[Federal Register Volume 76, Number 82 (Thursday, April 28, 2011)]
[Proposed Rules]
[Pages 23781-23786]
From the Federal Register Online via the Government Publishing 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

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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