Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Proposed Rules 9297 

Accordingly, 45 CFR part 5b is 

proposed to be amended as set forth 

below: 

PART 5b—PRIVACY ACT 

REGULATIONS 

1. The authority citation for part 5b 

continues to read as follows: 

Authority: 5 U.S.C. 301, 5 U.S.C. 552a. 

2. In § 5b.11, add paragraph 

(b)(2)(ii)(L) to read as follows: 

§ 5b.11 Exempt systems. 

* * * * * 

(b) * * * 

(2) * * * 

(ii) * * * 

(L) Investigative materials compiled 

for law enforcement purposes for the 

National Practitioner Data Bank (NPDB). 

(See § 60.16 of this title for access and 

correction rights under the NPDB by 

subjects of the Data Bank.) 

* * * * * 

[FR Doc. 2011–3513 Filed 2–16–11; 8:45 am] 

BILLING CODE 4165–15–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R2–ES–2009–0014; 

92210–1117–0000–B4] 

RIN 1018–AW50 

Endangered and Threatened Wildlife 

and Plants; Proposed Designation of 

Critical Habitat for Roswell 

Springsnail, Koster’s Springsnail, 

Noel’s Amphipod, and Pecos 

Assiminea 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; revision and 

reopening of comment period. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, announce reopening of 

the public comment period on the June 

22, 2010, proposal to revise designated 

critical habitat for the Pecos assiminea 

(Assiminea pecos), and to newly 

designate critical habitat for the Roswell 

springsnail (Pyrgulopsis roswellensis), 

Koster’s springsnail (Juturnia kosteri), 

and Noel’s amphipod (Gammarus 

desperatus), under the Endangered 

Species Act of 1973, as amended (Act). 

We also announce revisions to the 

proposed critical habitat, as it was 

described in the proposed rule 

published in the Federal Register on 

June 22, 2010 (75 FR 35375). In total, we 

are proposing to designate as critical 

habitat 520.8 acres (210.8 hectares) for 

the four species. In this proposal we 

include as critical habitat for Noel’s 

amphipod an additional 5.8 acres (2.3 

hectares) for Chaves County, New 

Mexico, as a population of amphipods 

was recently confirmed to be Noel’s 

amphipod at this location. We are 

reopening the comment period to allow 

all interested parties an opportunity to 

comment simultaneously on the revised 

proposed rule, the associated economic 

analysis, environmental assessment, and 

the amended required determinations. 

DATES: We will consider comments 

received on or before March 21, 2011. 

Comments must be received by 11:59 

p.m. Eastern Time on the closing date. 

Any comments that we receive after the 

closing date may not be fully considered 

in the final decision on this action. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for docket 

number FWS–R2–ES–2009–0014 and 

then follow the instructions for 

submitting comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: Docket No. 

FWS–R2–ES–2009–0014; Division of 

Policy and Directives Management; U.S. 

Fish and Wildlife Service; 4401 N. 

Fairfax Drive, Suite 222; Arlington, VA 

22203. 

We will post all comments on 

http://www.regulations.gov. This 

generally means that we will post any 

personal information you provide us 

(see the Public Comments section below 

for more information). 

FOR FURTHER INFORMATION CONTACT: 

Wally ‘‘J’’ Murphy, Field Supervisor, 

U.S. Fish and Wildlife Service, New 

Mexico Ecological Services Field Office, 

2105 Osuna Rd., NE., Albuquerque, NM 

87113; telephone 505–761–4781; 

facsimile 505–246–2542. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We will accept written comments and 

information during this reopened 

comment period on our proposed 

designation of the proposed revisions to 

critical habitat for the Pecos assiminea 

(Assiminea pecos), and the proposed 

critical habitat for the Roswell 

springsnail (Pyrgulopsis roswellensis), 

Koster’s springsnail (Juturnia kosteri), 

and Noel’s amphipod (Gammarus 

desperatus) (four invertebrates) that was 

published in the Federal Register on 

June 22, 2010, (75 FR 35375), and the 

additional area proposed in this notice. 

As a result of information sent to us in 

response to our June 22, 2010, proposal 

and request for comments, we became 

aware that a population of amphipods 

was confirmed to be Noel’s amphipod 

along the Rio Hondo, on the South Tract 

of Bitter Lake National Wildlife Refuge. 

We are particularly interested in 

information on our proposed inclusion 

of this new habitat in our final critical 

habitat designation, including 

comments on the economic analysis and 

environmental assessment of the 

proposed designation related to this 

new area. We particularly seek 

comments concerning: 

(1) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the 

Endangered Species Act of 1973, as 

amended (Act) (16 U.S.C. 1531 et seq.), 

including whether there are threats to 

the species from human activity, the 

degree of which can be expected to 

increase due to the designation, and 

whether that increase in threat 

outweighs the benefit of designation 

such that the designation of critical 

habitat is not prudent. 

(2) Specific information on: 

(a) The amount and distribution of 

habitat for the Roswell springsnail, 

Koster’s springsnail, Noel’s amphipod, 

and Pecos assiminea; 

(b) What areas occupied at the time of 

listing and that contain features 

essential to the conservation of the 

species we should include in the 

designation and why. We are 

particularly interested in information on 

the additional habitat containing the 

recently discovered Noel’s amphipod 

population on the South Tract of Bitter 

Lake National Wildlife Refuge; 

(c) Special management 

considerations or protections for areas 

that contain the features essential to the 

conservation of the Roswell springsnail, 

Koster’s springsnail, Noel’s amphipod, 

and Pecos assiminea that have been 

identified in this proposal, including 

management 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. 

(3) Land use management and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat, particularly in the area 

occupied by the recently discovered 

Noel’s amphipod population on the 

South Tract of Bitter Lake National 

Wildlife Refuge. 

(4) Any foreseeable economic, 

national security, or other relevant 

impacts of designating any area that 

may be included in the final 

designation. We are particularly 


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interested in any impacts on small 

entities or families, and the benefits of 

including or excluding areas that exhibit 

these impacts. 

(5) Whether our approach to 

designating critical habitat could be 

improved or modified in any way to 

provide for greater public participation 

and understanding, or to assist us in 

accommodating public concerns and 

comments. 

(6) Information on the extent to which 

the description of economic impacts in 

the economic analysis is complete and 

accurate, and information on potential 

economic impacts that may occur 

should we designate the area occupied 

by the recently discovered Noel’s 

amphipod population on the South 

Tract of Bitter Lake National Wildlife 

Refuge. 

(7) The likelihood of adverse social 

reactions to the designation of critical 

habitat, as discussed in the economic 

analysis and environmental assessment, 

and how the consequences of such 

reactions, if likely to occur, would relate 

to the conservation and regulatory 

benefits of the proposed critical habitat 

designation. 

If you submitted comments or 

information on the proposed rule (75 FR 

35375) during the initial comment 

period from June 22, 2010, to August 23, 

2010, please do not resubmit them. We 

have incorporated them into the public 

record as part of that comment period, 

and we will fully consider them in the 

preparation of our final determination. 

Our final determination concerning 

revised critical habitat will take into 

consideration all written comments and 

any additional information we receive 

during both comment periods. On the 

basis of public comments, we may, 

during the development of our final 

determination, find that areas proposed 

are not essential, are appropriate for 

exclusion under section 4(b)(2) of the 

Act, or are not appropriate for 

exclusion. 

You may submit your comments and 

materials concerning the proposed rule, 

economic analysis, or environmental 

assessment by one of the methods listed 

in the ADDRESSES section. We will not 

consider comments sent by e-mail or fax 

or to an address not listed in the 

ADDRESSES section. 

If you submit a comment via http:// 

www.regulations.gov, your entire 

comment—including any personal 

identifying information—will be posted 

on the Web site. We will post all 

hardcopy comments on http:// 

www.regulations.gov as well. If you 

submit a hardcopy comment that 

includes personal identifying 

information, you may request at the top 

of your document that we withhold this 

information from public review. 

However, we cannot guarantee that we 

will be able to do so. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing the proposed rule, 

economic analysis, and environmental 

assessment will be available for public 

inspection on http:// 

www.regulations.gov at Docket No. 

FWS–R2–ES–2009–0014, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, New Mexico Ecological 

Services Field Office (see FOR FURTHER

INFORMATION CONTACT). You may obtain 

copies of the proposed rule, economic 

analysis, and environmental assessment 

on the Internet at http:// 

www.regulations.gov at Docket Number 

FWS–R2–ES–2009–0014, or by mail 

from the New Mexico Ecological 

Services Field Office (see FOR FURTHER

INFORMATION CONTACT section). 

Background 

It is our intent to discuss in this 

notice only those topics relevant to the 

designation of one additional critical 

habitat unit for Noel’s amphipod 

(Gammarus desperatus) in this 

proposed rule. For more information on 

the Roswell springsnail (Pyrgulopsis 

roswellensis), Koster’s springsnail 

(Juturnia kosteri), Noel’s amphipod, and 

Pecos assiminea (Assiminea pecos), 

refer to the final listing rule published 

in the Federal Register on August 9, 

2005 (70 FR 46304), and to the proposed 

rule revising critical habitat for Pecos 

assiminea and proposing new critical 

habitat for Roswell springsnail, Koster’s 

springsnail, and Noel’s amphipod that 

published in the Federal Register on 

June 22, 2010 (75 FR 35375). 

Noel’s amphipod is a small, 

freshwater shrimp in the family 

Gammaridae that inhabits shallow, cool, 

well-oxygenated waters of streams, 

ponds, ditches, sloughs, and springs in 

southeast New Mexico (Holsinger 1976, 

p. 28; Pennak 1989, p. 478). Since 

publication of the June 22, 2010, 

proposed rule (75 FR 35375), a new 

population of amphipods found in 

spring vents along the Rio Hondo on the 

South Tract of Bitter Lake National 

Wildlife Refuge (Refuge) was confirmed 

genetically and morphologically to be 

Noel’s amphipod (Berg 2010, p. 1; Lang 

2010, pp. 2–3). 

Previous Federal Actions 

On August 9, 2005, we listed Roswell 

springsnail, Koster’s springsnail, Noel’s 

amphipod, and Pecos assiminea as 

endangered under the Act (70 FR 

46304). In that rule, we also designated 

critical habitat for Pecos assiminea at 

Diamond Y Springs Complex in Pecos 

County, Texas, and at East Sandia 

Springs in Reeves County, Texas. We 

excluded the Refuge from the critical 

habitat designation because special 

management for the four invertebrates 

was already occurring there. 

On March 12, 2009, in response to a 

complaint filed by Forest Guardians 

(now WildEarth Guardians) challenging 

the exclusion of the Refuge from the 

final critical habitat designation for the 

four species, we reopened the comment 

period on the proposed designation of 

lands of the Bitter Lake National 

Wildlife Refuge as critical habitat for the 

four invertebrates (74 FR 10701). 

On June 22, 2010, we published a 

proposed rule revising critical habitat 

for the Pecos assiminea and proposing 

new critical habitat for Roswell 

springsnail, Koster’s springsnail, and 

Noel’s amphipod (75 FR 35375). The 

comment period was open for 60 days 

and closed on August 23, 2010. 

Information we received during that 

comment period led to our 

consideration of a new area for critical 

habitat for the Noel’s amphipod and, 

therefore, to publishing this additional 

notice to accept public comment on the 

proposed designation of the additional 

area. 

Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) essential to the conservation of the 

species and 

(b) which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

under the Act are no longer necessary. 

Such methods and procedures include, 

but are not limited to, all activities 

associated with scientific resources 

management such as research, census, 

law enforcement, habitat acquisition 


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and maintenance, propagation, live 

trapping, transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

requirement that Federal agencies 

insure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Such designation 

does not allow the government or public 

to access private lands. Such 

designation does not require 

implementation of restoration, recovery, 

or enhancement measures by nonFederal landowners. Where a landowner 

seeks or requests Federal agency 

funding or authorization for an action 

that may affect a listed species or 

critical habitat, the consultation 

requirements of section 7(a)(2) would 

apply, but even in the event of a 

destruction or adverse modification 

finding, the obligation of the Federal 

action agency and the landowner is not 

to restore or recover the species, but to 

implement reasonable and prudent 

alternatives to avoid destruction or 

adverse modification of critical habitat. 

For inclusion in a critical habitat 

designation, the habitat within the 

geographical area occupied by the 

species at the time it was listed must 

contain the physical and biological 

features essential to the conservation of 

the species and be included only if 

those features may require special 

management considerations or 

protection. Critical habitat designations 

identify, to the extent known using the 

best scientific and commercial data 

available, habitat areas that provide 

essential life-cycle needs of the species 

(areas on which are found the physical 

and biological features laid out in the 

appropriate quantity and spatial 

arrangement for the conservation of the 

species). 

Under the Act, we can designate 

critical habitat in areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. We designate critical habitat in 

areas outside the geographical area 

occupied by a species only when a 

designation limited to its range would 

be inadequate to ensure the 

conservation of the species. When the 

best available scientific data do not 

demonstrate that the conservation needs 

of the species require such additional 

areas, we will not designate critical 

habitat in areas outside the geographical 

area occupied by the species. An area 

currently occupied by the species but 

that was not occupied at the time of 

listing may, however, be essential to the 

conservation of the species and may be 

included in the critical habitat 

designation. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, our Policy on 

Information Standards Under the 

Endangered Species Act (published in 

the Federal Register on July 1, 1994 (59 

FR 34271)), the Information Quality Act 

(section 515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines, provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may include the recovery plan for the 

species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other unpublished 

materials and expert opinion or 

personal knowledge. 

We recognize that critical habitat 

designated at a particular point in time 

may not include all of the habitat areas 

that we may later determine are 

necessary for the recovery of the 

species. For these reasons, a critical 

habitat designation does not signal that 

habitat outside the designated area is 

unimportant or may not be required for 

recovery of the species. Areas that are 

important to the conservation of the 

species, but are outside the critical 

habitat designation, will continue to be 

subject to conservation actions we 

implement under section 7(a)(1) of the 

Act. Areas that support populations are 

also subject to the regulatory protections 

afforded by the section 7(a)(2) jeopardy 

standard, as determined on the basis of 

the best available scientific information 

at the time of the agency action. 

Federally funded or permitted projects 

affecting listed species outside their 

designated critical habitat areas may 

still result in jeopardy findings in some 

cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans (HCPs), or other species 

conservation planning efforts if new 

information available at the time of 

these planning efforts calls for a 

different outcome. 

Primary Constituent Elements 

In accordance with section 3(5)(A)(i) 

and 4(b)(1)(A) of the Act and regulations 

at 50 CFR 424.12, in determining which 

areas within the geographical area 

occupied at the time of listing to 

designate as critical habitat, we consider 

the physical and biological features 

essential to the conservation of the 

species that may require special 

management considerations or 

protection. These include, but are not 

limited to: 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, or 

rearing (or development) of offspring; 

and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historic, geographical, and ecological 

distributions of a species. 

We consider the physical or biological 

features essential to the conservation of 

the species to be the primary constituent 

elements (PCEs) laid out in the 

appropriate quantity and spatial 

arrangement for the conservation of the 

species. We derived the specific PCEs 

from studies of the habitat, ecology, and 

life history of the Roswell springsnail, 

Koster’s springsnail, Noel’s amphipod, 

and Pecos assiminea. The description of 

the PCEs for all four invertebrates and 

a full description of the essential 

environment as it relates to the specific 

PCEs are described in the June 22, 2010, 

published proposed designation of 

critical habitat for the four invertebrates 

(75 FR 35375). We are restating the PCEs 

for Noel’s amphipod here, as the 

additional proposed critical habitat area 

contains only that species. 

Noel’s Amphipod 

Based on the species’ needs and our 

current knowledge of the life history, 

biology, and ecology of Noel’s 


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9300 Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Proposed Rules 

amphipod and the habitat requirements 

for sustaining its essential life-history 

functions, we have determined that the 

primary constituent element essential to 

the conservation of Noel’s amphipod is 

springs and spring-fed wetland systems 

that: 

(1) Have permanent, flowing, 

unpolluted water; 

(2) Have slow to moderate water 

velocities; 

(3) Have substrates including 

limestone cobble and aquatic vegetation; 

(4) Have stable water levels with 

natural diurnal (daily) and seasonal 

variations; 

(5) Consist of fresh to moderately 

saline water; 

(6) Have minimal sedimentation; 

(7) Vary in temperature between 10– 

20 °C (50–68 °F) with natural seasonal 

and diurnal variations slightly above 

and below that range; and 

(8) Provide abundant food, consisting 

of: 

(a) Submergent vegetation and 

decaying organic matter; 

(b) A surface film of algae, diatoms, 

bacteria, and fungi; and 

(c) Microbial foods, such as algae and 

bacteria, associated with aquatic plants, 

algae, bacteria, and decaying organic 

material. 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the specific areas within 

the geographical area occupied by the 

species at the time of listing contain 

features that are essential to the 

conservation of the species and that may 

require special management 

considerations or protection. As stated 

in the final listing rule (70 FR 46304, 

August 9, 2005), threats to the four 

invertebrates include reducing or 

eliminating water in suitable or 

occupied habitat through drought or 

pumping; introducing pollutants to 

levels unsuitable for the species from 

urban areas, agriculture, release of 

chemicals, and oil and gas operations; 

fires that reduce or eliminate available 

habitat; and introducing nonnative 

species into the invertebrates’ inhabited 

spring systems such that suitable habitat 

is reduced or eliminated. Each of these 

threats is discussed in detail in the June 

22, 2010, proposed designation of 

critical habitat for the four invertebrates 

(75 FR 35375); only those threats 

relevant to the newly found population 

and not discussed in the previous 

proposed rule are discussed here. Other 

threats (water quantity, contamination 

from oil and gas operations, fire, and 

introduced species) are also threats to 

this population. 

Water Contamination 

Water contamination is a significant 

threat for Noel’s amphipod in the small 

spring vents along the Rio Hondo on the 

South Tract of the Refuge. One possible 

source of water contamination is runoff 

of agricultural fertilizers and pesticides 

that are applied to the croplands on the 

South Tract of the Refuge. This tract 

encompasses approximately 1,400 acres 

(ac) (566 hectares (ha)) that are closed to 

public access. About 330 ac (133.5 ha) 

are used as agricultural cropland 

(Service 1998, p. 7) to provide food, 

habitat, and feeding areas for wintering 

migratory bird populations (Service 

1998, p. 7). Alfalfa, corn, hegari, barley, 

winter wheat, sorghum, and other small 

grains are cultivated on this tract 

(Service 2010, p. 14). Although crop 

rotation minimizes the need for 

chemical fertilizers, both fertilizers and 

pesticides are used on this tract, and 

these chemicals have the potential to 

enter the springs inhabited by Noel’s 

amphipod. Chemicals used on the South 

Tract in the past 10 years include 

Accent (Nicosulfuron), Banvel 

(Dicamba), Pounce (Permethrin), 

Roundup and Equivalents (Glyphosate), 

Pursuit DG (Imazathapyr), Rhonox (2- 

ethylhexyl ester of 2-methyl-4- 

chlorophenoxyacetic acid), Steadfast 

(Nicosulfuron/Rimsulfuron), Malathion 

57 (Malathion), and Impact 

(Topramezone) (Service 2010, p. 43–44). 

To protect aquatic life in the Rio Hondo, 

the Refuge implements chemicalspecific buffers within which the 

chemicals cannot be used. Additionally, 

restrictions are in place prohibiting use 

of chemicals on Refuges that dissolve 

and travel in groundwater. These 

restrictions and buffers serve to 

minimize exposure of Noel’s amphipod 

to these chemicals. Nevertheless, there 

remains a potential for contamination 

and negative effects to Noel’s amphipod 

and its habitat. 

The Refuge is in the process of 

reviewing the farming program on the 

South Tract. A draft environmental 

analysis (Service 2010, pp. 1–55) 

evaluates the effects of several levels of 

farming on this tract. The current 

preferred alternative is to eliminate 

farming on the South Tract; if the draft 

environmental analysis is adopted, no 

future chemical application of fertilizers 

or pesticides would occur in the vicinity 

of Noel’s amphipod populations, and 

this source of potential water 

contamination would be eliminated. 

Another potential source of water 

contamination in Noel’s amphipod 

habitats on the South Tract is from 

periodic inundation by water from the 

Rio Hondo. The Rio Hondo is a 

perennial stream from Roswell to its 

confluence with the Pecos River, and its 

watershed extends eastward to the 

Sacramento Mountains. The majority of 

the lower Rio Hondo valley is used for 

extensive agricultural purposes, 

including ranching, commercial 

livestock feeding, and crop production, 

as well as residential land use (USACE 

1974, p. 8). Stormwater runoff from 

areas with these land uses is one way 

contaminants can be transported into 

the Rio Hondo and into Noel’s 

amphipod habitats. In addition, 

stormwater runoff from urban areas 

(such as from the City of Roswell) has 

been identified as potentially containing 

many materials such as solids, plastics, 

sediment, nutrients, metals, pathogens, 

salts, oils, fuels, and various chemicals, 

including antifreeze, detergents, 

pesticides, and other pollutants that can 

be toxic to aquatic life (Burton and Pitt 

2002, pp. 6–7; Selbig 2009, p. 1). 

Another way the Rio Hondo receives 

contaminants is by wastewater effluent 

discharge (USACE 1974, p. 9; Smith 

2000, p. 65). At the present time, the 

average return flow from City of Roswell 

Wastewater Treatment Facility is 

approximately 6.2 cubic feet per second 

(cfs) (0.18 cubic meters per second 

(cms)). Effluent from the Roswell 

Wastewater Treatment Facility is largely 

used for crop irrigation from February 

through November or is discharged to 

the North Spring River, which flows 5 

miles (mi) (8 kilometers (km)) before 

entering the Rio Hondo (Smith 2000, p. 

65; USEPA 2006, p. 2), upstream of the 

Noel’s amphipod population. In 2010, 

the Roswell Wastewater Treatment 

Facility was modified to provide a 

higher level of water purification that 

should improve the quality of the 

effluent discharge (J. Anderson, City of 

Roswell, pers. comm. December 9, 2010; 

USEPA 2007, p. 5). However, some 

nutrients, bacteria, metals, pesticides, 

oxygen-demanding substances, organic 

chemicals, surfactants, flame retardants, 

personal care products, steroids, 

hormones, and pharmaceuticals are 

expected to remain in the Rio Hondo 

(USEPA 2009, pp. 26–39). 

Past analysis of water quality in the 

Rio Hondo has indicated some 

concerns. For example, sampling in the 

past yielded that total dissolved solids 

in Rio Hondo water averaged 935 mg/L, 

sulfates averaged 722 mg/L, and 

chlorides averaged 40 mg/L (USACE 

1974, p. V–4) (both sulfates and 

chlorides are components of salt). 

However, more recent sampling by the 

New Mexico Environment Department 

(NMED) (2006a, p. 13) found higher 

total dissolved solids (average 7,321 mg/ 

L), including more chloride (average 


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2,640 mg/L) and slightly more sulfate 

(average 776 mg/L) than reported by the 

USACE (1974, p. V–4). In addition, the 

NMED (2006b, p. 32) identified water 

quality parameters of nutrients, bacteria, 

salinity, and temperature as a concern 

in the upper Rio Hondo watershed. 

Potential sources of nutrients or bacteria 

are municipal wastewater treatment 

facility effluents, onsite waste treatment 

systems (septic tanks), residential areas, 

landscape maintenance, livestock 

feeding operations, rangeland grazing, 

atmospheric deposition, stream 

modification or destabilization, and 

urban areas and construction sites 

(NMED 2006b, p. 32). 

Riverine conditions in the Rio Hondo 

are not suitable for Noel’s amphipod; 

the amphipod is found only in the 

nearby springs. However, Noel’s 

amphipod could be affected by river 

water entering the spring runs during 

periods of high flow by either flushing 

the amphipods downstream or by river 

water mixing with spring water and 

introducing contaminants or altered 

water chemistry to the spring habitats. 

The Rio Hondo has a base flow between 

2 and 6 cfs (0.06 to 0.17 cms) but 

exceeds 10 cfs (.03 cms; a flow high 

enough to inundate the springs) 

approximately 5 to 10 times per year for 

short durations (USGS 2010, p. 1). 

Under base flow conditions, the spring 

runs that harbor Noel’s amphipod are 

found along the riverbank at elevations 

higher than the stream, and, therefore, 

the water from the river does not mix 

with the spring outflow water. However, 

when Rio Hondo flows are elevated, 

these springs become inundated with 

water from the river and the amphipods 

may be exposed to contaminants from 

the Rio Hondo. 

Groundwater that supplies the 

outflow to the springs where the 

amphipod occurs is an additional 

potential source of spring water 

contamination. This water is clearly 

distinct from the water of the nearby Rio 

Hondo based on very different 

temperatures and low dissolved oxygen 

measurements (Lusk 2010, p. 1). Low 

dissolved oxygen is typical of spring 

water conditions, as oxygen enters the 

water mainly through the atmosphere 

(White et al. 1990, p. 584), and spring 

water temperatures remain much more 

constant throughout the year due to the 

insulating effect of soil and rock on 

groundwater (Constantz 1998, p. 1610). 

The South Tract of the Refuge lies 

within the same groundwater source 

area as the Middle Tract, where the 

other Noel’s amphipod populations are 

found and is, therefore, subject to the 

same threat of contamination from oil 

and gas activities as was discussed in 

the proposed designation of critical 

habitat for the four invertebrates (75 FR 

35375, June 22, 2010). 

There has been no research on the 

specific effects on Noel’s amphipod of 

contaminants such as metals, pesticides, 

fertilizers, nutrients, or bacteria. 

However, there is some evidence that 

freshwater amphipods in the family 

Gammaridae (in particular, Gammarus) 

may require higher oxygen levels and 

less polluted water than some other 

amphipods such as Crangonyx (e.g., 

MacNeil et al. 1997, pp. 350, 356; 

MacNeil et al. 2000, p. 2). Gammarid 

amphipods (such as Noel’s amphipod) 

may be considered an indicator of 

relatively unpolluted waters (MacNeil et 

al. 1997, p. 356; MacNeil et al. 2000, p. 

6). Additionally, bacteria in high levels 

can affect amphipods directly through 

infections, or indirectly by depleting the 

dissolved oxygen in the water column 

through respiration or decomposition 

(Boylen and Brock 1973, p. 631). 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(1)(A) of 

the Act, we use the best scientific and 

commercial data available to determine 

critical habitat. In accordance with the 

Act and its implementing regulation at 

50 CFR 424.12(e), we consider whether 

designating additional areas—outside 

those currently occupied as well as 

those occupied at the time of listing— 

are necessary to ensure the conservation 

of the species. For our June 22, 2010 

proposed designation of critical habitat 

(75 FR 35375), we evaluated areas 

within the geographical area occupied at 

the time of listing that contain the 

features essential to the conservation of 

Roswell springsnail, Koster’s 

springsnail, Noel’s amphipod, and 

Pecos assiminea. We considered an area 

to be currently occupied if Roswell 

springsnail, Koster’s springsnail, Pecos 

assiminea, or Noel’s amphipod were 

found to be present by species experts 

within the last 5 years and no major 

habitat modification has occurred that 

would preclude its presence. We also 

considered areas outside of the 

geographical area occupied at the time 

of the listing rule to designate critical 

habitat for the four invertebrates (75 FR 

35375), and recommendations 

contained in State wildlife resource 

reports (Cole 1985, pp. 93–104; Jones 

and Balleau 1996, pp. 1–16; Boghici 

1997, pp. 1–120; Balleau et al. 1999, pp. 

1–42; NMDGF 1999, pp. A1–B46; 

NMDGF 2006, pp. 1–16; NMDGF 2007, 

pp. 1–20; and NMDGF 2008, pp. 1–28) 

and the State recovery plan (NMDGF 

2005, pp. 1–80) in making this 

determination. We also reviewed the 

available literature pertaining to habitat 

requirements, historic localities, and 

current localities for these species. This 

includes data submitted during section 

7 consultations and regional geographic 

information system (GIS) coverages. 

Since the June 22, 2010, proposal we 

identified an additional site along the 

Rio Hondo on the South Tract of the 

Refuge that is currently occupied by 

Noel’s amphipod, but not by the other 

three species. We believe this site was 

occupied by Noel’s amphipod at the 

time of listing because amphipods were 

first found at this site in 2006, one year 

after listing (Warrick 2006, p. 1). 

However, they were not taxonomically 

confirmed to be Noel’s amphipod until 

2010 (Berg 2010, p. 1; Lang 2010, p. 1). 

Since this spring area is isolated from 

other occupied areas and no 

reintroduction efforts have taken place, 

it has likely been occupied for a very 

long time, but appropriate surveys had 

not been previously conducted to verify 

it. We reasonably assume, therefore, that 

the site was occupied at the time of 

listing in 2005 and not discovered until 

2006. 

Essential Areas 

In our June 22, 2010 proposed 

designation of additional critical habitat 

for the four invertebrates, we selected 

areas based on the best scientific data 

available that possess those PCEs 

essential to the conservation of the 

species that may require special 

management considerations or 

protection. We are now modifying that 

proposed critical habitat to add the 

additional site along the Rio Hondo on 

the South Tract of the Refuge that is 

currently occupied only by Noel’s 

amphipod. By inclusion of the 

additional site along the Rio Hondo, we 

are again proposing to designate as 

critical habitat all sites currently 

occupied by at least one of the four 

invertebrates. 

Our reason for proposing to designate 

all known occupied habitat for these 

species is that the four invertebrates are 

not migratory, nor is there frequent gene 

exchange between populations or 

critical habitat units. Further, the 

proposed critical habitat units in New 

Mexico and west Texas are sufficiently 

distant (40 to 100 mi (64 to 161 km)) 

from one another to rule out Pecos 

assiminea gene exchange. Therefore, 

due to the lack of frequent gene 

exchange, we have determined that all 

of the currently occupied sites of these 

populations are essential to the 

conservation of the species because they 

provide for the maintenance of the 

genetic diversity of the four 

invertebrates, and contain all of the 


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known remaining genetic diversity 

within each species. All of the proposed 

critical habitat units also have the 

defined PCEs and the kind, amount, and 

quality of habitat associated with those 

occurrences. The units contain the 

appropriate quantity and distribution of 

PCEs to support the life cycle stages we 

have determined are essential to the 

conservation of the species. 

When determining critical habitat 

boundaries within this proposed rule, 

including the newly proposed Unit 5, 

we made every effort to avoid including 

structures such as culverts and roads, 

because areas with such structures lack 

PCEs for the four invertebrates. The 

scale of the maps we prepared under the 

parameters for publication within the 

Code of Federal Regulations may not 

reflect the exclusion of such areas. Any 

such structures inadvertently left inside 

critical habitat boundaries shown on the 

map of this proposed rule have been 

excluded by text in the proposed rule 

and are not proposed for designation as 

critical habitat. Therefore, if the critical 

habitat were finalized as proposed, a 

Federal action involving these areas 

would not trigger section 7 consultation 

with respect to critical habitat and the 

requirement of no adverse modification 

unless the specific action would affect 

the PCEs in the adjacent critical habitat. 

In summary, this proposed critical 

habitat designation includes 

populations of the four invertebrates 

and habitats that possess the physical 

and biological features essential to the 

conservation of the species. We believe 

the populations included in this 

designation, if secured, would provide 

for the conservation of Roswell 

springsnail, Koster’s springsnail, Pecos 

assiminea, and Noel’s amphipod by: 

(1) Maintaining the physical and 

biological features essential to the 

conservation of the species in areas 

where populations of the four 

invertebrates are known to occur, and 

(2) Maintaining the current 

distribution of these populations, and 

thus preserving genetic variation 

throughout the ranges of the four 

invertebrates and minimizing the 

potential effects of local extinction. 

Summary of Changes From Previously 

Proposed and Designated Critical 

Habitat 

The area identified in this proposed 

rule constitutes an addition to the 

proposed revision of the areas we 

proposed for designation as critical 

habitat for the four invertebrates on June 

22, 2010 (75 FR 35375). All areas 

proposed on June 22, 2010, remain 

proposed for designation as critical 

habitat. In this proposed rule, we are 

proposing an additional area on the 

South Tract of the Refuge along the Rio 

Hondo in which amphipod populations 

were recently confirmed to be Noel’s 

amphipod (Berg 2010, p. 1). Therefore, 

we are proposing as critical habitat all 

occupied sites for Noel’s amphipod, as 

all of these sites are essential to the 

conservation of the species. 

Proposed Critical Habitat Designation 

We are proposing an additional unit 

as critical habitat for Noel’s amphipod 

in New Mexico. For a full description of 

Units 1 through 4, please see the June 

22, 2010, proposed rule (75 FR 35375). 

The new Unit 5 we propose as 

additional critical habitat for Noel’s 

amphipod, and its approximate area, is 

displayed in Table 3. This location is 

currently occupied by Noel’s amphipod. 

In total, we are proposing to designate 

as critical habitat 520.8 acres (210.8 

hectares) for the four species. 

TABLE 1—PROPOSED CRITICAL HABITAT UNITS FOR ROSWELL SPRINGSNAIL AND KOSTER’S SPRINGSNAIL

[Area estimates reflect all land within critical habitat unit boundaries.] These units were proposed and discussed in the previous proposal to 

designate critical habitat for the four invertebrates on June 22, 2010 (75 FR 35375). 

Critical habitat unit Land ownership by type 

Size of 

unit in acres 

(hectares) 

1. Sago/Bitter Creek Complex .................................................................................... Service ..................................................... 31.9 (12.9) 

2. Impoundment Complex ........................................................................................... Service ..................................................... 35.9 (14.5) 

City of Roswell ......................................... 2.8 (1.1) 

Total ..................................................................................................................... .................................................................. 70.6 (28.6) 

Note: Area sizes may not sum due to rounding. 

TABLE 2—PROPOSED REVISED CRITICAL HABITAT UNITS FOR PECOS ASSIMINEA

[Area estimates reflect all land within critical habitat unit boundaries.] These units were proposed and discussed in the previous proposal to 

designate critical habitat for the four invertebrates on June 22, 2010 (75 FR 35375). 

Critical habitat unit Land ownership by type 

Size of 

unit in acres 

(hectares) 

1. Sago/Bitter Creek Complex .................................................................................... Service ..................................................... 31.9 (12.9) 

2. Impoundment Complex ........................................................................................... Service ..................................................... 35.9 (14.5) 

City of Roswell ......................................... 2.8 (1.1) 

3. Diamond Y Springs Complex ................................................................................. The Nature Conservancy ......................... 441.4 (178.6) 

4. East Sandia Spring ................................................................................................. The Nature Conservancy ......................... 3.0 (1.2) 

Total ..................................................................................................................... .................................................................. 515.0 (208.4) 

Note: Area sizes may not sum due to rounding. 


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TABLE 3—PROPOSED CRITICAL HABITAT UNITS FOR NOEL’S AMPHIPOD

[Area estimates reflect all land within critical habitat unit boundaries.] Units 1 and 2 were proposed and discussed in the previous proposal to 

designate critical habitat for the four invertebrates on June 22, 2010 (75 FR 35375). 

Critical habitat unit Land ownership by type 

Size of unit 

in acres 

(hectares) 

1. Sago/Bitter Creek Complex .................................................................................... Service ..................................................... 31.9 (12.9) 

2. Impoundment Complex ........................................................................................... Service ..................................................... 35.9 (14.5) 

City of Roswell ......................................... 2.8 (1.1) 

5. Rio Hondo ............................................................................................................... Service ..................................................... 5.8 (2.3) 

Total ..................................................................................................................... .................................................................. 76.4 (30.9) 

Note: Area sizes may not sum due to rounding. 

We present a brief description of the 

new unit and reasons why the proposed 

critical habitat unit meets the definition 

of critical habitat for Noel’s amphipod 

below. 

Unit 5: Rio Hondo 

Unit 5 consists of 5.8 ac (2.3 ha) of 

habitat that is currently occupied by 

Noel’s amphipod (Berg 2010, p. 1; Lang 

2010, p. 1). We propose to designate this 

unit as critical habitat for Noel’s 

amphipod only. It contains all of the 

features essential to the conservation of 

this species. We consider this site to be 

occupied by Noel’s amphipod at the 

time of listing. Although the amphipods 

were first found at this site in 2006, one 

year after listing (Warrick 2006, p. 1), 

they were taxonomically confirmed to 

be Noel’s amphipod in 2010 (Berg 2010, 

p. 1; Lang 2010, p. 1). Unit 5 is located 

on the South Tract of Bitter Lake 

National Wildlife Refuge, Chaves 

County, New Mexico. The complex of 

springs and seeps along the banks of 

approximately 0.4 mi (0.64 km) of the 

Rio Hondo comprises the population 

center of this proposed critical habitat 

unit. The proposed designation includes 

all springs and seeps along the Rio 

Hondo in this reach. Habitat in this unit 

is threatened by subsurface drilling or 

similar activities that contaminate 

surface drainage or aquifer water; 

nonnative fish, crayfish, snails, and 

vegetation; chemical fertilizers and 

pesticides applied to adjacent farmland; 

contaminants in the Rio Hondo from 

upstream of the amphipod populations; 

fire; and unauthorized activities, 

including dumping of pollutants or fill 

material into occupied sites. Therefore, 

the PCEs in this unit may require 

special management considerations or 

protection to minimize impacts 

resulting from these threats. The entire 

unit is owned by the Service. 

Exemptions 

Application of Section 4(a)(3) of the Act 

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete an 

integrated natural resources 

management plan (INRMP) by 

November 17, 2001. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108– 

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

now provides: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

There are no Department of Defense 

lands within the areas we are proposing 

to designate as critical habitat for the 

four invertebrates; therefore, we are not 

exempting any areas from designation. 

Exclusions 

Application of Section 4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary shall designate and make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the statute on its face, as well as the 

legislative history, are clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give to any factor. 

Under section 4(b)(2) of the Act, we 

may exclude an area from designated 

critical habitat based on economic 

impacts, impacts on national security, 

or any other relevant impacts. In 

considering whether to exclude a 

particular area from the designation, we 

must identify the benefits of including 

the area in the designation, identify the 

benefits of excluding the area from the 

designation, and determine whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If, based on this 

analysis, we make this determination, 

then we can exclude the area only if 

such exclusion would 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; 

the educational benefits of mapping 

essential habitat for recovery of the 

listed species; and any benefits that may 

result from a designation due to State or 

Federal laws than 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; 

implementation of a management plan 

that provides equal to or more 

conservation that a critical habitat 

designation would provide; or some 

combination of these. 

After evaluating the benefits of 

inclusion and the benefits of exclusion, 

we carefully weigh the two sides to 

determine whether the benefits of 


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exclusion outweigh those of inclusion. 

If we determine that they do, we then 

determine whether exclusion would 

result in extinction. If exclusion of an 

area from critical habitat will result in 

extinction, we will not exclude it from 

the designation. 

Exclusions Based on Economic Impacts 

Under section 4(b)(2) of the Act, we 

consider the economic impacts of 

specifying any particular area as critical 

habitat. In order to consider economic 

impacts, we are preparing an analysis of 

the economic impacts of the proposed 

critical habitat designation and related 

factors. 

A draft analysis of the economic 

effects of the proposed critical habitat 

designation was prepared and with this 

proposed rule is made available for 

public review. The economic analysis 

considers the economic impacts of 

conservation measures taken prior to 

and subsequent to the final listing and 

designation of critical habitat for the 

four invertebrates. Baseline impacts are 

typically defined as all management 

efforts that have occurred since the time 

of listing. We listed the four 

invertebrates in August 2005 (70 FR 

46304). Incremental costs are those that 

are attributable to critical habitat 

designation alone. Total baseline costs 

associated with this proposed critical 

habitat designation are estimated to be 

$1,150,000 to $1,560,000 over the next 

30 years, and incremental costs are 

estimated to be $6,420 to $68,000. 

Copies of the economic analysis are 

available for downloading from the 

Internet at http://www.regulations.gov at 

Docket No. FWS–R2–ES–2009–0014 or 

by contacting the New Mexico 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Exclusions Based on National Security 

Impacts 

Under section 4(b)(2) of the Act, we 

consider whether there are lands owned 

or managed by the Department of 

Defense (DOD) where a national security 

impact might exist. In preparing this 

proposal, we have determined that the 

lands within the proposed designation 

of critical habitat for the four 

invertebrates are not owned or managed 

by the DOD. We are aware that there are 

DOD lands in the vicinity of the Refuge, 

but our proposed designation does not 

include these lands, and we anticipate 

no impact to national security. 

Therefore, we have not proposed any 

areas for exclusion based on impacts on 

national security. 

Exclusions Based on Other Relevant 

Impacts 

Under section 4(b)(2) of the Act, we 

consider any other relevant impacts, in 

addition to economic impacts and 

impacts on national security. We 

consider a number of factors, including 

whether the landowners have developed 

any habitat conservation plans (HCPs) 

or other management plans for the area, 

or whether there are conservation 

partnerships that would be encouraged 

by designation of, or exclusion from, 

critical habitat. In addition, we look at 

any tribal issues, and consider the 

government-to-government relationship 

of the United States with tribal entities. 

We also consider any social impacts that 

might occur because of the designation. 

In preparing this proposal, we have 

determined that there are currently no 

HCPs for the four invertebrates, and the 

proposed designation does not include 

any tribal lands or trust resources. We 

anticipate no impact to tribal lands, 

partnerships, or HCPs from this 

proposed critical habitat designation. 

There are no areas proposed for 

exclusion from this proposed 

designation based on other relevant 

impacts. 

The Refuge has developed and 

completed a Comprehensive 

Conservation Plan that provides the 

framework for protection and 

management of all trust resources, 

including federally listed species and 

sensitive natural habitats. These lands 

are protected areas for wildlife and are 

currently managed for the conservation 

of wildlife, including endangered and 

threatened species, and specifically the 

four invertebrates, including Noel’s 

amphipod. A description of the 

management being provided by the 

Refuge for the conservation of the four 

invertebrates within areas proposed for 

designation as critical habitat is 

provided in the previous proposed rule 

to designate critical habitat for the four 

invertebrates (75 FR 35375, June 22, 

2010). 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we sought 

the expert opinions of three appropriate 

and independent specialists to review 

the proposed critical habitat during the 

public comment period for the previous 

proposed rule to designate critical 

habitat for the four invertebrates (75 FR 

35375). The purpose of peer review was 

to ensure that our critical habitat 

designation is based on scientifically 

sound data, assumptions, and analyses. 

One substantial comment received from 

peer reviewers was to add the additional 

area as critical habitat for Noel’s 

amphipod, which led to this proposal of 

an additional critical habitat unit for the 

species. 

Required Determinations 

Regulatory Planning and Review— 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant and has not reviewed 

this proposed rule under Executive 

Order 12866 (E.O. 12866). OMB bases 

its determination upon the following 

four criteria: 

(1) Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

(2) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(3) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

(4) Whether the rule raises novel legal 

or policy issues. 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq.) as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996 (5 U.S.C 801 et seq.), whenever an 

agency must 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 

(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. 

In the draft economic analysis of the 

proposed revised critical habitat 

designation, we evaluated the potential 

economic effects on small business 

entities resulting from conservation 

actions related to the listing of the 

Roswell springsnail, Koster’s 

springsnail, Noel’s amphipod, and 

Pecos assiminea (baseline costs), and 

the additional potential economic 

effects resulting from the proposed 


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designation of their critical habitat 

(incremental costs). This analysis 

estimated prospective economic impacts 

due to the implementation of 

conservation efforts for the four 

invertebrates in five categories: (a) 

Modifications to oil and gas activities; 

(b) habitat management; (c) conservation 

of agricultural groundwater 

withdrawals; (d) control of residential 

septic systems; and (e) controls on 

confined animal feeding operations. We 

determined from our analysis that there 

will be minimal additional economic 

impacts to small entities resulting from 

the proposed designation of critical 

habitat, because almost all of the project 

modification and conservation costs 

identified in the economic analysis 

represent baseline costs that would be 

realized in the absence of critical 

habitat. There are several factors that 

eliminate the potential for incremental 

costs among small entities, including: 

• Conservation measures 

implemented by New Mexico’s oil and 

gas firms comply with BLM’s Bitter 

Lake Habitat Restoration Zone 

requirements. Likewise, modifications 

pursued by oil and gas developers on 

private land near The Nature 

Conservancy units are already 

implemented for the benefit of various 

listed species in the immediate area. 

• All of the proposed critical habitat 

is occupied. Therefore, ongoing project 

modifications and conservation 

measures requested through 

consultation with the Service under 

Section 7 of the Act are expected to be 

similar to those already required to 

satisfy the jeopardy standard. 

• Most of the proposed critical habitat 

is already managed for conservation 

purposes. The small portion of proposed 

critical habitat owned by the City of 

Roswell has already been designated as 

critical habitat for the Pecos sunflower 

(Helianthus paradoxus) and, as a 

wetland, it is unsuitable for 

development. 

• Habitat management costs are 

attributable to existing conservation 

agreements and are, therefore, classified 

as baseline costs. 

• Most consultations under section 7 

of the Act would be pursued in the 

absence of critical habitat. To the extent 

that incremental costs are introduced, 

they are borne by public agencies rather 

than private entities. 

The draft economic analysis estimates 

the annual incremental costs associated 

with the designation of critical habitat 

for the invertebrates to be very modest, 

at approximately $6,420. All of these 

costs would derive from the added effort 

associated with considering adverse 

modification in the context of section 7 

consultations. 

We will consider the information in 

our final economic analysis, and in any 

public comments we receive, in 

determining whether this designation 

would result in a significant economic 

effect on a substantial number of small 

entities, and announce our 

determination in our final rule. Based 

on the above reasoning and currently 

available information, it appears that 

this rule may not result in a significant 

economic impact on a substantial 

number of small entities. If we 

determine that is the case, then we will 

certify that the designation of critical 

habitat for the four invertebrates will 

not have a significant economic impact 

on a substantial number of small 

entities, and a regulatory flexibility 

analysis will not be required. 

Unfunded Mandates Reform Act 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(1) This rule will 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. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘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.’’ 

The designation of critical habitat 

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. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, 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. 

(2) We do not believe that this rule 

will significantly or uniquely affect 

small governments. The public lands we 

are proposing to designate as critical 

habitat are owned by the City of Roswell 

and the Service. Small governments, 

such as the City of Roswell, will be 

affected only to the extent that any 

programs having Federal funds, permits, 

or other authorized activities must 

ensure that their actions will not 

adversely affect the critical habitat. As 

discussed above, the areas owned by the 

City of Roswell which are being 

proposed for designation as critical 

habitat for the four invertebrates have 

already been designated as critical 

habitat for the Pecos sunflower and are 

unsuitable for development. Therefore, 

a Small Government Agency Plan is not 

required. However, we will further 

evaluate this issue as we complete our 

final economic analysis, and review and 

revise this assessment as appropriate. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating critical habitat for the 

Roswell springsnail, Koster’s 

springsnail, Noel’s amphipod, and 

Pecos assiminea in a takings 

implications assessment. Critical habitat 

designation does not affect landowner 


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actions that do not require Federal 

funding or permits, nor does it preclude 

development of habitat conservation 

programs or issuance of incidental take 

permits to allow actions that do require 

Federal funding or permits to go 

forward. The takings implications 

assessment concludes that this 

designation of critical habitat for the 

four invertebrates does not pose 

significant takings implications for 

lands within or affected by the 

designation. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this proposed rule does 

not have significant Federalism effects. 

A Federalism assessment is not 

required. In keeping with Department of 

the Interior and Department of 

Commerce policy, we requested 

information from, and coordinated 

development of, this proposed critical 

habitat designation with appropriate 

State resource agencies in New Mexico 

and Texas. The designation may have 

some benefit to these governments 

because the areas that contain the 

features essential to the conservation of 

the species are more clearly defined, 

and the physical and biological features 

of the habitat necessary to the 

conservation of the species are 

specifically identified. This information 

does not alter where and what federally 

sponsored activities may occur. 

However, it may assist local 

governments in long-range planning 

(rather than having them wait for caseby-case section 7 consultations to 

occur). 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) would be required. 

While non-Federal entities that receive 

Federal funding, assistance, or permits, 

or that otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. 

Civil Justice Reform—Executive Order 

12988 

In accordance with E.O. 12988 (Civil 

Justice Reform), the Office of the 

Solicitor has determined that the rule 

does not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We propose designating 

critical habitat in accordance with the 

provisions of the Act. This proposed 

rule uses standard property descriptions 

and identifies the physical and 

biological features within the designated 

areas to assist the public in 

understanding the habitat needs of the 

Roswell springsnail, Koster’s 

springsnail, Noel’s amphipod, and 

Pecos assiminea. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). This rule will not impose 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

It is our position that, outside the 

jurisdiction of the U.S. Court of Appeals 

for the Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the National Environmental 

Policy Act (42 U.S.C. 4321 et seq.) in 

connection with designating critical 

habitat under the Act. We published a 

notice outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

position was upheld by the U.S. Court 

of Appeals for the Ninth Circuit 

(Douglas County v. Babbitt, 48 F.3d 

1495 (9th Cir. 1995), cert. denied 516 

U.S. 1042 (1996)). However, when the 

range of the species includes States 

within the Tenth Circuit, such as that of 

the Roswell springsnail, Koster’s 

springsnail, Noel’s amphipod, and 

Pecos assiminea, under the Tenth 

Circuit ruling in Catron County Board of 

Commissioners v. U.S. Fish and Wildlife 

Service, 75 F.3d 1429 (10th Cir. 1996), 

we will undertake an analysis for 

critical habitat designation and notify 

the public of the availability of the 

environmental assessment for this 

proposal when it is finished. A draft 

environmental assessment is now 

available for public review along with 

the publication of this proposal. You 

may obtain a copy of the environmental 

assessment online at http:// 

www.regulations.gov at Docket No. 

FWS–R2–ES–2009–0014, by mail from 

the New Mexico Ecological Services 

Field Office (see FOR FURTHER

INFORMATION CONTACT). 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs that are unclearly 

written, which sections or sentences are 

too long, the sections where you feel 

lists or tables would be useful, etc. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

Government-to-Government Relations 

with Native American Tribal 

Governments (59 FR 22951), E.O. 13175, 

and the Department of the Interior’s 

manual at 512 DM 2, we readily 

acknowledge our responsibility to 

communicate meaningfully with 

recognized Federal tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 ‘‘American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act’’, we readily acknowledge 

our responsibilities to work directly 

with tribes in developing programs for 

healthy ecosystems, to acknowledge that 

tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to tribes. 

We have determined that there are no 

tribal lands occupied at the time of 

listing that contain the features essential 

for the conservation of, and no tribal 

lands that are essential for the 

conservation of, the Roswell springsnail, 

Koster’s springsnail, Pecos assiminea, 

and Noel’s amphipod. Therefore, we 

have not proposed designation of 

critical habitat for the four invertebrates 

on tribal lands. 

Energy Supply, Distribution, or Use 

E.O. 13211 requires agencies to 

prepare Statements of Energy Effects 


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when undertaking certain actions. We 

do not expect this rule to significantly 

affect energy supplies, distribution, or 

use due to the small amount of habitat 

we are proposing for designation and 

the fact that the habitat is primarily on 

a National Wildlife Refuge. Therefore, 

we have made a preliminary 

determination that this action is not a 

significant energy action, and no 

Statement of Energy Effects is required. 

However, we will further evaluate this 

issue as we complete our final economic 

analysis, and review and revise this 

assessment as appropriate. 

References Cited 

A complete list of references cited is 

available on the Internet at http:// 

www.regulations.gov at Docket No. 

FWS–R2–ES–2009–0014 and upon 

request from the New Mexico Ecological 

Services Field Office (see FOR FURTHER

INFORMATION CONTACT). 

Authors 

The primary authors of this package 

are the staff members of the New 

Mexico Ecological Services Field Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to further 

amend part 17, subchapter B of chapter 

I, title 50 of the Code of Federal 

Regulations, as proposed to be amended 

at 75 FR 35375 (June 22, 2010), as 

follows: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 

625, 100 Stat. 3500; unless otherwise noted. 

2. In § 17.95, Critical habitat for 

‘‘Noel’s amphipod (Gammarus 

desperatus)’’, which was proposed to be 

added to paragraph (h) on June 22, 2010, 

at 75 FR 35375, is further amended by 

adding a paragraph (7) to read as 

follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(h) Crustaceans. 

* * * * * 

Noel’s amphipod (Gammarus 

desperatus). 

* * * * * 

(7) Unit 5: Rio Hondo, Chaves County, 

New Mexico. 

(i) [Reserved for textual description of 

unit.] 

(ii) Map of Unit 5 for Noel’s 

amphipod follows: 

BILLING CODE 4310–55–P 


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jlentini on DSKJ8SOYB1PROD with PROPOSALSEP17FE11.010</GPH>
Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Proposed Rules 9309 

* * * * * 

Dated: February 10, 2011. 

Thomas L. Strickland, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2011–3673 Filed 2–16–11; 8:45 am] 

BILLING CODE 4310–55–C 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R1–ES–2010–0096; MO 

92210–0–0008] 

Endangered and Threatened Wildlife 

and Plants; 90-Day Finding on a 

Petition To List the Sand Verbena Moth 

as Endangered or Threatened 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of petition finding and 

initiation of status review. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, announce a 90-day 

finding on a petition to list the sand 

verbena moth, Copablepharon fuscum, 

as endangered or threatened under the 

Endangered Species Act of 1973, as 

amended. Based on our review, we find 

the petition presents substantial 

information indicating that listing the 

sand verbena moth may be warranted. 

Therefore, with the publication of this 

notice, we are initiating a review of the 

status of the species to determine if 

listing the sand verbena moth as 

endangered or threatened is warranted. 

To ensure that this status review is 

comprehensive, we are requesting 

scientific and commercial data and 

other information regarding this species. 

Based on the status review, we will 

issue a 12-month finding on the 

petition, which will address whether 

the petitioned action is warranted, as 

provided in section 4(b)(3)(B) of the Act. 

DATES: To allow us adequate time to 

conduct this review, we request that we 

receive information on or before April 

18, 2011. Please note that if you are 

using the Federal eRulemaking Portal 

(see ADDRESSES section, below), the 

deadline for submitting an electronic 

comment is 11:59 p.m. Eastern Time on 

this date. After April 18, 2011, you must 

submit information directly to the 

Washington Fish and Wildlife Office 

(see FOR FURTHER INFORMATION CONTACT

section below). Please note that we 

might not be able to address or 

incorporate information that we receive 

after the above requested date. 

ADDRESSES: You may submit 

information by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. In the box that 

reads ‘‘Enter Keyword or ID,’’ enter the 

Docket number for this finding, which 

is FWS–R1–ES–2010–0096. Check the 

box that reads ‘‘Open for Comment/ 

Submission,’’ and then click the Search 

button. You should then see an icon that 

reads ‘‘Submit a Comment.’’ Please 

ensure that you have found the correct 

document before submitting your 

comment. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R1– 

ES–2010–0096; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will post all information we 

receive on http://www.regulations.gov. 

This generally means that we will post 

any personal information you provide 

us (see the Request for Information 

section below for more details). 

FOR FURTHER INFORMATION CONTACT: Ken 

S. Berg, Manager, Washington Fish and 

Wildlife Office, 510 Desmond Drive, 

Lacey, WA 98503; by telephone (360) 

753–9440; or by facsimile (360) 534– 

9331. If you use a telecommunications 

device for the deaf (TDD), please call the 

Federal Information Relay Service 

(FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Request for Information 

When we make a finding that a 

petition presents substantial 

information indicating that listing a 

species may be warranted, we are 

required to promptly review the status 

of the species (status review). For the 

status review to be complete and based 

on the best available scientific and 

commercial information, we request 

information on the sand verbena moth 

from governmental agencies, Native 

American Tribes, the scientific 

community, industry, and any other 

interested parties. We seek information 

on: 

(1) The species’ biology, range, and 

population trends, including: 

(a) Habitat requirements for feeding, 

breeding, and sheltering; 

(b) Genetics and taxonomy; 

(c) Historical and current range, 

including distribution patterns; 

(d) Historical and current population 

levels, and current and projected trends; 

and 

(e) Past and ongoing conservation 

measures for the species, its habitat, or 

both. 

(2) The factors that are the basis for 

making a listing determination for a 

species under section 4(a) of the 

Endangered Species Act of 1973, as 

amended (Act) (16 U.S.C. 1531 et seq.), 

which are: 

(a) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

(b) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(c) Disease or predation; 

(d) The inadequacy of existing 

regulatory mechanisms; or 

(e) Other natural or manmade factors 

affecting its continued existence. 

(3) Information on yellow sand 

verbena (Abronia latifolia), the host 

plant for the sand verbena moth, such 

as patch size and distribution, including 

distribution of known or potential sand 

verbena moth habitats; information on 

ongoing or future activities in potential 

sand verbena moth habitat; information 

on yellow sand verbena population 

trends; and information on other native 

or nonnative plant distributions, 

particularly nonnative beachgrass 

(Ammophila spp.), in the range of the 

yellow sand verbena, especially where 

the sand verbena moth occurs. 

If, after the status review, we 

determine that listing the sand verbena 

moth is warranted, we will propose 

critical habitat (see definition in section 

3(5)(A) of the Act), under section 4 of 

the Act, to the maximum extent prudent 

and determinable at the time we 

propose to list the species. Therefore, 

within the geographical range currently 

occupied by the sand verbena moth, we 

request data and information on: 

(1) What may constitute ‘‘physical or 

biological features essential to the 

conservation of the species’’; 

(2) Where such physical or biological 

features are currently found; and 

(3) Whether any of these features may 

require special management 

considerations or protection. 

In addition, we request data and 

information on whether there are any 

specific areas outside the geographical 

area occupied by the species that may 

be considered essential to the 

conservation of the species. Please 

provide specific comments and 

information as to what, if any, critical 

habitat you think we should propose for 

designation if the species is proposed 

for listing, and explain why such habitat 

meets the requirements of section 4 of 

the Act. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

Submissions merely stating support 

for or opposition to the action under 


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