[Federal Register Volume 76, Number 148 (Tuesday, August 2, 2011)]
[Proposed Rules]
[Pages 46234-46238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19222]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2010-0091; MO 92210-0-0009]
RIN 1018-AX11


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Nine Bexar County Invertebrates

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed Rule; reopening of comment period.

-----------------------------------------------------------------------

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

[[Page 46235]]

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

[[Page 46236]]

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

[[Page 46237]]

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

[[Page 46238]]

not have a significant economic impact on a substantial number of small 
entities, we considered each industry or category individually. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement. 
Critical habitat designation will not affect activities that do not 
have any Federal involvement; designation of critical habitat affects 
only activities conducted, funded, permitted, or authorized by Federal 
agencies. In areas where one or more of the nine Bexar County 
invertebrates are present, Federal agencies already are required to 
consult with us under section 7 of the Act on activities they fund, 
permit, or implement that may affect the species. When we finalize this 
proposed critical habitat designation, consultations to avoid the 
destruction or adverse modification of critical habitat would be 
incorporated into the existing consultation process.
    In the DEA, we evaluated the potential economic effects on small 
entities resulting from implementation of conservation actions related 
to the proposed designation of critical habitat for the nine Bexar 
County invertebrates. We estimate 20 to 218 small developers may be 
affected by the proposed rule annually, and annualized per entity 
impacts range from $6,400 to $8,660. This compares to average annual 
sales of small developers of $6.36 million. So while there may be a 
substantial number of developers affected, on average, the annualized 
incremental impact per small developer represents only from 0.10 to 
0.14 percent of small developers' average annual sales. We do not 
believe this will have a significant impact to this small business 
sector. Please refer to the DEA of the proposed critical habitat 
designation for a more detailed discussion of potential economic 
impacts.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and the Service. For the 
above reasons and based on currently available information, we certify 
that, if promulgated, the proposed critical habitat designation would 
not have a significant economic impact on a substantial number of small 
business entities. Therefore, an initial regulatory flexibility 
analysis is not required.

Authors

    The primary authors of this notice are staff members of the Austin 
Ecological Services Field Office, Southwest Region, U.S. Fish and 
Wildlife Service.

Authority

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

    Dated: July 14, 2011.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-19222 Filed 8-1-11; 8:45 am]
BILLING CODE 4310-55-P