Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Tidewater Goby (Eucyclogobius newberryi, 54411-54416 [E7-18632]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 72, Number 185 (Tuesday, September 25, 2007)]
[Proposed Rules]
[Pages 54411-54416]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-18632]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU81


Endangered and Threatened Wildlife and Plants; Revised Critical 
Habitat for the Tidewater Goby (Eucyclogobius newberryi)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, notice of 
availability of draft economic analysis, and amended Required 
Determinations.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on the 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 the draft economic analysis of the proposed revised 
critical habitat designation and an amended Required Determinations 
section of the proposal.
    The draft economic analysis estimates post-designation costs 
associated with

[[Page 54412]]

conservation efforts for the tidewater goby to be approximately $25 
million (undiscounted) over the next 20 years (2007 to 2026) as a 
result of the proposed designation of critical habitat. Discounted 
future costs are estimated to be approximately $22 million ($1.5 
million annualized) at a 3 percent discount rate or approximately $20 
million ($1.8 million annualized) at a 7 percent discount rate. 
Potential cost savings in Unit VEN-2 associated with tidewater goby 
conservation efforts range from approximately $35 million to $90 
million (undiscounted dollars). By combining these savings with the 
estimated costs of conservation efforts, an overall net cost savings of 
approximately $10 million to $65 million (undiscounted) could be 
realized over the next 20 years. In present value terms, net cost 
savings range from approximately $9.8 million to $60 million (assuming 
a 3 percent discount rate) or approximately $9.1 million to $54.0 
million (assuming a 7 percent discount rate).
    We are reopening the comment period for the proposed rule to allow 
all interested parties an opportunity to comment simultaneously on the 
proposed rule, the associated draft economic analysis, and the amended 
Required Determinations section. Comments previously submitted need not 
be resubmitted as they will be incorporated into the public record as 
part of this comment period, and will be fully considered in 
preparation of the final designation.

DATES: We will accept public comments until October 10, 2007.

ADDRESSES: You may submit comments and materials to us by any one of 
the following methods:
    (1) You may mail or hand-deliver written comments and information 
to the Field Supervisor, U.S. Fish and Wildlife Service, 2493 Portola 
Road, Suite B, Ventura, CA 93003.
    (2) You may fax your comments to 805/644-3958.
    (3) You may send comments by electronic mail (e-mail) to: 
fw8gobydea@fws.gov. For instructions on how to file comments 
electronically, see the ``Public Comments Solicited'' section below. In 
the event that our Internet connection is not functional, please submit 
your comments by one of the alternate methods listed in this section.
    (4) You may submit your comments via the Federal eRulemaking Portal 
at https://www.regulations.gov. Follow the instructions for submitting 
comments.

FOR FURTHER INFORMATION CONTACT: Chris Dellith, Biologist, or Michael 
McCrary, Listing and Recovery Coordinator, Ventura Fish and Wildlife 
Office, at the street address listed in ADDRESSES (telephone 805/644-
1766; 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:

Public Comments Solicited

    During this reopened comment period, we solicit comments on the 
proposed revised critical habitat designation (71 FR 68914; November 
28, 2006), our draft economic analysis 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 the designation can be expected to result in 
an increase in threats to the species from human activity that 
outweighs the benefit of designation to the species such that the 
designation of critical habitat is not prudent.
    (2) Specific information on the amount and distribution of 
tidewater goby habitat; what habitat or habitat features are essential 
to the conservation of this species and why, which areas occupied at 
the time of listing containing these features should be included in the 
critical habitat designation and why, and which areas not occupied at 
the time of listing are essential to the conservation of the species 
and should be included in the designation 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) 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.
    (5) Whether our general approach to determine which localities to 
include in proposed revised critical habitat (44 of the 106 localities 
that are currently occupied by tidewater gobies) could be improved or 
modified.
    (6) Specifically with reference to those State Park lands under the 
jurisdiction of the California Department of Parks and Recreation 
(CDPR) that are proposed for designation, information on any areas 
covered by conservation or management plans that we should consider for 
exclusion from the designation under section 4(b)(2) of the Act.
    (7) Any additional proposed critical habitat areas covered by 
conservation or management plans that we should consider for exclusion 
from the designation under section 4(b)(2) of the Act. We specifically 
request any information on any operative or draft habitat conservation 
plans for the tidewater goby that have been prepared under section 
10(a)(1)(B) of the Act, or any other management or other conservation 
plan or agreement that benefits the goby or its primary constituent 
elements.
    (8) Any information concerning Tribal lands or trust resources that 
may be impacted by this proposed revision to critical habitat.
    (9) Information on whether the draft economic analysis should 
include the voluntary cost of land acquisition by The Nature 
Conservancy and Trust for Public Lands in Ventura County. These 
organizations have and will continue to acquire lands in Ventura County 
to prevent structured flood control (e.g., channelization), which may 
threaten many species, including the tidewater goby.
    (10) Information on whether the draft economic analysis identifies 
all State and local costs and benefits attributable to the proposed 
revised critical habitat designation, and information on any costs or 
benefits that have been inadvertently overlooked.
    (11) Information on whether the draft economic analysis makes 
appropriate assumptions regarding current practices and likely 
regulatory changes that would be imposed as a result of the revised 
designation of critical habitat.
    (12) Information on whether the draft economic analysis correctly 
assesses the effect on regional costs associated with any land use 
controls that may derive from the revised designation of critical 
habitat.
    (13) Information on areas that could potentially be 
disproportionately impacted by the revised designation of tidewater 
goby critical habitat. The draft economic analysis indicates the 
potential economic effects of undertaking conservation efforts for this 
species in California. Based on this information, we may consider 
excluding portions of these areas from the final revised designation 
per our discretion under section 4(b)(2) of the Act.
    (14) Any foreseeable economic, national security, or other 
potential impacts resulting from the proposed designation and, in 
particular, any

[[Page 54413]]

impacts on small entities, and the benefits of including or excluding 
areas that exhibit these impacts; the reasons why our conclusion that 
the proposed designation of critical habitat would not result in a 
disproportionate effect on small businesses should or should not 
warrant further consideration; and other information that would 
indicate that the designation of critical habitat would or would not 
have any impacts on small entities.
    (15) Information on whether the draft economic analysis 
appropriately identifies all costs that could result from the revised 
designation.
    (16) Information on whether there are any additional quantifiable 
economic benefits that could result from the revised designation;
    (17) Whether the benefit of excluding any particular area from the 
critical habitat designation under section 4(b)(2) of the Act outweighs 
the benefit of including the area in the designation.
    (18) Economic data on the incremental effects that would result 
from designating any particular area as revised critical habitat, since 
it is our intent to include the incremental costs attributed to the 
revised critical habitat designation in the final economic analysis.
    The Secretary shall designate critical habitat on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impact of specifying any particular area as critical habitat. 
Under section 4(b)(2) of the Act, an area may be excluded from critical 
habitat if it is determined that the benefits of such exclusion 
outweigh the benefits of including a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species. We may exclude an area 
from designated critical habitat based on economic impacts, national 
security, or any other relevant impact.
    Comments and information submitted during the initial comment 
period on the November 28, 2006, proposed rule (71 FR 68914) need not 
be resubmitted. If you wish to comment, you may submit your comments 
and materials concerning the proposed rule, draft economic analysis, or 
the amended Required Determinations provided in this document by any 
one of several methods (see ADDRESSES). Our final designation of 
critical habitat will take into consideration all comments and any 
additional information we receive during both comment periods. On the 
basis of information provided during the public comment periods on the 
revised critical habitat proposal and the draft economic analysis, and 
on the basis of the final economic analysis, 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 material concerning the above 
actions by any one of several methods (see ADDRESSES). If you use e-
mail to submit your comments, please include ``Attn: RIN 1018-AU81'' in 
your e-mail subject header, preferably with your name and return 
address in the body of your message. If you do not receive a 
confirmation from the system that we have received your e-mail, contact 
us directly by calling our Ventura Fish and Wildlife Office at 805-644-
1766.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comments, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold from public view your personal 
identifying information, we cannot guarantee that we will be able to do 
so. Comments and materials received, as well as supporting 
documentation used in preparation of the proposal to designate revised 
critical habitat, will be available for public inspection, by 
appointment during normal business hours, at the Ventura Fish and 
Wildlife Office at the street address listed under ADDRESSES.
    You may obtain copies of the proposed rule and draft economic 
analysis by mail from the Ventura Fish and Wildlife Office (see 
ADDRESSES), or by calling 805-644-1766 extension 301, or by visiting 
our Web site at https://www.fws.gov/ventura/.

Background

    Under the terms of a December 21, 2004, settlement agreement, we 
agreed to submit for publication in the Federal Register a proposed 
revised critical habitat designation for the tidewater goby by November 
15, 2006. We published a proposed rule to revise critical habitat for 
the tidewater goby on November 28, 2006 (71 FR 68914). The proposed 
revised critical habitat includes approximately 10,003 acres (ac) 
(4,050 hectares (ha)) for the tidewater goby in Del Norte, Humboldt, 
Mendocino, Sonoma, Marin, San Mateo, Santa Cruz, Monterey, San Luis 
Obispo, Santa Barbara, Ventura, and Los Angeles Counties, California.
    Critical habitat is defined in section 3 of the Act as the specific 
areas within the geographical area occupied by a species, at the time 
it is listed in accordance with the Act, on which are found those 
physical or biological features essential to the conservation of the 
species and that may require special management considerations or 
protection, and specific areas outside the geographical area occupied 
by a species at the time it is listed, upon a determination that such 
areas are essential for the conservation of the species. If the 
proposed rule is made final, section 7 of the Act will prohibit 
destruction or adverse modification of critical habitat by any activity 
funded, authorized, or carried out by any Federal agency. Federal 
agencies proposing actions affecting areas designated as critical 
habitat must consult with us on the effects of their proposed actions, 
in accordance with section 7(a)(2) of the Act.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial data 
available, after taking into consideration the economic impact, impact 
on national security, or any other relevant impact of specifying any 
particular area as critical habitat. Based on the November 28, 2006, 
proposed rule to designate revised critical habitat for the tidewater 
goby (71 FR 68914), we have prepared a draft economic analysis of the 
proposed revised critical habitat designation for the tidewater goby.
    The draft economic analysis is intended to quantify the economic 
impacts of all potential conservation efforts for the tidewater goby; 
some of these costs will likely be incurred regardless of whether 
critical habitat is designated. The draft economic analysis considers 
past costs associated with the conservation of the species from the 
time it was listed (February 4, 1994; 59 FR 5494), as well as costs of 
conservation-related measures that are likely to be associated with 
future economic activities that may adversely affect the habitat within 
the proposed boundaries over a 20-year period. For a further 
description of the methodology of the analysis, see section 1.3 
(Approach to Estimating Economic Impacts) of the draft economic 
analysis.
    The draft economic analysis describes economic impacts of tidewater 
goby conservation efforts associated with 5 categories of activities: 
(1) Water management; (2) grazing; (3) transportation; (4) natural 
resource management; and (5) oil and gas pipeline construction and 
maintenance.

[[Page 54414]]

The draft economic analysis estimates pre-designation costs associated 
with the conservation of the species to be approximately $11.3 million 
(undiscounted). Discounted costs are estimated to be approximately 
$13.1 million at a 3 percent discount rate or approximately $16.3 
million at a 7 percent discount rate. The draft economic analysis 
estimates post-designation costs associated with conservation efforts 
for the tidewater goby to be approximately $25 million (undiscounted) 
over the next 20 years (2007 to 2026). Discounted future costs are 
estimated to be approximately $22 million ($1.5 million annualized) at 
a 3 percent discount rate or approximately $20 million ($1.8 million 
annualized) at a 7 percent discount rate.
    In critical habitat Unit VEN-2, the City of Ventura's Water 
Reclamation Facility (VWRF) discharges effluent into the Santa Clara 
River, sustaining water levels in tidewater goby habitat. Existing 
water quality control regulations have the potential to require VWRF to 
cease discharge of effluent into the estuary, which would force the 
City of Ventura to build a new ocean outfall facility for the effluent. 
The Service has recommended that the discharge be continued to protect 
sensitive species, including tidewater goby, for the discharge 
simulates a more natural environment by maintaining water levels. 
Potential cost savings to VWRF of installing tertiary treatment and 
constructing new facilities, rather than moving to an ocean outfall, 
ranges from $35 million to $90 million (undiscounted).
    The cost savings to VWRF are factored into the analysis of economic 
impacts associated with tidewater goby conservation. By combining these 
savings with the estimated post-designation costs of conservation 
efforts described above ($25 million), an overall net cost savings of 
approximately $10 million to $65 million (undiscounted) could be 
realized over the next 20 years. In present value terms, potential net 
cost savings from the designation of critical habitat for the tidewater 
goby range from approximately $9.8 million to $60 million (assuming a 3 
percent discount rate) or approximately $9.1 million to $54.0 million 
(assuming a 7 percent discount rate).
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of the tidewater goby, 
including costs associated with sections 4, 7, and 10 of the Act, and 
including those attributable to designating critical habitat. It 
further considers the economic effects of protective measures taken as 
a result of other Federal, State, and local laws that aid habitat 
conservation for the tidewater goby in areas containing features 
essential to the conservation of the species. The draft analysis 
considers both economic efficiency and distributional effects. In the 
case of habitat conservation, efficiency effects generally reflect the 
``opportunity costs'' associated with the commitment of resources to 
comply with habitat protection measures (e.g., lost economic 
opportunities associated with restrictions on land use).
    The draft analysis 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. This 
information can be used by decision-makers to assess whether the 
effects of the designation might unduly burden a particular group or 
economic sector. Finally, the draft analysis looks retrospectively at 
costs that have been incurred since the date the tidewater goby was 
listed as endangered (February 4, 1994; 59 FR 5494) and considers those 
costs that may occur in the 20 years following a designation of 
critical habitat. Forecasts of economic conditions and other factors 
beyond this point would be speculative.
    As stated earlier, we solicit data and comments from the public on 
the draft economic analysis, as well as on all aspects of the proposal. 
We may revise the proposal, or its supporting documents, to incorporate 
or address new information received during the comment period. In 
particular, we may exclude an area from critical habitat if we 
determine that the benefits of excluding the area outweigh the benefits 
of including the area as critical habitat, provided such exclusion 
would not result in the extinction of the species.

Required Determinations--Amended

    In our November 28, 2006, proposed rule (71 FR 68914), we indicated 
that we would be deferring our determination of compliance with several 
statutes and Executive Orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders was available in the draft economic 
analysis. Those data are now available for our use in making these 
determinations. In this notice we are affirming the information 
contained in the proposed rule concerning Executive Order (E.O.) 13132; 
E.O. 12988; the Paperwork Reduction Act; and the President's memorandum 
of April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951). Based on the information 
made available to us in the draft economic analysis, we are amending 
our Required Determinations, as provided below, concerning E.O. 12866 
and the Regulatory Flexibility Act, E.O. 13211, E.O. 12630, and the 
Unfunded Mandates Reform Act.

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise novel legal and policy issues. 
Based on our draft economic analysis of the proposed revised 
designation of critical habitat for the tidewater goby, post-
designation costs associated with conservation efforts for the 
tidewater goby (as described above) are estimated to be approximately 
$25 million (undiscounted) over the next 20 years (2007 to 2026). 
Discounted future costs are estimated to be approximately $22 million 
($1.5 million annualized) at a 3 percent discount rate or approximately 
$20 million ($1.8 million annualized) at a 7 percent discount rate. In 
addition, potential cost savings in Unit VEN-2 associated with VWRF's 
continued maintenance of adequate water flows for the tidewater goby 
range from approximately $35 million to $90 million (undiscounted 
dollars). By combining these savings with the estimated post-
designation costs of conservation efforts described above ($25 
million), an overall net cost savings of approximately $10 million to 
$65 million (undiscounted) could be realized over the next 20 years. In 
present value terms, net cost savings from the designation range from 
approximately $9.8 million to $60 million (assuming a 3 percent 
discount rate) or approximately $9.1 million to $54.0 million (assuming 
a 7 percent discount rate).
    Therefore, based on our draft economic analysis, we have determined 
that the proposed revised designation of critical habitat for the 
tidewater goby will not result in an annual effect on the economy of 
$100 million or more or affect the economy in a material way. Due to 
the timeline for publication in the Federal Register, the Office of 
Management and Budget (OMB) did not formally review the proposed rule.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, Circular A-4, September 17, 2003). Pursuant to 
Circular A-4, once it has been determined that the Federal regulatory 
action is appropriate, the

[[Page 54415]]

agency will then need to consider alternative regulatory approaches. 
Since the determination of critical habitat is a statutory requirement 
under the Act, we must evaluate alternative regulatory approaches, 
where feasible, when promulgating a designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat provided the benefits of such 
exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as 
amended by the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 802(2)) (SBREFA), 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 upon our draft 
economic analysis 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 received, this determination is subject to revision as part of 
the 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 tidewater goby would affect a substantial number of 
small entities, we considered the number of small entities affected 
within particular types of economic activities. We considered each 
industry or category individually to determine if certification is 
appropriate. In estimating the numbers of small entities potentially 
affected, we also considered whether their activities have any Federal 
involvement; some kinds of activities are unlikely to have any Federal 
involvement and so will not be affected by the designation of critical 
habitat. Designation of critical habitat only affects activities 
conducted, funded, permitted, or authorized by Federal agencies; non-
Federal activities are not affected by the designation.
    If this proposed revised critical habitat designation is made 
final, Federal agencies must consult with us under section 7(a)(2) of 
the Act if their activities may affect designated critical habitat. 
Consultations to avoid the destruction or adverse modification of 
critical habitat would be incorporated into the existing consultation 
process.
    In our draft economic analysis of the proposed revised critical 
habitat designation, we evaluate the potential economic effects on 
small business entities resulting from conservation actions related to 
the listing of the tidewater goby and proposed designation of critical 
habitat. Small entities were evaluated within the following types of 
economic activities: Water management, grazing, transportation, natural 
resource management, and oil and gas pipeline construction and 
maintenance. Based on the results of the analysis, only small entities 
conducting water management activities and small entities holding 
cattle grazing permits have the potential to be affected.
    The majority of water management activities are large-scale 
projects involving entities that are not considered small. The primary 
water management impacts are for expected land purchases to allow 
flooding and for expected flood control activities. Future conservation 
enabling land purchases that allow flooding to occur unimpeded are 
expected from the California Department of Fish and Game (CDFG), The 
Nature Conservancy, the Trust for Public Land, and the California 
Coastal Conservancy. The California Coastal Conservancy and CDFG are 
public agencies, and part of the government of the State of California; 
they are therefore not considered to be small entities. Both the Trust 
for Public Land and the Nature Conservancy are national organizations 
that are dominant in their fields and are not considered small 
entities.
    There are multiple planned flood control mitigation measures by the 
U.S. Army Corps of Engineers, various California State departments 
(e.g., Department of Fish and Game, California Coastal Commission), and 
by several California County governments. Del Norte County is the only 
County that contains proposed revised critical habitat that meets the 
definition of small (population less than 50,000); Del Norte County had 
a population of 27,507 in 2000. Expected water management impacts to 
Del Norte County are estimated to be $4,000 per year. Del Norte County 
had annual gross revenues of $51 million in 2004. Thus, impacts to Del 
Norte County resulting from tidewater goby conservation efforts are 
considered negligible (less than 0.01 percent of yearly gross 
revenues).
    Impacts to grazing activities include costs associated with fence 
construction and the value of lost forage. The costs of constructing 
fences are expected to be borne by the public agencies that manage the 
lands. These agencies (primarily the CDFG) are not considered small 
entities. Lost forage value is expected to be borne by the private 
ranchers that hold permits for grazing on State lands in the study 
area. However, because the amount of State lands available for grazing 
within the study area is relatively small, the impacts of lost forage 
value are also relatively minor. The percentage impact per small 
grazing entity is expected to be negligible unless all impacts are 
borne by a single entity.
    In summary, we have considered whether this proposed revised 
designation would result in a significant economic impact on a 
substantial number of small business entities. For the above reasons 
and based on currently available information, we certify that the rule 
will not, if promulgated, have a significant

[[Page 54416]]

economic impact on a substantial number of small entities. Therefore, 
an initial regulatory flexibility analysis is not required.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. According to the draft 
economic analysis, the estimated impacts of tidewater goby conservation 
efforts on Venoco, Inc. for planned oil and gas pipeline construction 
and maintenance are $145,000 (undiscounted). The operating expenses for 
oil and natural gas production for Venoco, Inc. were $87.5 million in 
2006. Thus, the impacts of tidewater goby conservation efforts are only 
0.2 percent of oil and gas production expenses for Venoco, Inc. These 
impacts are negligible when compared with the cost of energy production 
and distribution. Therefore, this action is not a significant energy 
action and no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule would not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, Tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) A condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities who receive Federal 
funding, assistance, permits or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) As discussed in the draft economic analysis of the proposed 
designation of critical habitat for the tidewater goby, the impacts on 
small governments is expected to be small. As stated above, expected 
water management impacts to Del Norte County are estimated to be $4,000 
per year. Del Norte County had annual gross revenues of $51 million in 
2004. Therefore impacts to Del Norte County for water management are 
expected to be less than 0.01 percent of yearly gross revenues. 
Consequently, we do not believe that the designation of critical 
habitat for the tidewater goby would significantly or uniquely affect 
these small governmental entities. As such, a Small Government Agency 
Plan is not required.

Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing revised critical habitat for the tidewater goby in a takings 
implications assessment. Critical habitat designation does not affect 
landowner actions that do not require Federal funding or permits, nor 
does it preclude development of habitat conservation programs or 
issuance of incidental take permits to permit actions that do require 
Federal funding or permits to go forward. The takings implications 
assessment concludes that this proposed designation of revised critical 
habitat for the tidewater goby does not pose significant takings 
implications.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Ventura Fish and 
Wildlife Office (see ADDRESSES).

Author

    The primary author of this notice is the staff of the Ventura Fish 
and Wildlife Office.

Authority

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

    Dated: September 14, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E7-18632 Filed 9-24-07; 8:45 am]
BILLING CODE 4310-55-P