69578 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 

6. Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rules 

34. None. 

Ordering Clause 

Accordingly, it is ordered that the 

Notice of Proposed Rulemaking is 

adopted.

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary.

[FR Doc. 04–26385 Filed 11–29–04; 8:45 am] 

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AT66 

Endangered and Threatened Wildlife 

and Plants; Proposed Critical Habitat 

Designation for the Buena Vista Lake 

Shrew

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Proposed rule; notice of 

availability of draft economic analysis 

and reopening of public comment 

period. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

availability of a draft economic analysis 

for the proposed designation of critical 

habitat for Buena Vista Lake shrew in 

California under the Endangered 

Species Act of 1973, as amended (Act). 

We are also reopening the public 

comment period for the proposal to 

designate critical habitat for this species 

to allow all interested parties to 

comment on the proposed rule and the 

associated draft economic analysis. 

Comments previously submitted on the 

proposed rule need not be resubmitted 

as they have been incorporated into the 

public record as part of this reopening 

of the comment period, and will be fully 

considered in preparation of the final 

rule.

DATES: We will accept all comments and 

information received on or before 

December 15, 2004. Any comments that 

we receive after the closing date may 

not be considered in the final decision 

on this proposal.

ADDRESSES: If you wish to comment, 

you may submit your comments and 

materials concerning this proposed rule 

by any one of several methods: 

(1) You may submit written comments 

and information to the Field Supervisor, 

Sacramento Fish and Wildlife Office, 

U.S. Fish and Wildlife Service, 2800 

Cottage Way, Suite W–2605, 

Sacramento, CA 95825, or by facsimile 

916/414–6710. 

(2) You may hand-deliver written 

comments to our office, at the address 

given above. 

(3) You may send comments by 

electronic mail (e-mail) to: 

BVLS_pCH@fws.gov. Please see the 

‘‘Public Comments Solicited’’ section 

below for file format and other 

information about electronic filing. In 

the event that our Internet connection is 

not functional, please submit your 

comments by the alternate methods 

mentioned above. 

Comments and materials received, as 

well as supporting documentation used 

in preparation of the proposed critical 

habitat rule, will be available for public 

inspection, by appointment, during 

normal business hours at the above 

address. You may obtain copies of the 

draft economic analysis for the 

proposed designation of critical habitat 

for Buena Vista Lake shrew by 

contacting the Sacramento Fish and 

Wildlife Office at the above address. 

The draft economic analysis and the 

proposed rule for critical habitat 

designation are also available on the 

Internet at http://sacramento.fws.gov/.

In the event that our Internet connection 

is not functional, please obtain copies of 

documents directly from the 

Sacramento Fish and Wildlife Office.

FOR FURTHER INFORMATION CONTACT:

Arnold Roessler, Sacramento Fish and 

Wildlife Office, at the address above 

(telephone 916/414–6600; facsimile 

916/414–6710).

SUPPLEMENTARY INFORMATION: 

Public Comment Solicited 

We solicit comments or suggestions 

from the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning our draft 

economic analysis and the proposed 

rule to designate critical habitat for the 

Buena Vista Lake shrew. We 

particularly seek comments concerning: 

(1) The reasons why any habitat 

should or should not be determined to 

be critical habitat as provided by section 

4 of the Act, including whether the 

benefits of exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat; 

(2) Specific information on the 

amount and distribution of shrew 

habitat, and what habitat is essential to 

the conservation of this species and 

why; 

(3) Land use designations and current 

or planned activities in the subject area 

and their possible impacts on proposed 

habitat, specifically impacts of the 

designation on the operation and 

maintenance of irrigation canals, and on 

existing and any planned future oil and 

gas activities within or near the 

proposed designation; 

(4) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation of critical habitat; in 

particular, any impacts on small entities 

or families; 

(5) Whether the economic analysis 

identifies all State and local costs 

attributable to the proposed critical 

habitat designation. If not, what costs 

are overlooked; 

(6) Whether the economic analysis 

makes appropriate assumptions 

regarding current practices and likely 

regulatory changes imposed as a result 

of the designation of critical habitat;

(7) Whether the economic analysis 

correctly assesses the effect on regional 

costs associated with land use controls 

that derive from the designation; 

(8) Assumptions reflected in the 

economic analysis regarding land use 

practices and current, planned, or 

reasonably foreseeable activities in the 

subject areas, including comments or 

information relating to the potential 

effects that the designation could have 

on private landowners as a result of 

actual or foreseeable State and local 

government responses due to the 

California Environmental Quality Act; 

(9) Whether the designation will 

result in disproportionate economic 

impacts to specific areas that should be 

evaluated for possible exclusion from 

the final designation; 

(10) Whether the economic analysis 

appropriately identifies all costs that 

could result from the designation; and 

(11) Whether our approach to critical 

habitat designation could be improved 

or modified in any way to provide for 

greater public participation and 

understanding, or to assist us in 

accommodating public concern and 

comments. 

All comments and information 

submitted during the initial comment 

period on the proposed rule need not be 

resubmitted. If you wish to comment, 

you may submit your comments and 

materials concerning the draft economic 

analysis and proposed rule by any one 

of several methods (see ADDRESSES

section). 

Please submit Internet comments to 

BVLS_pCH@fws.gov in an ASCII file 

format and avoid the use of special 

characters and encryption. Please also 

include ‘‘Attn: Buena Vista Lake shrew 

Critical Habitat’’ in your e-mail subject 

header, and your name and return 

Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 69579

address in the body of your message. If 

you do not receive a confirmation from 

the system that we have received your 

Internet message, contact us directly by 

calling our Sacramento Fish and 

Wildlife Office (see FOR FURTHER

INFORMATION CONTACT section). 

Our practice is to make comments, 

including names and home addresses of 

respondents, available for public review 

during regular business hours. 

Individual respondents may request that 

we withhold their home addresses from 

the rulemaking record, which we will 

honor to the extent allowable by law. 

There also may be circumstances in 

which we would withhold from the 

rulemaking record a respondent’s 

identity, as allowable by law. If you 

wish for us to withhold your name and/

or address, you must state this 

prominently at the beginning of your 

comment. However, we will not 

consider anonymous comments. We 

will make all submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

Comments and materials received, as 

well as supporting documentation used 

in preparation of the proposal to 

designate critical habitat, will be 

available for inspection, by 

appointment, during normal business 

hours, in our Sacramento Fish and 

Wildlife Office at the above address. 

In our August 19, 2004, proposed rule 

to designate critical habitat for the 

Buena Vista Lake shrew (69 FR 51417) 

we indicated that we would reopen the 

public comment period for an 

additional 60 days upon publication of 

this notice of availability of the draft 

economic analysis of the proposed 

designation. However, due to delays in 

completing the draft economic analysis 

and a court-ordered deadline for the 

completion of the final rule, we are 

unable to reopen the public comment 

period for that length of time. In order 

to ensure compliance with the United 

States District Court for the Eastern 

District of California’s order (Kern 

County Farm Bureau et al. v. Anne 

Badgley, Regional Director of the United 

States Fish and Wildlife Service, Region 

1 et al., CV F 02–5376 AWIDLB) 

requiring us to publish a final 

determination no later than January 12, 

2005, we are only able to reopen the 

public comment period for 15 days. 

Background 

On August 19, 2004, we published a 

proposed rule to designate critical 

habitat, pursuant to the Endangered 

Species Act of 1973, as amended (Act) 

for the Buena Vista Lake shrew (69 FR 

51417). We proposed a total of 4,649 

acres in 5 units of critical habitat within 

the Central Valley of California. The 

Buena Vista Lake shrew formerly 

occurred in wetlands around Buena 

Vista Lake, and presumably throughout 

the Tulare Basin. The animals were 

likely distributed throughout the 

swampy margins of Kern, Buena Vista, 

Goose, and Tulare Lakes. By the time 

the first shrews were collected and 

described, these lakes had already been 

drained and mostly cultivated with only 

sparse remnants of the original flora and 

fauna remaining. Essential habitat 

features of the shrew include riparian or 

wetland communities supporting a 

complex vegetative structure with a 

thick cover of leaf litter or dense mats 

of low-lying vegetation; suitable 

moisture supplied by a shallow water 

table, irrigation, or proximity to 

permanent or semipermanent water; and 

a consistent and diverse supply of prey. 

The shrew is now known from five 

isolated riparian or wetland remnants 

within the Tulare Basin of the Central 

Valley of California. Critical habitat 

receives protection from destruction or 

adverse modification through required 

consultation under section 7 of the Act 

with regards to actions carried out, 

funded, or authorized by a Federal 

agency. Section 4(b)(2) of the Act 

requires that the Secretary of the Interior 

shall designate or revise critical habitat 

based upon the best scientific and 

commercial data available, after taking 

into consideration the economic impact 

of specifying any particular area as 

critical habitat. The public comment 

period for the August 19, 2004, proposal 

originally closed on October 18, 2004. 

We have prepared a draft economic 

analysis of the effects of the proposed 

critical habitat designation, and are now 

announcing its availability for review. 

The economic analysis addresses the 

impacts of the Buena Vista Lake shrew 

conservation efforts on activities 

occurring on lands proposed for 

designation. The analysis includes cost 

effects on agricultural producers 

adjacent or proximate to three Critical 

Habitat Units (CHU), biological 

monitoring, Habitat Conservation Plan 

(HCP) development, and supplemental 

water purchases, as well as potential 

uncertainty to landowners and project 

delay.

The economic analysis includes both 

retrospective, or pre-designation, and 

prospective, or post-designation, 

economic costs to various entities as a 

result of Buena Vista Lake shrew 

conservation activities. Retrospective 

costs are those costs estimated to have 

occurred from the time the species was 

listed in April 2002 until the proposal 

of critical habitat in August 2004. The 

estimated retrospective cost is $122,237. 

These costs are primarily certain 

administrative costs associated with the 

ongoing preparation of a Comprehensive 

Conservation Plan at the Kern National 

Wildlife Refuge CHU and the ongoing 

section 7 consultation related to the 

preparation of a biological opinion 

regarding the Goose Lake proposed 

CHU. 

Present values shown are calculated 

at three and seven percent discount 

rates. Total prospective costs range from 

$6.7 to $14.2 million under a three 

percent discount rate, and $4.8 to $10.1 

million under a seven percent rate. 

Thus, prospective average annual costs 

range from $452,266 to $955,833. These 

costs include effects on agricultural 

producers adjacent or proximate to three 

CHUs, biological monitoring, HCP 

development, and supplemental water 

purchases. The ranges reflect totals with 

and without supplemental water for 

Kern Lake, Coles Levee, and Kern Fan 

Water Recharge CHUs. Both the Kern 

National Wildlife Refuge and Goose 

Lake CHUs are assumed to require 

supplemental water, and thus do not 

contribute to a range of costs. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, the proposed designation of 

critical habitat is a significant rule only 

in that it may raise novel legal and 

policy issues. However, the Economic 

Analysis indicates that the proposed 

designation will not have an annual 

effect on the economy of $100 million 

or more or affect the economy in a 

material way. Due to the tight timeline 

for publication in the Federal Register, 

the Office of Management and Budget 

(OMB) has not formally reviewed this 

rule. 

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 (SBREFA) of 1996), 

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 

69580 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 

on a substantial number of small 

entities. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

However, the SBREFA does not 

explicitly define ‘‘substantial number’’

or ‘‘significant economic impact.’’

Consequently, to assess whether a 

‘‘substantial number’’ of small entities is 

affected by this designation, this 

analysis considers the relative number 

of small entities likely to be impacted in 

an area. The SBREFA also amended the 

RFA to require a certification statement. 

Based on the information that is 

available to us at this time from the 

economic analysis, we are certifying 

that this proposed designation of critical 

habitat will not have a significant 

economic impact on a substantial 

number of small entities. The following 

discussion explains our rationale. 

According to the Small Business 

Administration, small entities include 

small organizations, such as 

independent nonprofit organizations, 

and small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents, as well as 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 rule as well as the 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. 

The Regulatory Flexibility Act does 

not explicitly define either ‘‘substantial 

number’’ or ‘‘significant economic 

impact.’’ Consequently, to assess 

whether a ‘‘substantial number’’ of 

small entities is affected by this 

designation, this analysis considers the 

relative number of small entities likely 

to be impacted in the area. Similarly, 

this analysis considers the relative cost 

of compliance on the revenues/profit 

margins of small entities in determining 

whether or not entities incur a 

‘‘significant economic impact.’’ Only 

small entities that are expected to be 

directly affected by the designation are 

considered in this portion of the 

analysis. This approach is consistent 

with several judicial opinions related to 

the scope of the Regulatory Flexibility 

Act. (Mid-Tex Electric Co-Op, Inc. v. 

F.E.R.C. and American Trucking 

Associations, Inc. v. EPA). 

Designation of critical habitat only 

affects activities conducted, funded, or 

permitted by Federal agencies; nonFederal activities are not affected by the 

designation if they lack a Federal nexus. 

In areas where the species is present, 

Federal agencies funding, permitting, or 

implementing activities are already 

required to avoid jeopardizing the 

continued existence of the Buena Vista 

Lake shrew through consultation with 

us under section 7 of the Act. If this 

critical habitat designation is finalized, 

Federal agencies must also consult with 

us to ensure that their activities do not 

destroy or adversely modify designated 

critical habitat through consultation 

with us. 

Should a federally funded, permitted, 

or implemented project be proposed 

that may affect designated critical 

habitat, we will work with the Federal 

action agency and any applicant, 

through section 7 consultation, to 

identify ways to implement the 

proposed project while minimizing or 

avoiding any adverse effect to the 

species or critical habitat. In our 

experience, the vast majority of such 

projects can be successfully 

implemented with at most minor 

changes that avoid significant economic 

impacts to project proponents.

Based on our experience with section 

7 consultations for all listed species, 

virtually all projects-including those 

that, in their initial proposed form, 

would result in jeopardy or adverse 

modification determinations in section 

7 consultations—can be implemented 

successfully with, at most, the adoption 

of reasonable and prudent alternatives. 

These measures, by definition, must be 

economically feasible and within the 

scope of authority of the Federal agency 

involved in the consultation. The kinds 

of actions that may be included in 

future reasonable and prudent 

alternatives include avoidance, 

conservation set-asides, management of 

competing non-native species, 

restoration of degraded habitat, 

construction of protective fencing, and 

regular monitoring. These measures are 

not likely to result in a significant 

economic impact to project proponents. 

In the case of the Buena Vista Lake 

shrew, we anticipate that that the 

proposed designation of critical habitat 

is not likely to have a significant impact 

on any small entities or classes of small 

entities. However, no section 7 

consultations have been completed 

since the listing in 2002; in addition, no 

identifiable changes in economic 

activities resulting from shrew 

conservation efforts have taken place 

since the listing. The costs presented in 

the economic analysis reflect, where 

data permit, ranges representing the 

reasonably foreseeable future. These 

costs are likely to be incurred because 

of shrew conservation activities related 

to agriculture, operation and 

maintenance of groundwater recharge 

projects and resultant effects on water 

supplies, and water requirements for 

habitat. 

We considered the potential relative 

cost of compliance to these small 

entities and evaluated only small 

entities that are expected to be directly 

affected by the proposed designation of 

critical habitat. Based on the economic 

analysis, we do not anticipate that the 

proposed designation of critical habitat 

for the Buena Vista Lake shrew will 

result in increased compliance costs for 

small entities. The proposed designation 

of critical habitat does not, therefore, 

create a new cost for the small entities 

to comply with the proposed 

designation. Instead, proposed 

designation only impacts Federal 

agencies that conduct, fund, or permit 

activities that may affect critical habitat 

for the shrew. Thus, we conclude that 

the proposed designation of critical 

habitat is not likely to result in a 

significant impact to this group of small 

entities. Therefore, we are certifying that 

the proposed designation of critical 

habitat for the shrew will not have a 

significant economic impact on a 

substantial number of small entities, 

and an initial regulatory flexibility 

analysis is not required. 

In summary, we have considered 

whether this proposed designation 

would result in a significant economic 

impact on a substantial number of small 

entities, and we have concluded that it 

would not. Future consultations are not 

likely to affect a substantial number of 

small entities. We anticipate that the 

types of activities we review under 

section 7 of the Act will not change 

significantly in the future. 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C. 801 et seq.) 

Under the Small Business Regulatory 

Enforcement Fairness Act (5 U.S.C. 801 

et seq.), this rule is not a major rule. The 

Economic Analysis indicates that the 

proposed designation will not have an 

annual effect on the economy of $100 

Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 69581

million or more. Therefore, we believe 

that this critical habitat designation will 

not have an effect on the economy of 

$100 million or more, will not cause a 

major increase in costs or prices for 

consumers, and will not have significant 

adverse effects on competition, 

employment, investment, productivity, 

innovation, or the ability of U.S.-based 

enterprises to compete with foreignbased enterprises. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of designating critical 

habitat for the Buena Vista Lake shrew. 

Our assessment concludes that this 

proposed rule does not pose significant 

takings implications. 

Author 

The primary author of this notice is 

Shannon Holbrook, Sacramento Fish 

and Wildlife Services Office (see

ADDRESSES section). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973 (16 

U.S.C. 1531 et seq.).

Dated: November 23, 2004. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks.

[FR Doc. 04–26472 Filed 11–29–04; 8:45 am] 

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