[Federal Register Volume 77, Number 13 (Friday, January 20, 2012)]
[Proposed Rules]
[Pages 2943-2946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1147]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2011-0042; MO 92210-0-0009]
RIN 1018-AV86


Endangered and Threatened Wildlife and Plants; Proposed 
Endangered Status for the Chupadera Springsnail (Pyrgulopsis 
chupaderae) and Proposed Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening 
of the public comment period on our August 2, 2011, proposed endangered 
status and designation of critical habitat for the Chupadera 
springsnail (Pyrgulopsis chupaderae) under the Endangered Species Act 
of 1973, as amended (Act). We also announce the availability of a draft 
economic analysis and draft environmental assessment of the proposed 
designation of critical habitat and an amended required determinations 
section of the proposal. We are reopening the comment period to allow 
all interested parties an opportunity to comment simultaneously on the 
revised proposed rule, the associated draft economic analysis and draft 
environmental assessment, and the amended required determinations 
section. Comments previously submitted need not be resubmitted, as they 
will be fully considered in preparation of the final rule.

DATES: We will consider comments received on or before February 21, 
2012. 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.

ADDRESSES: Document availability: You may obtain copies of the proposed 
rule, draft economic analysis, and draft environmental assessment on 
the Internet at http://www.regulations.gov at Docket Number FWS-R2-ES-
2011-0042, or by mail from the New Mexico Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).
    Comment submission: You may submit written comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://

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www.regulations.gov. Search for Docket No. FWS-R2-ES-2011-0042, 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-2011-0042; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field 
Office, 2105 Osuna NE., Albuquerque, NM 87113, by telephone ((505) 346-
2525), or by facsimile ((505) 346-2542). Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed listing as endangered and our 
proposed designation of critical habitat for the Chupadera springsnail 
that was published in the Federal Register on August 2, 2011 (76 FR 
46218), our draft economic analysis and draft environmental assessment 
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 Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat is not 
prudent.
    (2) Specific information on:
    (a) The distribution of the Chupadera springsnail;
    (b) The amount and distribution of Chupadera springnail habitat; 
and
    (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; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Any 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) The projected and reasonably likely impacts of climate change 
on the Chupadera springsnail and on the critical habitat we are 
proposing.
    (6) 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.
    (7) Information on the extent to which the description of economic 
impacts in the draft economic analysis is complete and accurate.
    (8) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the draft economic analysis and 
draft environmental assessment, 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 46218) during the initial comment period from August 2, 2011, to 
October 3, 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, draft economic analysis, or draft environmental assessment by one 
of the methods listed in ADDRESSES. We request that you send comments 
only by the methods described in ADDRESSES.
    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, draft economic 
analysis, and draft environmental assessment, will be available for 
public inspection on http://www.regulations.gov at Docket No. FWS-R2-
ES-2011-0042, or by appointment, during normal business hours, at the 
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the proposed listing and designation of critical habitat for the 
Chupadera springsnail in this document. For more information on 
previous Federal actions concerning the Chupadera springsnail, refer to 
the proposed listing and designation of critical habitat published in 
the Federal Register on August 2, 2011 (76 FR 46218), which is 
available online at http://www.regulations.gov (at Docket Number FWS-
R2-ES-2011-0042) or from the New Mexico Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

    On August 2, 2011 (76 FR 46218), we published a proposed rule to 
list as endangered and designate critical habitat for the Chupadera 
springsnail. We proposed to designate approximately 1.9 acres (ac) (0.7 
hectares (ha)) in two units located in Socorro County, New Mexico, as 
critical habitat. That proposal had a 60-day comment period, ending 
October 3, 2011. We received no request for a public hearing; 
therefore, no public hearing will be held.

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

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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 Chupadera springsnail, the benefits of critical habitat include 
public awareness of the presence of the Chupadera springsnail and the 
importance of habitat protection, and, where a Federal nexus exists, 
increased habitat protection for the Chupadera springsnail 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 by Federal agencies.
    We have not proposed to exclude any areas from critical habitat. 
However, the final decision on whether to exclude any areas will be 
based on the best scientific data available at the time of the final 
designation, including information obtained during the comment period 
and information about the economic impact of designation. Accordingly, 
we have prepared a draft economic analysis and draft environmental 
assessment concerning the proposed critical habitat designation, which 
are available for review and comment (see ADDRESSES).

Draft Economic Analysis

    The purpose of the draft economic analysis is to identify and 
analyze the potential economic impacts associated with the proposed 
critical habitat designation for the Chupadera springsnail. The draft 
economic analysis describes the economic impacts of all potential 
conservation efforts for the Chupadera springsnail; 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 at baseline 
impacts incurred from the listing of the species 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 ``Framework for the Analysis,'' of the 
draft economic analysis.
    The draft economic analysis provides estimated costs of the 
foreseeable potential economic impacts of the proposed critical habitat 
designation for the Chupadera springsnail. It identifies potential 
incremental costs as a result of the proposed critical habitat 
designation; these are those costs attributed to critical habitat over 
and above those baseline costs attributed to listing. The draft 
economic analysis quantifies economic impacts of Chupadera springsnail 
conservation efforts associated with residential development and ranch 
activities.
    Existing and planned subdivision development in the area can lead 
to groundwater depletion, threatening the springsnail and its habitat 
by reducing water flow at the spring that supports the species. 
Residential activities can also lead to modification of the area around 
the springhead and springbrook, causing habitat degradation through 
inundation and changes in water flow and chemistry. However, a Federal 
nexus consultation under section 7 of the Act is unlikely to exist, as 
each parcel will have its own groundwater well, which is regulated by 
the New Mexico Office of the State Engineer with no Federal 
involvement. Unit 1 is not slated for development; therefore, it is 
unlikely the landowners will apply for a permit under section 404 of 
the Clean Water Act. We are unaware of the plans for Unit 2, but we 
believe that any development would avoid the spring and therefore avoid 
the need for a section 404 permit. Because there are no foreseeable 
activities with a Federal nexus, the draft economic analysis found no 
economic impact of the proposed designation of critical habitat beyond 
a possible ``stigma effect'' to land values. This stigma effect arises 
from the perception of landowners that designation of critical habitat 
may impede future land development and, therefore, depress land values. 
Our economic analysis was unable to quantify the economic value of any 
possible stigma effects.
    As we stated earlier, we are soliciting data and comments from the 
public on the draft economic analysis, draft environmental assessment, 
and 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 this species.

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Draft Environmental Assessment

    The purpose of an environmental assessment is to identify and 
disclose the environmental consequences associated with the proposed 
critical habitat designation for the Chupadera springsnail in 
compliance with the National Environmental Policy Act. The draft 
environmental assessment found the preferred alternative of designating 
critical habitat for the Chupadera springsnail at the two proposed 
locations would not have significant impacts to the human environment.

Required Determinations--Amended

    In our August 2, 2011, proposed rule (76 FR 46218), we indicated 
that we would defer our determination of compliance with several 
statutes and executive orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders became available in the draft economic 
analysis. We have now made use of the draft economic analysis data to 
make these determinations. In this document, we affirm the information 
in our proposed rule concerning Executive Order (E.O.) 12866 
(Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132 
(Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, 
Supply, Distribution, and Use), the Unfunded Mandates Reform Act (2 
U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the National Environmental Policy Act (42 U.S.C. 4321 et 
seq.), and the President's memorandum of April 29, 1994, ``Government-
to-Government Relations with Native American Tribal Governments'' (59 
FR 22951). However, based on the draft economic analysis data, we are 
amending our required determination concerning the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Based on our draft economic analysis of the 
proposed designation, we provide our analysis for determining whether 
the proposed rule would result in a significant economic impact on a 
substantial number of small entities. Based on comments we receive, we 
may revise this determination as part of our final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
the Chupadera springsnail would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities, such as residential 
development and ranch activities. In order to determine whether it is 
appropriate for our agency to certify that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities, we considered each industry or category individually. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement. 
Critical habitat designation will not affect activities that do not 
have any Federal involvement; designation of critical habitat only 
affects activities conducted, funded, permitted, or authorized by 
Federal agencies. In areas where the Chupadera springsnail is 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. If we finalize this proposed critical habitat 
designation, consultations to avoid the destruction or adverse 
modification of critical habitat would be incorporated into the 
existing consultation process.
    In the draft economic analysis, we evaluated the potential economic 
effects on small entities resulting from implementation of conservation 
actions related to the proposed designation of critical habitat for the 
Chupadera springsnail. Information in the draft economic analysis and 
draft environmental assessment indicates the proposed critical habitat 
designation will have no effect on any small entities. Please refer to 
the draft economic analysis 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. We have 
identified no small entity that may be impacted by the proposed 
critical habitat designation. 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 the staff members of the New 
Mexico Ecological Services Field Office, Southwest Region, U.S. Fish 
and Wildlife Service.

Authority

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

    Dated: January 10, 2012.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-1147 Filed 1-19-12; 8:45 am]
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