[Federal Register: May 4, 2006 (Volume 71, Number 86)]
[Proposed Rules]               
[Page 26315-26318]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU32

Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Rota Bridled White-eye (Zosterops rotensis)

AGENCY: Fish and Wildlife Service, Interior.

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


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the proposed designation of 
critical habitat for the Rota bridled white-eye (Zosterops rotensis) 
and the availability of the draft economic analysis. The draft economic 
analysis estimates the potential total costs for this critical habitat 
designation to range from $806,000 to $4,465,000, at present value over 
a 20-year period, or $76,000 to $421,000 per year, assuming a 7 percent 
discount rate. We are reopening the comment period to allow peer 
reviewers and all interested parties the opportunity to comment 
simultaneously on the proposed rule and the associated draft economic 
analysis. 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 rule.

DATES: We will accept public comments until June 5, 2006.

ADDRESSES: You may submit your comments and information by any one of 
several methods:
    (1) You may submit written comments and information by mail to the 
Field Supervisor, U.S. Fish and Wildlife Service, Pacific Islands Fish 
and Wildlife Office, 300 Ala Moana Blvd., P.O. Box 50088, Honolulu, HI 
    (2) You may hand-deliver written comments to our Pacific Islands 
Fish and Wildlife Office at the address given above.
    (3) You may fax your comments to 808-792-9581.
    (4) You may send comments by electronic mail (e-mail) to 
RBWE_CritHab@fws.gov. For directions on how to submit e-mail comments, see 

the Public Comments Solicited section.
    (5) You may submit comments via the Federal eRulemaking Portal: 
http://www.regulations.gov. Follow the instructions for submitting 


FOR FURTHER INFORMATION CONTACT: Patrick Leonard, Field Supervisor, 
Pacific Islands Fish and Wildlife Office, at the above address 
(telephone: 808-792-9400; facsimile: 808-792-9581).


Public Comments Solicited

    We will accept written comments and information during this 
reopened comment period. We solicit comments on the original proposed 
critical habitat designation, published in the Federal Register on 
September 14, 2005 (70 FR 54335), and on our draft economic analysis of 
the proposed designation. We will consider information and 
recommendations from all interested parties. We are particularly 
interested in comments concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Endangered Species 
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), including 
whether the benefit of designation will outweigh any threats to the 
species due to designation;
    (2) Specific information on the amount and distribution of Rota 
bridled white-eye habitat, and what features are essential to the 
conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities;
    (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) The extent to which the description in the draft economic 
analysis of economic impacts to public land management, agricultural 
homestead development, and private development and tourism activities 
is complete and accurate; and
    (7) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in section of the draft 
economic analysis, 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.
    (8) Whether the Island-wide Habitat Conservation Plan (HCP) or the 
Rota Bridled White-eye HCP should be considered for inclusion or 
exclusion from the final critical habitat designation.
    If you wish to submit comments electronically, please submit them 
in an ASCII format and avoid the use of special characters and any form 
of encryption. Please include ``Attn: RIN 1018-AU32'' in the subject 
header and 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 message, contact us directly by calling our Pacific Islands Fish 
and Wildlife Office at 808-792-9400. Please note that the e-mail 
address RBWE_CritHab@fws.gov will be closed at the termination of the 
public comment period. If our e-mail connection is not functioning, 
please submit comments by one of the alternate methods listed in the 
ADDRESSES 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, 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 us to withhold your name or address or both, you must state 
this prominently at the beginning of your comment, but you should be 
aware that the Service may be required to disclose your name and 
address pursuant to the Freedom of Information Act. 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 at the Pacific Islands Fish and Wildlife Office 
(see ADDRESSES section). Copies of the proposed critical habitat rule 
for the Rota bridled white-eye and the draft economic analysis are 

[[Page 26316]]

on the Internet at http://www.fws.gov/pacificislands or by request to 

the Field Supervisor (see FOR FURTHER INFORMATION CONTACT section).


    We published the final rule to list the Rota bridled white-eye as 
endangered in the Federal Register on January 22, 2004 (69 FR 3022). At 
the time of listing, we concluded that designating critical habitat for 
the Rota bridled white-eye was prudent and that we would publish a 
proposed rule in accordance with other priority listing actions when 
funding became available. On May 20, 2004, a lawsuit was filed against 
the Department of the Interior (DOI) and the Service by the Center for 
Biological Diversity challenging our failure to propose critical 
habitat for the Rota bridled white-eye. On September 14, 2004, a 
stipulated settlement agreement was filed in the U.S. District Court 
for Hawaii (Center for Biological Diversity v. Norton, Case No. C-04-
00326 SPK LEK) stating that the Service will submit for publication in 
the Federal Register a proposed critical habitat designation for the 
Rota bridled white-eye no later than September 7, 2005, and a final 
critical habitat designation no later than September 7, 2006. On 
September 14, 2005, we published a proposed rule to designate 
approximately 3,958 acres (1,602 hectares) in one unit as critical 
habitat for the Rota bridled white-eye on the island of Rota, 
Commonwealth of the Northern Mariana Islands (CNMI) (70 FR 54335). The 
public comment period was open for 60 days until November 14, 2005.
    Critical habitat receives protection from destruction or adverse 
modification through required consultation under section 7 of the Act 
with regard to actions carried out, funded, or authorized by a Federal 
agency. Section 4(b)(2) of the Act requires that the Secretary shall 
designate or revise critical habitat based upon the best scientific and 
commercial data available, and after taking into consideration the 
economic impact of specifying any particular area as critical habitat. 
We have prepared a draft economic analysis of the proposed critical 
habitat designation. The draft economic analysis is now available on 
the Internet and from our office (see Public Comments Solicited 
    The current draft economic analysis estimates the foreseeable 
economic impacts of the proposed critical habitat designation on 
government agencies and private businesses and individuals. The 
economic analysis identifies potential costs as a result of the 
proposed critical habitat designation, including those costs 
coextensive with listing. The analysis measures (in the case of the 
Rota bridled white-eye) lost economic efficiency associated with public 
land management (including subsistence farming, public access 
improvements to historic sites, Endangered Species Act studies, 
proposed island-wide HCP), agricultural homestead development, and 
private development and tourism activities. When evaluating 
agricultural homestead development activities, three different 
alternatives were identified: (1) An island-wide HCP is developed, with 
development of agricultural homesteads; (2) an HCP is developed only 
for the area of agricultural homesteads in Rota bridled white-eye 
habitat; and (3) no HCP is developed, and development of agricultural 
homesteads in Rota bridled white-eye habitat is avoided.
    Costs related to conservation activities for the proposed Rota 
bridled white-eye critical habitat pursuant to sections 4, 7, and 10 of 
the Act are estimated to be approximately $806,000 to $4,465,000 from 
2006 to 2026. The CNMI government is anticipated to experience the high 
end estimate if, under the agricultural homestead development 
activities, the land is not developed because it is designated as 
critical habitat. Annualized impacts of costs attributable to the 
proposed critical habitat designation are projected to be approximately 
$76,000 to $421,000.

Required Determinations--Amended

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. 
However, it is not anticipated to have 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, and then the agency will need to consider 
alternative regulatory approaches. Since the determination of critical 
habitat is a statutory requirement pursuant to the Act, we must then 
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 providing that 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 
(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 effect of the rule on small entities (that is, 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. In our proposed rule, 
we withheld our determination of whether this designation would result 
in a significant effect as defined under SBREFA until we completed our 
draft economic analysis of the proposed designation so that we would 
have the factual basis for our determination.
    According to the Small Business Administration (SBA), 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

[[Page 26317]]

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 Rota bridled white-eye would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities (for example, agricultural 
homestead development). 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 
critical habitat designation is made final, Federal agencies must 
consult with us 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 critical habitat 
designation, we evaluated the potential economic effects on small 
entities resulting from the protection of the Rota bridled white-eye 
and its habitat related to the listing of the species and the proposed 
designation of its critical habitat. Two entities, the Rota municipal 
government and the CNMI government, were identified as entities that 
could be affected by the proposed rule. The Rota municipal government 
was identified as a small entity with 3,283 constituents. However, we 
estimated that the impacts of protecting the Rota bridled white-eye and 
its habitat are anticipated to be borne only by the CNMI government, 
which generally undertakes land management in the CNMI and includes 
both the Department of Land and Natural Resources and Mariana Public 
Land Authority. The CNMI government has 69,221 constituents and is not 
considered a small entity. Therefore, we do not believe that the 
designation of critical habitat for the Rota bridled white-eye will 
result in a disproportionate effect to small business entities. Please 
refer to our draft economic analysis of the proposed critical habitat 
designation for a more detailed discussion of potential economic 

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211 
on regulations that significantly affect energy supply, distribution, 
and use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. The rule is considered a 
significant regulatory action under E.O. 12866 because it raises novel 
legal and policy issues, but it is not expected to significantly affect 
energy supplies, distribution, or use. Therefore, this action is not a 
significant 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), the Service makes the following findings:
    (a) The rule will 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, or 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) through (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; Aid to 
Families with Dependent Children 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. Non-Federal entities that 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. However, 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 onto State governments.
    (b) We do not believe that the proposed designation will 
significantly or uniquely affect small governments because it will not 
produce a Federal mandate of $100 million or greater in any year, that 
is, it is not a ``significant regulatory action'' under the Unfunded 
Mandates Reform Act. The proposed designation of critical habitat 
imposes no obligations on State or local governments. As such, a Small 
Government Agency Plan is not required.


    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 critical habitat for Rota bridled white-eye. 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. In 
conclusion, the designation of critical habitat for Rota bridled white-
eye does not pose significant takings implications.

[[Page 26318]]


    The primary author of this notice is Fred Amidon of the U.S. Fish 
and Wildlife Service, Pacific Islands Fish and Wildlife Office (see 
ADDRESSES section).


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

    Dated: April 26, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E6-6719 Filed 5-3-06; 8:45 am]