[Federal Register: August 12, 2008 (Volume 73, Number 156)]
[Proposed Rules]
[Page 46860-46867]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12au08-24]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R1-ES-2007-0006; 92210-1117-0000-B4]
RIN 1018-AU93
Endangered and Threatened Wildlife and Plants; Revised Proposed
Designation of Critical Habitat for 12 Species of Picture-wing Flies
From the Hawaiian Islands
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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[[Page 46861]]
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the comment period on the revised proposed designation of
critical habitat for 12 species of Hawaiian picture-wing flies
(Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D.
montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D.
ochrobasis, D. substenoptera, and D. tarphytrichia) under the
Endangered Species Act of 1973, as amended (Act). We also announce the
availability of a draft economic analysis (DEA) and an amended required
determinations section of the proposal. We are reopening the comment
period to allow all interested parties an opportunity to comment
simultaneously on the revised proposed rule, the associated DEA, and
the amended required determinations section. If you submitted comments
previously, you do not need to resubmit them because we have already
incorporated them into the public record and will fully consider them
in preparation of the final rule.
DATES: We will consider comments received or postmarked on or before
September 11, 2008.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: RIN 1018-AV91; Division of Policy and Directives Management; U.S.
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington,
VA 22203.
We will not accept e-mail or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the ``Public Comments''
section below for more information).
FOR FURTHER INFORMATION CONTACT: Patrick Leonard, Field Supervisor,
Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room
3-122, P.O. Box 50088, Honolulu, HI 96850; telephone 808-792-9400;
facsimile 808-792-9581. If you use a telecommunications device for the
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written comments and information during this
reopened comment period on our revised proposed designation of critical
habitat for the 12 Hawaiian picture-wing fly species that was published
in the Federal Register on November 28, 2007 (72 FR 67428), the June
2008 DEA of Critical Habitat Designation for the Hawaiian Picture-wing
Flies, and this document, including 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 benefit of designation would outweigh threats to
the species caused by the designation, such that the designation of
critical habitat is prudent;
(2) Specific information on:
(a) The amount and distribution of habitat for the 12 Hawaiian
picture-wing fly species;
(b) What areas occupied at the time of listing contain features
essential for the conservation of the species we should include in the
designation and why, and
(c) Which areas not occupied at the time of listing 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 the proposed critical
habitat.
(4) Information on the extent to which any State and local
environmental protection measures we reference in the DEA may have been
adopted largely as a result of the species' listing.
(5) Information on whether the DEA identifies all State and local
costs and benefits attributable to the proposed critical habitat
designation, and information on any costs and benefits that we have
overlooked.
(6) Information on whether the DEA makes appropriate assumptions
regarding current practices and any regulatory changes that are likely
to occur if we designate critical habitat as currently proposed.
(7) Information on whether the DEA identifies all costs and
benefits that could result from the designation.
(8) Information on whether the DEA correctly assesses the effect on
regional costs or benefits associated with any land use controls that
may result from the proposed designation.
(9) The extent to which the description in the DEA of economic
impacts to public land management and other activities is complete and
accurate.
(10) Information on areas that the critical habitat designation
could potentially impact to a disproportionate degree.
(11) Economic data on the incremental costs of designating any
particular area as critical habitat.
(12) Information on any quantifiable economic or other potential
benefits of the proposed designation of critical habitat. Factors which
may be considered under the potential benefits of critical habitat
designation may include, but are not limited to, aesthetic
considerations, recreational use, biodiversity, aquatic resources,
intrinsic values, and benefits to local communities.
(13) Any foreseeable economic, national security, or other relevant
impacts that may result from the proposed designation, and in
particular, any impacts on small entities, and the benefits of
including or excluding areas that exhibit these impacts. Other impacts
in addition to economic effects that may be considered in the
designation of critical habitat may include, but are not limited to,
social factors, ecological factors, and impacts on local communities.
(14) Whether the benefits of excluding any particular area from
critical habitat outweigh the benefits of including that area as
critical habitat under section 4(b)(2) of the Act, after considering
the potential impacts and benefits of the proposed critical habitat
designation.
(15) Whether we could improve or modify our approach to designating
critical habitat to provide for greater public participation and
understanding, or to better accommodate public concerns and comments.
If you submitted comments or information during the initial comment
period from November 28, 2007, to January 28, 2008, on the proposed
rule (72 FR 67427), please do not resubmit them. We will incorporate
them into the public record as part of this comment period, and we will
fully consider them in preparation of our final determination. Our
final determination concerning revised proposed critical habitat will
take into consideration all written comments and any additional
information we receive during both comment periods. On the basis of
public comments, we may, during the development of our final
determination, find that areas proposed are not essential, and are
appropriate for exclusion under section 4(b)(2) of the Act, or are not
appropriate for exclusion.
You may submit your comments and materials concerning our proposed
rule, the associated DEA, and our amended required determinations by
one of the methods listed in the ADDRESSES section. We will not
consider comments
[[Page 46862]]
sent by e-mail or fax or to an address not listed in the ADDRESSES
section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. If you submit a hardcopy comment that includes
personal identifying information, you may request at the top of your
document that we withhold this information from public review. However,
we cannot guarantee that we will be able to do so. We will post all
hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this notice, will be available for
public inspection on http://www.regulations.gov, or by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service,
Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
You may obtain copies of the proposed rule and DEA by mail from the
Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT), by visiting the Federal eRulemaking Portal at http://
www.regulations.gov, or on our Web site at http://www.fws.gov/
pacificislands.
Background
Under the terms of a settlement agreement approved by the U.S.
District Court for the District of Hawaii on August 31, 2005 (CBD v.
Allen, CV-05-274-HA), we were to (1) make a final listing decision for
the 12 picture-wing flies by May 6, 2006; (2) propose to designate
critical habitat by September 15, 2006; and (3) finalize a critical
habitat rule by April 17, 2007. A joint stipulation was approved by the
Court on April 18, 2007, to allow additional time to reconsider the
proposed rule in light of comments received to the August 15, 2006,
proposed designation of approximately 18 acres as critical habitat for
11 of the 12 species of Hawaiian picture-wing flies (71 FR 46944), and
to provide an opportunity for additional public comment. Under the
terms of the extension, we were required to submit a proposed critical
habitat rule to the Federal Register by November 15, 2007, and a final
critical habitat rule by November 15, 2008.
On November 28, 2007, we published a revised proposed designation
of approximately 9,238 acres (ac) (3,738 hectares (ha)) as critical
habitat in four counties (City and County of Honolulu, Hawaii, Maui,
and Kauai), in Hawaii in the Federal Register (72 FR 67427). For
additional information on previous Federal actions concerning the 12
species of Hawaiian picture-wing flies for which we are proposing to
designate critical habitat, refer to the November 28, 2007, proposed
revised designation of critical habitat and the final listing rule
published in the Federal Register on May 9, 2006 (71 FR 26835).
It is our intent to discuss only those topics directly relevant to
the proposed designation of critical habitat in this notice. For more
information on the taxonomy and biology of the 12 species of Hawaiian
picture-wing flies, refer to the final listing rule published in the
Federal Register on May 9, 2006 (71 FR 26835), and the revised proposed
critical habitat rule published in the Federal Register on November 28,
2007 (72 FR 67428).
Section 3 of the Act defines critical habitat as: (1) The specific
areas within the geographical area occupied by a species, at the time
it is listed in accordance with the provisions of section 4 of the Act,
on which are found those physical or biological features (a) essential
to the conservation of the species, and (b) that may require special
management considerations or protection; and (2) specific areas outside
the geographical area occupied by a species at the time it is listed in
accordance with the provisions of section 4 of the Act, 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 the destruction or adverse modification of critical habitat by
any activity funded, authorized, or carried out by any Federal agency.
Federal agencies proposing actions that may affect areas designated as
critical habitat must consult with us on the effects of their proposed
actions, pursuant to 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. We have prepared a DEA of the
proposed revised critical habitat designation based on our November 28,
2007, proposed rule to designate critical habitat for 12 species of
Hawaiian picture-wing flies. We request comment on the accuracy of our
methodology for distinguishing baseline and incremental costs, the
assumptions underlying it, and alternate methodologies that may merit
consideration.
The purpose of the DEA is to identify and analyze the potential
economic impacts associated with the proposed critical habitat
designation for the 12 Hawaiian picture-wing fly species. The DEA
quantifies the economic impacts of all potential conservation efforts
for the 12 Hawaiian picture-wing fly species; some of these costs will
likely be incurred regardless of whether we designate critical habitat.
The economic impact of the proposed critical habitat designation is
analyzed by comparing two types of impacts: (1) Baseline impacts are
those that would occur with or without designation of critical habitat,
and (2) incremental impacts are those that would occur only with
critical habitat designation. Baseline impacts represent the costs
incurred regardless of whether critical habitat is designated.
Incremental impacts represent the costs incurred specifically with the
designation of critical habitat for the 12 Hawaiian picture-wing fly
species. In other words, the incremental costs are those attributable
solely to the designation of critical habitat for the picture-wing
flies that are above and beyond the baseline costs; these are the costs
we may consider in the final designation of critical habitat. The
analysis looks retrospectively at baseline impacts incurred since the
12 Hawaiian picture-wing fly species were listed, and forecasts both
baseline and incremental impacts likely to occur after the proposed
critical habitat is finalized. The DEA provides estimated costs of the
foreseeable potential economic impacts of the proposed critical habitat
designation for the 12 Hawaiian picture-wing fly species from 2009
through 2028.
The draft economic 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 government agencies, private
businesses, and individuals. Decision-makers can use the information
from the final economic assessment to assess whether the effects of the
revised designation might unduly burden a particular group or economic
sector. The draft economic analysis also looks retrospectively at costs
that have been incurred since May 9, 2006, the date we listed the 12
Hawaiian picture-wing fly species under the Act (71 FR 26835), and
considers those costs that may occur in the 20 years following the
designation of critical habitat. Because the draft economic analysis
considers the potential economic effects of all actions relating to the
conservation of
[[Page 46863]]
the 12 Hawaiian picture-wing fly species, including costs associated
with sections 4, 7, and 10 of the Act and those attributable to the
revised designation of critical habitat, it may overestimate the
potential economic impacts of the critical habitat designation.
The analysis quantifies economic impacts of picture-wing fly
critical habitat designation associated primarily with the following
activities: (1) Preservation and watershed management in all but the
Pit Crater unit on the Big Island; (2) game management and public
recreational hunting in most of the units where land is owned by the
State; (3) potential for future development on about 3 acres (1.2
hectares) of the Pit Crater unit on the Big Island; (4) harvesting of
commercial timber from portions of the Stainback Forest and Waiakea
Forest units; and (6) section 7 consultation administrative costs.
The total pre-designation baseline costs during the period from
2006 to 2008 in the area proposed for critical habitat designation are
estimated by the DEA to range from $750,130 using a 3 percent discount
rate to $808,100 using a 7 percent discount rate. Because these costs
are projected to occur whether critical habitat is designated or not,
they cannot be considered in the Service's determination of whether the
benefits of including an area as critical habitat outweigh the benefits
of excluding the area. These costs are related to preservation and
watershed management activities, and all or nearly all of the pre-
designation baseline costs have been or will be borne by Federal and
State agencies. A portion of the preservation and watershed management
costs has been borne by a few private landowners.
The annualized post-designation baseline costs during the period
2009 to 2028 for preservation and water management activities are
estimated to range from $348,845 using a 3 percent discount rate to
$379,753 using a 7 percent discount rate. Because these costs are
projected to occur whether critical habitat is designated or not, they
would not be considered in the Service's determination of whether the
benefits of including an area as critical habitat outweigh the benefits
of excluding the area. All or nearly all of the post-designation
baseline costs would be borne by Federal and State agencies, although a
portion of the preservation and watershed management costs would be
borne by a few private landowners. The combined post-designation
baseline cost for these conservation activities is estimated by the DEA
to be $5,345,730 at a 3 percent discount rate, and $4,305,470 at a 7
percent discount rate.
The DEA estimates that the annualized post-designation incremental
costs for the activities described below during the period 2009 to 2028
may range from $44,733 using a 3 percent discount rate to $46,916 using
a 7 percent discount rate. If we determine that these costs would occur
as a result of critical habitat designation, they can be considered in
our analysis of whether the benefits of including an area as critical
habitat outweigh the benefits of excluding the area. The activity
having the highest incremental cost ranking is preservation and
watershed management, with an annualized value of approximately $23,969
using a 3 percent discount rate to $25,568 using a 7 percent discount
rate. The second highest cost reflects a possible opportunity loss of
harvesting trees in the Stainback Forest and Waiakea Forest units,
resulting in an annualized value of approximately $12,693 using a 3
percent discount rate to $12,176 using a 7 percent discount rate.
There may also be post-designation incremental costs of $68,590
using a 3 percent discount rate to $56,000 using a 7 percent discount
rate from 2009-2028, related to future section 7 consultations for
preservation and watershed management activities. All or nearly all of
the post-designation incremental costs would be borne by Federal and
State agencies, although a portion of the preservation and watershed
management costs would be borne by a few private landowners. The
combined post-designation incremental cost for all activities is
projected to be $685,450 using a 3 percent discount rate, and $531,780
using a 7 percent discount rate.
Only the incremental costs of designating critical habitat, over
and above the costs associated with species protection under the Act
more generally, may be considered in designating critical habitat.
Therefore, the methodology for distinguishing these two categories of
costs is important. This is particularly true in the current case,
where approximately 90 percent of the total costs of species
conservation over the next 20 years are projected to be baseline costs,
and 10 percent are projected to be incremental costs associated with
the critical habitat designation.
In the absence of critical habitat, Federal agencies must ensure
that any actions they authorize, fund, or carry out are not likely to
jeopardize the continued existence of any endangered species or
threatened species--costs associated with such actions are considered
baseline costs. Once an area is designated as critical habitat,
proposed actions that have a Federal nexus in this area will also
require consultation and potential revision to ensure that the action
does not result in the destruction or adverse modification of
designated critical habitat. Costs associated with these actions are
considered incremental costs. The DEA explains that incremental section
7 consultation that takes place as a result of critical habitat
designation may fall into one of three categories: (1) Additional
effort to address adverse modification in a consultation that also
involves jeopardy; (2) re-initiation of a previously concluded
consultation to address adverse modification; and (3) new consultation
resulting entirely from critical habitat designation (i.e., where a
proposed action may affect unoccupied critical habitat). The DEA
estimates that there would be three project-level informal
consultations related to Federal grants that would need to be
reinitiated in 2009 to address picture-wing fly critical habitat. There
would also be one programmatic consultation that would need to be
reinitiated in 2009 related to the Hawai'i Volcano National Park
management plan, and subsequent programmatic consultations every five
years. The DEA indicates that since these consultations would be for
preservation and watershed management activities, no or only minimal
project modifications would be anticipated.
We are soliciting data and comments from the public on the DEA, as
well as on all aspects of the proposed rule and our amended required
determinations. We may revise the proposed rule or its supporting
documents to incorporate or address information we receive during this
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 the exclusion will not result in the extinction of the
species.
Proposed Exclusions Under 4(b)(2) of the Act
Under section 4(b)(2) of the Act, we may exclude an area from
critical habitat if we determine that the benefits of such exclusion
outweigh the benefits of including that particular area as critical
habitat, unless failure to designate that specific 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
[[Page 46864]]
any other relevant impact. Under section 4(b)(2) of the Act, we must
consider all relevant impacts, including economic impacts. For example,
we consider whether there are landowners that have developed
conservation plans for the area, or whether there are conservation
partnerships that would be encouraged by designation of, or exclusion
of lands from, critical habitat. We also consider any social impacts
that might occur because of the designation. During the development of
a final designation, we will consider economic and other relevant
impacts, including additional conservation plans that may be available,
with regard to potential exclusion from the final critical habitat
designation under section 4(b)(2) of the Act.
In preparing this notice, we have determined that voluntary
conservation efforts by private landowners are vital for the
conservation and recovery of the 12 Hawaiian picture-wing fly species.
As one example, significant progress has been made in habitat
restoration on Maui Land and Pineapple Company's (MLP) lands within the
Puu Kukui Watershed Management Area (PKWMA), located in the West Maui
Mountains. The proposed 584-acre (237-ha) critical habitat unit
boundary for Drosophila neoclavisetae (Puu Kukui Unit 1) falls
completely within the PKWMA. Since 1988, the MLP has proactively
managed their 450 acres (182 hectares (ha)) within the PKWMA and is
currently in its 15th year of contract with the State of Hawaii's
Natural Area Partnership (NAP) Program to preserve the native
biodiversity of the company's conservation lands. At just over 8,600
acres (3,483 ha), the PKWMA is the largest privately owned preserve in
the State.
In 1993, the MLP became the first private landowner participant in
the NAP program. They are pursuing four management programs stipulated
in their Long Range Management Plan that emphasizes reducing nonnative
species that immediately threaten the management area (Maui Land and
Pineapple Company 1999). The primary management goals within PKWMA are
to: (1) Eliminate ungulate activity in all Puu Kukui management units;
(2) reduce the range of habitat-modifying weeds and prevent
introduction of nonnative plants; (3) reduce the negative impacts of
non-native invertebrates and small animals; (4) monitor and track
biological and physical resources in the watershed in order to improve
management understanding of the watershed's resources; and (5) prevent
the extinction of rare species within the watershed. Specific
management actions to address feral ungulates include the construction
of fences surrounding 10 management units and removal of ungulates
within the PKWMA.
The nonnative plant control program within PKWMA focuses on weeds
that modify habitat, prioritizing weeds according to the degree of
threat to native ecosystems, and preventing the introduction of new
weeds. The weed control program includes mapping and monitoring along
established transects and manual/mechanical control. Natural resource
monitoring and research address the need to track biological and
physical resources of the PKWMA, and evaluate changes to these
resources in order to guide management programs. Vegetation is
monitored through permanent photographic points, nonnative species are
monitored along permanent transects, and rare, endemic, and indigenous
species are monitored. Logistical and other support for approved
research projects, interagency cooperative agreements, and remote
survey trips within the watershed are also provided.
At this time, we are evaluating the sufficiency of protection that
the conservation activities being conducted by the MLP are providing
for the 12 picture-wing flies and features essential for their
conservation on their lands (450 acres (182 ha)) that fall within the
584-acre (237-ha) proposed critical habitat unit (Puu Kukui Unit 1).
Therefore, we are specifically soliciting public comments on the
possible exclusion of the MLP lands within proposed Puu Kukui Unit 1
under section 4(b)(2) of the Act.
Benefits of Inclusion
The benefits of including lands in critical habitat can be
regulatory, educational, or promote the recovery of species. The
principal regulatory benefit of designating critical habitat in this
area would be that Federal actions affecting D. neoclavisetae would
require consultation under section 7 of the Act. Consultation would
ensure that a proposed action does not result in the destruction or
adverse modification of critical habitat. The most likely Federal nexus
would be associated with Service funding for management activities that
target invasive species removal, and the likely outcome of a section 7
consultation would be conservation recommendations to avoid stands of
Cyanea kunthiana and Cyanea macrostegia ssp. macrostegia when applying
herbicides, or to use backpack sprayers to specifically target
herbicide application. However, even in the absence of critical habitat
designation, these conservation recommendations would still be included
within the PKWMA invasive species control program. Accordingly, we
believe that few additional regulatory benefits would be derived by
including the MLP lands within the area designated as critical habitat
for Drosophila neoclavisetae beyond those conservation benefits already
being achieved through the implementation of the PKWMA Watershed
Management Plan (WMP).
There have been no section 7 consultations regarding Drosophila
neoclavisetae or its host plants with the PKWMA to date. The DEA
anticipates that there would be two informal consultations associated
with projects to remove non-native species over the next 13 years. It
also predicts that no formal consultations would be likely to occur
over the 20-year timeframe of the analysis. The two informal section 7
consultations anticipated by the DEA would take place based on the
species presence in the area. Accordingly, section 7 consultation under
the jeopardy standard would be required for Federal activities that may
affect D. neoclavisetae, regardless of critical habitat designation. We
do not foresee any additional consultations beyond those anticipated by
the DEA, and predict that the section 7 consultation process for
critical habitat would be unlikely to result in additional protections
for the species. Consequently, there would be little regulatory benefit
of designating critical habitat on the MLP lands within Puu Kukui Unit
1.
The final listing rule for the 12 picture-wing flies (71 FR 26835)
acknowledged the importance of this area to the overall conservation of
Drosophila neoclavisetae (Service 2006). The MLP is aware of the areas
where D. neoclavisetae occurs on their property, and is already
implementing conservation actions to benefit the species (MLP 2008, p.
2). We therefore believe that any additional educational benefits
resulting from the designation of critical habitat on these lands would
be minimal. The designation of critical habitat may provide benefits to
the recovery of a species, however, in this case the MLP is already
committed to implementing conservation actions on their lands under the
existing watershed management plan (WMP), and any additional benefits
to the recovery of this species beyond those already being realized
would be limited.
[[Page 46865]]
Benefits of Exclusion
The MLP has a history of entering into conservation agreements with
Federal and State agencies and other private organizations on their
lands. These agreements further their mission of practicing prudent
stewardship of their land and water resources to ensure the protection
of rare and endangered plant and animal species, and water resources
crucial to the community. The continued implementation of the WMP by
the MLP will benefit Drosophila neoclavisetae through actions that
manage invasive species and restore native species habitat. The WMP
provides a significant conservation benefit to D. neoclavisetae's host
plant populations in the area, and we have a reasonable expectation
that the strategies and measures will be effective.
We believe that Drosophila neoclavisetae is benefiting
substantially from the MLP's proactive management actions, which
include reducing ungulate browsing and habitat conversion, competition
with nonnative weeds, and the risk of fire. These management actions
also include the reintroduction of currently extirpated native species
into restored habitats.
The exclusion of the MLP lands from the proposed Puu Kukui--Unit 1
would allow us to continue working with this landowner in a spirit of
cooperation and partnership. The MLP management plan acknowledges a
shared interest in promoting healthy ecosystems and in protecting
populations and habitat of D. neoclavisetae. Since the area has been
actively managed as a preserve since 1988, there is a reasonable
expectation that the conservation management strategies and actions
will continue to be implemented for the benefit of D. neoclavisetae's
habitat in the foreseeable future. Imposing an additional layer of
section 7 consultation by designating critical habitat could undermine
our existing conservation partnership with the MLP and remove their
incentive to accept the additional time and expense of management
planning. We believe that the designation of critical habitat would
strain the existing proactive working relationship we share with the
MLP, and may hinder future cooperative conservation projects.
Excluding the MLP lands from critical habitat designation would
acknowledge their positive contribution to conservation on Maui. It
would also reduce the cost of additional section 7 consultation, which
we believe would be unnecessary. We are hopeful that this recognition
would provide other landowners with a positive incentive to undertake
voluntary conservation activities on their lands, particularly where
there is no regulatory requirement to implement such actions.
Weighing Benefits of Exclusion and Benefits of Inclusion
We believe the proactive management of Drosophila neoclavisetae
habitat provided under the Maui Land and Pineapple Company Watershed
Management Plan provides significant benefits to this species. In
contrast, the benefits of including their lands as critical habitat
would likely be minor, since there have been no section 7 consultations
in the area since the species was listed in 2006. If the MLP lands
within the proposed Puu Kukui--Unit 1 were to be excluded from critical
habitat designation, the Puu Kukui WMA plan would continue to provide
conservation benefits to the species through the ongoing implementation
of strategies and measures that are consistent with currently accepted
principles of conservation biology.
Will Exclusion Result in Extinction of the Species?
We believe that the exclusion of the MLP lands within the proposed
Puu Kukui--Unit 1 from the final designation of critical habitat would
not result in the extinction of the species. The continued
implementation of their ongoing management programs will provide
comparable or greater net conservation benefits than those that would
result from critical habitat designation. These management programs
provide tangible conservation benefits that reduce the likelihood of
extinction for D. neoclavisetae, and increase the likelihood of its
recovery. In addition, there are no known threats in the PKWMA
associated with Federal actions requiring section 7 consultation, so
extinction of the species as a consequence of not designating critical
habitat would be unlikely. Further, because the 450 ac (182 ha)) of the
MLP's lands we are considering excluding from critical habitat
designation are occupied by D. neoclavisetae, section 7 consultation
would be required even in the absence of critical habitat designation,
and any Federal actions that may affect the species would be evaluated
under the jeopardy standard of section 7 of the Act, which provides
assurances that the species would not become extinct.
In addition, Sec. 195D-4 of the Hawaii Revised Statutes,
Endangered species and threatened species, stipulates that species
determined to be endangered or threatened under the Federal Endangered
Species Act shall be deemed endangered or threatened under the State
law, and that it is unlawful under the State law (with some exceptions)
to ''take'' such species, or to possess, sell, carry or transport them.
The statutory protections provided under State law provide additional
assurances that exclusion of the MLP lands from critical habitat
designation would not result in extinction of Drosophila neoclavisetae.
In summary, there may be few regulatory, educational, or recovery
benefits from the exclusion of the MLP lands from critical habitat
designation. On the other hand, there may be greater conservation
benefits that would result from the exclusion of these lands, which
include the implementation of affirmative actions for controlling
invasive species, protecting host plant habitat, monitoring of native
species, and restoration activities. Accordingly, we are requesting
public comments on whether the benefits of excluding this area from
critical habitat designation would outweigh the benefits of its
inclusion, and thus whether the MLP lands should be excluded under
section 4(b)(2) of the Act.
Required Determinations--Amended
In our November 28, 2007, proposed critical habitat rule (72 FR
67428), we said that we would defer our determination of compliance
with several statutes and Executive Orders until the information
concerning potential economic impacts of the designation and potential
effects on landowners and stakeholders became available in the DEA. In
this document we affirm the information in our 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). However, based on the DEA, we revise our required
determinations concerning E.O. 12866, the Regulatory Flexibility Act,
E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded
Mandates Reform Act, and E.O. 12630 (Takings).
Regulatory Planning and Review
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this rule under Executive
Order 12866 (E.O. 12866). OMB bases its determination upon the
following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on
[[Page 46866]]
the economy or adversely affect an economic sector, productivity, jobs,
the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ),
as amended by the Small Business Regulatory Enforcement Fairness Act (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
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. Based on our DEA of
the proposed revised 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.
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
proposed critical habitat 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 12 Hawaiian picture-wing fly species would affect a substantial
number of small entities, we considered the number of small entities
affected within particular types of economic activities. In order to
determine whether it is appropriate for our agency to certify that this
rule would not have a significant economic impact on a substantial
number of small entities, we considered each industry or category
individually. In estimating the numbers of small entities potentially
affected, we also considered whether their activities have any Federal
involvement; some kinds of activities are unlikely to have any Federal
involvement. The designation of critical habitat will not affect
activities that do not have any Federal involvement; designation of
critical habitat affects activities conducted, funded, permitted, or
authorized by Federal agencies.
If we finalize this proposed critical habitat designation, Federal
agencies must consult with us under section 7 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.
Chapter 4 of the DEA evaluates the potential economic effects of
the proposed revised designation on small entities, based on the
estimated incremental impacts associated with the proposed rulemaking.
The screening analysis is based on the estimated impacts associated
with the proposed rulemaking as described in chapters 3 and 4 and
Appendix C of the DEA. The analysis evaluates the potential for
economic impacts related to several categories, including: (1)
Preservation and watershed management, (2) the purchase of Honouliuli
Preserve, (3) game management, (4) timber harvest, (5) property values,
and (6) administrative costs associated with section 7 consultation.
Incremental economic impacts associated with section 7
consultations would fall on the U.S. Fish and Wildlife Service, U.S.
Army Corps of Engineers, National Park Service, and Hawai`i Department
of Lands and Natural Resources. The Hawai`i Department of Lands and
Natural Resources may also experience an incremental economic impact
associated with the opportunity loss of not selling mature trees from a
portion of the Waiakea Timber Management Area. However, Federal
agencies are not considered small entities, and State governments are
not considered small government jurisdictions for purposes of the
Regulatory Flexibility Act (RFA) and Small Business Regulatory
Enforcement Fairness Act (SBREFA).
The Board of Water Supply of the City and County of Honolulu may
experience incremental costs for conservation on its land in the Makaha
Valley and Mt. Ka`ala units. However, the RFA/SBREFA defines small
governmental jurisdiction as the government of a city, county, town,
school district, or special district with a population of less than
50,000. Accordingly, the City and County of Honolulu is not considered
a small government jurisdiction.
Nonprofit organizations such as Kamehameha Schools, the Nature
Conservancy of Hawai`i (TNCH), the Queen Emma Foundation, and Watershed
Partnerships could experience incremental costs associated with (1) the
loss of property value for 3 acres of land in the Pit Crater unit; (2)
conservation projects on managed lands including the Pu`u Kolekole,
Pu`u Kukui, Palikea, Pu`u Kaua, and Kalua`a Gulch units; (3)
conservation projects on land in the Kohala Mountains West unit; and
(4) conservation projects in the Wailupe, Pu`u Kolekoke, Pu`u Kukui,
Kohala Mountains East, and Kohala Mountains west respectively. However,
none of these nonprofit organizations are considered ``small
organizations'' for purposes of the RFA/SBREFA.
The James Campbell Co. LLC, Maui Land and Pineapple Company, Inc.,
and Moloka`i Ranch are private companies that could experience
incremental impacts associated with critical habitat designation,
however, none of these businesses are considered to be small businesses
for purposes of the RFA/SBREFA. In this regard, the DEA concludes that
none of the incremental economic impacts associated with designating
critical habitat would be expected to fall on small entities.
In summary, we have considered whether the proposed critical
habitat designation would result in a significant economic impact on a
substantial number of small entities, and do not anticipate any
substantial impacts on any small entities. We therefore certify that,
if promulgated, the proposed revised designation would not have a
significant economic impact on a substantial number of small entities.
Therefore, an initial regulatory flexibility analysis is not required.
[[Page 46867]]
Executive Order 13211--Energy Supply, Distribution, and Use
On May 18, 2001, the President issued 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. OMB's guidance for implementing this
Executive Order outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to no regulatory action. The
DEA finds none of these criteria relevant to this analysis (Chapter 4
of the DEA). Thus, based on information in the DEA, we do not expect
conservation activities within proposed critical habitat for the 12
Hawaiian picture-wing fly species to lead to energy-related impacts. As
such, we do not expect the proposed designation of critical habitat to
significantly affect energy supplies, distribution, or use, and a
Statement of Energy Effects is not 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), we make 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)-(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.
``Federal private sector mandate'' includes a regulation that ``would
impose an enforceable duty upon the private sector, except as (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 on to 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. The SBA does not
consider the Federal Government to be a small governmental jurisdiction
or entity. Consequently, we do not believe that the revised critical
habitat designation would significantly or uniquely affect small
government entities. As such, a Small Government Agency Plan is not
required.
Executive Order 12630--Takings
In accordance with E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing critical habitat for the 12 Hawaiian picture-wing fly species
in a takings implications assessment. The takings implications
assessment concludes that the proposed designation of critical habitat
for the 12 Hawaiian picture-wing fly species does not pose significant
takings implications for lands within or affected by the proposed
designation.
Authors
The primary authors of this notice are the staff of the Endangered
Species Program, Pacific Region, U.S. Fish and Wildlife Service.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: August 4, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-18519 Filed 8-11-08; 8:45 am]
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