Federal Register / Vol. 73, No. 26 / Thursday, February 7, 2008 / Proposed Rules 7237 

for a species’ listing determination 

under section 4(a) of the Act (16 U.S.C. 

1531 et seq.), which are: 

(a) The present or threatened 

destruction, modification, or 

curtailment of the species’ habitat or 

range; 

(b) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(c) Disease or predation; 

(d) Inadequacy of existing regulatory 

mechanisms; and 

(e) Other natural or manmade factors 

affecting its continued existence. 

(3) Information on management 

programs for the conservation of the 

Bonneville cutthroat trout. 

Please note that comments merely 

stating support for or opposition to the 

action under consideration without 

providing supporting information, 

although noted, will not be considered 

in making a determination, because 

section 4(b)(1)(A) of the Act directs that 

determinations as to whether any 

species is a threatened or endangered 

species must be made ‘‘solely on the 

basis of the best scientific and 

commercial data available.’’ At the 

conclusion of the status review, we will 

issue a new 12-month finding on the 

petition, as provided in section 

4(b)(3)(B) of the Act. 

You may submit your comments and 

materials concerning this finding by one 

of the methods listed in the ADDRESSES

section. We will not accept comments 

you send by e-mail or fax. 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that we 

will post your entire comment—

including your personal identifying 

information-on http:// 

www.regulations.gov. While you can ask 

us in your comment to withhold your 

personal identifying information from 

public review, 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 finding, 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’s Utah Field Office, 2369 West 

Orton Circle, Suite 50, West Valley City, 

Utah 84119, telephone (801) 975–3330. 

Background 

Section 1533(b)(3)(A) and (B) of the 

Endangered Species Act of 1973, as 

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

requires that, for any petition to revise 

the Lists of Threatened and Endangered 

Wildlife and Plants, to the maximum 

extent practicable, within 90 days after 

receiving the petition, the Secretary 

shall make a finding as to whether the 

petition presents substantial scientific 

or commercial information indicating 

that the petitioned action may be 

warranted. In addition, that within 12 

months after receiving a petition that is 

found to present substantial information 

indicting that the petitioned action may 

be warranted, the Secretary shall make 

a finding on whether the petitioned 

action is: (a) not warranted, (b) 

warranted, or (c) warranted but 

precluded by other pending proposals. 

Such 12-month findings are to be 

published promptly in the Federal 

Register. This notice is to initiate a 12- 

month finding. 

On October 9, 2001, we announced 

our 12-month finding (66 FR 51362) in 

which we found that, after reviewing 

the best available scientific and 

commercial information, listing the 

Bonneville cutthroat trout was not 

warranted. We were sued by the Center 

for Biological Diversity on February 17, 

2005 on the merits of the 12-month 

finding. On March 7, 2007, the District 

Court of Colorado dismissed the lawsuit 

after determining that Plaintiffs failed to 

demonstrate the not warranted finding 

was arbitrary, capricious, or contrary to 

law. Plaintiffs appealed to the 10th 

Circuit Court of Appeals. However, due 

to subsequent development of a formal 

opinion (Department of the Interior, 

March 16, 2007) regarding the legal 

interpretation of the term ‘‘significant 

portion of the range’’ of a species, we 

withdrew our finding (Stansell 

Memorandum, August 24, 2007). The 

lawsuit was subsequently dismissed and 

the case was closed on May 14, 2007. 

The new status review will include an 

analysis of whether any significant 

portion of the range of the Bonneville 

cutthroat trout warrants listing as 

threatened or endangered under the Act. 

At this time, we are soliciting new 

information on the status and potential 

threats to the Bonneville cutthroat trout. 

Information submitted in response to 

our 2001 12-month finding will be 

considered and need not be 

resubmitted. We will base our 12-month 

finding on a review of the best scientific 

and commercial information available, 

including all information received as a 

result of this notice. For more 

information on the biology, habitat, and 

range of the Bonneville cutthroat trout, 

please refer to our previous 12-month 

finding published in the Federal 

Register on October 9, 2001 (66 FR 

51362). 

We request any new information 

concerning the status of the Bonneville 

cutthroat trout. If you submit 

information, support it with 

documentation such as maps, 

bibliographic references, methods used 

to gather and analyze the data, or copies 

of any pertinent publications, reports, or 

letters by knowledgeable sources. We 

specifically request information 

regarding data from any systematic 

surveys, as well as any studies or 

analysis of data regarding population 

size or trends; biology or ecology of the 

species; effects of current land 

management on population distribution 

and abundance; current condition of 

habitat; and conservation measures that 

have been implemented to benefit the 

species. Additionally, we specifically 

request information on the current 

distribution of populations, and threats 

to the subspecies in relation to the five 

listing factors (as defined in section 

4(a)(1) of the Act). 

Author 

The primary authors of this document 

are staff of U.S. Fish and Wildlife 

Service, Utah Field Office—Ecological 

Services. 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

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

Dated: February 1, 2008. 

H. Dale Hall, 

Director, Fish and Wildlife Service. 

[FR Doc. E8–2222 Filed 2–6–08; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF THE INTERIOR 

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 


rfrederick on PROD1PC67 with PROPOSALS
7238 Federal Register / Vol. 73, No. 26 / Thursday, February 7, 2008 / Proposed Rules 

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 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

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 

concerning: 

(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 habitat, 

• 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 overlooked. 

(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 identifying 

information—on http:// 


rfrederick on PROD1PC67 with PROPOSALS
Federal Register / Vol. 73, No. 26 / Thursday, February 7, 2008 / Proposed Rules 7239 

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 CONTACT). 

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/. 

Background 

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 424.19. 

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. 


rfrederick on PROD1PC67 with PROPOSALS
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The DEA estimates total predesignation 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. Decisionmakers 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 

designation. 

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; or 

(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 


rfrederick on PROD1PC67 with PROPOSALS
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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 postdesignation incremental impacts are 

expected for the small businesses and 

entities included in this analysis. 

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 regulatory 


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7242 Federal Register / Vol. 73, No. 26 / Thursday, February 7, 2008 / Proposed Rules 

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 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 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 Office 

(see FOR FURTHER INFORMATION CONTACT

section). 

Author(s) 

The primary authors of this 

rulemaking are staff of the Austin 

Ecological Services Field Office, Austin, 

Texas. 

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. 

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] 

BILLING CODE 4310–55–P 


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