Endangered and Threatened Wildlife and Plants; Listing as Endangered and Threatened and Designation of Critical Habitat for Texas Golden Gladecress and Neches River Rose-Mallow, 22506-22510 [2013-08848]

Download as PDF mstockstill on DSK4VPTVN1PROD with PROPOSALS 22506 Federal Register / Vol. 78, No. 73 / Tuesday, April 16, 2013 / Proposed Rules notice in a place reasonably likely to accomplish it. (e) Where notice is required. IMLS will give notice to a submitter wherever: (1) The information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or (2) IMLS has reason to believe that the information may be protected from disclosure under Exemption 4. (f) Opportunity to object to disclosure. IMLS will allow a submitter a reasonable time to respond to the notice described in paragraph (d) of this section and will specify that time period within the notice. If a submitter has any objection to disclosure, it must submit a detailed written statement to IMLS. The statement must specify all grounds for withholding any portion of the information under any exemption of FOIA and, in the case of Exemption 4, it must show why the information is a trade secret or commercial or financial information that is privileged or confidential. If a submitter fails to respond to the notice within the time specified, the submitter will be considered to have no objection to disclosure of the information. Information provided by the submitter that is not received by IMLS until after the agency’s disclosure decision has been made will not be considered by IMLS. Information provided by a submitter under this paragraph may itself be subject to disclosure under FOIA. (g) Notice of intent to disclose. IMLS will consider a submitter’s objections and specific grounds for nondisclosure in deciding whether to disclose business information. If IMLS decides to disclose business information over the objection of a submitter, IMLS will give the submitter written notice, which will include: (1) A statement of the reason(s) why each of the submitter’s disclosure objections was not sustained; (2) A description of the business information to be disclosed; and (3) A specified disclosure date, which will be a reasonable time subsequent to the notice. (h) Exceptions to notice requirements. The notice requirements of paragraphs (d) and (g) of this section will not apply if: (1) IMLS determines that the information should not be disclosed; (2) The information lawfully has been published or has been officially made available to the public; (3) Disclosure of the information is required by statute (other than FOIA) or by a regulation issued in accordance VerDate Mar<15>2010 16:42 Apr 15, 2013 Jkt 229001 with the requirements of Executive Order 12600; or (4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous— except that, in such a case, IMLS will, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information. (i) Notice of FOIA lawsuit. If a requester files a lawsuit seeking to compel the disclosure of business information, IMLS will promptly notify the submitter of the filing of the lawsuit. (j) Corresponding notice to requesters. If IMLS provides a submitter with notice and an opportunity to object to disclosure under paragraph (d) of this section, IMLS will also notify the requester(s). If IMLS notifies a submitter of its intent to disclose requested information under paragraph (g) of this section, IMLS will also notify the requester(s). If a submitter files a lawsuit seeking to prevent the disclosure of business information, IMLS will notify the requester(s) of the filing of the lawsuit. § 1184.9 Disclaimer. Nothing in these regulations will be construed to entitle any person, as a right, to any service or to the disclosure of any record to which such person is not entitled under FOIA. Signed: April 9, 2013. Nancy E. Weiss, General Counsel. [FR Doc. 2013–08890 Filed 4–15–13; 8:45 am] BILLING CODE 7036–01–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket Nos. FWS–R2–ES–2012–0064; FWS–R2–ES–2013–0027; 4500030113] RIN 1018–AX74; RIN 1018–AZ49 Endangered and Threatened Wildlife and Plants; Listing as Endangered and Threatened and Designation of Critical Habitat for Texas Golden Gladecress and Neches River Rose-Mallow Fish and Wildlife Service, Interior. ACTION: Proposed rule; reopening of comment period. AGENCY: SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the September 11, 2012, proposed endangered status for the Texas golden PO 00000 Frm 00076 Fmt 4702 Sfmt 4702 gladecress and threatened status for the Neches River rose-mallow under the Endangered Species Act of 1973, as amended (Act). We also announce the reopening of comment on the September 11, 2012, proposed designation of critical habitat for these species and the availability of a draft economic analysis of the proposed designation of critical habitat for both species as well as an amended required determinations section in the proposed rule. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed rule, the associated draft economic analysis, 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 or postmarked on or before May 16, 2013. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES section, below) must be received by 11:59 p.m. Eastern Time on the closing date. Any comments that we receive after the closing date may not be considered in the final decision on this action. Public informational session and public hearing: We will hold a public hearing on this proposed rule in Nacogdoches, Texas, on May 1, 2013, from 7 p.m. to 8:30 p.m. (see ADDRESSES), preceded by a public informational session beginning at 5:30 p.m. ADDRESSES: Document availability: You may obtain copies of the proposed rule and draft economic analysis on the internet at http://www.regulations.gov at Docket No. FWS–R2–ES–2012–0064 and Docket No. FWS–R2–ES–2013–0027, respectively. You may also request by mail from the Corpus Christi Ecological Services 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:// www.regulations.gov. Submit comments on the listing proposal to Docket No. FWS–R2–ES–2012–0064, and submit comments on the critical habitat proposal and associated draft economic analysis to Docket No. FWS–R2–ES– 2013–0027. See SUPPLEMENTARY INFORMATION for an explanation of the two dockets. (2) By hard copy: Submit comment on the listing proposal by U.S. mail or E:\FR\FM\16APP1.SGM 16APP1 Federal Register / Vol. 78, No. 73 / Tuesday, April 16, 2013 / Proposed Rules hand-delivery to: Public Comments Processing, Attn: FWS–R2–ES–2012– 0064; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042–PDM; Arlington, VA 22203. Submit comments on the critical habitat proposal and draft economic analysis by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R2– ES–2013–0027; 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). Public informational session and public hearing: The public informational session and hearing (see DATES) will be held in the Kennedy Auditorium at Stephen F. Austin State University, 1906 Alumni Drive S., Nacogdoches, Texas. People needing reasonable accommodation in order to attend and participate in the public hearing should contact Field Supervisor, Corpus Christi Ecological Services Office, as soon as possible (see FOR FURTHER INFORMATION CONTACT). FOR FURTHER INFORMATION CONTACT: Field Supervisor, U.S. Fish and Wildlife Service, Corpus Christi Ecological Services Field Office, 6300 Ocean Drive, Unit 5837, Corpus Christi, Texas, 78412–5837, by telephone 361–994– 9005 or by facsimile 361–994–8262. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: mstockstill on DSK4VPTVN1PROD with PROPOSALS Public Comments We are reopening the comment period for our proposed listing determination and proposed critical habitat designation for the Texas golden gladecress (Leavenworthia texana) and Neches River rose-mallow (Hibiscus dasycalyx) that published in the Federal Register on September 11, 2012 (77 FR 55968). We are specifically seeking comments on the draft economic analysis, which is now available, for the critical habitat designation; see ADDRESSES. We are also notifying the public that we will publish two separate rules for the final listing determination and the final critical habitat determination for these two East Texas plants. The final listing rule will publish under the VerDate Mar<15>2010 16:42 Apr 15, 2013 Jkt 229001 existing docket number, FWS–R2–ES– 2012–0064, and the final critical habitat designation will publish under docket number FWS–R2–ES–2013–0027. We request that you provide comments specifically on our listing determination under the existing docket number FWS–R2–ES–2012–0064. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning: (1) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species and regulations that may be addressing those threats. (2) Additional information concerning the historical and current status, range, distribution, and population size of these species, including the locations of any additional populations of either species. (3) Any information on the biological or ecological requirements of these species and ongoing conservation measures for the species and their habitats. (4) Current or planned activities in the areas occupied by these species and possible impacts of these activities on these species. We request that you provide comments specifically on the critical habitat determination and draft economic analysis under docket number FWS–R2–ES–2013–0027. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning: (5) 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 gladecress or the rose-mallow 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. (6) Specific information on: (a) The amount and distribution of the gladecress and the rose-mallow and their habitat; (b) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of the species, should be included in the designation and why; (c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and PO 00000 Frm 00077 Fmt 4702 Sfmt 4702 22507 (d) What areas not occupied at the time of listing are essential for the conservation of the species and why. (7) Land use designations and current or planned activities in the subject areas and the possible impacts of these designations or activities on both species and their proposed critical habitat. (8) Information on the projected and reasonably likely impacts of climate change on these species and proposed critical habitat. (9) 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. (10) Information on the extent to which the description of economic impacts in the draft economic analysis is complete and accurate. (11) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the draft economic analysis, 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. (12) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. (13) 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. If you submitted comments or information on the proposed rule (77 FR 55968) during the initial comment period from September 11, 2012, to November 13, 2012, 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. 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 E:\FR\FM\16APP1.SGM 16APP1 22508 Federal Register / Vol. 78, No. 73 / Tuesday, April 16, 2013 / Proposed Rules or draft economic analysis by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described in the ADDRESSES section. If you submit a comment via http:// www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. We will post all hardcopy comments on http:// www.regulations.gov as well. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. Comments and materials we receive, as well as supporting documentation we used, will be available for public inspection on http:// www.regulations.gov at Docket No. FWS–R2–ES–2012–0064 (for the proposed listing rule) and Docket No. FWS–R2–ES–2013–0027 (for the proposed critical habitat designation and draft economic analysis), or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Corpus Christi, Texas, Ecological Services Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule at Docket Number FWS–R2–ES–2012– 0064 and the draft economic analysis at Docket Number FWS–R2–ES–2013– 0027 on the Internet at http:// www.regulations.gov or by mail from the Corpus Christi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT section). mstockstill on DSK4VPTVN1PROD with PROPOSALS Background For more information on previous Federal actions concerning the gladecress and rose-mallow, refer to the proposed determination and designation of critical habitat published in the Federal Register on September 11, 2012 (77 FR 55968), which is available online at http://www.regulations.gov (at Docket Number FWS–R2–ES–2012–0064) or from the Corpus Christi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Previous Federal Actions On September 11, 2012, we published a proposed rule to list the gladecress as endangered and designate critical habitat and to list the rose-mallow as threatened and designate critical habitat (77 FR 55968). In that same rule, for the gladecress, we proposed to designate approximately 1,353 acres (ac) (548 hectares (ha)) of critical habitat in 4 units located in Sabine and San VerDate Mar<15>2010 16:42 Apr 15, 2013 Jkt 229001 Augustine Counties, Texas, as critical habitat. For the rose-mallow, we proposed to designate approximately 167 ac (67 ha) of critical habitat in 11 units located in Trinity, Houston, Cherokee, Nacogdoches, and Harrison Counties, Texas, as critical habitat. The September 11, 2012 listing and critical habitat proposal had a 60–day comment period, ending November 13, 2012. We will publish in the Federal Register a final listing and critical habitat designation for gladecress and rosemallow on or before September 11, 2013. Critical Habitat Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination by the Secretary 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 PO 00000 Frm 00078 Fmt 4702 Sfmt 4702 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 gladecress and the rose-mallow, the benefits of critical habitat include public awareness of the presence of either species and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for gladecress and rose-mallow 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 concerning the proposed critical habitat designation, which is available for review and comment (see ADDRESSES section). 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 gladecress and the rose-mallow. The draft economic analysis separates conservation measures into two distinct categories according to ‘‘without critical habitat’’ and ‘‘with critical habitat’’ scenarios. The ‘‘without critical habitat’’ scenario represents the baseline for the analysis, considering protections otherwise afforded to the gladecress and the rosemallow (e.g., under the Federal listing and other Federal, State, and local regulations). The ‘‘with critical habitat’’ scenario describes the incremental impacts specifically due to designation of critical habitat for the species. In other words, these incremental conservation measures and associated economic impacts would not occur but for the designation. Conservation measures implemented under the baseline (without critical habitat) scenario are described qualitatively within the draft economic analysis, but economic impacts associated with these measures are not quantified. Economic E:\FR\FM\16APP1.SGM 16APP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 78, No. 73 / Tuesday, April 16, 2013 / Proposed Rules impacts are only quantified for conservation measures implemented specifically due to the designation of critical habitat (i.e., incremental impacts). For a further description of the methodology of the analysis, see Chapter 2, ‘‘Framework of 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 gladecress and the rose-mallow over the next 20 years, which was determined to be the appropriate period for analysis because limited planning information is available for most activities to forecast activity levels for projects beyond a 20-year timeframe. It identifies potential incremental costs as a result of the proposed critical habitat designation; these are those costs attributed to critical habitat over and above those baseline costs attributed to listing. The draft economic analysis quantifies economic impacts of gladecress and rose-mallow conservation efforts associated with the following categories of activity, if such activities are Federally assisted or carried out: (1) Routine transportation projects, utility related activities, and oil and gas development; (2) land management; and (3) water management. We do not anticipate recommending incremental conservation measures to avoid adverse modification of critical habitat over and above those recommended to avoid jeopardy of the species for the rose-mallow, and as such the economic analysis forecasts few incremental economic impacts as a result of administrative costs due to the designation of critical habitat for this species. A number of factors limit the extent to which the proposed critical habitat designation will result in incremental costs, including the fact that all the proposed habit is occupied by the species, the species’ survival is so closely linked to the quality of their habitat, few actions being carried out in the area are subject to a Federal nexus, and a portion of the proposed habitat is currently managed for conservation. The total incremental costs of efforts resulting from section 7 consultations on the rose-mallow are approximately $29,000 in present value terms and $2,500 on an annualized basis, (assuming a seven percent discount rate over 20 years). Section 7 consultation costs for the rose-mallow are limited to administrative cost. The designation of critical habitat for the gladecress may result in direct VerDate Mar<15>2010 16:42 Apr 15, 2013 Jkt 229001 incremental impacts beyond the additional administrative costs of considering adverse modification in a section 7 consultation because: (1) Only in cases where the plant can be found will proposed projects affecting the habitat also affect the plant; and (2) modifications to projects in designated critical habitat may be undertaken due to the critical habitat designation. The total projected incremental costs of efforts resulting from section 7 consultations on the gladecress is approximately $478,000 in present value terms and $42,700 on an annualized basis (assuming a seven percent discount rate over a 20-year period). Total incremental cost associated with administrative effort is approximately $116,000 and the total project modification costs are estimated to be $362,000 in present value terms (assuming a seven percent discount rate over a 20-year period). The analysis estimates potential future impacts based on the historical rate of consultation on co-occurring listed species in areas proposed for critical habitat as discussed in Chapter 2 of the draft economic analysis. As we stated earlier, we are soliciting data and comments from the public on the draft economic analysis, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species. Required Determinations—Amended In our September 11, 2012, proposed rule (77 FR 55968), 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 PO 00000 Frm 00079 Fmt 4702 Sfmt 4702 22509 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 E:\FR\FM\16APP1.SGM 16APP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 22510 Federal Register / Vol. 78, No. 73 / Tuesday, April 16, 2013 / Proposed Rules 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 gladecress or the rose-mallow would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as: (1) Routine transportation projects, utility projects and associated activities, and oil and gas development, including interstate pipelines; (2) land management; and (3) water management. In order to determine whether it is appropriate for our agency to certify that this proposed rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat affects only activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the gladecress or the rose-mallow 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 gladecress and the rose-mallow. For the Neches River rosemallow, we do not anticipate recommending incremental conservation measures to avoid adverse modification of critical habitat over and above those recommended to avoid jeopardy to the species, and as such the economic analysis forecasts few incremental economic impacts as a result of the designation of critical VerDate Mar<15>2010 16:42 Apr 15, 2013 Jkt 229001 habitat for this species. Those incremental impacts forecasted are solely related to administrative costs for adverse modification analyses in section 7 consultations. We anticipate conducting approximately 3 formal and 13 informal consultations, considering the designation, for a total of 16 consultations over the next 20 years. For the Texas golden gladecress, we anticipate incremental conservation actions related to administrative and project modification. We anticipate conducting approximately 23 potential section 7 consultations, 3 formal and 20 informal consultations, over the next 20 years. We assume that these consultations have an equal probability of occurring at any time during the study’s timeframe. These estimates are also considered conservative because we assume that all projects occur independently; that is, we assume separate consultations for each project. Based on the consultation history, most consultations are unlikely to involve a third party. Electric cooperatives may be considered independently owned and operated establishments that are not dominant in their field, thus falling under protection of the RFA. As calculated in this analysis, however, the costs to these entities are de minimis and would not be expected to have significant impact. Consequently, no small entities are anticipated to incur costs as a result of the designation of critical habitat for Texas golden gladecress and Neches River rose-mallow. Please refer to the draft economic analysis of the proposed critical habitat designation for a more detailed discussion of potential economic impacts. The Service’s current understanding of recent case law is that Federal agencies are only required to evaluate the potential impacts of rulemaking on those entities directly regulated by the rulemaking; therefore, they are not required to evaluate the potential impacts to those entities not directly regulated. The designation of critical habitat for an endangered or threatened species only has a regulatory effect where a Federal action agency is involved in a particular action that may affect the designated critical habitat. Under these circumstances, only the Federal action agency is directly regulated by the designation, and, therefore, consistent with the Service’s current interpretation of RFA and recent case law, the Service may limit its evaluation of the potential impacts to PO 00000 Frm 00080 Fmt 4702 Sfmt 9990 those identified for Federal action agencies. Under this interpretation, there is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated, such as small businesses. However, Executive Orders 12866 and 13563 direct Federal agencies to assess costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consequently, it is the current practice of the Service to assess to the extent practicable these potential impacts, if sufficient data are available, whether or not this analysis is believed by the Service to be strictly required by the RFA. In other words, while the effects analysis required under the RFA is limited to entities directly regulated by the rulemaking, the effects analysis under the Act, consistent with the EO regulatory analysis requirements, can take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable. We have attempted to address indirectly impacted entities, as well as directly impacted entities. In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. Information for this analysis was gathered from the Small Business Administration, stakeholders, and the Service. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designation for either species 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 Corpus Christi, Texas, Ecological Services 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: April 8, 2013. Rachel Jacobson, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2013–08848 Filed 4–15–13; 8:45 am] BILLING CODE 4310–55–P E:\FR\FM\16APP1.SGM 16APP1

Agencies

[Federal Register Volume 78, Number 73 (Tuesday, April 16, 2013)]
[Proposed Rules]
[Pages 22506-22510]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-08848]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket Nos. FWS-R2-ES-2012-0064; FWS-R2-ES-2013-0027; 4500030113]
RIN 1018-AX74; RIN 1018-AZ49


Endangered and Threatened Wildlife and Plants; Listing as 
Endangered and Threatened and Designation of Critical Habitat for Texas 
Golden Gladecress and Neches River Rose-Mallow

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 (Service), announce the 
reopening of the public comment period on the September 11, 2012, 
proposed endangered status for the Texas golden gladecress and 
threatened status for the Neches River rose-mallow under the Endangered 
Species Act of 1973, as amended (Act). We also announce the reopening 
of comment on the September 11, 2012, proposed designation of critical 
habitat for these species and the availability of a draft economic 
analysis of the proposed designation of critical habitat for both 
species as well as an amended required determinations section in the 
proposed rule. We are reopening the comment period to allow all 
interested parties an opportunity to comment simultaneously on the 
proposed rule, the associated draft economic analysis, 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 or postmarked on or before 
May 16, 2013. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES section, below) must be received by 
11:59 p.m. Eastern Time on the closing date. Any comments that we 
receive after the closing date may not be considered in the final 
decision on this action.
    Public informational session and public hearing: We will hold a 
public hearing on this proposed rule in Nacogdoches, Texas, on May 1, 
2013, from 7 p.m. to 8:30 p.m. (see ADDRESSES), preceded by a public 
informational session beginning at 5:30 p.m.

ADDRESSES: 
    Document availability: You may obtain copies of the proposed rule 
and draft economic analysis on the internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0064 and Docket No. 
FWS-R2-ES-2013-0027, respectively. You may also request by mail from 
the Corpus Christi Ecological Services 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://www.regulations.gov. Submit comments on the listing proposal to Docket 
No. FWS-R2-ES-2012-0064, and submit comments on the critical habitat 
proposal and associated draft economic analysis to Docket No. FWS-R2-
ES-2013-0027. See SUPPLEMENTARY INFORMATION for an explanation of the 
two dockets.
    (2) By hard copy: Submit comment on the listing proposal by U.S. 
mail or

[[Page 22507]]

hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2012-
0064; Division of Policy and Directives Management; U.S. Fish and 
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 
22203. Submit comments on the critical habitat proposal and draft 
economic analysis by U.S. mail or hand-delivery to: Public Comments 
Processing, Attn: FWS-R2-ES-2013-0027; 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).
    Public informational session and public hearing: The public 
informational session and hearing (see DATES) will be held in the 
Kennedy Auditorium at Stephen F. Austin State University, 1906 Alumni 
Drive S., Nacogdoches, Texas. People needing reasonable accommodation 
in order to attend and participate in the public hearing should contact 
Field Supervisor, Corpus Christi Ecological Services Office, as soon as 
possible (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Field Supervisor, U.S. Fish and 
Wildlife Service, Corpus Christi Ecological Services Field Office, 6300 
Ocean Drive, Unit 5837, Corpus Christi, Texas, 78412-5837, by telephone 
361-994-9005 or by facsimile 361-994-8262. 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 are reopening the comment period for our proposed listing 
determination and proposed critical habitat designation for the Texas 
golden gladecress (Leavenworthia texana) and Neches River rose-mallow 
(Hibiscus dasycalyx) that published in the Federal Register on 
September 11, 2012 (77 FR 55968). We are specifically seeking comments 
on the draft economic analysis, which is now available, for the 
critical habitat designation; see ADDRESSES.
    We are also notifying the public that we will publish two separate 
rules for the final listing determination and the final critical 
habitat determination for these two East Texas plants. The final 
listing rule will publish under the existing docket number, FWS-R2-ES-
2012-0064, and the final critical habitat designation will publish 
under docket number FWS-R2-ES-2013-0027.
    We request that you provide comments specifically on our listing 
determination under the existing docket number FWS-R2-ES-2012-0064. We 
will consider information and recommendations from all interested 
parties. We are particularly interested in comments concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to these species and regulations that may 
be addressing those threats.
    (2) Additional information concerning the historical and current 
status, range, distribution, and population size of these species, 
including the locations of any additional populations of either 
species.
    (3) Any information on the biological or ecological requirements of 
these species and ongoing conservation measures for the species and 
their habitats.
    (4) Current or planned activities in the areas occupied by these 
species and possible impacts of these activities on these species.
    We request that you provide comments specifically on the critical 
habitat determination and draft economic analysis under docket number 
FWS-R2-ES-2013-0027. We will consider information and recommendations 
from all interested parties. We are particularly interested in comments 
concerning:
    (5) 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 gladecress or the 
rose-mallow 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.
    (6) Specific information on:
    (a) The amount and distribution of the gladecress and the rose-
mallow and their habitat;
    (b) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of the species, should be included in the designation and 
why;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (7) Land use designations and current or planned activities in the 
subject areas and the possible impacts of these designations or 
activities on both species and their proposed critical habitat.
    (8) Information on the projected and reasonably likely impacts of 
climate change on these species and proposed critical habitat.
    (9) 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.
    (10) Information on the extent to which the description of economic 
impacts in the draft economic analysis is complete and accurate.
    (11) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the draft economic analysis, 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.
    (12) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act.
    (13) 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.
    If you submitted comments or information on the proposed rule (77 
FR 55968) during the initial comment period from September 11, 2012, to 
November 13, 2012, 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. 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

[[Page 22508]]

or draft economic analysis by one of the methods listed in the 
ADDRESSES section. We request that you send comments only by the 
methods described in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used, will be available for public inspection on 
http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0064 (for the 
proposed listing rule) and Docket No. FWS-R2-ES-2013-0027 (for the 
proposed critical habitat designation and draft economic analysis), or 
by appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Corpus Christi, Texas, Ecological Services Office 
(see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the 
proposed rule at Docket Number FWS-R2-ES-2012-0064 and the draft 
economic analysis at Docket Number FWS-R2-ES-2013-0027 on the Internet 
at http://www.regulations.gov or by mail from the Corpus Christi 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT 
section).

Background

    For more information on previous Federal actions concerning the 
gladecress and rose-mallow, refer to the proposed determination and 
designation of critical habitat published in the Federal Register on 
September 11, 2012 (77 FR 55968), which is available online at http://www.regulations.gov (at Docket Number FWS-R2-ES-2012-0064) or from the 
Corpus Christi Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Previous Federal Actions

    On September 11, 2012, we published a proposed rule to list the 
gladecress as endangered and designate critical habitat and to list the 
rose-mallow as threatened and designate critical habitat (77 FR 55968). 
In that same rule, for the gladecress, we proposed to designate 
approximately 1,353 acres (ac) (548 hectares (ha)) of critical habitat 
in 4 units located in Sabine and San Augustine Counties, Texas, as 
critical habitat. For the rose-mallow, we proposed to designate 
approximately 167 ac (67 ha) of critical habitat in 11 units located in 
Trinity, Houston, Cherokee, Nacogdoches, and Harrison Counties, Texas, 
as critical habitat. The September 11, 2012 listing and critical 
habitat proposal had a 60-day comment period, ending November 13, 2012. 
We will publish in the Federal Register a final listing and critical 
habitat designation for gladecress and rose-mallow on or before 
September 11, 2013.

Critical Habitat

    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination by the Secretary 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 gladecress and the rose-mallow, the benefits of critical habitat 
include public awareness of the presence of either species and the 
importance of habitat protection, and, where a Federal nexus exists, 
increased habitat protection for gladecress and rose-mallow 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 concerning the proposed 
critical habitat designation, which is available for review and comment 
(see ADDRESSES section).

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 gladecress and the rose-mallow. 
The draft economic analysis separates conservation measures into two 
distinct categories according to ``without critical habitat'' and 
``with critical habitat'' scenarios. The ``without critical habitat'' 
scenario represents the baseline for the analysis, considering 
protections otherwise afforded to the gladecress and the rose-mallow 
(e.g., under the Federal listing and other Federal, State, and local 
regulations). The ``with critical habitat'' scenario describes the 
incremental impacts specifically due to designation of critical habitat 
for the species. In other words, these incremental conservation 
measures and associated economic impacts would not occur but for the 
designation. Conservation measures implemented under the baseline 
(without critical habitat) scenario are described qualitatively within 
the draft economic analysis, but economic impacts associated with these 
measures are not quantified. Economic

[[Page 22509]]

impacts are only quantified for conservation measures implemented 
specifically due to the designation of critical habitat (i.e., 
incremental impacts). For a further description of the methodology of 
the analysis, see Chapter 2, ``Framework of 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 gladecress and the rose-mallow over the next 20 
years, which was determined to be the appropriate period for analysis 
because limited planning information is available for most activities 
to forecast activity levels for projects beyond a 20-year timeframe. It 
identifies potential incremental costs as a result of the proposed 
critical habitat designation; these are those costs attributed to 
critical habitat over and above those baseline costs attributed to 
listing.
    The draft economic analysis quantifies economic impacts of 
gladecress and rose-mallow conservation efforts associated with the 
following categories of activity, if such activities are Federally 
assisted or carried out: (1) Routine transportation projects, utility 
related activities, and oil and gas development; (2) land management; 
and (3) water management.
    We do not anticipate recommending incremental conservation measures 
to avoid adverse modification of critical habitat over and above those 
recommended to avoid jeopardy of the species for the rose-mallow, and 
as such the economic analysis forecasts few incremental economic 
impacts as a result of administrative costs due to the designation of 
critical habitat for this species. A number of factors limit the extent 
to which the proposed critical habitat designation will result in 
incremental costs, including the fact that all the proposed habit is 
occupied by the species, the species' survival is so closely linked to 
the quality of their habitat, few actions being carried out in the area 
are subject to a Federal nexus, and a portion of the proposed habitat 
is currently managed for conservation. The total incremental costs of 
efforts resulting from section 7 consultations on the rose-mallow are 
approximately $29,000 in present value terms and $2,500 on an 
annualized basis, (assuming a seven percent discount rate over 20 
years). Section 7 consultation costs for the rose-mallow are limited to 
administrative cost.
    The designation of critical habitat for the gladecress may result 
in direct incremental impacts beyond the additional administrative 
costs of considering adverse modification in a section 7 consultation 
because: (1) Only in cases where the plant can be found will proposed 
projects affecting the habitat also affect the plant; and (2) 
modifications to projects in designated critical habitat may be 
undertaken due to the critical habitat designation.
    The total projected incremental costs of efforts resulting from 
section 7 consultations on the gladecress is approximately $478,000 in 
present value terms and $42,700 on an annualized basis (assuming a 
seven percent discount rate over a 20-year period). Total incremental 
cost associated with administrative effort is approximately $116,000 
and the total project modification costs are estimated to be $362,000 
in present value terms (assuming a seven percent discount rate over a 
20-year period). The analysis estimates potential future impacts based 
on the historical rate of consultation on co-occurring listed species 
in areas proposed for critical habitat as discussed in Chapter 2 of the 
draft economic analysis.
    As we stated earlier, we are soliciting data and comments from the 
public on the draft economic analysis, as well as all aspects of the 
proposed rule and our amended required determinations. We may revise 
the proposed rule or supporting documents to incorporate or address 
information we receive during the public comment period. In particular, 
we may exclude an area from critical habitat if we determine that the 
benefits of excluding the area outweigh the benefits of including the 
area, provided the exclusion will not result in the extinction of this 
species.

Required Determinations--Amended

    In our September 11, 2012, proposed rule (77 FR 55968), 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

[[Page 22510]]

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 gladecress or the rose-mallow would affect a substantial number of 
small entities, we considered the number of small entities affected 
within particular types of economic activities, such as: (1) Routine 
transportation projects, utility projects and associated activities, 
and oil and gas development, including interstate pipelines; (2) land 
management; and (3) water management. In order to determine whether it 
is appropriate for our agency to certify that this proposed rule would 
not have a significant economic impact on a substantial number of small 
entities, we considered each industry or category individually. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement. 
Critical habitat designation will not affect activities that do not 
have any Federal involvement; designation of critical habitat affects 
only activities conducted, funded, permitted, or authorized by Federal 
agencies. In areas where the gladecress or the rose-mallow 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 
gladecress and the rose-mallow. For the Neches River rose-mallow, we do 
not anticipate recommending incremental conservation measures to avoid 
adverse modification of critical habitat over and above those 
recommended to avoid jeopardy to the species, and as such the economic 
analysis forecasts few incremental economic impacts as a result of the 
designation of critical habitat for this species. Those incremental 
impacts forecasted are solely related to administrative costs for 
adverse modification analyses in section 7 consultations. We anticipate 
conducting approximately 3 formal and 13 informal consultations, 
considering the designation, for a total of 16 consultations over the 
next 20 years. For the Texas golden gladecress, we anticipate 
incremental conservation actions related to administrative and project 
modification. We anticipate conducting approximately 23 potential 
section 7 consultations, 3 formal and 20 informal consultations, over 
the next 20 years.
    We assume that these consultations have an equal probability of 
occurring at any time during the study's timeframe. These estimates are 
also considered conservative because we assume that all projects occur 
independently; that is, we assume separate consultations for each 
project. Based on the consultation history, most consultations are 
unlikely to involve a third party. Electric cooperatives may be 
considered independently owned and operated establishments that are not 
dominant in their field, thus falling under protection of the RFA. As 
calculated in this analysis, however, the costs to these entities are 
de minimis and would not be expected to have significant impact. 
Consequently, no small entities are anticipated to incur costs as a 
result of the designation of critical habitat for Texas golden 
gladecress and Neches River rose-mallow. Please refer to the draft 
economic analysis of the proposed critical habitat designation for a 
more detailed discussion of potential economic impacts.
    The Service's current understanding of recent case law is that 
Federal agencies are only required to evaluate the potential impacts of 
rulemaking on those entities directly regulated by the rulemaking; 
therefore, they are not required to evaluate the potential impacts to 
those entities not directly regulated. The designation of critical 
habitat for an endangered or threatened species only has a regulatory 
effect where a Federal action agency is involved in a particular action 
that may affect the designated critical habitat. Under these 
circumstances, only the Federal action agency is directly regulated by 
the designation, and, therefore, consistent with the Service's current 
interpretation of RFA and recent case law, the Service may limit its 
evaluation of the potential impacts to those identified for Federal 
action agencies. Under this interpretation, there is no requirement 
under the RFA to evaluate the potential impacts to entities not 
directly regulated, such as small businesses. However, Executive Orders 
12866 and 13563 direct Federal agencies to assess costs and benefits of 
available regulatory alternatives in quantitative (to the extent 
feasible) and qualitative terms. Consequently, it is the current 
practice of the Service to assess to the extent practicable these 
potential impacts, if sufficient data are available, whether or not 
this analysis is believed by the Service to be strictly required by the 
RFA. In other words, while the effects analysis required under the RFA 
is limited to entities directly regulated by the rulemaking, the 
effects analysis under the Act, consistent with the EO regulatory 
analysis requirements, can take into consideration impacts to both 
directly and indirectly impacted entities, where practicable and 
reasonable. We have attempted to address indirectly impacted entities, 
as well as directly impacted entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and the Service. For the 
above reasons and based on currently available information, we certify 
that, if promulgated, the proposed critical habitat designation for 
either species 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 
Corpus Christi, Texas, Ecological Services 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: April 8, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-08848 Filed 4-15-13; 8:45 am]
BILLING CODE 4310-55-P