA assumes that the number of wells drilled in the=20
next twenty years will be exactly correlated with the wells drilled=20
over the last eighteen years. In addition, the DEA assumes that the=20
distribution of new wells across the proposed critical habitat units=20
will be identical to that of the last eighteen years. To the extent=20
that these assumptions turn out to be incorrect, the cost figures per=20
unit will also be incorrect. We note that it is likely that the=20
reliability of past activity as a surrogate for future activity will

[[Page 74679]]

decrease over time. Thus, it may be more likely that oil and gas=20
activity over the next five years will more closely resemble the last=20
eighteen years than will the entire twenty-year period used in the DEA.
    Due to the uncertainty of the conclusions of the DEA with respect=20
to oil and gas activities, we also are specifically asking for=20
information that would allow us to make a more reliable prediction of=20
the impacts on future oil and gas development of designation of any=20
particular area as critical habitat.
    The DEA considers the potential economic effects of all actions=20
relating to the conservation of the wintering piping plover in Texas=20
over the next 20 years, including costs associated with sections 4, 7,=20
and 10 of the Act, as well as costs attributable to the designation of=20
critical habitat. The DEA further considers the economic effects of=20
protective measures taken as a result of other Federal, State, and=20
local laws that aid habitat conservation for the species in areas=20
containing features essential to the conservation of the species.
    The DEA considers both economic efficiency and distributional=20
effects. In the case of habitat conservation, efficiency effects=20
generally reflect the ``opportunity costs'' associated with the=20
commitment of resources to comply with habitat protection measures=20
(such as lost economic opportunities associated with restrictions on=20
land use). The DEA also addresses how potential economic impacts are=20
likely to be distributed, including an assessment of any local or=20
regional impacts of habitat conservation and the potential effects of=20
conservation activities on small entities and the energy industry. The=20
DEA measures lost economic efficiency associated with residential and=20
commercial development and public projects and activities, such as=20
economic impacts on water management and transportation projects,=20
Federal lands, small entities, and the energy industry. Decision-makers=20
can use this information to assess whether the effects of the=20
designation might unduly burden a particular group or economic sector.
    Finally, the DEA looks retrospectively at costs that have been=20
incurred since we listed the piping plover as threatened on December=20
11, 1985, and considers those costs that may occur in the 20 years=20
following the revised designation of critical habitat.
    As stated earlier, we are soliciting data and comments from the=20
public on this DEA, our draft environmental assessment, and on all=20
aspects of the revised proposed rule and our amended determinations. A=20
copy of the DEA is available on http://fr=
webgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3DleavingFR.html&log=3D=
linklog&to=3Dhttp://www.regulations.gov or by=20
contacting the person listed under FOR FURTHER INFORMATION CONTACT. We=20
may revise the proposal, or its supporting documents, to incorporate or=20
address new information received during the comment period. Our=20
supporting record will reflect any new information used in making the=20
final designation. In particular, we may exclude an area from critical=20
habitat if we determine that the benefits of excluding the area=20
outweigh the benefits of including the area as critical habitat,=20
provided such exclusion will not result in the extinction of the=20
species.

National Environmental Policy Act (NEPA)

    It is our position that, outside the Jurisdiction of the Tenth=20
Federal Circuit, we do not need to prepare environmental analyses as=20
defined by NEPA (42 U.S.C. 4321 et seq.) in connection with designating=20
critical habitat under the ESA. We published a notice outlining our=20
reasons for this determination in the Federal Register on October 25,=20
1983 (48 FR 49244). This assertion was upheld by the Ninth Circuit=20
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995)). However, a=20
court ruling in Cape Hatteras Access Preservation Alliance v. U.S.=20
Department of Interior (344 F. Supp. 2d 108 (D.D.C. 2004)) ordered us=20
to revise the critical habitat designation for wintering piping plovers=20
in North Carolina and to prepare an environmental analysis of the=20
proposed revised designation. To comply with that court's order, we=20
prepared an environmental assessment for that action under NEPA as=20
implemented by the Council on Environmental Quality regulations (40 CFR=20
1500-1508) and according to the Department of the Interior's NEPA=20
procedures. As an exercise of our discretion, we have chosen to prepare=20
an environmental assessment for the proposed revised critical habitat=20
designation for the wintering population of the piping plover in Texas.=20
The draft environmental assessment is based on the May 2008 proposed=20
rule. The scope of the draft environmental assessment includes an=20
evaluation of the impact of the proposed designation of the 18 revised=20
critical habitat units for the wintering population of the piping=20
plover in Texas. The draft environmental assessment presents the=20
purpose of and need for critical habitat designation, the No Action and=20
Preferred alternatives, and an evaluation of the direct, indirect, and=20
cumulative effects of the alternatives.
    The environmental assessment will be used by the Service to=20
determine if critical habitat should be revised as proposed, if the=20
Action Alternative requires refinement, or if further analyses are=20
needed through preparation of an Environmental Impact Statement. If the=20
Action Alternative is selected as described, or with minimal changes,=20
and no further environmental analyses are needed, then the Service will=20
conclude the NEPA process by issuing a Finding of No Significant=20
Impact.
    As stated earlier, we solicit data and comments from the public on=20
this draft environmental assessment, as well as on all other aspects of=20
the proposed revision. A copy of the draft environmental assessment is=20
available on http://fr=
webgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3DleavingFR.html&log=3D=
linklog&to=3Dhttp://www.regulations.gov or by contacting the =
person=20
listed under FOR FURTHER INFORMATION CONTACT. We may revise the=20
proposal, or its supporting documents, to incorporate or address new=20
information received during the comment period.

Required Determinations--Amended

    In our May 20, 2008, proposed rule, we indicated that we would=20
defer our determination of compliance with several statutes and=20
Executive Orders until the information concerning potential economic=20
impacts of the designation and potential effects on landowners and=20
stakeholders was available in the DEA. We have now made use of the DEA=20
to make our determinations. In this document we affirm the information=20
contained in the proposed rule concerning Executive Order (E.O.) 13132,=20
E.O. 12988, the Paperwork Reduction Act, and the President's memorandum=20
of April 29, 1994, ``Government-to-Government Relations with Native=20
American Tribal Governments'' (59 FR 22951). However, based on the=20
information within the DEA, we revise our required determinations=20
concerning E.O. 12866, the Regulatory Flexibility Act, E.O. 13211=20
(Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform=20
Act, and E.O. 12630 (Takings).

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this=20
proposed revised rule is not significant and has not reviewed this rule=20
under Executive Order 12866 (E.O. 12866). OMB bases its determination=20
upon the following four criteria:
    (a) Whether the rule will have an annual economic effect of $100=20
million or more on the economy or adversely affect an economic sector,=20
productivity,

[[Page 74680]]

jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal=20
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants,=20
user fees, loan programs, or the rights and obligations of their=20
recipients.
    (d) Whether the rule will raise novel legal or policy issues.

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

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.,=20
as amended by the Small Business Regulatory Enforcement Fairness Act (5=20
U.S.C. 802(2) (SBREFA)), whenever an agency is required to publish a=20
notice of rulemaking for any proposed or final rule, it must prepare=20
and make available for public comment a regulatory flexibility analysis=20
that describes the effect of the rule on small entities (i.e., small=20
businesses, small organizations, and small governmental jurisdictions).=20
However, no regulatory flexibility analysis is required if the head of=20
an agency certifies the rule will not have a significant economic=20
impact on a substantial number of small entities. Based on our DEA of=20
the proposed revised designation, we provide our analysis for=20
determining whether the proposed rule would result in a significant=20
economic impact on a substantial number of small entities. Based on=20
comments we receive, we may revise this analysis as part of our final=20
rulemaking.
    According to the Small Business Administration (SBA), small=20
entities include small organizations, such as independent nonprofit=20
organizations, and small governmental jurisdictions, including school=20
boards and city and town governments that serve fewer than 50,000=20
residents, as well as small businesses (13 CFR 121.201). Small=20
businesses include manufacturing and mining concerns with fewer than=20
500 employees, wholesale trade entities with fewer than 100 employees,=20
retail and service businesses with less than $5 million in annual=20
sales, general and heavy construction businesses with less than $27.5=20
million in annual business, special trade contractors doing less than=20
$11.5 million in annual business, and agricultural businesses with=20
annual sales less than $750,000. To determine if potential economic=20
impacts to these small entities are significant, we considered the=20
types of activities that might trigger regulatory impacts under this=20
designation as well as types of project modifications that may result.=20
In general, the term significant economic impact is meant to apply to a=20
typical small business firm's business operations.
    To determine if the proposed revised critical habitat designation=20
for wintering piping plovers in Texas would affect a substantial number=20
of small entities, we considered the number of affected small entities=20
within particular types of economic activities (e.g., residential and=20
commercial development, agriculture, oil and gas production). In order=20
to determine whether it is appropriate for our agency to certify that=20
this rule would not have a significant impact on a substantial number=20
of small entities, we consider each industry or category individually.=20
In estimating the numbers of small entities potentially affected, we=20
also consider whether their activities have any Federal involvement.=20
Critical habitat designation will not affect activities that do not=20
have any Federal involvement; designation of critical habitat affects=20
activities conducted, funded, permitted, or authorized by Federal=20
agencies.
    If we finalize this proposed revised critical habitat designation,=20
Federal agencies must consult with us under section 7 of the Act if=20
their activities may affect critical habitat. Consultations to avoid=20
the destruction or adverse modification of critical habitat would be=20
incorporated into the existing consultation process.
    In the DEA, we evaluated the potential economic effects on small=20
business entities resulting from the implementation of conservation=20
actions related to the proposed revision to critical habitat for the=20
wintering population of the piping plover in Texas. The DEA identifies=20
the estimated incremental impacts associated with the proposed=20
rulemaking as described in chapters 2 through 6, and evaluates the=20
potential for economic impacts related to activity categories including=20
oil and gas activities, residential and commercial development,=20
recreation activities, and marine construction and other activities.=20
The DEA concludes that small oil and gas businesses are unlikely to be=20
involved in future oil and gas projects over the next 20 years because=20
currently they represent only 2 percent of the oil and gas industry in=20
that area. Few economic impacts on recreational beach use are=20
anticipated with the majority of the impacts borne by cities carrying=20
out beach maintenance activities. Only two of the cities in the=20
affected area, Port Aransas and South Padre Island, are small enough to=20
be considered small entities under SBREFA. Annually, the impacts=20
related to beach maintenance activities for these two cities are=20
estimated to be $5,850 to $9,290 because these maintenance activities=20
require permits from the U.S. Army Corps of Engineers, resulting in the=20
Service entering into section 7 consultations with that Federal agency.=20
Thus, most of the increased impacts on beach maintenance activities=20
will not be borne by Port Aransas and South Padre Island. Over the next=20
20 years, the economic impact of designating critical habitat to small=20
residential and commercial developers is estimated to range from $10 to=20
$337 annually. Overall, small business entities are expected to incur=20
some costs; however, we do not expect those costs to have a significant=20
impact on those small entities.
    In summary, we have considered whether the proposed revised rule=20
would result in a significant economic impact on a substantial number=20
of small entities. For the above reasons and based on currently=20
available information, we believe that, if promulgated, this revised=20
proposed rule would not have a significant economic impact on a=20
substantial number of small entities. Therefore, an initial regulatory=20
flexibility analysis is not required.

Executive Order 13211--Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued E.O. 13211 on regulations=20
that significantly affect energy supply, distribution, and use. E.O.=20
13211 requires agencies to prepare Statements of Energy Effects when=20
undertaking certain actions. OMB's guidance for implementing this=20
Executive Order outlines nine outcomes that may constitute ``a=20
significant adverse effect'' when compared to no regulatory action. The=20
DEA (Appendix A) finds that three of these criteria are relevant to=20
this analysis: (1) Reductions in crude oil supply in excess of 10,000=20
barrels per day; (2) reductions in natural gas production in excess of=20
25 million Mcf per year; and (3) increases in the cost of energy=20
production in excess of one percent. Based on conservative estimates=20
derived from 2007 production rates, the DEA estimates the maximum=20
amount of oil production that could be affected by the critical habitat=20
designation is 282 barrels of oil per day and the maximum amount of=20
natural gas production that could be affected by the critical habitat=20
designation is 3.4 million Mcf per year. Both amounts are well below=20
the respective thresholds in the OMB guidance. In addition, the DEA=20
estimates that the relatively minor costs of project modifications=20
($0.2 million to $1.8 million per well) are unlikely to increase energy=20
costs by more than one percent. Thus, we do not expect the

[[Page 74681]]

incremental impacts associated with critical habitat designation for=20
the wintering population of the piping plover in Texas to be of=20
sufficient magnitude to affect energy production or delivery, and the=20
energy-related impacts are not considered a ``significant adverse=20
effect.'' As such, we do not expect that, if made final, the proposed=20
revised designation of critical habitat for the wintering population of=20
the piping plover in Texas to significantly affect energy supplies,=20
distribution, or use, and a Statement of Energy Effects is not=20
required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C.=20
1501), we make the following findings:
    (a) This rule would not produce a Federal mandate. In general, a=20
Federal mandate is a provision in legislation, statute, or regulation=20
that would impose an enforceable duty upon State, local, or tribal=20
governments, or the private sector, and includes both ``Federal=20
intergovernmental mandates'' and ``Federal private sector mandates.''=20
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal=20
intergovernmental mandate'' includes a regulation that ``would impose=20
an enforceable duty upon State, local, or tribal governments,'' with=20
two exceptions. It excludes ``a condition of federal assistance.'' It=20
also excludes ``a duty arising from participation in a voluntary=20
Federal program,'' unless the regulation ``relates to a then-existing=20
Federal program under which $500,000,000 or more is provided annually=20
to State, local, and tribal governments under entitlement authority,''=20
if the provision would ``increase the stringency of conditions of=20
assistance'' or ``place caps upon, or otherwise decrease, the Federal=20
Government's responsibility to provide funding'' and the State, local,=20
or tribal governments ``lack authority'' to adjust accordingly.=20
``Federal private sector mandate'' includes a regulation that ``would=20
impose an enforceable duty upon the private sector, except (i) a=20
condition of Federal assistance; or (ii) a duty arising from=20
participation in a voluntary Federal program.''
    Critical habitat designation does not impose a legally binding duty=20
on non-Federal Government entities or private parties. Under the Act,=20
the only regulatory effect is that Federal agencies must ensure that=20
their actions do not destroy or adversely modify critical habitat under=20
section 7. Designation of critical habitat may indirectly impact non-
Federal entities that receive Federal funding, assistance, permits, or=20
that otherwise require approval or authorization from a Federal agency.=20
However, the legally binding duty to avoid destruction or adverse=20
modification of critical habitat rests squarely on the Federal agency.=20
Furthermore, to the extent that non-Federal entities are indirectly=20
impacted because they receive Federal assistance or participate in a=20
voluntary Federal aid program, the Unfunded Mandates Reform Act would=20
not apply; nor would critical habitat shift the costs of the large=20
entitlement programs listed above onto State governments.
    (b) We do not believe that this rule would significantly or=20
uniquely affect small governments because it will not produce a Federal=20
mandate of $100 million or greater in any year; that is, it is not a=20
``significant regulatory action'' under the Unfunded Mandates Reform=20
Act. The proposed revised designation of critical habitat imposes no=20
obligations on State or local governments. By definition, Federal=20
agencies are not considered small entities, although the activities=20
they fund or permit may be proposed or carried out by small entities.=20
As such, a Small Government Agency Plan is not required.

Executive Order 12630--Takings

    In accordance with E.O. 12630 (``Government Actions and=20
Interference with Constitutionally Protected Private Property=20
Rights''), we have analyzed the potential takings implications of=20
proposing revised critical habitat for the wintering population of the=20
piping plover in Texas in a takings implications assessment. Our=20
takings implications assessment concludes that this proposed revision=20
to critical habitat for the wintering populations of piping plover in=20
Texas does not pose significant takings implications.

References Cited

    A complete list of all references we cited in the proposed revised=20
rule and this rulemaking is available on the Internet at http://fr=
webgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3DleavingFR.html&log=3D=
linklog&to=3Dhttp://www.regulations.gov or by contacting the =
Corpus Christi Ecological=20
Services Field Office (see FOR FURTHER INFORMATION section).

Author(s)

    The primary authors of this rulemaking are staff members of the=20
Corpus Christi Ecological Services Field Office.

Authority

    The authority for this action is the Endangered Species Act of=20
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: November 25, 2008.
 David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-28752 Filed 12-8-08; 8:45 am]

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