Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Wintering Population of the Piping Plover (Charadrius melodus) in Texas, 74675-74681 [E8-28752]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 237 (Tuesday, December 9, 2008)]
[Proposed Rules]
[Pages 74675-74681]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28752]


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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: https://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 
https://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 https://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 https://
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 https://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 https://
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)
                               -----------------------------------------
    Total.....................      54,750 (22,155)    138,881 (56,206)
------------------------------------------------------------------------
\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 https://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 https://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 https://
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]
BILLING CODE 4310-55-P