2011-19222. 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.

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 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 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 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 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.