[Federal Register: February 7, 2008 (Volume 73, Number 26)]
[Proposed Rules]               
[Page 7237-7242]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

[FWS-R2-ES-2008-0018; 92210-1117-0000-B4]
RIN 1018-AV25

Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Devils River Minnow (Dionda diaboli)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, notice of 
availability of draft economic analysis, amended required 
determinations, and notice of public hearing.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on the proposed designation of critical 
habitat for the Devils River minnow (Dionda diaboli) under the 
Endangered Species

[[Page 7238]]

Act of 1973, as amended (Act). We also announce the availability of a 
draft economic analysis (DEA) of the proposed critical habitat 
designation and an amended required determinations section of the 
proposal. We are also providing notice of a public hearing on the 
proposal. The DEA estimates baseline costs associated with conservation 
activities for the Devils River minnow to be approximately $507,000 in 
undiscounted dollars over a 20-year period in areas we proposed as 
critical habitat. Incremental impacts are estimated to be $57,100 
(undiscounted dollars) over a 20-year period. We are reopening the 
comment period to allow all interested parties an opportunity to 
comment simultaneously on the proposed rule, the associated DEA, and 
the amended required determinations section. Comments previously 
submitted on this rulemaking do not need to be resubmitted, as they 
will be incorporated into the public record and fully considered when 
preparing our final determination.

DATES: We will accept comments received or postmarked on or before 
March 10, 2008. We will hold one public hearing on the proposed 
critical habitat designation and the DEA on February 27, 2008. See 
Public Hearing section under SUPPLEMENTARY INFORMATION for details.

ADDRESSES: Written Comments: You may submit comments by one of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: RIN 1018-AV25; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 

personal information you provide us (see the Public Comments Solicited 
section below for more information).
    Public Hearing: We will hold a public hearing and information 
session at the following location: Del Rio, TX: Kennedy Room, Del Rio 
Civic Center, 1915 Veterans Boulevard.

FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S. 
Fish and Wildlife Service, Austin Ecological Services Field Office, 
10711 Burnet Road, Austin, TX 78758; telephone 512/490-0057, extension 
248; facsimile 512/490-0974. If you use a telecommunications device for 
the deaf (TDD), call the Federal Information Relay Service (FIRS) at 


Public Hearing

    We will hold a public hearing on the proposed critical habitat 
designation and the DEA on February 27, 2008 in Del Rio, Texas. An 
information session will be held from 6 p.m. to 7 p.m. and will precede 
the hearing. The public hearing will run from 7 p.m. to 8 p.m. See the 
Public Hearing section under ADDRESSES for the specific location of the 
public hearing.
    Persons needing reasonable accommodations to attend and participate 
in the public hearing should contact the person listed in the FOR 
FURTHER INFORMATION CONTACT section as soon as possible. To allow 
sufficient time to process requests, please call no later than one week 
before the hearing date. Information regarding the proposal is 
available in alternative formats upon request.

Public Comments

    We will accept written comments and information during this 
reopened comment period, as well as oral or written comments at the 
scheduled public hearing on our proposed critical habitat designation 
for the Devils River minnow (Dionda diaboli) published in the Federal 
Register on July 31, 2007 (72 FR 41679), the DEA of the proposed 
designation, and the amended required determinations provided in this 
document. We will consider information and recommendations from all 
interested parties. We are particularly interested in comments 
    (1) The reasons habitat should or should not be designated as 
critical habitat under section 4 of the Act, specifically the benefits 
of excluding or the benefits of including any particular area as 
critical habitat.
    (2) Specific information on:
     The amount and distribution of Devils River minnow 
     What areas occupied at the time of listing that contain 
features essential for the conservation of the species we should 
include in the designation and why, and
     What areas not occupied at the time of listing are 
essential to the conservation of the species and why.
    (3) Information on the status of the Devils River minnow in 
Sycamore Creek and Las Moras Creek watersheds and information that 
indicates whether or not these areas should be considered essential to 
the conservation of the species and why.
    (4) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (5) Information on whether the DEA identifies all State and local 
costs and benefits attributable to the proposed critical habitat 
designation, and information on any costs or benefits that we have 
    (6) Information on whether the DEA makes appropriate assumptions 
regarding current practices and any regulatory changes likely if we 
designate critical habitat.
    (7) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities and information about the benefits of 
including or excluding any areas that exhibit those impacts.
    (8) 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.
    If you submitted comments or information during the initial comment 
period from July 31, 2007, to October 1, 2007, on the proposed rule (72 
FR 41679), they need not be resubmitted. They will be fully considered 
in the preparation of our final determination. Our final determination 
concerning critical habitat for the Devils River minnow will take into 
consideration all written comments we receive, oral or written comments 
we receive at the public hearing, 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 or are appropriate for exclusion under 
section 4(b)(2) of the Act.
    You may submit your comments and materials concerning our proposed 
rule, the associated DEA of the proposed designation, and the amended 
required determinations section by one of the methods listed in the 
ADDRESSES section. We will not accept anonymous comments; your comment 
must include your first and last name, city, State, country, and postal 
(zip) code. Finally, we will not consider hand-delivered comments or 
mailed comments that are not received or postmarked, respectively, by 
the date specified in the DATES section.
    We will post your entire comment--including your personal 

[[Page 7239]]

http://www.regulations.gov. If you provide personal identifying information in 

addition to the required items specified in the previous paragraph, 
such as your street address, phone number, or e-mail address, 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 this notice, will be available for 
public inspection on http://www.regulations.gov, or by appointment, 

during normal business hours, at the U.S. Fish and Wildlife Service, 
Austin Ecological Services Field Office (see FOR FURTHER INFORMATION 
    You may obtain copies of the original proposed rule and the DEA by 
mail from the Austin Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT) or by visiting our Web site at http://www.fws.gov/southwest/es/austintexas/


    It is our intent to discuss only those topics directly relevant to 
designation of critical habitat in this notice. For more information on 
Devils River minnow, refer to the final listing rule published in the 
Federal Register on October 20, 1999 (64 FR 56596), the original 
proposed critical habitat designation published on July 31, 2007 (72 FR 
41679), or the 2005 Devils River Minnow Recovery Plan. All of these 
documents and others are available online at http://ecos.fws.gov/tess_public/

    The Devils River minnow was listed as threatened on October 20, 
1999 (64 FR 56596). Critical habitat was not designated for this 
species at the time of listing (64 FR 56606). On October 5, 2005, the 
Forest Guardians, Center for Biological Diversity, and Save Our Springs 
Alliance filed suit against the Service for failure to designate 
critical habitat for this species (Forest Guardians v. Hall, 2005). On 
June 28, 2006, a settlement was reached that requires the Service to 
re-evaluate our original determination. The settlement stipulated that, 
if prudent, a proposed rule would be submitted to the Federal Register 
for publication on or before July 31, 2007, and a final rule by July 
31, 2008.
    On July 31, 2007, we published a proposed rule (72 FR 41679) to 
designate critical habitat for Devils River minnow. We proposed three 
units as critical habitat, including approximately 73.5 total stream 
kilometers (km) (45.7 stream miles (mi)). The proposed critical habitat 
is located along three Texas streams, two in Val Verde County (Devils 
River and San Felipe Creek) and one in Kinney County (Pinto Creek). 
Further, in the proposed rule, we identified two additional areas, 
Sycamore Creek and Las Moras Creek, which we are considering including 
in the final critical habitat designation. We requested public comment 
and information on whether these areas are essential to the 
conservation of the species.
    Section 3 of the Act defines critical habitat as the specific areas 
within the geographic area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographic area occupied by a species at the 
time it is listed, upon a determination that such areas are essential 
for the conservation of the species. If the proposed rule is made 
final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
affecting areas designated as critical habitat must consult with us on 
the effects of their proposed actions, pursuant to section 7(a)(2) of 
the Act.

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

    Under section 4(b)(2), we may exclude an area from critical habitat 
if we determine that the benefits of such exclusion outweigh the 
benefits of including that particular area as critical habitat, unless 
failure to designate that specific area as critical habitat will result 
in the extinction of the species. We may exclude an area from 
designated critical habitat based on economic impacts, national 
security, or any other relevant impact.
    In the July 31, 2007, critical habitat proposed rule (72 FR 41679), 
we address a number of general issues that are relevant to exclusions 
under section 4(b)(2) of the Act. In addition, we have prepared a DEA 
analyzing the potential impacts of the proposed critical habitat 
designation, which is available for public review and comment. Based on 
public comment on this document and the proposed designation, 
additional areas may be excluded from final critical habitat by the 
Secretary under the provisions of section 4(b)(2) of the Act. This is 
provided for in the Act and in our implementing regulations at 50 CFR 

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate critical 
habitat based upon the best scientific and commercial data available, 
after taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. In compliance with section 4(b)(2) of the 
Act, we have prepared a DEA of the proposed critical habitat 
designation based on our July 31, 2007, proposed rule (72 FR 41679) to 
designate critical habitat for the Devils River minnow. In the July 31, 
2007, critical habitat proposal, we discussed the uncertainty regarding 
the inclusion of two areas currently unoccupied by the species. 
Sycamore Creek and Las Moras Creek were historically occupied by Devils 
River minnow, but the species has not been collected in either location 
since 1989 and 1955, respectively. We requested public input during the 
initial comment period for information to assist our determination to 
include or not include these areas in the critical habitat designation. 
We received multiple comments from peer reviewers and the public 
encouraging inclusion of these areas to further the conservation of the 
species. In response to these comments, the DEA further evaluates the 
potential economic costs of designating these two additional areas.
    The intent of the DEA is to quantify the economic impacts of all 
potential conservation efforts for the Devils River minnow; some of 
these costs are coextensive with listing and recovery and will likely 
be incurred regardless of whether we designate critical habitat. The 
DEA also identifies the incremental costs associated specifically with 
the designation of critical habitat for the species. Incremental 
conservation efforts and associated impacts are those not expected to 
occur absent the designation of critical habitat for the Devils River 
minnow. The DEA describes and quantifies the potential economic impacts 
associated with the proposed critical habitat designation for the 
Devils River minnow in relation to the threats identified by the 
Service. That is, analyzed impacts are due to conservation measures for 
the Devils River minnow that address one or more of the threats to the 
species identified by the Service. Based on the proposed rule, the DEA 
analyzed potential costs of measures taken to address threats related 
to poor water quality caused by pollution, groundwater and surface 
water extraction, nonnative species, and stream channel alteration.

[[Page 7240]]

    The DEA estimates total pre-designation baseline impacts (8-year 
total from 1999 to 2007) for all 3 proposed units to be $342,000 
(undiscounted dollars), which is equivalent to a present value of 
$380,000, assuming a 3 percent discount rate, and $392,000, assuming a 
7 percent discount rate. Post-designation baseline impacts (2008 to 
2027) for all 3 proposed units are estimated to be $507,000 
(undiscounted dollars) over the next 20 years, which is equivalent to a 
present value of $391,000, assuming a 3 percent discount rate, and 
$290,000, assuming a 7 percent discount rate. The post-designation 
incremental impacts (2008 to 2027) for all 3 proposed units are 
estimated to be $57,100 (undiscounted dollars), which is equivalent to 
a present value of $42,600, assuming a 3 percent discount rate, and 
$30,300, assuming a 7 percent discount rate.
    Concerning the two additional areas we considered for inclusion in 
the designation of critical habitat (Sycamore Creek and Las Moras 
Creek), the DEA found no costs associated with Devils River minnow 
conservation or potential inclusion as critical habitat in either area. 
There were no conservation actions or projects involving consultation 
under section 7 of the Act related to the species in these areas, 
either baseline or future projects, with quantifiable costs. Therefore, 
the estimated economic costs reported above and elsewhere in this 
document refer to the total costs of the three units (Devils River, San 
Felipe Creek, and Pinto Creek) we actually proposed for designation.
    The DEA considers the potential economic effects of all actions 
relating to the conservation of the Devils River minnow, including 
costs associated with sections 4, 7, and 10 of the Act, as well as 
costs attributable to the designation of critical habitat. The DEA 
further considers the economic effects of protective measures taken as 
a result of other Federal, State, and local laws that aid habitat 
conservation for the species in areas containg features essential to 
the conservation of the species. The DEA considers both economic 
efficiency and distributional effects. In the case of habitat 
conservation, efficiency effects generally reflect the ``opportunity 
costs'' associated with the commitment of resources to comply with 
habitat protection measures (such as lost economic opportunities 
associated with restrictions on land use).
    The DEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on small entities and the energy industry. The 
DEA measures lost economic efficiency associated with residential and 
commercial development and public projects and activities, such as 
economic impacts on water management and transportation projects, 
Federal lands, small entities, and the energy industry. Decision-makers 
can use this information to assess whether the effects of the 
designation might unduly burden a particular group or economic sector.
    Finally, the DEA looks retrospectively at costs that have been 
incurred since we listed the Devils River minnow as threatened on 
October 20, 1999 (64 FR 56596), and considers those costs that may 
occur in the 20 years following the designation of critical habitat. 
Because the DEA considers the potential economic effects of all actions 
relating to the conservation of the Devils River minnow, including 
costs associated with sections 4, 7, and 10 of the Act and those 
attributable to the designation of critical habitat, the DEA may have 
overestimated the potential economic impacts of the critical habitat 
    As stated earlier, we are soliciting data and comments from the 
public on this DEA, as well as on all aspects of the proposal. We may 
revise the proposal, or its supporting documents, to incorporate or 
address new information received during the 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 as critical habitat, provided such exclusion will 
not result in the extinction of the species.

Required Determinations--Amended

    In our July 31, 2007, proposed rule (72 FR 41679), we indicated 
that we would defer our determination of compliance with several 
statutes and Executive Orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders was available in the DEA. We have now made 
use of the DEA data to make these determinations. In this document we 
affirm the information contained in the proposed rule concerning 
Executive Order (E.O.) 13132, E.O. 12988, the Paperwork Reduction Act, 
the National Environmental Policy Act, and the President's memorandum 
of April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951). However, based on the 
information within the DEA, we revise our required determinations 
concerning E.O. 12866, the Regulatory Flexibility Act, E.O. 13211 
(Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform 
Act, and E.O. 12630 (Takings).

Regulatory Planning and Review

    In accordance with E.O. 12866, we evaluate four parameters in 
determining whether a rule is significant. If any one of the following 
four parameters are met, the Office of Management and Budget (OMB) will 
designate that rule as significant under E.O. 12866:
    (a) The rule would have an annual economic effect of $100 million 
or more or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of the government;
    (b) The rule would create inconsistencies with other Federal 
agencies' actions;
    (c) The rule would materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients; 
    (d) The rule would raise novel legal or policy issues.

If OMB requests to informally review a rule designating critical 
habitat for a species, we consider that rule to raise novel legal and 
policy issues. Because no other Federal agencies designate critical 
habitat, the designation of critical habitat will not create 
inconsistencies with other agencies' actions. We use the economic 
analysis of the critical habitat designation to evaluate the potential 
effects related to the other parameters of E.O. 12866 and to make a 
determination as to whether the regulation may be significant under 
parameter (a) or (c) listed above.
    Based on the economic analysis of the critical habitat designation, 
we have determined that the designation of critical habitat for Devils 
River minnow will not result in an annual effect on the economy of $100 
million or more or affect the economy in a material way. Based on 
previous critical habitat designations and the economic analysis, we 
believe this rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
OMB has requested to informally review this rule, and thus this action 
may raise novel legal or policy issues. In accordance with the 
provisions of E.O. 12866, this rule is considered significant.
    Executive Order 12866 directs Federal agencies issuing regulations 
to evaluate regulatory alternatives (Office of Management and Budget, 
Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it 
has been determined that the Federal regulatory

[[Page 7241]]

action is appropriate, the agency will need to consider alternative 
regulatory approaches. Because the determination of critical habitat is 
a statutory requirement under the Act, we must evaluate alternative 
regulatory approaches, where feasible, when issuing a designation of 
critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweigh the benefits of designating the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. We believe that the evaluation of the inclusion or 
exclusion of particular areas, or combination thereof, in a designation 
constitutes our regulatory alternative analysis.

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 
(SBREFA) (5 U.S.C. 802(2)), whenever an agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended RFA to 
require Federal agencies to provide a 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 our proposed rule, 
we withheld our determination of whether this designation would result 
in a significant effect as defined under SBREFA until we completed our 
DEA of the proposed designation so that we would have the factual basis 
for our determination.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if the proposed Devils River minnow critical habitat 
designation would affect a substantial number of small entities, we 
consider the number of small entities affected within particular types 
of economic activities (e.g., residential and commercial development, 
agriculture, oil and gas production). We apply the ``substantial 
number'' test individually to each industry to determine if 
certification is appropriate. However, the SBREFA does not explicitly 
define ``substantial number'' or ``significant economic impact.'' 
Consequently, to assess whether a ``substantial number'' of small 
entities is affected by this designation, this analysis considers the 
relative number of small entities likely to be impacted in an area. In 
some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the numbers of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species 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 Devils River minnow. Federal agencies also must consult with 
us if their activities may affect critical habitat. Designation of 
critical habitat, therefore, could result in an additional economic 
impact on small entities due to the requirement to reinitiate 
consultation for ongoing Federal activities.
    Appendix B of the DEA examined the potential for Devils River 
minnow conservation efforts to affect small entities. The analysis was 
based on the estimated impacts associated with the proposed critical 
habitat designation. Based on the analysis, the potential for economic 
impacts of the designation on small entities are expected to be borne 
primarily by the City of Del Rio and other miscellaneous small 
entities. The identities of these small entities are not known at this 
time but are expected to include local developers and private 
landowners that may represent third parties in section 7 consultations 
on the Devils River minnow in the future. The City of Del Rio and other 
miscellaneous small entities are expected to incur, at most, combined 
annualized administrative costs related to consultations for adverse 
modification of approximately $3,000, assuming a 3 percent discount 
rate. This estimated $3,000 in combined annual administrative costs is 
not expected to have a significant impact on small entities, including 
the City of Del Rio. In addition, because the annualized post-
designation incremental impacts expected for the City of Del Rio and 
other miscellaneous small entities are relatively small, no future 
indirect impacts associated with post-designation incremental impacts 
are expected for the small businesses and entities included in this 
    In summary, we have considered whether this rule would result in a 
significant economic effect on a substantial number of small entities. 
Based on the above reasoning and currently available information, we 
certify that the designation of critical habitat for the Devils River 
minnow will not result in a significant economic impact on a 
substantial number of small business entities; therefore, a regulatory 
flexibility analysis is not required.

Executive Order 13211--Energy Supply, Distribution, or Use

     On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply, distribution, or use. E.O. 
13211 requires agencies to prepare Statements of Energy Effects when 
undertaking certain actions. This proposed designation of critical 
habitat for the Devils River minnow is not considered a significant 
regulatory action under E.O. 12866. OMB has provided guidance for 
implementing this Executive Order that outlines nine outcomes that may 
constitute ``a significant adverse effect'' when compared without the 

[[Page 7242]]

action under consideration. The DEA's Appendix B finds that none of 
these criteria are relevant to this analysis. Thus, energy-related 
impacts associated with Devils River minnow conservation activities 
within proposed critical habitat are not expected. As such, the 
proposed designation of critical habitat is not expected to 
significantly affect energy supplies, distribution, or use and a 
Statement of Energy Effects is not required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) 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. Non-Federal entities that receive Federal 
funding, assistance, permits, or otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat. However, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year; that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The proposed designation of critical habitat imposes no 
obligations on State or local governments. By definition, Federal 
agencies are not considered small entities, although the activities 
they fund or permit may be proposed or carried out by small entities. 
As such, a Small Government Agency Plan is not required.

Executive Order 12630--Takings

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing critical habitat for Devils River minnow. Critical habitat 
designation does not affect landowner 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 permit 
actions that do require Federal funding or permits to go forward. We 
conclude that this designation of critical habitat for Devils River 
minnow does not pose significant takings implications.

References Cited

    A complete list of all references cited in this rulemaking is 
available on the Internet at http://www.regulations.gov or by 

contacting the Field Supervisor, Austin Ecological Services Field 


    The primary authors of this rulemaking are staff of the Austin 
Ecological Services Field Office, Austin, Texas.


    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.

    Dated: January 30, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-2225 Filed 2-6-08; 8:45 am]