[Federal Register Volume 77, Number 142 (Tuesday, July 24, 2012)]
[Proposed Rules]
[Pages 43222-43227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17939]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2011-0085; 4500030114]
RIN 1018-AX39


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Tidewater Goby

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, announce the reopening 
of the public comment period on the October 19, 2011, proposed revised 
designation of critical habitat for the tidewater goby (Eucyclogobius 
newberryi) under the Endangered Species Act of 1973, as amended (Act). 
We also announce the availability of a draft economic analysis (DEA) of 
the proposed revised designation of critical habitat for tidewater goby 
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 revised 
designation, 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: The comment period for the proposed rule published October 19, 
2011 (76 FR 64996) is reopened. We will consider comments received on 
or before August 23, 2012. 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 copies of the proposed 
rule and the draft economic analysis on the Internet at http://www.regulations.gov at Docket Number FWS-R8-ES-2011-0085, or by mail 
from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).
    Comment submission: You may submit written comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R8-ES-2010-0085, 
which is the docket number for this rulemaking. Then, on the left side 
of the screen, under the Document Type heading, click on the Proposed 
Rules link to locate this document and submit a comment.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2011-0085; 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 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: Diane K. Noda, Field Supervisor, 
Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, 
CA 93003; by telephone 805-644-1766; or by facsimile 805-644-3958. 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

[[Page 43223]]

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed revised designation of critical 
habitat for the tidewater goby that was published in the Federal 
Register on October 19, 2011 (76 FR 64996), 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 tidewater goby;
    (b) The amount and distribution of tidewater goby habitat;
    (c) What areas within the geographical area occupied by the species 
at the time of listing that contain physical or biological features 
essential to the conservation of the species we should include in the 
designation and why; and
    (d) What areas outside the geographical area occupied at the time 
of listing are essential for the conservation of the species and why.
    (3) Land-use designations and current or planned activities in the 
subject areas and their possible effects on proposed revised critical 
habitat for tidewater goby.
    (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 conservation 
and regulatory benefits of the proposed critical habitat designation.
    If you submitted comments or information on the proposed revised 
rule (76 FR 64996) during the initial comment period from October 19, 
2011, to December 19, 2011, 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 do not meet the definition of 
critical habitat, 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 
request that you send comments only by the methods described 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 DEA, will be 
available for public inspection on http://www.regulations.gov at Docket 
No. FWS-R8-ES-2011-0085, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of 
the proposed revised rule and the DEA on the Internet at http://www.regulations.gov at Docket Number FWS-R8-ES-2011-0085, or by mail 
from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for tidewater goby in this 
document. For more information on previous Federal actions concerning 
the tidewater goby, refer to the proposed revised designation of 
critical habitat published in the Federal Register on October 19, 2011 
(76 FR 64996). For more information on the tidewater goby or its 
habitat, refer to the final listing rule published in the Federal 
Register on February 4, 1994 (59 FR 5494); the first and second rules 
proposing critical habitat published in the Federal Register on August 
3, 1999 (64 FR 42250) and November 28, 2006 (71 FR 68914), 
respectively; and the subsequent final critical habitat designations 
published in the Federal Register on November 20, 2000 (65 FR 69693) 
and January 31, 2008 (73 FR 5920), which are available at http://www.fws.gov/ventura or from the Ventura Fish and Wildlife Office (see 
FOR FURTHER INFORMATION CONTACT). Additionally, more species 
information can be found in the Recovery Plan for the Tidewater Goby 
(Recovery Plan) (Service 2005), and in the Tidewater Goby 5-year review 
(Service 2007), which are available at http://www.fws.gov/endangered.

Previous Federal Actions

    On April 15, 2009, Natural Resources Defense Council (NRDC) filed a 
lawsuit in the U.S. District Court for the Northern District of 
California challenging a portion of the January 31, 2008, final rule 
that designated 44 critical habitat units in Del Norte, Humboldt, 
Mendocino, Sonoma, Marin, San Mateo, Santa Cruz, Monterey, San Luis 
Obispo, Santa Barbara, Ventura, and Los Angeles Counties, California 
(73 FR 5920, January 31, 2008). In a consent decree dated December 11, 
2009, the U.S. District Court: (1) Stated that the 44 critical habitat 
units should remain in effect, (2) stated that the final rule 
designating critical habitat was remanded in its entirety for 
reconsideration, and (3) directed the Service to promulgate a revised 
critical habitat rule that considers the entire geographic range of the 
tidewater goby and any currently unoccupied tidewater goby habitat. The 
consent decree requires that the Service submit a final revised rule to 
the Federal Register no later than November 27, 2012.

Critical Habitat

    Section 3 of the Act defines critical habitat as the specific areas 
within the

[[Page 43224]]

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 (collectively referred to as ``adverse modification'') of 
the designated critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
that may affect 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 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. In the case of 
tidewater goby, the benefits of critical habitat include public 
awareness of the presence of tidewater goby and the importance of 
habitat protection, and, where a Federal nexus exists, increased 
habitat protection for tidewater goby due to protection from adverse 
modification of critical habitat. In practice, situations with a 
Federal nexus exist primarily on Federal lands or for projects 
undertaken by Federal agencies.
    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.
    We are not currently considering any areas for exclusion 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 critical habitat designation (DEA), 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 critical habitat 
designation for the tidewater goby. 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 tidewater goby (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). For a further description of the 
methodology of the analysis, see Chapter 2, ``Framework for the 
Analysis,'' of the DEA (Industrial Economics Incorporated (IEc) 2012).
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for the 
tidewater goby 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 above those 
baseline costs attributed to listing. The DEA quantifies economic 
impacts of tidewater goby conservation efforts associated with the 
following categories of activity: (1) Water management; (2) cattle 
grazing; (3) transportation (roads, highways, bridges); (4) utilities 
(oil and gas pipelines); (5) residential, commercial, and industrial 
development; and (6) natural resource management.
    Baseline protections for the tidewater goby address a broad range 
of habitat threats within a significant portion of the proposed 
critical habitat area. A key consideration in the incremental analysis 
is that, where tidewater goby critical habitat overlaps with steelhead 
(Oncorhynchus mykiss) critical habitat, steelhead conservation measures 
would be sufficiently protective for tidewater goby critical habitat as 
well. As a result, few incremental project modification costs are 
anticipated in these areas. Across the designation, incremental costs 
primarily include costs of administrative efforts associated with new 
and reinitiated consultations to consider adverse modification of 
critical habitat for tidewater goby. In addition, some minor 
incremental project modification costs are forecast to result from 
critical habitat. This result is attributed to the following key 
findings: (1) Baseline protections exist for tidewater goby; (2) 
steelhead critical habitat overlaps with a large portion of the 
unoccupied units; and (3) minimal economic activity occurs on private 
lands in the study area.
    In total, the incremental impacts to all economic activities are 
estimated to be $558,000 over the 20-year timeframe, or $49,300 on an 
annualized basis (assuming a 7 percent discount rate). Approximately 98 
percent of these incremental costs result from administrative costs of 
considering adverse modification in section 7 consultations.
    Incremental conservation efforts are estimated to be $11,500 over 
the 20-year timeframe or $1,090 on an annualized basis (both assuming a 
7 percent discount rate). These include the costs of adding the 
tidewater goby to the environmental impact reports (EIR) required for 
projects that are being proposed in critical habitat unit MAR-5 Bolinas 
Lagoon and SLO-12 Oso Flaco Lake, as well as additional surveying for 
tidewater goby in Oso Flaco Lake.
    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 to 
incorporate or

[[Page 43225]]

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.

Changes to Proposed Revised Critical Habitat

    In this document, we are making a revision to the proposed revised 
critical habitat as identified and described in the proposed rule that 
we published in the Federal Register on October 19, 2011 (76 FR 64996). 
In the proposed rule we stated that, ``We also are proposing to 
designate specific areas outside the geographical area occupied by the 
species at the time of listing that were historically occupied, but are 
presently unoccupied, because such areas are essential for the 
conservation of the species'' (76 FR 65004). However, we did not intend 
to limit the proposal to only specific areas outside the geographical 
area occupied by the species at the time of listing that were 
historically occupied. Our intent was to consider all areas that are 
essential for the conservation of the species and not only those that 
were known to be historically occupied, and we were in error when we 
included ``that were historically occupied, but are presently 
unoccupied'' in the proposed revised rule. In the proposed revised 
rule, we proposed to designate 6 units that are outside the 
geographical area occupied by the species at the time of listing where 
tidewater gobies have not been detected. These units are: SM-2 Pomponio 
Creek, MAR-5 Bolinas Lagoon, SLO-1 Arroyo de la Cruz, SLO-12 Oso Flaco 
Lake, LA-1 Arroyo Sequit, and LA-2 Zuma Canyon. These units are 
essential for the conservation of the tidewater goby because 
translocation to new locations within developing metapopulations is 
anticipated to enhance or accelerate the rangewide recovery effort as 
described in the recovery plan (Service 2005). Moreover, the recovery 
strategy in the recovery plan states that as subpopulations of 
tidewater gobies become isolated, recolonization rates decrease, local 
extirpations become permanent, and entire metapopulations can move 
incrementally toward extinction. Thus, these units are essential for 
the conservation of the species because they could be used to minimize 
the chance of local extirpations resulting in extinction of the broader 
metapopulations and resultant loss of their unique genetic traits 
either by introducing tidewater goby in these units or by the natural 
colonization of these units.

Required Determinations--Amended

    In our October 19, 2011, proposed revised rule (76 FR 64996), 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 revised 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), 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 
the DEA data, we are amending our required determination concerning the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

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. Based on our DEA of the proposed 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, 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 critical habitat for 
the tidewater goby would affect a substantial number of small entities, 
we considered the number of small entities affected within particular 
types of economic activities, such as: (1) Water management; (2) cattle 
grazing; (3) transportation (roads, highways, bridges); (4) utilities 
(oil and gas pipelines); (5) residential, commercial, and industrial 
development; and (6) natural resource management. In order to determine 
whether it is appropriate for us 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 tidewater goby 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 the proposed critical habitat designation, 
consultations to avoid the adverse

[[Page 43226]]

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 critical habitat for the tidewater goby. 
The analysis is based on estimated impacts associated with the proposed 
rulemaking as described in Chapters 4 and 5, and Appendix A, of the 
DEA, and evaluates the potential for economic impacts related to 
activity categories including development, natural resource management, 
transportation, utilities, water management, and recreation.
    As described in Chapters 4 and 5 of the DEA, estimated incremental 
impacts consist primarily of administrative costs and time delays 
associated with section 7 consultation. The Service and the action 
agency are the only entities with direct compliance costs associated 
with this proposed critical habitat designation, although small 
entities may participate in section 7 consultation as a third party. It 
is therefore possible that the small entities may spend additional time 
considering critical habitat during section 7 consultation for the 
tidewater goby. The DEA indicates that the incremental impacts 
potentially incurred by small entities are limited to development, 
natural resource management, transportation, utilities, and water 
management activities.
    Chapter 5 of the DEA discusses the potential for proposed revised 
critical habitat to affect development through additional costs of 
section 7 consultation. These costs are borne by developers and 
existing landowners, depending on whether developers are able to pass 
all or a portion of their costs back to landowners in the form of lower 
prices paid for undeveloped land. Of the total number of entities 
engaged in land subdivision and residential, commercial, industrial and 
institutional construction, nearly 99 percent are small entities.
    Whether individual developers are affected depends on the specific 
characteristics of a particular land parcel as well as the availability 
of land within the affected region. If land is not scarce, the price of 
a specific parcel will likely incorporate any regulatory restrictions 
on that parcel. Therefore, any costs associated with conservation 
efforts for tidewater goby will likely be reflected in the price paid 
for the parcel. In this case, the costs of conservation efforts are 
ultimately borne by the current landowner in the form of reduced land 
values. Many of these landowners may be individuals or families that 
are not legally considered to be businesses.
    If, however, land in the affected region is scarce, or the 
characteristics of the specific parcel are unique, the price of a 
parcel may not incorporate regulatory restrictions associated with that 
parcel. In this case, the project developer may be required to incur 
the additional costs associated with the section 7 consultation 
process. To understand the potential impacts on small entities, we 
conservatively assume that all of the private owners of developable 
lands affected by proposed revised critical habitat designation are 
developers.
    In Chapter 5 of the DEA, we estimate that a total of 20 formal, 
informal, and technical assistance consultations, plus one re-
initiation, may require additional effort to consider adverse 
modification of revised critical habitat. Assuming that each 
consultation is undertaken by a separate entity, we estimate that 21 
developers may be affected by the designation. For purposes of this 
analysis, and because nearly 99 percent of developers in the study area 
are small, we assume that all 21 are small entities. These developers 
represent less than 0.1 percent of small developers in the study area.
    Excluding costs borne by Federal agencies, costs per consultation 
range from $260 for technical assistance to $1,800 for re-initiation of 
a formal consultation. Because we are unable to identify the specific 
entities affected, the impact relative to those entities' annual 
revenues or profits is unknown. However, assuming the average small 
entity has annual revenues of approximately $5.1 million, this maximum 
annualized impact of $1,800 represents less than 0.1 percent of annual 
revenues.
    The consultation history for natural resource management projects 
suggests that these projects are generally undertaken by Federal and 
State agencies, or County departments. The DEA estimates incremental 
administrative costs for section 7 consultation on natural resource 
management in every County except Orange County. Only one of these 
entities, Del Norte County, meets the threshold for small governmental 
jurisdiction. Del Norte County is anticipated to incur administrative 
costs associated with addressing adverse modification in approximately 
three consultations, including one re-initiation. Even if all 
consultations occur in the same year, total impacts to Del Norte County 
will be less than 1 percent of the County's annual revenue.
    The consultation history for tidewater goby includes several 
consultations regarding utilities and oil and gas development. In 
Chapter 5 of the DEA, we estimate that 24 consultations involving 
utility activities will occur during the 20-year period. Based on the 
overall percentage of all small entities in the study area (56 
percent), we estimate that 14 of the 24 total entities that will be 
affected over the 20-year period are small entities. Excluding costs to 
Federal agencies, the cost per entity of addressing adverse 
modification in a section 7 consultation ranges from $260 for technical 
assistance to $880 for a formal consultation (no re-initiations are 
predicted for utility activities). Because we are unable to identify 
the specific entities affected, the impact relative to those entities' 
annual revenues or profits is unknown. However, assuming the average 
small entity in this industry has annual revenues of approximately $9.3 
million, this maximum annualized impact of $880 represents less than 
0.01 percent of annual revenues.
    Chapter 5 of the DEA also discusses the potential for water 
management activities to be affected by the designation. Over the 20-
year period, we estimate that 125 consultations involving water 
management activities, including re-initiations, will occur. Based on 
the overall percentage of all small entities in the study area (83 
percent), we estimate that 104 of the 125 total entities that will be 
affected over the 20-year period are small entities. Excluding costs to 
Federal agencies, the cost per entity of addressing adverse 
modification in a section 7 consultation ranges from $260 for technical 
assistance to $1,800 for re-initiation of a formal consultation. 
Because we are unable to identify the specific entities affected, the 
impact relative to those entities' annual revenues or profits is 
unknown. However, assuming the average small entity in this industry 
has annual revenues of approximately $5.0 million, this maximum 
annualized impact of $1,800 represents less than 0.1 percent of annual 
revenues.
    The DEA also concludes that none of the government entities with 
which we might consult on tidewater goby for transportation or 
recreation meet the definitions of small as defined by the Small 
Business Act (SBE) (IEC 2012, p. A-6); therefore, impacts to small 
government entities due to transportation and recreation are not 
anticipated. A review of the consultation history for tidewater goby 
suggests future section 7 consultations on livestock grazing (for 
example, ranching operations) are unlikely, and as a result are not 
anticipated to be

[[Page 43227]]

affected by the proposed rule (IEC 2012, p. 5-13). Please refer to the 
DEA of the proposed critical habitat designation for a more detailed 
discussion of potential economic impacts.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and our files. We have 
identified 161 small entities that may be impacted by the proposed 
critical habitat designation. 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.

Authors

    The primary authors of this notice are the staff members of the 
Ventura Fish and Wildlife Office, Pacific 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: July 12, 2012.
Michael Bean,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-17939 Filed 7-23-12; 8:45 am]
BILLING CODE 4310-55-P