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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations the implementation of this critical habitat designation.

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Executive Order 13211, Energy Supply, Distribution, and Use E.O. 13211 requires agencies to prepare a Statement of Energy Effects when undertaking a significant energy action. According to Executive Order 13211, significant energy action means any action by an agency that is expected to lead to the promulgation of a final rule or regulation that is a significant regulatory action under Executive Order 12866 and is likely to have a significant adverse effect on the supply, distribution, or use of energy.
We have considered the potential impacts of this action on the supply, distribution, or use of energy and find the revision to the designation of critical habitat will not have impacts that exceed the thresholds identified in OMBs memorandum M0127, Guidance for Implementing E.O. 13211
See IEc 2021.
Regulatory Flexibility Act Under the Regulatory Flexibility Act RFA 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act SBREFA of 1996, whenever an agency publishes 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. We prepared a final regulatory flexibility analysis FRFA, which is part of the FEA Chapter 5, IEc 2021. This document is available upon request and online see ADDRESSES.
Results of the FRFA are summarized below.
NMFS listed the Southern Resident killer whale Distinct Population Segment as endangered under the ESA
on November 18, 2005 70 FR 69903, and on November 29, 2006, issued a final rule designating critical habitat for the whales in inland waters of Washington 71 FR 69054. NMFS is now expanding the critical habitat designation by adding waters along the Pacific Coast between Cape Flattery, Washington, and Point Sur, California.
The objective of the rule is to utilize the best scientific and commercial information available to expand critical habitat for the Southern Resident killer whale to best meet the conservation needs of the species in order to meet recovery goals. Section 4a3Aii of the ESA allows NMFS to revise designations to critical habitat as appropriate and is the legal basis for this
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rule. This final rule will not impose any recordkeeping or reporting requirements on small entities and will not duplicate, overlap, or conflict with any other laws or regulations.
The expansion of critical habitat for the Southern Resident killer whales is expected to have a limited economic impact, on the order of $80,000
annualized over 10 years. The nature of these costs are administrative efforts to consider potential for adverse modification part of future ESA section 7 consultations. Primarily, consultations are between NMFS and Federal action agencies to evaluate the potential for projects and activities to result in adverse modification of critical habitat.
Therefore, most incremental impacts are borne by NMFS and other Federal agencies and not by private entities or small governmental jurisdictions.
However, some consultations may include third parties e.g., project proponents or landowners that may be small entities. These third parties may bear some portion of the administrative consultation costs.
Of the activities for which future consultations are forecast and expected to result in incremental economic impacts due to the expanded critical habitat designation, only a subset involve third parties that may be small entities. Specifically, consultations on renewable energy development, dredging and in-water construction, and seismic surveying may involve small entities, including small businesses or governments. The analysis anticipates approximately six consultations on inwater and coastal construction activities per year, 0.5 consultations on renewable energy development, and 0.1
consultations on seismic surveys. While the activity forecast includes less than one consultation annually on renewable energy development and seismic surveying, the FRFA evaluates the impacts associated with one consultation on each of these activities to reflect a high-end estimate for a single year. Administrative costs of consultations on fisheries, military activities, and hatchery operations are unlikely to involve third parties beyond NMFS and the Federal action agency.
Because consultations on fisheries activities are conducted on fishery management plans, rather than on individual fishing activities or permits, individual fishermen and fishing entities that would be considered small businesses are not parities to those consultations. As such, they would only incur costs if additional conservation efforts resulted from this critical habitat designation. NMFS was not able to envision a scenario in which the
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expansion of critical habitat for Southern Resident killer whales would result in changes to management of salmon fisheries and potential associated costs to small fishing businesses. This conclusion was due to a number of factors including strong existing baseline protections stemming from the ESA listing and consequent need for recovery of many salmon populations themselves, existing consideration of fishery impacts and prey availability relative to the potential for jeopardy to Southern Resident killer whales even absent critical habitat, as well as NMFSs experience over the past 15 years implementing the inland waters critical habitat for Southern Resident killer whales, which has not resulted in fishery management changes beyond those already considered as a result of ESA consultation on prey effects relative to jeopardy. Costs of this rule associated with fishing activities would be limited to administrative costs for future consultations, which are borne by NMFS as both the consulting and action agency, and do not include third parties.
For the consultations that may involve third parties, it is not known whether the third parties bearing administrative costs are likely to be large or small entities. The analysis conservatively assumes all third parties involved in these consultations are small entities. The number of small entities bearing these incremental administrative costs in a given year is uncertain. To provide information on the range of potential entities affected and the potential costs borne by these entities, the analysis presents two scenarios reflecting the extremes:
1 Scenario 1 identifies the maximum number of future consultations involving small entities and assumes that each consultation involves one unique small entity. We estimate the maximum number of future consultations, and accordingly number of potentially affected entities, to be eight. This represents the total number of annual consultations that occur across all critical habitat units involved with in-water construction, renewable energy development, and seismic surveying. Scenario 1 accordingly provides a high-end estimate of the number of potentially affected small entities assuming each consultation involves a unique third party and all third parties are small entities, and a low-end estimate of the potential effect in terms of the economic effects i.e., percent of annual revenues for each entity total third party costs of the consultations are divided across the high-end number of small entities. This
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