Federal Register / Vol. 72, No. 51 / Friday, March 16, 2007 / Proposed Rules 12585 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the proposed changes 

to the FAR do not impose information 

collection requirements that require the 

approval of the Office of Management 

and Budget under 44 U.S.C. 3501, et 

seq. 

List of Subjects in 48 CFR Parts 28 and 

52 

Government procurement. 

Dated: March 7, 2007 

Ralph De Stefano 

Director, Contract Policy Division. 

Therefore, DoD, GSA, and NASA 

propose amending 48 CFR parts 28 and 

52 as set forth below: 

1. The authority citation for 48 CFR 

parts 28 and 52 continues to read as 

follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 42 U.S.C. 2473(c). 

PART 28—BONDS AND INSURANCE 

2. Amend section 28.203-3 by revising 

paragraphs (a)(1) and paragraph (d) 

introductory text to read as follows: 

28.203–3 Acceptance of real property. 

(a) * * * 

(1) Evidence of title that is consistent 

with the requirements of Section 2 of 

the United States Department of Justice 

Title Standard 2001 at http:// 

www.fws.gov/realty/dojl2001.pdf. 

Depending on the value of the property, 

contracting officers should consider 

requesting assistance from the agencydesignated legal counsel to determine if 

the evidence of title is adequate. 

* * * * * 

(d) The following format, or any 

document substantially the same, shall 

be signed by all owners of the property 

and used by the surety and recorded in 

the local recorder‘s office when a surety 

pledges real estate on Standard Form 28, 

Affidavit of Individual Surety. 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

3. Amend section 52.228–11 by 

revising the date of the clause and the 

first sentence in paragraph (b)(2)(i) of 

the clause to read as follows: 

52.228–11 Pledges of Assets. 

* * * * * 

PLEDGES OF ASSETS (DATE) 

* * * * * 

(b) * * * 

(2) * * * 

(i) Evidence of title that is consistent with 

the requirements of Section 2 of the United 

States Department of Justice Title Standard 

2001 at http://www.fws.gov/realty/ 

dojl2001.pdf * * * . 

* * * * * 

[FR Doc. 07–1182 Filed 3–15–07; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU75 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Peck’s Cave Amphipod, 

Comal Springs Dryopid Beetle, and 

Comal Springs Riffle Beetle 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period and notice of 

availability of draft economic analysis. 

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 Peck’s cave amphipod 

(Stygobromus pecki), Comal Springs 

dryopid beetle (Stygoparnus 

comalensis), and Comal Springs riffle 

beetle (Heterelmis comalensis) (Comal 

springs invertebrates, or CSI) under the 

Endangered Species Act of 1973, as 

amended (Act), and the availability of 

the draft economic analysis of the 

proposed designation of critical habitat. 

The draft economic analysis forecasts 

future impacts associated with 

conservation efforts in areas proposed as 

critical habitat to be $23.3 million over 

the next 20 years under scenario 1 

(scenario description described in 

Background), or $152 million under 

scenario 2 in undiscounted dollars 

(annualized dollars are estimated at $1.2 

million under scenario 1 and $7.6 

million under scenario 2). Future 

economic impacts associated with 

conservation efforts in areas proposed as 

critical habitat at a 3 percent discount 

rate are estimated to be $17.1 million 

over the next 20 years under Scenario 1, 

or $111.3 million under scenario 2 

(annualized dollars are estimated at $1.2 

million under scenario 1 and $7.5 

million under scenario 2). Future 

economic impacts associated with 

conservation efforts in areas proposed as 

critical habitat at a 7 percent discount 

rate are estimated to be $11.9 million 

over the next 20 years under scenario 1, 

or $77.3 million under scenario 2 

(annualized dollars are estimated at $1.2 

million under scenario 1 and $7.4 

million under scenario 2). It should be 

noted that the majority of economic 

impacts quantified in this draft EA are 

jointly caused by eight endangered 

species, including the three CSI. 

Because all of these species reside in the 

same habitat, separating future impacts 

of CSI from those of the other listed 

species in the aquifer is not possible. 

DATES: We will accept public comments 

until April 16, 2007. 

ADDRESSES: If you wish to comment on 

the proposed rule or draft economic 

analysis, you may submit your 

comments and materials identified by 

RIN 1018–AU75, by any of the following 

methods: 

1. Mail or hand delivery/courier: You 

may submit written comments and 

information to Robert T. Pine, Field 

Supervisor, U.S. Fish and Wildlife 

Service, 10711 Burnet Road, Suite 200, 

Austin, TX 78758. 

2. Fax: You may fax your comments 

to (512) 490–0974. 

3. Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

directions for submitting comments. In 

the event that our Internet connection is 

not functional, please submit your 

comments by one of the alternate 

methods mentioned above. 

4. E-mail: Please submit electronic 

comments in an ASCII file format to 

FW2Comal@fws.gov and avoid the use 

of special characters and encryption. 

Please include ’’Attn: RIN 1018–AU75’’

and your name and return address in 

your e-mail message. If you do not 

receive a confirmation from the system 

that we have received your e-mail 

message, please contact us directly by 

calling our Austin Ecological Services 

Field Office at (512) 490–0057. 

FOR FURTHER INFORMATION CONTACT: 

Robert T. Pine, Supervisor, Austin 

Ecological Services Field Office, at the 

address listed in ADDRESSES (telephone: 

(512) 490–0057; facsimile: (512) 490–

0974). Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 800/877–8339, 

24 hours a day, 7 days a week. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We intend that any final action 

resulting from this proposal will be as 

accurate and as effective as possible. 

Therefore, we solicit comments on the 

original proposed critical habitat 

designation (71 FR 40588; July 17, 2006) 

and on our draft economic analysis of 

the proposed designation. Copies of the 

draft economic analysis and the 

proposed rule for critical habitat 

designation are available on the internet 

at http://www.fws.gov/southwest/es/ 


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Library/ or from the Austin Ecological 

Services Field Office at the address 

above. You may review comments and 

materials received and review 

supporting documentation used in 

preparation of this proposed rule by 

appointment during normal business 

hours, at the Austin Ecological Services 

Field Office (see ADDRESSES). We will 

consider information and 

recommendations from all interested 

parties. We are particularly interested in 

comments concerning: 

(1) The reasons why any habitat 

should or should not be determined to 

be critical habitat, as provided by 

section 4 of the Endangered Species Act 

of 1973, as amended (Act) (16 U.S.C. 

1531 et seq.), including whether it is 

prudent to designate critical habitat; 

(2) Specific data on those specific 

areas that should be included in the 

designations that were identified as 

occupied at the time of listing that 

contain the features essential for the 

conservation of the species; and those 

specific areas that were not occupied by 

the species at the time it was listed but 

which have subsequently been 

identified as occupied and those 

unoccupied areas that are essential to 

the conservation of the species and 

should be included in the designations 

and why such areas are essential; 

(3) Land-use designations and current 

or planned activities in, or adjacent to, 

the subject areas and their possible 

impacts on these species or proposed 

critical habitat; 

(4) 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; 

(5) Data on any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation and, in particular, any 

impacts on small entities; 

(6) Any foreseeable environmental 

impacts directly or indirectly resulting 

from the proposed designation of 

critical habitat; 

(7) Data supporting the need for 

subsurface vegetation (e.g., roots that 

can penetrate into the aquifer) for 

sheltering, breeding, or feeding habitat 

for any or all of the listed invertebrates. 

If providing such data, please explain if 

the 50-foot (ft) distance appropriately 

defines the lateral extent of critical 

habitat to provide for the primary 

constituent elements (PCEs) related to 

the surface vegetation that produces the 

subsurface vegetation (e.g., roots); 

(8) Information on the extent of 

documented Comal Springs riffle beetles 

occurrences in Spring Lake; 

(9) Whether there are data supporting 

the premise that any or all of the 

invertebrates are detritivores (detritusfeeding animals) in spring-influenced 

riparian zones; 

(10) Whether there are any data 

documenting the need of any subsurface 

areas for breeding, feeding, or 

sheltering, or documenting the presence 

of any or all of the invertebrates in the 

subsurface areas; 

(11) Whether the economic analysis 

adequately addresses the likely effects 

and resulting costs arising from State 

laws as a result of the proposed critical 

habitat designation; 

(12) Whether the economic analysis 

correctly assesses the effect on regional 

costs associated with land-use controls 

that could arise from the designation of 

critical habitat for these species; 

(13) Whether the designation of 

critical habitat will result in 

disproportionate economic or other 

impacts to specific areas that should be 

evaluated for possible exclusion from 

the final designation; 

(14) Whether the economic analysis 

appropriately identifies all costs that 

could result from the designation of 

critical habitat for these species; and 

(15) Whether the benefits of exclusion 

in any particular area outweigh the 

benefits of inclusion under section 

4(b)(2) of the Act. 

Our final designation of critical 

habitat will take into consideration all 

comments and any additional 

information received, including all 

previous comments and information 

submitted during the initial comment 

period. 

Please include ‘‘RIN 1018–AU75’’ and 

your name and return address in your 

e-mail message. If you do not receive a 

confirmation from the system that we 

have received your e-mail message, 

please contact us directly (see 

ADDRESSES section). Please note that the 

e-mail address FW2Comal@fws.gov will 

be unavailable after the public comment 

period terminates. 

Our practice is to make comments, 

including names and home addresses of 

respondents, available for public review 

during regular business hours. 

Individual respondents may request that 

we withhold their names and home 

addresses, but if you wish us to consider 

withholding this information, you must 

state this prominently at the beginning 

of your comments. In addition, you 

must present rationale for withholding 

this information. This rationale must 

demonstrate that disclosure would 

constitute a clearly unwarranted 

invasion of privacy. Unsupported 

assertions will not meet this burden. In 

the absence of exceptional, 

documentable circumstances, this 

information will be released. We will 

always make submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives of or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

Background 

We proposed to designate critical 

habitat for the Peck’s cave amphipod, 

Comal Springs dryopid beetle, and 

Comal Springs riffle beetle on July 17, 

2006 (71 FR 40588). The proposed 

critical habitat totaled about 38.5 acres 

(ac) (15.6 hectares (ha)) for the Peck’s 

cave amphipod in Comal County, Texas; 

39.5 ac (16.0 ha) for the Comal Springs 

dryopid beetle in Comal and Hays 

Counties, Texas; and 30.3 ac (12.3 ha) 

for the Comal Springs riffle beetle in 

Comal and Hays Counties, Texas. 

Pursuant to the terms of a settlement 

agreement, we will submit for 

publication to the Federal Register a 

final critical habitat designation for the 

Peck’s cave amphipod, Comal Springs 

dryopid beetle, and Comal Springs riffle 

beetle by June 29, 2007. 

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

we designate or revise critical habitat 

based upon the best scientific and 

commercial data available, after taking 

into consideration the economic or any 

other relevant impacts of specifying any 

particular area as critical habitat. Based 

on the July 17, 2006, proposed rule to 

designate critical habitat for the Peck’s 

cave amphipod, Comal Springs dryopid 

beetle, and Comal Springs riffle beetle 

(71 FR 40588), we have prepared a draft 

economic analysis (EA) of the proposed 

critical habitat designation for the 

Peck’s cave amphipod, Comal Springs 

dryopid beetle, and Comal Springs riffle 

beetle. 

Our draft EA addresses the potential 

impacts of conservation efforts for the 

Peck’s cave amphipod, Comal Springs 

dryopid beetle, and Comal Springs riffle 

beetle on activities occurring on lands 

proposed for or that may be affected by 

the proposed designation. The EA 

measures lost potential economic 

efficiency associated with water use 

activities, construction development, 

water quality, aquatic restoration, and 

administrative costs. 

The draft EA considers the potential 

economic effects of actions relating to 

the conservation of the Peck’s cave 

amphipod, Comal Springs dryopid 

beetle, and Comal Springs riffle beetle, 

including costs associated with sections 

4, 7, and 10 of the Act and those 


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attributable to designating critical 

habitat. It 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 Comal Springs 

invertebrates in the areas proposed as 

critical habitat. The analysis 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 (e.g., lost economic 

opportunities associated with 

restrictions on land use). The draft EA 

also analyzes whether a particular group 

or economic sector bears an undue 

proportion of the impacts, with specific 

analysis of the impacts to small entities 

and potential impacts on energy 

availability. Finally, the draft EA 

estimates economic impacts to activities 

from 2006 to 2026 (20 years after the 

year of proposed designation of critical 

habitat). Forecasts of economic 

conditions and other factors beyond the 

next 20 years would be speculative. 

We solicit data and comments from 

the public on the draft EA, as well as on 

all aspects of our proposal to designate 

critical habitat. We may revise the 

proposal, or its supporting documents, 

to incorporate or address new 

information received during this 

comment period. In particular, we may 

exclude an area from the final 

designation of critical habitat if the 

Secretary determines 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. 

Under scenarios 1 and 2 in our draft 

EA, impacts associated with water use 

changes comprise the vast majority, or 

between 94 and 98 percent, of the total 

quantified impacts in the areas we have 

proposed for designation. Total 

permitted withdrawals from the 

Edwards Aquifer are to be reduced from 

approximately 549,000 acre-feet to 

450,000 acre-feet, following a 1993 

lawsuit concerning five endangered 

species in the Edwards Aquifer that 

share habitat with CSI. As soon as 2008, 

total permitted water withdrawals in the 

Edwards Aquifer may be further limited 

from the present 549,000 acre-feet per 

year to 400,000 acre-feet per year 

(scenario 1). It is also possible that, in 

dry years, additional restrictions may be 

imposed that will further limit aquifer 

withdrawals to 340,000 acre-feet 

(scenario 2). This draft EA examines 

social welfare and regional economic 

impacts that could result from these 

limits to water withdrawals in the 

aquifer. It should be noted that the 

majority of economic impacts quantified 

in this draft EA are jointly caused by 

eight endangered species, including the 

three CSI. Because all of these species 

reside in the same habitat, separating 

future impacts of CSI from those of the 

other listed species in the aquifer is not 

possible. 

We estimate costs related to 

conservation activities for the area 

proposed for designation of critical 

habitat for the Comal Springs 

invertebrates under sections 4, 7, and 10 

of the Act to be approximately $23.3 

million over the next 20 years under 

scenario 1, or $152 million under 

scenario 2 in undiscounted dollars 

(annualized dollars are estimated to be 

$1.2 million under scenario 1 and $7.6 

million under scenario 2). Future 

economic impacts associated with 

conservation efforts in areas proposed as 

critical habitat at a 3 percent discount 

rate are estimated to be $17.1 million 

over the next 20 years under scenario 1, 

or $111.3 million under scenario 2 

(annualized dollars are estimated to be 

$1.2 million under scenario 1 and $7.5 

million under scenario 2). Future 

economic impacts associated with 

conservation efforts in areas proposed as 

critical habitat at a 7 percent discount 

rate are estimated to be $11.9 million 

over the next 20 years under scenario 1, 

or $77.3 million under scenario 2 

(annualized dollars are estimated to be 

$1.2 million under scenario 1 and $7.4 

million under scenario 2). 

Required Determinations—Amended 

In our July 17, 2006, proposed rule 

(71 FR 40588), we indicated that we 

would be deferring 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 draft economic analysis. 

Those data are now available for our use 

in making these determinations. In this 

notice, we are affirming the information 

contained in the proposed rule 

concerning Executive Order 13132 and 

Executive Order 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). Based on 

the information made available to us in 

the draft economic analysis, we are 

amending our Required Determinations, 

as provided below, concerning 

Executive Order 12866 and the 

Regulatory Flexibility Act, Executive 

Order 13211, Executive Order 12630, 

and the Unfunded Mandates Reform 

Act. 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule because it may raise novel legal and 

policy issues. However, on the basis of 

our draft EA, we do not anticipate that 

the designation of critical habitat for 

these species would have an annual 

effect on the economy of $100 million 

or more or affect the economy in a 

material way. Due to the timeline for 

publication in the Federal Register, the 

Office of Management and Budget 

(OMB) has not formally reviewed the 

proposed rule. 

Further, Executive Order 12866 

directs Federal agencies promulgating 

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 action is appropriate, the 

agency will then need to consider 

alternative regulatory approaches. Since 

the determination of critical habitat is a 

statutory requirement pursuant to the 

Endangered Species Act of 1973, as 

amended, we must then evaluate 

alternative regulatory approaches, 

where feasible, when promulgating a 

designation of critical habitat. 

In developing our proposed 

designation of critical habitat, we 

consider economic impacts, impacts to 

national security, and other relevant 

impacts under 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 provided that the 

benefits of such exclusion outweigh the 

benefits of specifying the area as critical 

habitat and that such exclusion would 

not result in the extinction of the 

species. As such, we believe that the 

evaluation of the inclusion or exclusion 

of particular areas, or combination(s) 

thereof, in a designation constitutes our 

alternative regulatory analysis. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

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 effect of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 


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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. 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 draft 

economic analysis 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 this proposed 

designation of critical habitat for the 

Comal Springs invertebrates would 

affect a substantial number of small 

entities, we evaluated the entities 

potentially impacted within particular 

types of economic activities (e.g., 

aquatic restoration, changes in water 

use, and construction and development 

activities). We considered each industry 

or category individually to determine 

the impacts. In estimating the numbers 

of small entities potentially affected, we 

also considered whether their activities 

have any Federal involvement; some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by the designation of critical 

habitat. Designation of critical habitat 

only affects activities conducted, 

funded, permitted, or authorized by 

Federal agencies; non-Federal activities 

are not affected by the designation. 

In Chapters 2 and 3 of our draft EA, 

we focus on small entities that may bear 

the regulatory costs. Of the three 

affected activities discussed in the 

economic analysis, (1) Aquatic 

restoration, (2) changes in water use, 

and (3) construction and development 

activities, the analysis determines that 

only impacts to construction and 

development activities are forecast to be 

borne in part by small entities. 

If this proposed critical habitat 

designation is made final, Federal 

agencies must consult with us if their 

activities may affect designated critical 

habitat. Consultations to avoid the 

destruction or adverse modification of 

critical habitat would be incorporated 

into the existing consultation process. 

Construction and Development 

Activities. The draft EA concludes that 

the most likely location for development 

activities within the proposed critical 

habitat designation is on two parcels in 

the Comal Springs unit. The analysis 

assumes that the private owners of 

developable lands in the proposed 

critical habitat designation impacted by 

future conservation efforts for the Peck’s 

cave amphipod, Comal Springs dryopid 

beetle, and Comal Springs riffle beetle 

will be developers. This analysis 

estimates that one developer (0.3 

percent of small developers) is likely to 

develop the affected parcels. Since 98 

percent of the developers in the region 

are considered small, this analysis 

assumes that the one affected developer 

will be small. The draft economic 

analysis estimates that two residential 

housing units could be built within 

proposed critical habitat by one small 

developer over the next 20 years. 

Impacts to the developer are estimated 

to include conservation efforts, such as 

reducing sedimentation, monitoring, 

appropriate equipment staging, and 

minimizing disturbance to the water 

body. Costs are estimated to be 

approximately 0.001 percent of annual 

sales (Draft Economic Analysis 2007, 

Appendix B, p. B8). From this analysis, 

we have determined that this proposed 

designation will not have an effect on a 

substantial number of small businesses 

that are part of residential and 

commercial development nor will it 

result in a significant effect to the 

annual sales of these small businesses 

impacted by this proposed designation, 

because only one developer (0.3 percent 

of small developers) may be affected 

and the approximate impacts to this one 

developer would be 0.001 percent of 

typical annual sales over the next 20 

years. 

Executive Order 13211—Energy Supply, 

Distribution, and Use 

On May 18, 2001, the President issued 

Executive Order (E.O.) 13211 on 

regulations that significantly affect 

energy supply, distribution, and use. 

E.O. 13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This 

proposed rule is considered a significant 

regulatory action under E.O. 12866 

because it raises novel legal and policy 

issues, but it is not expected to 

significantly affect energy supplies, 

distribution, or use (Draft Economic 

Analysis 2007, p. B9). Therefore, this 

action is not a significant action and no 

Statement of Energy Effects is 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’’ and ‘‘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 


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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, or 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 nonFederal 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 on to 

State governments. 

(b) The draft economic analysis 

discusses potential impacts of critical 

habitat designation for the Peck’s cave 

amphipod, Comal Springs dryopid 

beetle, and Comal Springs riffle beetle 

on water management activities, 

administration activities, residential and 

commercial development activities, and 

aquatic restoration activities. Impacts on 

small governments are not anticipated, 

or they are anticipated to be passed 

through to consumers (Draft Economic 

Analysis 2007, Appendix B). As such, a 

Small Government Agency Plan is not 

required. 

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 the Peck’s 

cave amphipod, Comal Springs dryopid 

beetle, and Comal Springs riffle beetle 

in a takings implications assessment. 

The takings implications assessment 

concludes that this proposed 

designation of critical habitat for these 

Comal Springs invertebrates does not 

pose significant takings implications. 

Author 

The primary author of this notice is 

the staff of the Austin Ecological 

Services Field Office. 

Authority 

The authority for this action is the 

Endangered Species Act of 1973 (16 

U.S.C. 1531 et seq.). 

Dated: March 8, 2007. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. E7–4802 Filed 3–15–07; 8:45 am] 

BILLING CODE 4310–55–P 


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