Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Sharpnose Shiner and Smalleye Shiner, 12138-12142 [2014-04465]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 79, Number 42 (Tuesday, March 4, 2014)]
[Proposed Rules]
[Pages 12138-12142]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-04465]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2013-0008; 4500030113]
RIN 1018-AZ34


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Sharpnose Shiner and Smalleye Shiner

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of the comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the August 6, 2013, proposed 
designation of critical habitat for the sharpnose shiner (Notropis 
oxyrhynchus) and smalleye shiner (N. buccula) under the Endangered 
Species Act of 1973, as amended (Act). We also announce the 
availability of a draft economic analysis (DEA) of the proposed 
designation of critical habitat for sharpnose shiner and smalleye 
shiner and an amended required determinations section of the proposal. 
We are reopening the comment period to allow all interested parties an 
opportunity to comment simultaneously on the proposed critical habitat 
rule, the associated DEA, and the amended required determinations 
section. Comments previously submitted need not be resubmitted, as they 
will be fully considered in preparation of the final rule.

DATES: We will consider comments received or postmarked on or before 
April 3, 2014. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES section, below) must be received by 
11:59 p.m. Eastern Time on the closing date.

ADDRESSES: Document availability: You may obtain a copy of the proposed 
critical habitat rule and the associated draft economic analysis at 
Docket No. FWS-R2-ES-2013-0008, or by mail from the Arlington, Texas, 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    Written Comments: You may submit written comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. Submit comments on the critical habitat proposal 
and associated DEA by searching for FWS-R2-ES-2013-0008, which is the 
docket number for the critical habitat proposed rulemaking.
    (2) By hard copy: Submit comments on the critical habitat proposal 
and associated DEA by U.S. mail or hand-delivery to: Public Comments 
Processing, Attn: FWS-R2-ES-2013-0008; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Debra Bills, Field Supervisor, 
Arlington, Texas, Ecological Services Field Office, 2005 NE Green Oaks 
Blvd., Suite 140, Arlington, Texas 76006, by telephone (817-277-1100), 
or by facsimile (817-277-1129). Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed designation of critical habitat 
for the sharpnose shiner and smalleye shiner that was published in the 
Federal Register on August 6, 2013 (78 FR 47612), our 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 why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat is not 
prudent.
    (2) Specific information on:

[[Page 12139]]

    (a) The distribution of the sharpnose shiner and smalleye shiner;
    (b) The amount and distribution of sharpnose shiner and smalleye 
shiner habitat; and
    (c) What areas occupied by the species at the time of listing that 
contain features essential for the conservation of the species we 
should include in the critical habitat designation and why; and
    (d) What areas not occupied at the time of listing are essential to 
the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their probable impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the sharpnose shiner and smalleye shiner and proposed 
critical habitat.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, the benefits of including or excluding 
areas that exhibit these impacts.
    (6) Information on the extent to which the description of economic 
impacts in the DEA is a reasonable estimate of the likely economic 
impacts.
    (7) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the DEA, and how the consequences 
of such reactions, if likely to occur, would relate to the conservation 
and regulatory benefits of the proposed critical habitat designation.
    (8) Whether any areas we are proposing for critical habitat 
designation should be considered for exclusion under section 4(b)(2) of 
the Act, and whether the benefits of potentially excluding any specific 
area outweigh the benefits of including that area under section 4(b)(2) 
of the Act.
    (9) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    If you submitted comments or information on the proposed rule 
during the initial comment period from August 6, 2013, to October 7, 
2013, please do not resubmit them. We have incorporated them into the 
public record and will fully consider them in the preparation of our 
final determination. Our final determination will take into 
consideration all written comments and any additional information we 
receive during both comment periods. On the basis of public comments, 
we may, during the development of our final determination, find that 
areas proposed as critical habitat are not essential, are appropriate 
for exclusion under section 4(b)(2) of the Act, or are not appropriate 
for exclusion.
    You may submit your comments and materials concerning the proposed 
rule or DEA by one of the methods listed in ADDRESSES. We request that 
you send comments only by the methods described in ADDRESSES.
    If you submit a comment via https://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on https://www.regulations.gov as well. If you submit a hardcopy comment that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the proposed rule and DEA, will be 
available for public inspection on https://www.regulations.gov at Docket 
No. FWS-R2-ES-2013-0008 or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Arlington, Texas, 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Background

    On August 6, 2013, we published in the Federal Register proposed 
rules to list the sharpnose shiner and smalleye shiner as endangered 
species (78 FR 47582) and designate critical habitat for both species 
(78 FR 47612). For more information on the species and the species' 
habitat, refer to the June 2013 Draft Species Status Assessment Report 
for the Sharpnose Shiner and Smalleye Shiner (SSA Report; Service 
2013), available online at https://www.regulations.gov in Docket No. 
FWS-R2-ES-2013-0083 in association with the proposed listing rule. We 
proposed to designate as critical habitat approximately 1,002 river 
kilometers (623 river miles) in Baylor, Crosby, Fisher, Garza, Haskell, 
Kent, King, Knox, Stonewall, Throckmorton, and Young Counties in the 
upper Brazos River basin of Texas. Those proposals had 60-day comment 
periods, ending October 7, 2013. We will submit for publication in the 
Federal Register a final listing determination and critical habitat 
designation for sharpnose shiner and smalleye shiner on or before 
August 6, 2014.

Critical Habitat

    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If the proposed rule is 
made final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
affecting critical habitat must consult with us on the effects of their 
proposed actions, under section 7(a)(2) of the Act.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from designation due 
to State or Federal laws that may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan. In the case of 
sharpnose shiner and smalleye shiner, the benefits of critical habitat 
include public awareness of the

[[Page 12140]]

presence of sharpnose shiner and smalleye shiner and the importance of 
habitat protection, and, where a Federal nexus exists, increased 
habitat protection for sharpnose shiner and smalleye shiner due to 
protection from adverse modification or destruction of critical 
habitat. In practice, situations with a Federal nexus exist primarily 
on Federal lands or for projects undertaken by Federal agencies.
    We have not considered any areas for exclusion in our proposed 
critical habitat designation.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
proposed designation, we must first evaluate specific land uses or 
activities and projects that may occur in the area of the critical 
habitat. We then must evaluate the impacts that a specific critical 
habitat designation may have on restricting or modifying specific land 
uses or activities for the benefit of the species and its habitat 
within the areas proposed. We then identify which conservation efforts 
may be the result of the species being listed under the Act versus 
those attributed solely to the designation of critical habitat for this 
particular species.
    The probable economic impact of a proposed critical habitat 
designation is analyzed by comparing scenarios both ``with critical 
habitat'' and ``without critical habitat.'' The ``without critical 
habitat'' scenario represents the baseline for the analysis, which 
includes the existing regulatory and socio-economic burden imposed on 
landowners, managers, or other resource users potentially affected by 
the designation of critical habitat (e.g., under the Federal listing as 
well as other Federal, State, and local regulations). The baseline, 
therefore, represents the costs of all efforts attributable to the 
listing of the species under the Act (i.e., conservation of the species 
and its habitat incurred regardless of whether critical habitat is 
designated). The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for the species. The incremental conservation efforts 
and associated impacts would not be expected without the designation of 
critical habitat for the species. In other words, the incremental costs 
are those attributable solely to the designation of critical habitat, 
above and beyond the baseline costs. These are the costs we use when 
evaluating the benefits of inclusion and exclusion of particular areas 
from the final designation of critical habitat should we choose to 
conduct an optional section 4(b)(2) exclusion analysis.
    For this particular designation, we developed an Incremental 
Effects Memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the sharpnose shiner and smalleye shiner (IEc 
2014, entire). We began by conducting a screening analysis of the 
proposed designation of critical habitat in order to focus our analysis 
on the key factors that are likely to result in incremental economic 
impacts. The purpose of the screening analysis is to filter out the 
geographic areas in which the critical habitat designation is unlikely 
to result in probable incremental economic impacts.
    In particular, the screening analysis considers baseline costs 
(i.e., absent critical habitat designation) and includes probable 
economic impacts where land and water use may be subject to 
conservation plans, land management plans, best management practices, 
or regulations that protect the habitat area as a result of the Federal 
listing status of the species. The screening analysis filters out 
particular areas of critical habitat that are already subject to such 
protections and are, therefore, unlikely to incur incremental economic 
impacts. The screening analysis also assesses whether units are 
unoccupied by the species and may require additional management or 
conservation efforts as a result of the critical habitat designation 
for the species which may incur incremental economic impacts. This 
screening analysis combined with the information contained in our IEM 
are what we consider our draft economic analysis of the proposed 
critical habitat designation for the sharpnose shiner and smalleye 
shiner and is summarized in the narrative below.
    Executive Orders 12866 and 13563 direct Federal agencies to assess 
the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly impacted entities, where practicable and reasonable. We 
assess, to the extent practicable, the probable impacts, if sufficient 
data are available, to both directly and indirectly impacted entities. 
As part of our screening analysis, we considered the types of economic 
activities that are likely to occur within the areas likely affected by 
the critical habitat designation. In our evaluation of the probable 
incremental economic impacts that may result from the proposed 
designation of critical habitat for the sharpnose shiner and smalleye 
shiner, first we identified, in the IEM dated September 12, 2013, 
probable incremental economic impacts associated with the following 
categories of activities: (1) Water management, including flood control 
and drought protection operations; (2) in-stream projects; (3) 
transportation activities, including bridge construction; (4) oil and 
natural gas exploration and development; and (5) utilities projects, 
including water and sewer lines.
    We considered each industry or category individually. Additionally, 
we considered whether their activities have any Federal involvement. 
Critical habitat designation will not affect activities that do not 
have any Federal involvement; designation of critical habitat only 
affects activities conducted, funded, permitted, or authorized by 
Federal agencies. In areas where the sharpnose shiner and smalleye 
shiner are present, Federal agencies will be required to consult with 
the Service under section 7 of the Act on activities they fund, permit, 
or implement that may affect the species. If we finalize this proposed 
critical habitat designation, consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
consultation process. Therefore, disproportionate impacts to any 
geographic area or sector are not likely as a result of this critical 
habitat designation.
    In our IEM, we attempted to clarify the distinction between the 
effects that will result from the species being listed and those 
attributable to the critical habitat designation (i.e., the difference 
between the jeopardy and adverse modification standards) for the 
sharpnose and smalleye shiners' critical habitat. The designation of 
critical habitat for sharpnose shiners and smalleye shiners was 
proposed concurrently with the listing. In our experience with such 
simultaneous rulemaking actions, discerning which conservation efforts 
are attributable to the species being listed and which will result 
solely from the designation of critical habitat is difficult. However, 
the following specific circumstances in this case help to inform our 
evaluation: (1) The essential physical and biological

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features identified for critical habitat are the same features 
essential for the life requisites of the species, and (2) any actions 
that would result in sufficient harm or harassment to constitute 
jeopardy to the sharpnose shiner or smalleye shiner would also likely 
adversely affect the essential physical and biological features of 
critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
species. This evaluation of the incremental effects has been used as 
the basis to evaluate the probable incremental economic impacts of this 
proposed designation of critical habitat.
    We proposed to designate as critical habitat approximately 1,002 
river kilometers (623 river miles) in the upper Brazos River basin of 
Texas and a 30 meter lateral buffer beyond the bankfull width of the 
river on both side of the river in the following Texas counties: 
Baylor, Crosby, Fisher, Garza, Haskell, Kent, King, Knox, Stonewall, 
Throckmorton, and Young. Only areas currently occupied by the species 
were proposed for designation as critical habitat. No unoccupied river 
segments were proposed as critical habitat. The proposed critical 
habitat encompasses the last areas where potentially viable populations 
of smalleye and sharpnose shiners remain. All stream segments included 
in the proposed critical habitat (the stream beds, including the small, 
seasonally dry, portions of the stream beds between the bankfull width, 
where vegetation occurs, and the wetted channel) are managed by the 
State, while to the best of our knowledge all adjacent riparian areas 
are privately owned.
    The economic cost of implementing the rule through section 7 of the 
Act will most likely be limited to additional administrative effort to 
consider adverse modification. Areas proposed for critical habitat 
designation are remote and experience low levels of economic activity. 
The human population of all eleven counties containing proposed 
critical habitat totals only 52,613. Because these areas are so remote, 
we anticipate low levels of consultation due to the designation of 
critical habitat. All proposed units are considered occupied. 
Therefore, any activities with a Federal nexus will be subject to 
section 7 consultation requirements regardless of critical habitat 
designation. Further, most proposed actions that would adversely affect 
the physical or biological features would also likely constitute take 
of the species. For example, activities that fragment occupied riverine 
habitat or substantially alter its flow regime to the extent that 
critical habitat would be adversely affected would also result in the 
decline of sharpnose and smalleye shiner populations.. The Service 
anticipates that project modifications recommended to avoid adverse 
modification will likely be the same as those recommended to avoid 
jeopardy because the species is so closely dependent on its habitat for 
the life requisites of the species. Thus, based on the substantial 
baseline protections afforded the smalleye and sharpnose shiners and 
the close relationship between adverse modification and jeopardy in 
occupied habitat, we do not forecast any incremental costs associated 
with project modifications. When section 7 consultations occur, costs 
are likely to be limited to the additional administrative effort to 
consider adverse modification during the consultation process.
    The additional administrative cost of addressing adverse 
modification during the section 7 consultation process ranges from 
approximately $410 to $5,000 per consultation, depending upon the type 
of consultation. Based on a review of the consultation history for the 
shiners, no more than 2 formal consultations, 28 informal 
consultations, and 16 technical assistances are expected annually. 
Thus, the incremental administrative burden resulting from the 
designation is likely to be less than $84,000 in a given year. The 
incremental administrative burden resulting from the designation is 
unlikely to reach $100 million in a given year based on the small 
number of anticipated consultations and pre-consultation costs.
    Due to data availability limitations, we are unable to assign costs 
to specific units. Rather, we provide estimates of potential costs 
across the entire proposed critical habitat designation. We note that, 
of the 11 counties where critical habitat is located, Young County 
contains more than one-third of the overall human population. Thus, the 
amount of economic activity generated in this area may be larger than 
in the more remote counties. We did identify specific projects in 
Subunits 1 and 6 that would likely require section 7 consultation, but 
in both cases the only additional incurred incremental costs would 
likely be limited to administrative costs.
    In some cases, proposed critical habitat may provide new 
information to project proponents who otherwise would not have 
consulted with the Service, thus resulting in incremental economic 
impacts. We cannot predict where or when these situations may occur, 
but anticipate that consultations of this nature will be infrequent. 
The designation of critical habitat is not expected to trigger 
additional requirements under State or local regulations, nor is the 
designation expected to have perceptional effects on markets. 
Additional section 7 efforts to conserve the species are not predicted 
to result from the designation of critical habitat. Thus, the 
designation is unlikely to exceed $100 million in a given year.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed rule and our 
amended required determinations. We may revise the proposed rule or 
supporting documents to incorporate or address information we receive 
during the public comment period. In particular, we may exclude an area 
from critical habitat if we determine that the benefits of excluding 
the area outweigh the benefits of including the area, provided the 
exclusion will not result in the extinction of this species.

Required Determinations--Amended

    In our August 6, 2013, proposed rule to designate critical habitat 
(78 FR 47612), we indicated that we would defer our determination of 
compliance with several statutes and executive orders until we had 
evaluated the probable effects on landowners and stakeholders and the 
resulting probable economic impacts of the designation. Following our 
evaluation of the probable incremental economic impacts resulting from 
the designation of critical habitat for the sharpnose shiner and 
smalleye shiner, we have amended or affirmed our determinations below. 
Specifically, we affirm the information in our proposed rule concerning 
Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 
(Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform 
Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.), the National Environmental Policy Act (42 U.S.C. 
4321 et seq.), and the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951). However, based on our evaluation of the 
probable incremental economic impacts of the proposed designation of 
critical habitat for the sharpnose shiner and smalleye shiner, we are 
amending our required determination concerning the

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Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and E.O. 12630.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these 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.
    Following recent court decisions, the Service's current 
understanding of the requirements under the RFA, as amended, is that 
Federal agencies are required to evaluate the potential incremental 
impacts of rulemaking only on those entities directly regulated by the 
rulemaking itself and, therefore, are not required to evaluate the 
potential impacts to indirectly regulated entities. The regulatory 
mechanism through which critical habitat protections are realized is 
section 7 of the Act, which requires Federal agencies, in consultation 
with the Service, to ensure that any action authorized, funded, or 
carried out by the Agency is not likely to adversely modify critical 
habitat. Under these circumstances, only Federal action agencies are 
directly subject to the specific regulatory requirement (avoiding 
destruction and adverse modification) imposed by critical habitat 
designation. Therefore, it is our position that only Federal action 
agencies will be directly regulated by this designation. Federal 
agencies are not small entities, and there is no requirement under the 
RFA to evaluate the potential impacts to entities not directly 
regulated. Therefore, because no small entities are directly regulated 
by this rulemaking, the Service certifies that, if promulgated, the 
proposed critical habitat designation will not have a significant 
economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if promulgated, the proposed 
critical habitat designation would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

E.O. 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 designating critical 
habitat for sharpnose shiner and smalleye shiner in a takings 
implications assessment. As discussed above, the designation of 
critical habitat affects only Federal actions. Although private parties 
that receive Federal funding or assistance or require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency.
    The economic analysis found that no significant economic impacts 
are likely to result from the designation of critical habitat for 
sharpnose shiners and smalleye shiners. The Act's critical habitat 
protection requirements apply only to Federal agency actions, few 
conflicts between critical habitat and private property rights should 
result from this designation. Based on information contained in the DEA 
and described within this document, economic impacts to a property 
owner are unlikely to be of a sufficient magnitude to support a takings 
action. Therefore, the takings implications assessment concludes that 
this designation of critical habitat for sharpnose shiners and smalleye 
shiners does not pose significant takings implications for lands within 
or affected by the proposed designation.

Authors

    The primary authors of this notice are the staff members of the 
Arlington, Texas, Ecological Services Field Office, Southwest Region, 
U.S. Fish and Wildlife Service.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: February 19, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-04465 Filed 3-3-14; 8:45 am]
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