[Federal Register: December 9, 2008 (Volume 73, Number 237)]
[Proposed Rules]
[Page 74675-74681]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09de08-21]
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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
Endangered and Threatened Wildlife and Plants; Revised
Designation of Critical Habitat for the Wintering Population of the
Piping Plover (Charadrius melodus) in Texas
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period, notice of
availability of draft economic analysis and draft environmental
assessment, correction, and amended required determinations.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the comment period on the proposed revised designation of
critical habitat for the wintering population of the piping plover
(Charadrius melodus) in Texas under the Endangered Species Act of 1973,
as amended (Act). We also announce the availability of a draft economic
analysis (DEA) and a draft environmental assessment of the proposed
critical habitat designation and a corrected area estimated for 19
critical habitat units vacated by the court, and amended required
determinations. We are reopening the comment period to allow all
interested parties an opportunity to comment simultaneously on the
proposed rule, the associated DEA, the draft environmental assessment,
the corrected acreage figures, and our amended required determinations.
Comments previously submitted on this rulemaking do not need to be
resubmitted, as they will be
[[Page 74676]]
incorporated into the public record and fully considered when preparing
our final determination.
DATES: Written Comments: We will accept comments received or postmarked
on or before January 8, 2009. Any comments received after the closing
date may not be considered in the final designation of critical
habitat.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: RIN 1018-AV46, Division of Policy and Directives Management, U.S.
Fish and Wildlife Service, 4401 N. Fairfax Drive, Suite 222, Arlington,
VA 22203.
We will not accept e-mail or faxes. 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).
FOR FURTHER INFORMATION CONTACT: Allan Strand, Field Supervisor, U.S.
Fish and Wildlife Service, Corpus Christi Ecological Services Field
Office, 6300 Ocean Drive TAMU-CC, Unit 5837, Corpus Christi, TX 78412;
telephone 361/994-9005; facsimile 361/994-8262. 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 May 20, 2008, proposed revised critical
habitat designation for the wintering population of the piping plover
(Charadrius melodus) in Texas (73 FR 29294), the DEA of the proposed
revised designation, the draft environmental assessment of the proposed
revised designation, the corrected acreage estimates provided in this
document, and our amended required determinations for the proposed
revised designation. We will consider information and recommendations
from all interested parties. We are particularly interested in comments
concerning:
(1) Specific information on:
The amount and distribution of wintering piping plover
habitat in the 19 court-vacated units and areas adjacent to those 19
units in Texas, and
What areas occupied at the time of listing, but located
within or adjacent to these specific units, are essential to the
conservation of the species and why.
(2) Information on the effects of Hurricane Ike in 2008, if any, on
the status of the wintering piping plover and its habitat in coastal
Texas from Brazoria County to Cameron County and information on the
impact of hurricanes in general on future development and beach cleanup
following hurricanes.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed revised critical
habitat.
(4) Information on whether the DEA identifies all State and local
costs and benefits attributable to the proposed revised critical
habitat designation, and information on any costs or benefits that we
have overlooked.
(5) Information on whether the DEA uses appropriate methods and
assumptions to estimate the impacts of future oil and gas development,
including the frequency, type, location, and amount of seismic activity
and drilling activity. In particular:
Whether the conclusions of the DEA are sufficiently
reliable to be useful in assessing the benefits of excluding particular
areas from the final designation, and
Information that would allow us to make a more reliable
prediction of the impacts on future oil and gas development of
designation of any particular area as critical habitat.
(6) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed revised designation and, in
particular, any impacts on small entities, and the benefits of
including or excluding areas that exhibit these impacts.
(7) The appropriateness of the possible exclusion of approximately
28,474 acres (ac) (11,523 hectares (ha)) of wintering piping plover
habitat from the final designation based on the benefits to the
conservation of the species and its habitat provided by the
Comprehensive Conservation Plans (CCPs) being drafted for National
Wildlife Refuge (NWR) lands (see the Areas Considered for Exclusion
Under Section 4(b)(2) of the Act section for further discussion).
Specifically:
(a) The benefits to the conservation of the species provided by a
CCP;
(b) How the CCPs address the physical and biological features in
the absence of designated critical habitat;
(c) The specific conservation benefits to the wintering piping
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
the areas covered by the CCPs.
We are particularly interested in knowing how existing or future
NWR partnerships may be positively or negatively affected by a
designation, or through exclusion from critical habitat;
(8) 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.
(9) Whether there are areas we previously designated, but are not
proposing for revised designation here, that we should include in our
critical habitat designation.
(10) The existence of any conservation or management plans being
implemented by public or private land management agencies or owners on
lands proposed for designation that we should consider in connection
with possible exclusion of those lands from the designation under
section 4(b)(2) of the Act. Please include information on any benefits
(educational, regulatory, etc.) of including or excluding lands from
this proposed designation. We are interested in knowing how
partnerships may be positively or negatively affected by a designation,
or through exclusion from critical habitat, and costs and other
relevant impacts associated with the designation.
(11) Whether we should exclude any other areas from critical
habitat, and why, including an analysis of the benefits of including
and excluding any such area from the designation.
(12) Any foreseeable impacts on energy supplies, distribution, and
use resulting from the proposed revised designation and, in particular,
any impacts on seismic studies for oil and gas drilling, and the
benefits of including or excluding areas that exhibit these impacts.
If you submitted comments or information during the initial comment
period from May 20, 2008, to July 21, 2008, on the proposed rule, they
need not be resubmitted. Comments previously submitted are included in
the public record, and we will fully consider them in the preparation
of our final determination. Our final determination concerning revised
designation of critical habitat for the wintering population of the
piping plover in Texas will take into consideration all written
comments we receive and any additional information we receive during
the comment period. On the basis of public comments, we may, during the
development of our
[[Page 74677]]
final determination, find that areas proposed do not meet the
definition of critical habitat, are not essential, or are appropriate
for exclusion under section 4(b)(2) of the Act.
You may submit your comments and materials concerning our proposed
rule, the associated DEA, the associated draft environmental
assessment, the corrected area estimates, and our amended required
determinations 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 your personal identifying information--will be
posted on the Web site. If you submit 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. We will post all hardcopy comments on http://
www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this notice, will be available for
public inspection on http://www.regulations.gov, or by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service,
Corpus Christi Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
You may obtain copies of the revised proposed rule, the DEA, and
the draft environmental assessment on the Internet at http://
www.regulations.gov, or by mail from the Corpus Christi Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Background
The piping plover was listed as endangered in the Great Lakes
watershed and threatened elsewhere in its range on December 11, 1985
(50 FR 50726); critical habitat was not designated at the time of
listing. On July 10, 2001, we designated 137 areas along the coasts of
North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi,
Louisiana, and Texas as critical habitat for the wintering population
of the piping plover (66 FR 36038). On March 20, 2006, the Texas
General Land Office filed suit against the Service challenging
designation of 19 of 37 units of critical habitat along the Texas
coast. In a July 26, 2006, stipulated settlement agreement and court
order, the court vacated and remanded the designation of Units 3, 4, 7,
8, 9 ,10, 14, 15, 16, 17, 18, 19, 22, 23, 27, 28, 31, 32, and 33 for us
develop a new rule. The settlement stipulated that, if prudent, a
proposed rule would be submitted to the Federal Register for
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
revise designation for 18 of the 19 vacated units of critical habitat
for wintering piping plovers in Texas; we did not re-propose Unit TX-17
for designation. (Please refer to our proposed rule for the reason why
lands within this unit were not reproposed.) The proposed revised
critical habitat is located along nine coastal Texas counties (Cameron,
Willacy, Kenedy, Kleberg, Nueces, Aransas, Calhoun, Matagorda, and
Brazoria), totaling approximately 138,881 acres (ac) (56,206 hectares
(ha)). Units that were not vacated remain as described in the 2001
final designation.
In our 2008 revised proposed rule, we also stated that we intend to
consider the possible exclusion of federally owned National Wildlife
Refuge lands in units TX-3, TX-4, TX-16, TX-18, TX-19, and TX-31 from
the final critical habitat designation under section 4(b)(2) of the
Act. These lands are to be covered under Comprehensive Conservation
Plans (CCPs) that are currently being drafted. We will further consider
the possible exclusion of the areas covered by the CCPs being drafted
once the drafts are released and if they are released within a
timeframe that is reasonable for evaluation for this final designation.
We will also consider exclusions of any other areas identified in the
proposed rule, based on comments we receive and our assessments of the
benefits of inclusion and the benefits of exclusion of those areas.
The 18 proposed revised units constitute our best assessment of
those areas containing features essential to the conservation of the
species. We will submit for publication in the Federal Register a final
revised critical habitat designation for the wintering population of
the piping plover on or before May 8, 2009.
Also, we acknowledge that Hurricane Ike, which struck the Texas
coast on September 13, 2008, may have rearranged some critical habitat
features essential to the species. We have reviewed recent information,
including imagery available from the National Oceanic and Atmospheric
Administration, and found little or no effect of the hurricane on the
proposed designated areas. We are requesting additional information
from the public on possible changes due to Hurricane Ike.
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 geographic 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 areas designated as critical habitat must consult with us on
the effects of their proposed actions, under section 7(a)(2) of the
Act.
Under section 4(b)(2) of the Act, we may exclude an area from
critical habitat if we determine that the benefits of such exclusion
outweigh the benefits of including that particular area as critical
habitat, unless failure to designate that specific area as critical
habitat will result in the extinction of the species. We may exclude an
area from designated critical habitat based on economic impacts,
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
estimates vacated by the court. In our 2008 proposed revised critical
habitat designation, we published a table (Table 1) showing the number
of acres (hectares) in each unit vacated by the court and the area
proposed for those units. The area estimates for the vacated units were
incorrect. We have revised Table 1 with the correct acres (hectares)
that were published in the July 10, 2001, rule designating critical
habitat for the wintering population of the piping plover in eight
Southeastern states (66 FR 36038). The total acreage proposed remains
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)
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Total..................... 54,750 (22,155) 138,881 (56,206)
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\1\ N/A.
Draft Economic Analysis
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific and commercial 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 have prepared a DEA of the
proposed revised critical habitat designation based on our May 20,
2008, proposed revised rule to designate critical habitat for the
wintering piping plover in Texas.
The purpose of the DEA is describe and, if possible, quantify the
baseline and incremental economic impacts of all potential conservation
efforts for the wintering piping plover in Texas in the proposed
revised units. Baseline impacts represent the existing state of
regulation prior to the designation of critical habitat and include the
potential economic impacts of all actions relating to the conservation
of the wintering piping plover already accorded the species under the
Federal listing (including costs associated with sections 4, 7, and 10
of the Act) and other Federal, State, and local laws that aid habitat
conservation in the study area. Baseline costs will occur regardless of
whether we designate critical habitat. Incremental impacts are those
potential future economic impacts of conservation actions relating to
the designations of critical habitat; these impacts would not be
expected to occur without the designation of critical habitat for the
wintering piping plover. The DEA describes economic impacts of
wintering piping plover conservation efforts on the following
categories of activity: (1) Oil and gas development activities, (2)
residential and commercial development, (3) recreation, and (4) marine
construction and other activities. In addition, analysis of the
estimated baseline and incremental impacts include administrative costs
of section 7 compliance for all affected activities.
The DEA estimates total pre-designation baseline impacts (1985 to
2007) for all 18 proposed revised units to be equivalent to a present
value of $1.7 to $3.6 million, assuming a 3 percent discount rate, and
$2.6 to $5.4 million, assuming a 7 percent discount rate. Post-
designation baseline impacts (2009 to 2028) for all proposed revised
units are estimated to be $0.2 to $1.2 million annually, assuming a 3
percent discount rate, and $0.2 to $1.3 million annually, assuming a 7
percent discount rate. Oil and gas industry impacts represent 40
percent of the total high-end, post-designation baseline costs.
The post-designation incremental impacts (2009 to 2028) for all
proposed revised units are estimated to range from $0.6 to $4.9 million
annually, assuming a 3 percent discount rate, and $0.6 to $5.1 million
annually, assuming a 7 percent discount rate. The majority of
incremental impacts associated with the proposed revised rule (98
percent) are anticipated to be associated with oil and gas development
activities. However, no incremental impacts were associated with
seismic survey efforts related to those activities. Due to the short-
term nature of those impacts, the DEA assigns any costs of seismic
survey efforts attributable to plover conservation to the baseline, as
those costs would be incurred regardless of the designation of critical
habitat.
Because oil and gas development activities make up such a large
percentage of the estimated incremental impacts associated with the
proposed revised rule, we are specifically seeking comment on whether
the estimates in the DEA are sufficiently reliable to be useful in
assessing the benefits of including or excluding particular areas from
the final designation. As noted in the DEA, the level oil and gas
activities generally are highly variable, in part due to fluctuations
in the price of oil and gas. Even more difficult to predict is the
precise location of oil and gas activities. The figures in the DEA are
based on a variety of assumptions, which may turn out not to be true.
In particular, the DEA assumes that the number of wells drilled in the
next twenty years will be exactly correlated with the wells drilled
over the last eighteen years. In addition, the DEA assumes that the
distribution of new wells across the proposed critical habitat units
will be identical to that of the last eighteen years. To the extent
that these assumptions turn out to be incorrect, the cost figures per
unit will also be incorrect. We note that it is likely that the
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
activity over the next five years will more closely resemble the last
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
to oil and gas activities, we also are specifically asking for
information that would allow us to make a more reliable prediction of
the impacts on future oil and gas development of designation of any
particular area as critical habitat.
The DEA considers the potential economic effects of all actions
relating to the conservation of the wintering piping plover in Texas
over the next 20 years, including costs associated with sections 4, 7,
and 10 of the Act, as well as costs attributable to the designation of
critical habitat. The DEA further considers the economic effects of
protective measures taken as a result of other Federal, State, and
local laws that aid habitat conservation for the species in areas
containing features essential to the conservation of the species.
The DEA considers both economic efficiency and distributional
effects. In the case of habitat conservation, efficiency effects
generally reflect the ``opportunity costs'' associated with the
commitment of resources to comply with habitat protection measures
(such as lost economic opportunities associated with restrictions on
land use). The DEA also addresses how potential economic impacts are
likely to be distributed, including an assessment of any local or
regional impacts of habitat conservation and the potential effects of
conservation activities on small entities and the energy industry. The
DEA measures lost economic efficiency associated with residential and
commercial development and public projects and activities, such as
economic impacts on water management and transportation projects,
Federal lands, small entities, and the energy industry. Decision-makers
can use this information to assess whether the effects of the
designation might unduly burden a particular group or economic sector.
Finally, the DEA looks retrospectively at costs that have been
incurred since we listed the piping plover as threatened on December
11, 1985, and considers those costs that may occur in the 20 years
following the revised designation of critical habitat.
As stated earlier, we are soliciting data and comments from the
public on this DEA, our draft environmental assessment, and on all
aspects of the revised proposed rule and our amended determinations. A
copy of the DEA is available on http://www.regulations.gov or by
contacting the person listed under FOR FURTHER INFORMATION CONTACT. We
may revise the proposal, or its supporting documents, to incorporate or
address new information received during the comment period. Our
supporting record will reflect any new information used in making the
final designation. 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 as critical habitat,
provided such exclusion will not result in the extinction of the
species.
National Environmental Policy Act (NEPA)
It is our position that, outside the Jurisdiction of the Tenth
Federal Circuit, we do not need to prepare environmental analyses as
defined by NEPA (42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the ESA. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This assertion was upheld by the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995)). However, a
court ruling in Cape Hatteras Access Preservation Alliance v. U.S.
Department of Interior (344 F. Supp. 2d 108 (D.D.C. 2004)) ordered us
to revise the critical habitat designation for wintering piping plovers
in North Carolina and to prepare an environmental analysis of the
proposed revised designation. To comply with that court's order, we
prepared an environmental assessment for that action under NEPA as
implemented by the Council on Environmental Quality regulations (40 CFR
1500-1508) and according to the Department of the Interior's NEPA
procedures. As an exercise of our discretion, we have chosen to prepare
an environmental assessment for the proposed revised critical habitat
designation for the wintering population of the piping plover in Texas.
The draft environmental assessment is based on the May 2008 proposed
rule. The scope of the draft environmental assessment includes an
evaluation of the impact of the proposed designation of the 18 revised
critical habitat units for the wintering population of the piping
plover in Texas. The draft environmental assessment presents the
purpose of and need for critical habitat designation, the No Action and
Preferred alternatives, and an evaluation of the direct, indirect, and
cumulative effects of the alternatives.
The environmental assessment will be used by the Service to
determine if critical habitat should be revised as proposed, if the
Action Alternative requires refinement, or if further analyses are
needed through preparation of an Environmental Impact Statement. If the
Action Alternative is selected as described, or with minimal changes,
and no further environmental analyses are needed, then the Service will
conclude the NEPA process by issuing a Finding of No Significant
Impact.
As stated earlier, we solicit data and comments from the public on
this draft environmental assessment, as well as on all other aspects of
the proposed revision. A copy of the draft environmental assessment is
available on http://www.regulations.gov or by contacting the person
listed under FOR FURTHER INFORMATION CONTACT. We may revise the
proposal, or its supporting documents, to incorporate or address new
information received during the comment period.
Required Determinations--Amended
In our May 20, 2008, proposed rule, 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 was available in the DEA. We have now made use of the DEA
to make our determinations. In this document we affirm the information
contained in the proposed rule concerning Executive Order (E.O.) 13132,
E.O. 12988, the Paperwork Reduction Act, 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
information within the DEA, we revise our required determinations
concerning E.O. 12866, the Regulatory Flexibility Act, E.O. 13211
(Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform
Act, and E.O. 12630 (Takings).
Regulatory Planning and Review (E.O. 12866)
The Office of Management and Budget (OMB) has determined that this
proposed revised rule is not significant and has not reviewed this rule
under Executive Order 12866 (E.O. 12866). OMB bases its determination
upon the following four criteria:
(a) Whether the rule will have an annual economic effect of $100
million or more on the economy or adversely affect an economic sector,
productivity,
[[Page 74680]]
jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
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.,
as amended by the Small Business Regulatory Enforcement Fairness Act (5
U.S.C. 802(2) (SBREFA)), 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 governmental 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 revised 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 analysis as part of our final
rulemaking.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as 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 revised critical habitat designation
for wintering piping plovers in Texas would affect a substantial number
of small entities, we considered the number of affected small entities
within particular types of economic activities (e.g., residential and
commercial development, agriculture, oil and gas production). In order
to determine whether it is appropriate for our agency to certify that
this rule would not have a significant impact on a substantial number
of small entities, we consider each industry or category individually.
In estimating the numbers of small entities potentially affected, we
also consider 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
activities conducted, funded, permitted, or authorized by Federal
agencies.
If we finalize this proposed revised critical habitat designation,
Federal agencies must consult with us under section 7 of the Act if
their activities may affect critical habitat. 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
business entities resulting from the implementation of conservation
actions related to the proposed revision to critical habitat for the
wintering population of the piping plover in Texas. The DEA identifies
the estimated incremental impacts associated with the proposed
rulemaking as described in chapters 2 through 6, and evaluates the
potential for economic impacts related to activity categories including
oil and gas activities, residential and commercial development,
recreation activities, and marine construction and other activities.
The DEA concludes that small oil and gas businesses are unlikely to be
involved in future oil and gas projects over the next 20 years because
currently they represent only 2 percent of the oil and gas industry in
that area. Few economic impacts on recreational beach use are
anticipated with the majority of the impacts borne by cities carrying
out beach maintenance activities. Only two of the cities in the
affected area, Port Aransas and South Padre Island, are small enough to
be considered small entities under SBREFA. Annually, the impacts
related to beach maintenance activities for these two cities are
estimated to be $5,850 to $9,290 because these maintenance activities
require permits from the U.S. Army Corps of Engineers, resulting in the
Service entering into section 7 consultations with that Federal agency.
Thus, most of the increased impacts on beach maintenance activities
will not be borne by Port Aransas and South Padre Island. Over the next
20 years, the economic impact of designating critical habitat to small
residential and commercial developers is estimated to range from $10 to
$337 annually. Overall, small business entities are expected to incur
some costs; however, we do not expect those costs to have a significant
impact on those small entities.
In summary, we have considered whether the proposed revised rule
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we believe that, if promulgated, this revised
proposed rule would not have a significant economic impact on a
substantial number of small entities. Therefore, an initial regulatory
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
that significantly affect energy supply, distribution, and use. E.O.
13211 requires agencies to prepare Statements of Energy Effects when
undertaking certain actions. OMB's guidance for implementing this
Executive Order outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to no regulatory action. The
DEA (Appendix A) finds that three of these criteria are relevant to
this analysis: (1) Reductions in crude oil supply in excess of 10,000
barrels per day; (2) reductions in natural gas production in excess of
25 million Mcf per year; and (3) increases in the cost of energy
production in excess of one percent. Based on conservative estimates
derived from 2007 production rates, the DEA estimates the maximum
amount of oil production that could be affected by the critical habitat
designation is 282 barrels of oil per day and the maximum amount of
natural gas production that could be affected by the critical habitat
designation is 3.4 million Mcf per year. Both amounts are well below
the respective thresholds in the OMB guidance. In addition, the DEA
estimates that the relatively minor costs of project modifications
($0.2 million to $1.8 million per well) are unlikely to increase energy
costs by more than one percent. Thus, we do not expect the
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incremental impacts associated with critical habitat designation for
the wintering population of the piping plover in Texas to be of
sufficient magnitude to affect energy production or delivery, and the
energy-related impacts are not considered a ``significant adverse
effect.'' As such, we do not expect that, if made final, the proposed
revised designation of critical habitat for the wintering population of
the piping plover in Texas to significantly affect energy supplies,
distribution, or use, and a Statement of Energy Effects is not
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), we make the following findings:
(a) This rule would not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments,'' with
two exceptions. It excludes ``a condition of federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and tribal governments under entitlement authority,''
if the provision would ``increase the stringency of conditions of
assistance'' or ``place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding'' and the State, local,
or tribal governments ``lack authority'' to adjust accordingly.
``Federal private sector mandate'' includes a regulation that ``would
impose an enforceable duty upon the private sector, except (i) a
condition of Federal assistance; or (ii) a duty arising from
participation in a voluntary Federal program.''
Critical habitat designation does not impose a legally binding duty
on non-Federal Government entities or private parties. Under the Act,
the only regulatory effect is that Federal agencies must ensure that
their actions do not destroy or adversely modify critical habitat under
section 7. Designation of critical habitat may indirectly impact non-
Federal entities that receive Federal funding, assistance, permits, or
that otherwise require approval or authorization from a Federal agency.
However, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Furthermore, to the extent that non-Federal entities are indirectly
impacted because they receive Federal assistance or participate in a
voluntary Federal aid program, the Unfunded Mandates Reform Act would
not apply; nor would critical habitat shift the costs of the large
entitlement programs listed above onto State governments.
(b) We do not believe that this rule would significantly or
uniquely affect small governments because it will not produce a Federal
mandate of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The proposed revised designation of critical habitat imposes no
obligations on State or local governments. By definition, Federal
agencies are not considered small entities, although the activities
they fund or permit may be proposed or carried out by small entities.
As such, a Small Government Agency Plan is not required.
Executive Order 12630--Takings
In accordance with E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing revised critical habitat for the wintering population of the
piping plover in Texas in a takings implications assessment. Our
takings implications assessment concludes that this proposed revision
to critical habitat for the wintering populations of piping plover in
Texas does not pose significant takings implications.
References Cited
A complete list of all references we cited in the proposed revised
rule and this rulemaking is available on the Internet at http://
www.regulations.gov or by contacting the Corpus Christi Ecological
Services Field Office (see FOR FURTHER INFORMATION section).
Author(s)
The primary authors of this rulemaking are staff members of the
Corpus Christi Ecological Services Field Office.
Authority
The authority for this action is the Endangered Species Act of
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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