2011 Federal Register, 76 FR 23781; Centralized Library: U.S. Fish and Wildlife Service - Federal Register, Volume 76 Issue 82 (Thursday, April 28, 2011)

[Federal Register Volume 76, Number 82 (Thursday, April 28, 2011)]
[Proposed Rules]
[Pages 23781-23786]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10288]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2009-0062; 92210-1117-0000-B4]
RIN 1018-AW85

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Buena Vista Lake Shrew

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the comment period on the October 21, 2009, proposed
designation of revised critical habitat for the Buena Vista Lake shrew
(Sorex ornatus relictus) (shrew) 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 revised critical
habitat for the shrew and an amended required determinations section of
the proposed rule. We are reopening the comment period for an
additional 60 days to allow all interested parties an opportunity to
comment simultaneously on the proposed revised critical habitat
designation, the associated DEA, and the amended required
determinations section. We also announce a public hearing; the public
is invited to review and comment on the proposed revised critical
habitat designation at the public hearing or in writing. Comments
previously submitted need not be resubmitted, as they will be fully
considered in preparation of the final rule.

DATES: Written Comments: We will consider comments received on or
before June 27, 2011. Comments must be received by 11:59 p.m. Eastern
Time on the closing date. Any comments that we receive after the
closing date may not be considered in the final decision on this
action.
Public Hearing: We will hold the public hearing on June 8, 2011.
The first hearing session will start at 1 p.m. Pacific Time with doors
opening at 12:30, and the second session at 6 p.m. with doors opening
at 5:30.

ADDRESSES: You may submit written comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R8-ES-2009-0062, which
is the docket number for this rulemaking.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R8-ES-2009-0062; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
Public Hearing: We will hold the public hearing at the Doubletree
Hotel, 3100 Camino Del Rio Court, Bakersfield, California.
We will post all comments and the public hearing transcript on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section
below for more information).

FOR FURTHER INFORMATION CONTACT: Susan Moore, Field Supervisor, or
Karen Leyse, Listing Coordinator, U.S. Fish and Wildlife Service,
Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605,
Sacramento, CA 95825; by telephone (916) 414-6600; or by facsimile
(916) 414-6713. 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 revised critical
habitat for the Buena Vista Lake shrew that we published in the Federal
Register on October 21, 2009 (74 FR 53999), our DEA of the proposed
revised 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:
(a) The distribution of the Buena Vista Lake shrew, including the
locations of any additional populations of this species that would help
us further refine boundaries of critical habitat;
(b) The amount and distribution of Buena Vista Lake shrew habitat,
including areas that provide habitat for the shrew that we did not
discuss in the proposed revised critical habitat rule;
(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 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 possible impacts on proposed revised critical
habitat.
(4) Any foreseeable economic, national security, or other relevant
impacts that may result from designating any area that may be included
in the final designation. We are particularly interested in any impacts
on small entities, and the benefits of including or excluding areas
from the proposed designation that are subject to these impacts.
(5) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
(6) Information on the extent to which the description of economic
impacts in the DEA is complete and accurate.
(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

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conservation and regulatory benefits of the proposed revised critical
habitat designation.
(8) Whether any specific areas being proposed as critical habitat
should be excluded under section 4(b)(2) of the Act, and whether the
benefits of potentially excluding any particular area outweigh the
benefits of including that area under section 4(b)(2) of the Act. See
Areas Previously Considered for Exclusion Under Section 4(b)(2) of the
Act section below for further discussion.
If you submitted comments or information on the proposed rule (74
FR 53999) during the initial comment period from October 21, 2009, to
December 21, 2009, please do not resubmit them. We will incorporate
them into the public record as part of this comment period, and we will
fully consider them in the preparation of our final determination. Our
final determination concerning revised critical habitat will take into
consideration all written comments and any additional information we
receive during both comment periods. On the basis of public comments,
we may, during the development of our final determination, find that
areas proposed are not essential, are appropriate for exclusion under
section 4(b)(2) of the Act, or are not appropriate for exclusion.
You may submit your comments and materials concerning the proposed
rule or DEA by one of the methods listed in the ADDRESSES section. We
will not consider comments sent by e-mail or fax or to an address not
listed in the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule and the DEA, will
be available for public inspection at http://www.regulations.gov at
Docket No. FWS-R8-ES-2009-0062, or by appointment, during normal
business hours, at the U.S. Fish and Wildlife Service, Sacramento Fish
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). You may
obtain copies of the proposed rule and the DEA on the Internet at
http://www.regulations.gov at Docket No. FWS-R8-ES-2009-0062, or by
mail from the Sacramento Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).

Public Hearing

We have scheduled a public hearing on the proposed rule. It will be
held on the date listed in the DATES section at the address listed in
the ADDRESSES section. We are holding a public hearing to provide
interested parties an opportunity to provide verbal testimony (formal,
oral comments) or written comments regarding the proposed revised
critical habitat designation, the associated DEA, and the amended
required determinations section. Anyone wishing to make an oral
statement at the public hearing for the record is encouraged to provide
a written copy of their statement to us at that hearing. In the event
there is a large attendance, the time allotted for oral statements may
be limited. Speakers can sign up only at the hearing. Oral and written
statements receive equal consideration. There are no limits on the
length of written comments submitted to us. If you have any questions
concerning the public hearing or need reasonable accommodations to
attend and participate in the public hearing, please contact one of the
people listed in the FOR FURTHER INFORMATION CONTACT section as soon as
possible, but no later than one week before the hearing date, to allow
sufficient time to process requests.

Background

It is our intent to discuss only those topics directly relevant to
the designation of revised critical habitat for the Buena Vista Lake
shrew in this document. For more information on previous Federal
actions concerning the Buena Vista Lake shrew, refer to the proposed
designation of critical habitat published in the Federal Register on
October 21, 2009 (74 FR 53999). Additional relevant information may be
found in the final rule to designate critical habitat for the Buena
Vista Lake shrew published on January 24, 2005 (70 FR 3437). For more
information on the Buena Vista Lake shrew or its habitat, refer to the
final listing rule published in the Federal Register on March 6, 2002
(67 FR 10101), which is available online at http://www.regulations.gov
at Docket No. FWS-R8-ES-2009-0062, or by mail from the Sacramento Fish
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

On August 19, 2004, we proposed critical habitat for the shrew on
approximately 4,649 acres (ac) (1,881 hectares (ha)) in Kern County,
California (69 FR 51417). On January 24, 2005, we published a final
rule (70 FR 3437) designating 84 ac (34 ha) of critical habitat for the
shrew in Kern County, California. The decrease in acreage between the
proposed rule and final rule resulted from exclusions under section
4(b)(2) of the Act and, to a small degree, refinements in our mapping
of critical habitat boundaries.
On October 2, 2008, the Center for Biological Diversity filed a
complaint in the U.S. District Court for the Eastern District of
California challenging the Service's designation of critical habitat
for the shrew (Center for Biological Diversity v. United States Fish
and Wildlife, et al., Case No. 08-CV-01490-AWI-GSA). On July 9, 2009,
the Court approved a stipulated settlement agreement in which the
Service agreed to submit a revised proposed rule to the Federal
Register within 90 days of the signed agreement. The revised proposed
rule was to encompass the same geographic area as the August 19, 2004
(69 FR 51417), proposed critical habitat designation.
On October 21, 2009, we published a proposed rule to revise
critical habitat for the Buena Vista Lake shrew (74 FR 53999). We
proposed to designate approximately 4,649 ac (1,881 ha) in five units
located in Kern County, California, as critical habitat. That proposal
had a 60-day comment period, ending December 21, 2009. Additionally,
the Service agreed to submit to the Federal Register for publication,
on or before March 22, 2012, a final determination on revised critical
habitat for the shrew. The proposed rule (74 FR 53999) that published
in the Federal Register on October 21, 2009, complies with the July 9,
2009, stipulated agreement.
The current designation of critical habitat for the Buena Vista
Lake shrew (70 FR 3437, January 24, 2005) remains in full force and
effect until we publish a new final rule revising critical habitat for
the shrew.

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

[[Page 23783]]

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 October 21, 2009,
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. The Secretary may exclude an area from
critical habitat if he 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.
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
the Buena Vista Lake shrew, the benefits of critical habitat include
public awareness of the presence of the shrew and the importance of
habitat protection, and, where a Federal nexus exists, increased
habitat protection for the shrew 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.

Areas Previously Considered for Exclusion Under Section 4(b)(2) of the
Act

In the January 24, 2005, final rule (70 FR 3437), we determined
what lands had essential features under the definition of critical
habitat in section 3(5)(A) of the Act, and evaluated those lands in
order to ascertain if any specific areas were appropriate for exemption
or exclusion from critical habitat under sections 4(a)(3) or 4(b)(2) of
the Act. We did not include the proposed Kern National Wildlife Refuge
(Refuge) Unit in the final designation as critical habitat because we
determined that the unit had management plans already in place to
provide for the conservation of the shrew, and no further special
management or protection was required. For inclusion in a critical
habitat designation, the habitat within the geographical area occupied
by the species at the time it was listed must contain physical and
biological features which are essential to the conservation of the
species and which may require special management considerations or
protection. The presence of a management plan does not mean that
special management considerations or protection are not required, and
as a result, we have included the Refuge in this proposed revised
designation. In addition, we excluded three proposed critical habitat
units (the Goose Lake Unit, the Kern Fan Recharge Area Unit, and the
Coles Levee Unit) in the January 24, 2005, final rule because we
determined that the benefits of excluding lands under appropriate
management for the Buena Vista Lake shrew outweighed the benefits of
their inclusion within critical habitat. We determined that ongoing
management of these areas would provide conservation benefits that
would negate the need for critical habitat designation. We also
determined that critical habitat designation might hinder conservation
of habitat for the shrew by discouraging the involvement of local
jurisdictions and private landowners without providing any
counterbalancing, proactive conservation benefit.
In the current rulemaking process, we do not intend to use the
approach that we used in the 2005 final rule to evaluate the Kern
National Wildlife Refuge Unit. For our upcoming final determination, we
will re-evaluate management planning and implementation for this unit
as well as for the rest of the proposed revised critical habitat units
and will weigh the benefits of excluding these areas against the
benefits of including them in critical habitat under section 4(b)(2) of
the Act.
In the October 21, 2009, proposed rule (74 FR 53999), we have not
proposed to exclude any areas from critical habitat. However, the final
decision on whether to exclude any areas will be based on the best
scientific data available at the time of the final designation,
including information obtained during the comment period and
information about the economic impact of designation. Accordingly, we
have prepared a draft economic analysis concerning the proposed revised
critical habitat designation, which is available for review and comment
(see ADDRESSES).

Draft Economic Analysis

The purpose of the DEA is to identify and analyze the potential
economic impacts associated with the proposed revised critical habitat
designation for the Buena Vista Lake shrew that we published in the
Federal Register on October 21, 2009 (74 FR 53999). The DEA separates
conservation measures into two distinct categories according to
``without critical habitat'' and ``with critical habitat'' scenarios.
The ``without critical habitat'' scenario represents the baseline for
the analysis, considering protections otherwise afforded to the Buena
Vista Lake shrew (e.g., under the Federal listing and other Federal,
State, and local regulations). The ``with critical habitat'' scenario
describes the incremental impacts specifically due to designation of
critical habitat for the species. In other words, these incremental
conservation measures and associated economic impacts would not occur
but for the designation. Conservation measures implemented under the
baseline (without critical habitat) scenario are described
qualitatively within the DEA, but economic impacts associated with
these measures are not quantified. Economic impacts are only quantified
for conservation measures implemented specifically due to the
designation of critical habitat (i.e., incremental impacts).
The 2011 DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed revised critical habitat designation
for the Buena Vista Lake shrew over the next 20 years, which was
determined to be the appropriate period for analysis because limited
planning information is available for most activities to forecast
activity levels for projects beyond a 20-year timeframe. It identifies
potential incremental costs as a result of the proposed revised
critical habitat designation; these are those costs attributed to
critical habitat over and

[[Page 23784]]

above those baseline costs attributed to listing. The DEA quantifies
economic impacts of the Buena Vista Lake shrew conservation efforts
associated with the following categories of activities: (1) Water
availability and delivery, (2) agricultural production, and (3) energy
development. In addition, the DEA identifies potential economic impacts
due to additional administrative costs as part of future section 7
consultations on pipeline removal or construction, habitat restoration
and water channel maintenance work, and invasive species management
(IEC 2011, p. 4-2). To provide an understanding of the potential
economic impacts, the DEA determines the scope and scale of economic
activities within the proposed revised critical habitat; identifies
threats to Buena Vista Lake shrew habitat associated with these
economic activities; identifies conservation measures that may be
implemented to avoid or minimize these threats; and to the extent
feasible, quantifies the economic costs of these measures. The DEA
considers and estimates the impacts of the rule as currently proposed
and as if the existing 2005 critical habitat designation does not exist
(IEC 2011, p. 2-2). As a result, costs incurred as a result of the 2005
designation are not separately documented in the DEA.
The DEA considers both economic efficiency and distributional
effects that may result from efforts to protect the shrew and its
habitat. Economic efficiency effects generally reflect the
``opportunity costs'' associated with the commitment of resources
required to accomplish species and habitat conservation. 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. Decision-makers can use this
information to assess whether the effects of the critical habitat
designation might unduly burden a particular group or economic sector.
The DEA concludes that incremental impacts resulting from the
critical habitat designation are limited to additional administrative
costs of section 7 consultation. There are two primary sources of
uncertainty associated with the incremental effects analysis: (1) The
actual rate of future consultation is unknown, and (2) future land use
on private lands is uncertain. The analysis does not identify any
future projects on private lands beyond those covered by existing
baseline projections. Section 7 consultation on the shrew has not
occurred on private lands that are not covered by conservation plans
(Units 2 and 5). As a result, the analysis does not forecast
incremental impacts due to such measures. However, if zoning of these
lands changes in the future and new projects are identified, shrew
conservation may change.
The DEA estimates total potential incremental economic impacts in
areas proposed as revised critical habitat over the next 20 years (2011
to 2030) to be approximately $133,000 ($11,700 annualized) in present
value terms applying a 7 percent discount rate (IEC 2011, p. 4-2).
Administrative costs associated with section 7 consultations on a
variety of activities (including pipeline construction and removal,
delivery of water supplies under the Central Valley Project, pesticide
applications for invasive species, and restoration activities) in
proposed critical habitat Units 2, 3, and 4 are expected to total
approximately $53,900 over the next 20 years and make up the largest
portion of post-designation incremental impacts, accounting for
approximately 39 percent of the forecast incremental impacts (IEC 2011,
pp. 4-11-4-12). Pacific Gas and Electric (PG&E) has facilities in three
of the proposed critical habitat units. Impacts associated with section
7 consultations on PG&E operations and maintenance activities represent
approximately 31 percent of the total incremental costs and are
expected to total $40,700 over the next 20 years. Incremental impacts
due to costs of internal consultations at the Kern National Wildlife
Refuge are expected to total $16,000 over the next 20 years, which
represents approximately 12 percent of total incremental impacts.
Incremental costs of section 7 consultations with the U.S. Army Corps
of Engineers due to Clean Water Act (33 U.S.C. 1251 et seq.) permitting
are estimated to total $12,600, and represent approximately 10 percent
of total incremental costs. Finally, the present value incremental
impact of reviewing an update to the City of Bakersfield's management
plan and an estimated two formal section 7 consultations over the next
20 years for the shrew at Unit 3 is estimated at $9,660, and represents
approximately 7.2 percent of the overall incremental impacts. No
incremental impacts are estimated to be incurred by Aera Energy LLC for
their activities at the Coles Levee Ecosystem Preserve (IEC 2011, pp.
4-5-4-13).
The incremental costs described above are further broken down by
location of expected incremental costs within the five proposed
critical habitat units. The greatest incremental impacts are due to
cost of section 7 consultations forecast to occur for activities within
the Kern Fan Recharge area (proposed Unit 3) ($84,000), and make up 66
percent of the overall incremental impacts. The second largest
incremental impacts are predicted to occur within the Kern National
Wildlife Refuge (proposed Unit 1) with present value impacts at
$20,800, comprising just over 16 percent of the overall incremental
impacts. Incremental impacts associated with section 7 consultations
for activities occurring on the Goose Lake Unit (proposed Unit 2), are
forecast at $16,500 of present value impacts, and makes up 13 percent
of the overall incremental impacts. Incremental impacts due to section
7 consultations occurring on the Coles Levee Unit (proposed Unit 4) are
estimated to be $6,340 in present value impacts, comprising 5 percent
of total incremental impacts. No projected incremental impacts are
forecast to occur on the Kern Lake Unit (proposed Unit 5). The
consultations forecast for proposed critical habitat Units 2 and 5 are
limited to those associated with occasional permitted pipeline,
restoration, or water projects.
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 proposed rule published in the Federal Register on October
21, 2009 (74 FR 53999), 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 became
available in the DEA. We have now made use of the DEA data to make
these determinations. In this document, we affirm the information in
our proposed rule concerning Executive Order (E.O.) 12866 (Regulatory
Planning and Review), E.O. 12630 (Takings), E.O. 13132 (Federalism),
E.O. 12988 (Civil Justice Reform), the Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44

[[Page 23785]]

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 the DEA's data, we are
amending our required determinations concerning the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) and E.O. 13211 (Energy Supply,
Distribution, and Use).

Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act (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 government 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. Based on our DEA of the proposed
revised designation, we provide our analysis for determining whether
the proposed rule would result in a significant economic impact on a
substantial number of small entities. Based on comments we receive, we
may revise this determination as part of our final rulemaking.
According to the Small Business Administration (SBA), 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.
To determine if the proposed designation of revised critical
habitat for the Buena Vista Lake shrew would affect a substantial
number of small entities, we considered the number of small entities
affected within particular types of economic activities, such as water
availability and delivery, agricultural production, and energy
development. In order to determine whether it is appropriate for our
agency to certify that this proposed rule would not have a significant
economic impact on a substantial number of small entities, we
considered each industry or category individually. In estimating the
numbers of small entities potentially affected, we also 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 shrew 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 species. If we finalize this
proposed revised critical habitat designation, consultations to avoid
the destruction or adverse modification of critical habitat would be
incorporated into the existing consultation process.
In the DEA, we evaluated the potential economic effects on small
entities resulting from implementation of conservation actions related
to the proposed designation of revised critical habitat for the shrew.
Incremental impacts of the proposed revised critical habitat for the
Buena Vista Lake shrew are expected to consist largely of incremental
administrative costs. Small entities may participate in section 7
consultation as a third party (the primary consulting parties being the
Service and the Federal action agency). This analysis, therefore,
considered that small entities may spend additional time considering
critical habitat during section 7 consultation for the shrew. The
incremental impacts to third parties are also included in this
analysis. In order to determine whether it is appropriate for our
agency to certify that this proposed rule would not have a significant
economic impact on a substantial number of small entities, we
considered each industry or category individually.
The DEA states that incremental effects are expected to consist
entirely of administrative costs and that such costs are likely to be
borne by city and county jurisdictions, as well as by several energy
utilities. The specific entities expected to bear incremental impacts
are the City of Bakersfield, Kern County, PG&E, and Southern California
Gas Company, none of which are considered to be small under the RFA
(IEC 2011, p. A-3). Potentially, some incremental impacts borne by the
energy utilities may be passed on to individual customers in the form
of increased energy prices; however, the small size of the impacts is
expected to make such an outcome unlikely (IEC 2011, p. A-2). Please
refer to the DEA for a more detailed discussion of potential economic
impacts.
In summary, we have considered whether the proposed revised
designation would result in a significant economic impact on a
substantial number of small entities. Information for this analysis was
gathered from the SBA, stakeholders, and the Service. None of the
third-party entities identified in the DEA meet SBA's definition of a
small government or business. As a result, no small businesses or
governments will be affected. For the above reasons and based on
currently available information, we certify that, if promulgated, the
proposed revised critical habitat designation for the Buena Vista Lake
shrew would not have a significant economic impact on a substantial
number of small business entities. Therefore, an initial regulatory
flexibility analysis is not required.

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

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. The Office of Management and Budget's guidance for
implementing this Executive Order outlines nine outcomes that may
constitute ``a significant adverse effect'' when compared to not taking
the regulatory action under consideration. As discussed in Appendix
A.2, the DEA finds that although PG&E and Southern California Gas
Company operate facilities within the proposed revised critical habitat
designation, no incremental changes in facility operation are forecast.
Therefore, no changes in energy use, production, or distribution are
anticipated (IEC 2011, p. A-6). Furthermore, incremental costs are
$1,020 on an annualized basis, representing less than 0.01 percent of
the annual revenues of these corporations. Thus, designation of revised
critical habitat is not expected to

[[Page 23786]]

lead to any adverse outcomes (such as a reduction in electricity
production or an increase in the cost of energy production or
distribution), and energy-related impacts associated with Buena Vista
Lake shrew conservation activities within revised critical habitat are
not expected. As such, the designation of revised critical habitat is
not expected to significantly affect energy supplies, distribution, or
use. Therefore, this action is not a significant energy action, and a
Statement of Energy Effects is not required.

References Cited

A complete list of all references we cited in the proposed rule and
in this document is available on the Internet at http://www.regulations.gov or by contacting the Sacramento Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT).

Authors

The primary authors of this notice are the staff members of the
Sacramento Fish and Wildlife Office, Region 8, 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: April 19, 2011.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-10288 Filed 4-27-11; 8:45 am]
BILLING CODE 4310-55-P