[Federal Register Volume 78, Number 24 (Tuesday, February 5, 2013)]
[Proposed Rules]
[Pages 8096-8100]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02051]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2013-0004; 4500030113]
RIN 1018-AZ26
Endangered and Threatened Wildlife and Plants; Listing as
Endangered and Designation of Critical Habitat for Six West Texas
Aquatic Invertebrate Species
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 public comment period on the August 16, 2012, proposed
endangered status for six west Texas aquatic invertebrate species under
the Endangered Species Act of 1973, as amended (Act). We also announce
the reopening of comment on the August 16, 2012, proposed designation
of critical habitat for the six west Texas aquatic invertebrate species
and the availability of a draft economic analysis of the proposed
designation and amended required determinations in the proposed rule.
We are reopening the comment period to allow all interested parties an
opportunity to comment simultaneously on the proposed rules, the
associated draft economic analysis, and the amended required
determinations. Comments previously submitted need not be resubmitted,
as they will be fully considered in preparation of the final rules.
DATES: We will consider comments received or postmarked on or before
March 22, 2013. 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. 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 these proposed
rules at Balmorhea State Park in Toyahvale, Texas, on February 21, 2013
(see ADDRESSES).
ADDRESSES: Document availability: You may obtain a copy of the proposed
rule on the internet at http://www.regulations.gov at Docket No. FWS-
R2-ES-2012-0029 or by mail from the Austin Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT). You may obtain a copy of
the draft economic analysis at Docket No. FWS-R2-ES-2013-0004.
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 listing proposal to Docket
No. FWS-R2-ES-2012-0029, and submit comments on the critical habitat
proposal and associated draft economic analysis to Docket No. FWS-R2-
ES-2013-0004. See SUPPLEMENTARY INFORMATION for an explanation of the
two dockets.
(2) By hard copy: Submit comment on the listing proposal by U.S.
mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-
2012-0029; Division of Policy and Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA
22203. Submit comment on the critical habitat proposal and draft
economic analysis by U.S. mail or hand-delivery to: Public Comments
Processing, Attn: FWS-R2-ES-2013-0004; 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).
Public informational session and public hearing: The public
informational session and hearing will be held in the conference room
at Balmorhea State Park, State Highway 17, Toyahvale, Texas. The public
information session will begin at 5:00 p.m., and the public hearing
will begin at 6:00 p.m. Central Time. People
[[Page 8097]]
needing reasonable accommodation in order to attend and participate in
the public hearing should contact Adam Zerrenner, Field Supervisor,
Austin Ecological Services Office, as soon as possible (see FOR FURTHER
INFORMATION CONTACT).
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 (512-490-
0057); or by facsimile (512-490-0974). 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 are reopening the comment period for our proposed listing
determination and proposed critical habitat designation for the Phantom
Cave snail (Pyrgulopsis texana), Phantom springsnail (Tryonia
cheatumi), diminutive amphipod (Gammarus hyalleloides), Diamond Y
Spring snail (Pseudotryonia adamantina), Gonzales springsnail (Tryonia
circumstriata), and Pecos amphipod (Gammarus pecos) (the six west Texas
aquatic invertebrate species) that was published in the Federal
Register on August 16, 2012 (77 FR 49602). We are specifically seeking
comments on the draft economic analysis, which is now available, for
the critical habitat designation; see ADDRESSES.
We are also notifying the public that we will publish two separate
rules for the final listing determination and the final critical
habitat determination for the six west Texas aquatic invertebrate
species. The final listing rule will publish under the existing docket
number, FWS-R2-ES-2012-0029, and the final critical habitat designation
will publish under docket number FWS-R2-ES-2013-0004.
We request that you provide comments specifically on our listing
determination under the existing docket number [FWS-R2-ES-2012-0029].
We will consider information and recommendations from all interested
parties. We are particularly interested in comments concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and regulations that may
be addressing those threats.
(2) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(3) Any information on the biological or ecological requirements of
the species, and ongoing conservation measures for the species and its
habitat.
(4) Current or planned activities in the areas occupied by the
species and possible impacts of these activities on this species.
We request that you provide comments specifically on the critical
habitat determination and draft economic analysis under docket number
[FWS-R2-ES-2013-0004]. We will consider information and recommendations
from all interested parties. We are particularly interested in comments
concerning:
(5) 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 may not be
prudent.
(6) Specific information on:
(a) The amount and distribution of habitat for the six west Texas
aquatic invertebrates;
(b) What areas, that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of the species, should be included in the designation and
why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential
for the conservation of the species and why.
(7) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(8) Information on the projected and reasonably likely impacts of
climate change on the six west Texas aquatic invertebrates and proposed
critical habitat.
(9) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, any impacts on small entities or families,
and the benefits of including or excluding areas that exhibit these
impacts.
(10) Information on the extent to which the description of economic
impacts in the draft economic analysis is complete and accurate.
(11) Whether any specific areas we are proposing for critical
habitat designation 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.
(12) Whether the benefits of exclusion outweigh the benefits of
including the area proposed as critical habitat around San Solomon
Spring at Balmorhea State Park based on the existing habitat
conservation plan or other relevant factors.
(13) 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 rules (77
FR 49601; August 16, 2012) during the initial comment period from
August 16, 2012, to October 15, 2012, please do not resubmit them. We
have incorporated them into the public record, and we will fully
consider them in the preparation of our final rules. On the basis of
public comments and other relevant information, we may, during the
development of our final determination on the proposed critical habitat
designation, 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 draft economic analysis by one of the methods listed in the
ADDRESSES section. We request that you send comments only by the
methods described 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
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, will be available for public inspection on
http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0029 (for the
proposed listing rule) and Docket No. FWS-R2-ES-2013-0004 (for the
proposed critical habitat designation and draft economic analysis), or
by
[[Page 8098]]
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 on the Internet at http://www.regulations.gov at Docket No. FWS-
R2-ES-2012-0029 and the draft economic analysis at Docket No. FWS-R2-
ES-2013-0004, 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 six west Texas aquatic
invertebrate species in this document. For more information on the six
west Texas aquatic invertebrate species, the species' habitat, and
previous Federal actions concerning the species, refer to the proposed
listing rule and designation of critical habitat, published in the
Federal Register on August 16, 2012 (77 FR 49602). The proposed rule is
available online at http://www.regulations.gov (at Docket No. FWS-R2-
ES-2012-0029) or from the Austin Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT).
Previous Federal Actions
On August 16, 2012, we published a proposed rule to list as
endangered and to designate critical habitat for the six west Texas
aquatic invertebrate species (77 FR 49602). In total, approximately
181.7 hectares (ha) (450.6 acres (ac)) were proposed for designation as
critical habitat in four units for three species and one unit for three
other species. The proposed critical habitat is located in Pecos,
Reeves, and Jeff Davis Counties, Texas. We proposed to designate
approximately 3.7 ha (9.2 ac) in four units located in Reeves and Jeff
Davis Counties, Texas, as critical habitat for the Phantom Cave snail,
Phantom springsnail, and diminutive amphipod. We also proposed to
designate approximately 178.6 ha (441.1 ac) in one unit located in
Pecos County, Texas, as critical habitat for the Diamond Y Spring
snail, Gonzales springsnail, and Pecos amphipod. That proposal had a
60-day comment period, ending October 15, 2012. We received a request
for a public hearing; therefore, a public hearing will be held (see
DATES and ADDRESSES). We will submit for publication in the Federal
Register a final listing determination and critical habitat designation
for the six west Texas aquatic invertebrates on or before August 16,
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 by the Secretary 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. We are
considering excluding the San Solomon Spring Unit that is currently
covered under a habitat conservation plan with Texas Parks and Wildlife
Department for the Phantom Cave snail, Phantom springsnail, and
diminutive amphipod for management activities at Balmorhea State Park.
However, the final decision on whether to exclude any areas will be
based on the best scientific data available at the time of the final
designation, including information obtained during the comment period
and information about the economic impact of designation. Accordingly,
we have prepared a draft economic analysis concerning the proposed
critical habitat designation, which is available for review and comment
(see ADDRESSES section).
Draft Economic Analysis
The purpose of the draft economic analysis is to identify and
analyze the potential economic impacts associated with the proposed
critical habitat designation for the Phantom Cave snail, Phantom
springsnail, diminutive amphipod, Diamond Y Spring snail, Gonzales
springsnail, and Pecos amphipod. The draft economic analysis separates
conservation measures into two distinct categories according to
``without critical habitat'' and ``with critical habitat'' scenarios.
The ``without critical habitat'' scenario represents the baseline for
the analysis, considering protections otherwise afforded to the six
west Texas aquatic invertebrate species (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 draft economic
analysis, 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 Appendix B, ``Framework,'' of the
draft economic analysis.
The draft economic analysis provides estimated costs of the
foreseeable potential economic impacts of the proposed critical habitat
designation for the six west Texas aquatic invertebrate species 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.
[[Page 8099]]
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 draft economic analysis quantifies economic impacts of the six
west Texas aquatic invertebrate species conservation efforts associated
with the following categories of activity: (1) Water withdrawals for
agricultural and municipal use; (2) oil and gas development; and (3)
recreation and species management.
We do not anticipate recommending incremental conservation measures
to avoid adverse modification of critical habitat over and above those
recommended to avoid jeopardy of the species, and, as such, the
economic analysis forecasts few incremental economic impacts as a
result of the designation of critical habitat for these species. A
number of factors limit the extent to which the proposed critical
habitat designation will result in incremental costs, including the
fact that all the proposed habit is occupied by the species, the
species' survival is so closely linked to the quality of their habitat,
few actions being carried out in the area are subject to a Federal
nexus, and much of the proposed habitat is currently managed for
conservation.
The total projected incremental costs of administrative efforts
resulting from section 7 consultations on the six invertebrates are
approximately $40,000 over 20 years ($4,000 on an annualized basis),
assuming a seven percent discount rate. The analysis estimates
potential future administrative impacts based on the historical rate of
consultation on co-occurring listed species in areas proposed for
critical habitat, as discussed in Chapter 2 of the draft economic
analysis.
As stated earlier, we are soliciting data and comments from the
public on the draft economic analysis, as well as all aspects of the
proposed rules and our amended required determinations. We may revise
the proposed rules or supporting documents to incorporate or address
information we receive during the public comment period. In particular,
we may exclude an area from critical habitat if we determine that the
benefits of excluding the area outweigh the benefits of including the
area, provided the exclusion will not result in the extinction of this
species.
Required Determinations--Amended
In our August 16, 2012, proposed rule (77 FR 49601), 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 draft economic
analysis. We have now made use of the draft economic analysis 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 draft economic analysis data, we are
amending our required determination concerning the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
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. Based on our draft economic analysis 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 six west Texas aquatic invertebrate species would affect a
substantial number of small entities, we considered the number of small
entities affected within particular types of economic activities, such
as water withdrawals for agricultural and municipal use, oil and gas
development, and recreation and species management. In order to
determine whether it is appropriate for our agency to certify that this
proposed rule would not have a significant economic impact on a
substantial number of small entities, we considered each industry or
category individually. In estimating the numbers of small entities
potentially affected, we also considered whether their activities have
any Federal involvement. Critical habitat designation will not affect
activities that do not have any Federal involvement; designation of
critical habitat only affects activities conducted, funded, permitted,
or authorized by Federal agencies. If we finalize the proposed listing
for the species, in areas where any one of the six west Texas aquatic
invertebrate species is present, Federal agencies will be required to
consult with us under section 7 of the Act on activities they fund,
permit, or implement that may affect the species. If we finalize this
proposed critical habitat designation, consultations to avoid the
destruction or adverse modification of critical habitat would be
incorporated into the existing consultation process.
In the draft economic analysis, we evaluated the potential economic
effects on small entities resulting from implementation of conservation
actions
[[Page 8100]]
related to the proposed designation of critical habitat for the Phantom
Cave snail, Phantom springsnail, diminutive amphipod, Diamond Y Spring
snail, Gonzales springsnail, and Pecos amphipod. We do not anticipate
recommending incremental conservation measures to avoid adverse
modification of critical habitat over and above those recommended to
avoid jeopardy of the species, and as such the economic analysis
forecasts few incremental economic impacts as a result of the
designation of critical habitat for these species. Those incremental
impacts forecasted are solely related to administrative costs for
adverse modification analyses in section 7 consultations. We anticipate
conducting approximately 7 formal, 15 informal, and 3 technical
assistance consultations considering the designation, for a total of 25
consultations, over the next 20 years. Assuming the consultations are
equally likely to occur in any year, this results in fewer than two
consultations a year. Based on the consultation history, most
consultations are unlikely to involve a third party. If any
consultations were to involve a third party, fewer than two small
entities, if any, could be affected each year. The incremental cost per
entity of participating in a consultation is likely to range from $400
to $5,000. Please refer to Appendix A of the draft economic analysis of
the proposed critical habitat designation for a more detailed
discussion of potential economic impacts.
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species only has a regulatory
effect where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated, such as small businesses. However, Executive Orders
12866 and 13563 direct Federal agencies to assess costs and benefits of
available regulatory alternatives in quantitative (to the extent
feasible) and qualitative terms. Consequently, it is the current
practice of the Service to assess to the extent practicable these
potential impacts, if sufficient data are available, whether or not
this analysis is believed by the Service to be strictly required by the
RFA. In other words, while the effects analysis required under the RFA
is limited to entities directly regulated by the rulemaking, the
effects analysis under the Act, consistent with the EO regulatory
analysis requirements, can take into consideration impacts to both
directly and indirectly impacted entities, where practicable and
reasonable.
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. We
conclude that future consultations are unlikely to involve a third
party. However if a third party were to be involved in a consultation,
we identified fewer than two small business entities that could be
affected each year as a result of the designation of critical habitat
for the six west Texas aquatic invertebrate species. For the above
reasons and based on currently available information, we certify that,
if promulgated, the proposed critical habitat designations would not
have a significant economic impact on a substantial number of small
business entities. Therefore, an initial regulatory flexibility
analysis is not required.
Authors
The primary authors of this notice are the staff members of the
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: January 23, 2013.
Michael J. Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2013-02051 Filed 2-4-13; 8:45 am]
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