[Federal Register Volume 78, Number 83 (Tuesday, April 30, 2013)]
[Proposed Rules]
[Pages 25243-25251]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10044]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2012-0070; FWS-R1-ES-2013-0028; 4500030113]
RIN 1018-AY09; 1018-AZ38
Endangered and Threatened Wildlife and Plants; Listing 15 Species
on Hawaii Island as Endangered and Designating Critical Habitat for 3
Species
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the comment period on our October 17, 2012, proposal to
list 15 species as endangered and designate critical habitat for 1 of
these 15 species on the Hawaiian island of Hawaii, and to designate
critical habitat for 2 plant species that are already listed as
endangered, under the Endangered Species Act of 1973, as amended (Act).
Critical habitat is not determinable for the remaining 14 species that
we proposed to list in our October 17, 2012, proposed rule. We also
announce the availability of a draft economic analysis (DEA) of the
proposed designation and an amended required determinations section of
the proposed designation. We are reopening the comment period to allow
all interested parties an opportunity to comment simultaneously on the
proposed rule, the associated DEA, and the amended required
determinations section. In addition, we provide supplemental
information on one of the species proposed for listing and seek
comments on our proposal to list this species in light of this new
information. Comments previously submitted on this rulemaking do not
need to be resubmitted, as they will be fully considered in preparation
of the final rule. We also announce a public hearing and public
information meeting on our proposed rule and associated documents.
DATES: The comment period for the proposed rule published October 17,
2012, at 77 FR 63928, is reopened. Written Comments: We will consider
comments received or postmarked on or before May 30, 2013. Please note
comments submitted electronically using the Federal eRulemaking Portal
(see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on
the closing date.
Public Information Meeting: We will hold a public information
meeting in Kailua-Kona, Hawaii, on Wednesday, May 15, 2013, from 3 p.m.
to 5 p.m. (see ADDRESSES below).
Public Hearing: We will hold a public hearing in Kailua-Kona,
Hawaii, on Wednesday, May 15, 2013, from 6 p.m. to 8 p.m. (see
ADDRESSES below).
ADDRESSES: Document Availability: You may obtain copies of the October
17, 2012, proposed rule, this document, and the draft economic analysis
at http://www.regulations.gov at Docket Number FWS-R1-ES-2012-0070,
from the Pacific Islands Fish and Wildlife Office's Web site (http://www.fws.gov/pacificislands/), or by contacting the Pacific Islands Fish
and Wildlife Office directly (see FOR FURTHER INFORMATION CONTACT).
Written Comments: You may submit written comments by one of the
following methods, or at the public information meeting or public
hearing:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the listing proposal to Docket
No. FWS-R1-ES-2012-0070, and submit comments on the critical habitat
proposal, revisions, and associated draft economic analysis to Docket
No. FWS-R1-ES-2013-0028. See SUPPLEMENTARY INFORMATION for an
explanation of the two dockets.
(2) By hard copy: Submit comments on the listing proposal by U.S.
mail or hand-delivery to: Public Comments Processing, Attn: FWS-R1-ES-
2012-0070; Division of Policy and Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA
22203. Submit comments on the critical habitat proposal and draft
economic analysis by U.S. mail or hand-delivery to: Public Comments
Processing, Attn: FWS-R1-ES-2013-0028; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
Public Information Meeting and Public Hearing: Both the public
information meeting and the public hearing will be held in the Council
Chambers of the West Hawaii Civic Center located at 74-5044 Ane
Keohokalole Highway, Kailua-Kona, Hawaii 96740 (telephone 808-323-
4444).
We request that you send comments only by the methods described
above. We will post all comments we receive 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: Loyal Mehrhoff, Field Supervisor,
Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Box
50088, Honolulu, HI 96850; by telephone at 808-792-9400; or by
facsimile at 808-792-9581. Persons who use a telecommunications device
for the deaf (TDD) may call the Federal Information Relay Service
(FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION: We are proposing to list 15 species on the
Hawaiian island of Hawaii as endangered: specifically, 2 animals
(picture-wing fly (Drosophila digressa) and anchialine pool shrimp
(Vetericaris chaceorum)) and 13 plants (Bidens hillebrandiana ssp.
hillebrandiana, Bidens micrantha ssp. ctenophylla, Cyanea marksii,
Cyanea tritomantha, Cyrtandra nanawaleensis, Cyrtandra wagneri,
Phyllostegia floribunda, Pittosporum hawaiiense, Platydesma remyi,
Pritchardia lanigera, Schiedea diffusa ssp. macraei, Schiedea
hawaiiensis, and Stenogyne cranwelliae). We are proposing to designate
critical habitat for 1 of these 15 proposed species (Bidens micrantha
ssp. ctenophylla), and for 2 plant species that are already listed as
endangered (Isodendrion pyrifolium and Caesalpinia kavaiense (taxonomic
revision proposed, to Mezoneuron kavaiense)).
Public Comments
We will accept written comments and information during this
reopened comment period on our proposed listing determination and
proposed critical habitat designation that was published in the Federal
Register on October 17, 2012 (77 FR 63928), our draft economic analysis
of the proposed critical habitat designation, and the amended required
[[Page 25244]]
determinations provided in this document.
On October 17, 2012, we published a proposal (77 FR 63928) to list
15 species on the island of Hawaii in the Hawaiian Islands as
endangered, and designate critical habitat for 1 of those species and
for 2 plant species that are already listed as endangered. Later this
year, we will publish two separate final rules: One concerning the
listing determinations described above, and the other concerning the
critical habitat determinations described above. The final listing rule
will publish under the existing Docket No. FWS-R1-ES-2012-0070, and the
final critical habitat designation will publish under Docket No. FWS-
R1-ES-2013-0028.
We request that you provide comments specifically on our listing
determination under Docket No. FWS-R1-ES-2012-0070. We will consider
information and recommendations from all interested parties. We are
particularly interested in comments concerning:
(1) Biological, commercial trade, or other relevant data concerning
threats (or the lack thereof) to the 15 species proposed for listing,
and regulations that may be addressing those threats.
(2) Additional information concerning the biology, range,
distribution, and population sizes of each of the 15 species proposed
for listing, including any comments on the recently confirmed new
location for Vetericaris chaceorum, the anchialine pool shrimp proposed
for listing as endangered in the October 17, 2012, proposed rule (77 FR
63928) (see discussion below), threats to the species at the new
location, and the effect this new location information should have on
our analysis of the listing factors for this species, which include:
The present or threatened destruction, modification, or
curtailment of its habitat or range;
Overutilization for commercial, recreational, scientific,
or educational purposes;
Disease or predation;
The inadequacy of existing regulatory mechanisms; or
Other natural or manmade factors affecting its continued
existence.
(3) Any information on the biological or ecological requirements of
the 15 species proposed for listing, and ongoing conservation measures
for the species and their habitat.
(4) Comments on our proposal to revise taxonomic classification
with a name change for one plant species identified in the proposed
rule.
We request that you provide comments specifically on the critical
habitat determination and related draft economic analysis under Docket
No. FWS-R1-ES-2013-0028. We will consider information and
recommendations from all interested parties. We are particularly
interested in comments concerning:
(5) The reasons why we should or should not designate areas for
Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and
Mezoneuron kavaiense as ``critical habitat'' under section 4 of the
Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et
seq.), including whether there are threats to these species from human
activity, the degree of which can be expected to increase due to the
designation, and whether the benefit of designation would outweigh
threats to these species caused by the designation, such that the
designation of critical habitat is prudent.
(6) Specific information on:
The amount and distribution of critical habitat for the
three plant species;
Areas in the geographic area occupied at the time of
listing and that contain the physical or biological features essential
for the conservation of the three plant species;
Whether special management considerations or protections
may be required for the physical or biological features essential to
the conservation of the three plant species; and
What areas not currently occupied are essential to the
conservation of the three plant species and why.
(7) Land use designations and current or planned activities in the
areas occupied or unoccupied by the species and proposed as critical
habitat, and the possible impacts of these activities on these three
species, or of critical habitat on these designations or activities.
(8) Any foreseeable economic, national security, or other relevant
impacts of designating any area as critical habitat. We are
particularly interested in any impacts on small entities, and the
benefits of including or excluding areas that may experience these
impacts.
(9) 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. We are considering the possible exclusion of non-Federal
lands, especially areas in private ownership, and whether the benefits
of exclusion may outweigh the benefits of inclusion of those areas. We,
therefore, request specific information on:
The benefits of including any specific areas in the final
designation and supporting rationale.
The benefits of excluding any specific areas from the
final designation and supporting rationale.
Whether any specific exclusions may result in the
extinction of the species and why.
For private lands in particular, we are interested in
information regarding the potential benefits of including private lands
in critical habitat versus the benefits of excluding such lands from
critical habitat. In weighing the potential benefits of exclusion
versus inclusion of private lands, the Service may consider whether
existing partnership agreements provide for the management of the
species. We may consider, for example, the status of conservation
efforts, the effectiveness of any conservation agreements to conserve
the species, and the likelihood of the conservation agreement's future
implementation.
(10) Our process used for identifying those areas that meet the
definition of critical habitat for the species, as described in the
section of the October 17, 2012, proposed rule titled Criteria Used to
Identify Critical Habitat Boundaries.
(11) Information on the extent to which the description of
potential economic impacts in the draft economic analysis is complete
and accurate.
(12) Whether the draft economic analysis makes appropriate
assumptions regarding current practices and any regulatory changes that
would likely occur if we designate critical habitat.
(13) Whether the draft economic analysis identifies all Federal,
State, and local costs and benefits attributable to the proposed
designation of critical habitat, and information on any costs that may
have been inadvertently overlooked. For example, are there any costs
resulting from critical habitat designation related to the enhancement
or maintenance of nonnative ungulates for hunting programs?
(14) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
(15) Specific information on ways to improve the clarity of this
rule as it pertains to completion of consultations under section 7 of
the Act.
Our final determination concerning listing 15 species as endangered
and designating critical habitat for 3 plant species on the island of
Hawaii will take into consideration all written comments
[[Page 25245]]
we receive during the public information meeting, written comments and
information we receive during both comment periods, from peer
reviewers, as well as comments and public testimony we receive during
the public hearing. The comments will be included in the public record
for this rulemaking, and we will fully consider them in the preparation
of our final determinations. On the basis of peer reviewer and public
comments, as well as any new information we may receive, we may, during
the development of our final determination concerning critical habitat,
find that areas within the proposed critical habitat designation do not
meet the definition of critical habitat, that some modifications to the
described boundaries are appropriate, or that areas may or may not be
appropriate for exclusion under section 4(b)(2) of the Act.
If you submitted comments or information on the proposed rule
(October 17, 2012, 77 FR 63928) during the comment period from October
17, 2012, to December 17, 2012, 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 the preparation of our final
determinations.
You may submit your comments and materials concerning the proposed
rule or draft economic analysis by one of the methods listed in the
ADDRESSES section. Verbal testimony may also be presented during the
public hearing (see DATES and ADDRESSES sections). We will post your
entire comment--including your personal identifying information--on
http://www.regulations.gov. If you submit your comment via U.S. mail,
you may request at the top of your document that we withhold personal
information such as your street address, phone number, or email address
from public review; however, we cannot guarantee that we will be able
to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule and draft economic
analysis, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R1-ES-2012-0070 or Docket No.
FWS-R1-ES-2013-0028, 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).
Public Information Meeting and Public Hearing
We are holding a public information meeting and a public hearing on
the date listed in the DATES section at the address listed in the
ADDRESSES section (above). We are holding the public hearing to provide
interested parties an opportunity to present verbal testimony (formal,
oral comments) or written comments regarding the proposed listing of 15
species as endangered and proposed designation of critical habitat for
3 plant species on the island of Hawaii, and the associated draft
economic analysis. A formal public hearing is not, however, an
opportunity for dialogue with the Service; it is only a forum for
accepting formal verbal testimony. In contrast to the hearing, the
public information meeting allows the public the opportunity to
interact with Service staff, who will be available to provide
information and address questions on the proposed rule and its
associated draft economic analysis. We cannot accept verbal testimony
at the public information meeting; verbal testimony can only be
accepted at the public hearing. Anyone wishing to make an oral
statement at the public hearing for the record is encouraged to provide
a written copy of their statement to us at the hearing. At the public
hearing, formal verbal testimony will be transcribed by a certified
court reporter and will be fully considered in the preparation of our
final determination. In the event there is a large attendance, the time
allotted for oral statements may be limited. Speakers can sign up at
the hearing if they desire to make an oral statement. Oral and written
statements receive equal consideration. There are no limits on the
length of written comments submitted to us.
Persons with disabilities needing reasonable accommodations to
participate in the public information meeting or public hearing should
contact Loyal Mehrhoff, Field Supervisor, Pacific Islands Fish and
Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Reasonable
accommodation requests should be received at least 3 business days
prior to the public information meeting or public hearing to help
ensure availability; at least 2 weeks prior notice is requested for
American Sign Language needs.
Background
The topics discussed below are relevant to designation of critical
habitat for 3 plant species on the Hawaiian island of Hawaii in this
document. For more information on previous Federal actions concerning
these species, refer to the proposed listing and designation of
critical habitat published in the Federal Register on October 17, 2012
(77 FR 63928), which is available online at http://www.regulations.gov
(at Docket Number FWS-R1-ES-2012-0070) or from the Pacific Islands Fish
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Previous Federal Actions
On October 17, 2012, we published a proposed rule (77 FR 63928) to
list 15 species as endangered and designate critical habitat for 3
plant species. We proposed to designate a total of 18,766 acres (ac)
(7,597 hectares (ha)) on the island of Hawaii as critical habitat.
Within that proposed rule, we announced a 60-day comment period, which
began on October 17, 2012, and ended on December 17, 2012.
Approximately 55 percent of the area being proposed as critical habitat
is already designated as critical habitat for other species, including
for the plant Kokia drynarioides (49 FR 47397, December 4, 1984), and
41 other listed plants (68 FR 39624, July 2, 2003), Blackburn's sphinx
moth (68 FR 34710, June 10, 2003), and 3 picture-wing flies (73 FR
73794, December 4, 2003).
New Information
The anchialine pool shrimp Vetericaris chaceorum was recently
documented at Manuka, Hawaii, approximately 15.5 mi (25 km) northwest
of Luo o Palahemo, the previously only locality known for this species
(77 FR 63928, October 17, 2012). The identification as V. chaceorum was
confirmed by the Oxford Museum on Natural History and the Naturalis
Biodiversity Center, Department of Marine Zoology, through the
examination of two specimens collected by the Hawaii Department of
Natural Resources, Division of Aquatic Resources (DAR) Hilo staff in
2012. Visual accounts made by DAR staff suggest that a population of V.
chaceorum is established throughout the complex of pools located along
the southern section of the Manuka Natural Area Reserve. Positive
identifications of V. chaceorum were recorded in three pools; however,
accurate estimates of its population are still unavailable due to the
cryptic nature of this species. The habitat in which V. chaceorum was
found at Manuka is described as being considerably different than that
of Lua o Palahemo, and was characterized by shallow (<0.5 m deep) open
pools dispersed throughout barren basaltic terrain. Accordingly, it
does not seem to be limited to the deep recesses of the anchialine
habitat (where the species was observed in Lua o Palahemo), but it may
also roam freely throughout shallow exposed areas (Sakihara 2013, pers.
comm).
[[Page 25246]]
The anchialine habitats in Manuka where V. chaceorum were recorded
are located along the coastal boundary of the Manuka Natural Area
Reserve (NAR), established in 1983 by the State of Hawaii. The Natural
Area Reserves system is managed by the State of Hawaii, Department of
Land and Natural Resources, Division of Forestry and Wildlife.
Biological threats at Manuka have been described as including feral
ungulates (goats) and an established population of alien invasive
fountain grass (Pennisetum setaceum). NAR's management teams continue
in their efforts in controlling biological threats to the natural
resources within the NAR by active removal, monitoring, and public
outreach (Sakihara 2013, pers. comm). The presence of and predation by
introduced poecillids (fish in the Poeciliidae family that bear live
young) may represent a threat to the biological integrity of one of the
anchialine pools at Manuka (Sakihara 2009, pp. 20, 28; Sakihara 2012,
pp. 91-92), although they have not been documented in the pools
inhabited by V. chaceorum. Anthropogenic (human-caused) disturbance
associated with the presence of a jeep trail and campsites near the
anchialine pools at Awili Point and Keawaiki may also represent a
threat to the species (Sakihara 2012, p. 92).
Although this new information does not change our proposal to list
this species as endangered or our finding that the designation of
critical habitat is not determinable at this time, as discussed in the
proposed rule (77 FR 63928, October 17, 2012), we will consider this
new evidence of a second occurrence of V. chaceorum in analyzing the
listing factors and making a final determination on whether this
species should be listed. We request comments on whether this evidence
should change the listing analysis contained in the proposed rule and,
if so, how.
Critical Habitat
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed rule is
made final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency unless it is exempted pursuant to the
provisions of the Act (16 U.S.C. 1536(e)-(n) and (p)). Federal agencies
proposing actions affecting critical habitat must consult with us on
the effects of their proposed actions, under section 7(a)(2) of the
Act.
Consistent with the best scientific data available, the standards
of the Act, and our regulations, we have initially identified, for
public comment, a total of 18,766 ac (7,597 ha) in seven multi-species
units located on the island of Hawaii that meet the definition of
critical habitat for the three plant species. In addition, the Act
provides the Secretary with the discretion to exclude certain areas
from the final designation after taking into consideration economic
impacts, impacts on national security, and any other relevant impacts
of specifying any particular area as critical habitat.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific 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 may exclude an area from critical habitat
if we determine that the benefits of excluding the area outweigh the
benefits of including the area as critical habitat, provided such
exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus (activities conducted, funded, permitted,
or authorized by Federal agencies), the educational benefits of mapping
areas containing essential features that aid in the recovery of the
listed species, and any benefits that may result from designation due
to State or Federal laws that may apply to critical habitat. In the
case of the three Hawaii Island plant species, the benefits of critical
habitat include public awareness of the presence of one or more of
these species and the importance of habitat protection, and, where a
Federal nexus exists, increased habitat protection for the species due
to protection from adverse modification or destruction of critical
habitat. With regard to these species, situations with a Federal nexus
exist primarily on Federal lands or for projects undertaken by Federal
agencies.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan. We also consider
the potential economic or social impacts that may result from the
designation of critical habitat.
In the proposed rule, we identified several areas to consider
excluding from the final rule. We are considering excluding from the
final designation approximately 4,099 ac (1,659 ha) of private lands
that have a voluntary conservation agreement, partners in watershed
partnerships or dry forest working groups, conservation or watershed
preserve designation, or similar conservation protection.
These specific exclusions will be considered on an individual basis
or in any combination thereof. In addition, the final designation may
not be limited to these exclusions, but may also consider other
exclusions as a result of continuing analysis of relevant
considerations (scientific, economic, and other relevant factors, as
required by the Act), and the public comment process. In particular, we
solicit comments from the public on whether all of the areas identified
meet the definition of critical habitat, whether other areas would meet
that definition, whether to make the specific exclusions we are
considering, and whether there are other areas that are appropriate for
exclusion.
The final decision on whether to exclude any area will be based on
the best scientific data available at the time of the final
designation, including information obtained during the comment periods
and information about the economic impact of designation. Accordingly,
we have prepared a draft economic analysis concerning the proposed
critical habitat designation, which is available for review and comment
(see ADDRESSES, above).
Draft Economic Analysis
The purpose of the draft economic analysis (DEA) is to identify and
analyze the potential economic impacts associated with the proposed
critical habitat designation for the three Hawaii Island plant species.
When a species is federally listed as endangered or threatened, it
receives protection under the Act. For example, under section 7 of the
Act, Federal agencies must consult with the Service to ensure that
actions they fund, authorize, or carry out do not jeopardize
[[Page 25247]]
the continued existence of the species. Economic impacts of
conservation measures undertaken to avoid jeopardy to the species are
considered baseline impacts in our analysis as they are not generated
by the critical habitat designation. In other words, baseline
conservation measures and associated economic impacts are not affected
by decisions related to critical habitat designation for these species.
The DEA describes the economic impacts of potential conservation
efforts for the three Hawaii Island plant 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 scenarios ``with critical
habitat'' and ``without critical habitat.'' The ``without critical
habitat'' scenario represents the baseline for the analysis,
considering protections already in place for these species (e.g., under
the Federal listing and other Federal, State, and local regulations).
The ``with critical habitat'' scenario describes the incremental
impacts associated specifically with the designation of critical
habitat for the three plant species. The incremental conservation
efforts and associated impacts are those that would not be expected to
occur without the designation of critical habitat for these species. In
other words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs;
these are the costs we may consider in the final designation of
critical habitat when evaluating the benefits of excluding particular
areas under section 4(b)(2) of the Act.
The ``without critical habitat'' scenario represents the baseline
for the analysis, and considers the protections already afforded the
three Hawaiian plants, regardless of critical habitat designation. The
baseline for this analysis is the state of regulation, absent
designation of critical habitat, which provides protection to these
species under the Act, as well as any other Federal, State, and local
laws and conservation plans. The baseline includes sections 7, 9, and
10 of the Act to the extent that they are expected to apply absent the
designation of critical habitat for the species. The analysis
qualitatively describes how baseline conservation for the three Hawaii
Island plant species is currently implemented across the proposed
designation in order to provide context for the incremental analysis
(DEA Chapter 1.4 and Appendix B.3.1). For a further description of the
methodology of the analysis, see DEA Chapter B.3.
The DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed critical habitat designation for the
three Hawaii Island plant species over the next 10 years, which was
determined to be the appropriate period for analysis because limited
planning information is available for most activities to forecast
activity levels for projects beyond a 10-year timeframe. It identifies
potential incremental costs as a result of the proposed critical
habitat designation; these are the costs attributed to critical habitat
over and above those baseline costs attributed to listing. The DEA
separately identifies the potential incremental costs of the critical
habitat designation on lands being considered for exclusion under
section 4(b)(2) of the Act.
The DEA focuses on economic activities that are occurring or have
the potential to occur within the proposed critical habitat areas, and
are of primary concern with respect to potential adverse modification
of critical habitat. The key concern is the potential for activities to
result in ground disturbance within a critical habitat unit. Such
activities include commercial, residential, and industrial development,
and transportation projects. Within these activity categories, the DEA
is focused on those projects and activities that are considered
reasonably likely to occur within the proposed critical habitat area.
This includes projects or activities that are currently planned or
proposed, or that permitting agencies or land managers indicate are
likely to occur.
The only Federal regulatory effect of the designation of critical
habitat is the prohibition on Federal agencies taking actions that are
likely to destroy or adversely modify critical habitat. Federal
agencies are not required to avoid or minimize effects unless the
effects rise to the level of destruction or adverse modification as
those terms are used in section 7 of the Act. Even then, the Service
must recommend reasonable and prudent alternatives that: (1) Can be
implemented consistent with the intended purpose of the action; (2) are
within the scope of the Federal agency's legal authority and
jurisdiction; and (3) are economically and technologically feasible.
Thus, while the Service may recommend conservation measures, unless the
action is likely to destroy or adversely modify critical habitat,
implementation of recommended measures is voluntary, and Federal
agencies and applicants have discretion in how they carry out their
section 7 mandates.
Thus, the direct, incremental impacts of critical habitat
designation stem from the consideration of the potential for
destruction or adverse modification of critical habitat during section
7 consultations. The two categories of direct, incremental impacts of
critical habitat designation are: (1) The added administrative costs of
conducting section 7 consultation related to critical habitat; and (2)
implementation of any conservation efforts requested by the Service
through section 7 consultation, or required by section 7 to prevent the
destruction or adverse modification of critical habitat.
The DEA describes the types of project modifications currently
recommended by the Service to avoid jeopardy to the two currently
listed species, Isodendrion pyrifolium (listed as an endangered species
on March 4, 1994 (59 FR 10305)), and Mezoneuron kavaiense (listed as an
endangered species on July 8, 1986 (51 FR 24672)) (``baseline'' project
modifications). Critical habitat is also proposed for Bidens micrantha
ssp. ctenophylla, which was proposed for listing as endangered on
October 17, 2012 (77 FR 63928) and co-occurs with the above two
species. These baseline project modifications would be recommended in
occupied habitat areas regardless of whether critical habitat is
designated for the two currently listed species, and would also be
recommended for Bidens micrantha ssp. ctenophylla, regardless of
critical habitat designation, should it be listed under the Act.
Although the standards for jeopardy and adverse modification of
critical habitat are not the same, because the degradation or loss of
habitat is a key threat to the three Hawaii Island plant species, a
jeopardy analyses for these species would already consider the
potential for project modifications to avoid the destruction of
habitat; therefore recommendations to avoid jeopardy would also likely
avoid adverse modification or destruction of critical habitat for these
species.
The Service estimates that the only project modification that may
be recommended to avoid adverse modification of critical habitat above
and beyond that recommended to avoid jeopardy to the species would be
in cases where permanent impacts to critical habitat are unavoidable;
in such cases, the Service would recommend that habitat loss be offset
elsewhere in designated critical habitat, preferably within the
critical habitat unit where the loss occurred. In other words, while
the Service may recommend that habitat loss be offset even absent
critical habitat designation, critical habitat designation may generate
the additional
[[Page 25248]]
recommendation that the offset occur within the critical habitat unit.
In occupied critical habitat, therefore, the incremental impacts are
most likely limited to the potential incremental cost of offsetting
habitat loss within the critical habitat unit that is affected as
opposed to outside of the unit. As noted above, any recommended offsets
would not be required unless necessary to avoid violating the
prohibition of section 7 (i.e., destroying or adversely modifying
critical habitat). However, to be conservative regarding potential
incremental costs of the proposed critical habitat designation, the DEA
assumes that the Federal agency or applicant may choose to implement
the recommended offsets.
With regard to occupied habitat, the DEA predicts that a
recommendation that ground disturbance be offset within the critical
habitat unit would not generate additional economic impacts, beyond
those related to the listing of the species under the Act. It is
therefore unlikely that critical habitat designation would change the
outcome of a future section 7 consultation on projects or activities
within occupied areas, and incremental impacts would most likely be
limited to the additional administrative effort of considering adverse
modification as part of the consultation. However, the effects of each
project on critical habitat would need to be evaluated as appropriate
once a final decision has been made on this designation.
The proposed critical habitat designation includes seven multi-
species units, totaling 18,766 acres (7,597 hectares) within Hawaii's
lowland dry ecosystem. Each unit is occupied by at least one of the
three species for which critical habitat is proposed, although the
three plants do not necessarily occur across the entirety of each unit.
Individuals of these species may be scattered intermittently throughout
a unit or clumped in portions of a unit. While we have proposed areas
that may be unoccupied on the basis that they are essential to the
conservation of the species, for example in order to provide room for
population expansion, there may be portions of each unit that would not
be subject to section 7 consultation because the species does not occur
in the specific location being impacted by a proposed action.
Therefore, ground surveys to locate the individual plants would need to
be conducted prior to each proposed project or activity within critical
habitat and the cost of the consultation and any resulting conservation
actions may be attributable to critical habitat.
The designation of critical habitat may, under certain
circumstances, affect actions that do not have a Federal nexus and thus
are not subject to the provisions of section 7 under the Act. Indirect
impacts are those unintended changes in economic behavior that may
occur outside of the Act, through other Federal, State, or local
actions, and that are caused by the designation of critical habitat.
Chapter 2.6 of the DEA discusses the types of potential indirect
impacts that may be associated with the designation of critical
habitat, such as time delays, regulatory uncertainty, and negative
perceptions related to critical habitat designation on private
property. These types of impacts are not always considered incremental.
In the case that these types of conservation efforts and economic
effects are expected to occur regardless of critical habitat
designation, they are appropriately considered baseline impacts in this
analysis.
Critical habitat may generate incremental economic impacts through
implementation of additional conservation measures (beyond those
recommended in the baseline) and additional administrative effort in
section 7 consultation to ensure that projects or activities do not
result in adverse modification of critical habitat. However, as
described above and in Chapter 1 of the DEA, where critical habitat is
considered occupied by the three Hawaii Island plant species, critical
habitat designation is expected to have a more limited effect on
economic activities, since section 7 consultation would already occur
due to the presence of the species and these additional conservation
measures would already be considered.
The focus of the DEA is on projects that are occurring or are
reasonably likely to occur, based on information received from the
development community in response to the proposed rule (77 FR 63928,
October 17, 2012). Based on our section 7 consultation history, it is
unlikely that critical habitat designation would change the outcome of
a future section 7 consultation on projects or activities within
occupied areas of the proposed designation. However, within unoccupied
areas, all costs associated with conservation efforts recommended in
section 7 consultations (including administrative costs) would be
direct incremental costs attributable to proposed designation. Within
areas proposed for critical habitat designation, the DEA estimates a
total present value impact of $35,000 over the next 10 years (an
annualized impact of $4,700, with a 7 percent discount rate) associated
with future section 7 consultations (DEA, Exhibit 2-1). Impacts on
projects occurring in areas being considered for exclusion under
section 4(b)(2) of the Act are expected to be $15,000 (an annualized
impact of $2,000, with a 7 percent discount rate). These costs reflect
administrative effort of considering critical habitat in future section
7 consultations on projects identified as occurring within the proposed
critical habitat area. Specifically, the DEA forecasts five future
section 7 consultations for projects located in areas overlapping
proposed critical habitat Units 33, 34, and 35, and three future
consultations for projects located in areas being considered for
exclusion in proposed critical habitat units 33, 34, and 35. The DEA
assumes that all of the consultations would occur in 2013, following
the designation of critical habitat.
Since projects and activities occurring within occupied habitat
areas are less likely to be directly affected (i.e., economic impacts
would most likely be limited to administrative costs), the DEA
primarily focuses on the two reasonably foreseeable projects of which
we are aware, that would occur within unoccupied areas of the proposed
designation. These projects include a Department of Hawaiian Homelands
(DHHL) residential project within proposed critical habitat unit 33,
and a Queen Liliuokalani Trust (QLT) mixed-use development project
within proposed critical habitat unit 35.
The DEA concludes that additional direct and indirect impacts of
the designation are possible, although information limitations preclude
quantification in this analysis. The DHHL project on 91 acres (37
hectares) of an unoccupied area of proposed critical habitat unit 33 is
likely to be subject to section 7 consultation. However, significant
uncertainty exists regarding the extent of conservation efforts that
DHHL would ultimately undertake to avoid adverse modification of
critical habitat. The QLT project overlaps 302 unoccupied acres (122
hectares) in proposed critical habitat Unit 35, and while a Federal
nexus compelling consultation is unlikely, the project may be subject
to indirect impacts including additional management by the county
associated with required zoning changes. However, the uncertainties
described in the DEA include whether the critical habitat designation
will generate indirect economic impacts, including changes in land
management by the State or county. Additionally, while the DEA
describes the Service's initial recommendations, the projects would be
reviewed on a case-by-case basis during
[[Page 25249]]
the consultation process. The ultimate nature and extent of
conservation efforts is therefore uncertain.
We are soliciting data and comments from the public on the DEA, as
well as all aspects of the proposed rule and our amended required
determinations. We may revise the proposed rule or supporting documents
to incorporate or address information we receive during the public
comment period. In particular, we may exclude an area from critical
habitat if the Secretary determines the benefits of excluding the area
outweigh the benefits of including the area, provided the exclusion
will not result in the extinction of the species.
Required Determinations--Amended
In our October 17, 2012, proposed rule (77 FR 63928), we indicated
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 draft economic
analysis. We have now made use of the draft economic analysis data to
make these determinations. In this document, we affirm the information
in our proposed rule concerning Executive Order (E.O.) 12866
(Regulatory Planning and Review), E.O. 13132 (Federalism), E.O. 12988
(Civil Justice Reform), the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.),
and the National Environmental Policy Act (42 U.S.C. 4321 et seq.).
However, based on the draft economic analysis data, we are amending our
required determinations concerning the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), E.O. 13211 (Energy, Supply, Distribution, and
Use), and E.O. 12630 (Takings). We are also providing a determination
for the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR
22951), which we inadvertently omitted from the October 17, 2012,
proposed rule (77 FR 63928). In light of the statutory requirement that
listing decisions be made ``solely'' on the basis of the best
scientific and commercial data available, the following determinations
relate only to the proposed critical habitat rulemaking, not the
proposed listing rule.
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 of
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities. Based on our draft economic analysis of the
proposed designation, we are certifying that the critical habitat
designation for the three Hawaii Island plant species, if adopted as
proposed, 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; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities, such as: (1)
Agricultural, commercial, and residential development; (2)
transportation; and (3) livestock grazing and other human activities.
We apply the ``substantial number'' test individually to each industry
to determine if certification is appropriate. 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.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only has regulatory effects on
activities authorized, funded, or carried out by Federal agencies. Some
kinds of activities are unlikely to have any Federal involvement and
will not be affected by critical habitat designation. In areas where
any of the three Hawaii Island plant species are present, Federal
agencies are already required to consult with us under section 7 of the
Act on activities they authorize, fund, or carry out that may affect
the species. Federal agencies also must consult with us if their
activities may affect critical habitat. Designation of critical
habitat, therefore, could result in an additional economic impact on
small entities due to the requirement to reinitiate consultation for
ongoing Federal activities (see ``Application of the Adverse
Modification Standard'' section of the proposed rule (October 17, 2012,
77 FR 63928)).
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species only has a regulatory
effect where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA
[[Page 25250]]
to evaluate the potential impacts to entities not directly regulated,
such as small businesses. However, Executive Orders 12866 and 13563
direct Federal agencies to assess costs and benefits of available
regulatory alternatives in quantitative (to the extent feasible) and
qualitative terms. Consequently, it is the current practice of the
Service to assess to the extent practicable these potential impacts if
sufficient data are available, whether or not this analysis is believed
by the Service to be strictly required by the RFA. In other words,
while the effects analysis required under the RFA is limited to
entities directly regulated by the rulemaking, the effects analysis
under the Act, consistent with the E.O. regulatory analysis
requirements, can take into consideration impacts to both directly and
indirectly impacted entities, where practicable and reasonable. In
doing so, we focus on the specific areas proposed to be designated as
critical habitat and compare the number of small business entities
potentially affected in that area with other small business entities in
the region, instead of comparing the entities in the proposed area of
designation with entities nationally, which is more commonly done. This
analysis results in an estimation of a higher number of small
businesses potentially affected.
As identified in Exhibit A-1, the third parties for five of the
eight projects identified in the analysis are not considered small
businesses. As it is unknown whether or not the third parties
associated with the remaining three projects are small businesses, we
conservatively assume that they are small businesses for purposes of
our analysis. The per-consultation third-party cost of participating in
a formal consultation is estimated to be $900, as described in Appendix
B, Exhibit B-1. Exhibit A-2 provides information on the average annual
revenues of small entities in the development industry, calculated
using Risk Management Association (RMA) data. As detailed in the
exhibit, the per-entity cost to participate in a single consultation
likely represents approximately 0.01 percent or less of annual
revenues. Note that the average annual revenues reported in Exhibit A-2
are derived from nationwide data, as there is limited data available to
assess revenues of these types of businesses in Hawaii County, and
therefore the revenues of these particular third parties may be far
less. However, the estimated per-consultation cost of $900 is not
likely to represent a significant portion of revenues for each third
party. Therefore, we conclude that the economic impacts are not
significant.
Following our evaluation of potential effects to small business
entities from the proposed rulemaking, we conclude that the number of
potentially affected small businesses is not substantial, and that the
economic impacts are not significant. In the draft economic analysis,
we evaluated the potential economic effects on small entities resulting
from implementation of conservation actions related to the proposed
designation of critical habitat for the three Hawaii Island plant
species. Quantified incremental impacts that may be borne by small
entities are limited to the administrative costs of section 7
consultation related to development and transportation projects (DEA,
Appendix A-4). For projects located in occupied areas of the proposed
critical habitat designation, incremental impacts of the designation
are likely limited to these administrative costs for participation in
the consultations. For projects located in unoccupied areas of the
proposed critical habitat designation, incremental impacts may also
include costs associated with additional conservation efforts
implemented as a result of section 7 consultation.
The proposed critical habitat is located in the South Kohala and
North Kona districts of the Big Island. The Hawaii County General Plan,
approved in 2005 by the County Council, identifies both districts as
the major tourism centers on the island, and describes Kona as ``the
center for government, commercial, and industrial activities for West
Hawaii.'' The plan outlines a proposed land use pattern, known as the
Land Use Pattern Allocation Guide, which identifies much of the
proposed critical habitat area for ``urban expansion,'' where ``new
settlements may be desirable, but where the specific settlement pattern
and mix of uses have not yet been determined.'' In addition to the
General Plan, which serves as the overall planning document for the
county, Hawaii County also has Community Development Plans that
translate the broader goals of the General Plan into specific
implementation actions for geographic regions around the island. The
Kona Community Development Plan (KCDP), adopted as Ordinance 08-131 in
September 2008, identifies much of the area proposed for critical
habitat designation as within the Kona Urban Area. Specifically, the
entirety of proposed critical habitat Units 34, 35, and 36, and the
majority of Unit 33, fall within the Kona Urban Area, as shown in
Exhibit 2-2. One of the main goals of the KCDP is to direct future
growth to the Kona Urban Area, and specifically to ``compact villages
located along proposed transit routes or to infill areas within, or
adjacent to, existing development,'' several of which overlap with the
proposed critical habitat area.
Of the projects we identified within areas proposed for critical
habitat designation, only two are expected to occur on lands that are
unoccupied by the species, and could experience the greatest economic
impact related to the proposed critical habitat designation. A
Department of Hawaiian Home Lands (DHHL) residential project is planned
within proposed critical habitat Unit 33, and a development project is
planned within critical habitat Unit 35 by the Queen Lili'uokalani
Trust (QLT) (DEA, Chapter 2). The DHHL is a State governmental agency,
and the QLT Statements of Financial Position dated December 31, 2011,
and 2010 identifies current assets of $193,590,994 and $197,834,747,
and liabilities of $4,137,037 and $2,518,920 respectively (QLT 2011).
Accordingly, neither of these entities would be considered small
businesses under the RFA, as amended by the SBREFA. Therefore, we
conclude that the economic impacts are not significant. Following our
evaluation of potential effects to small business entities from the
proposed rulemaking, we conclude that the number of potentially
affected small businesses is not substantial, and that the economic
impacts are not significant.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration. As described in the Chapter 1 of the DEA,
the designation of critical habitat for the plants is not anticipated
to result in any impacts to the energy industry. As such, the
designation of critical habitat is not expected to significantly affect
energy supplies, distribution, or use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
E.O. 12630 (Takings)
In accordance with E.O. 12630 (Government Actions and Interference
[[Page 25251]]
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium,
and Caesalpinia kavaiense (taxonomic revision proposed to Mezoneuron
kavaiense) in a takings implications assessment. As discussed above,
the designation of critical habitat affects only Federal actions.
Although private parties that receive Federal funding, assistance, or
require approval or authorization from a Federal agency for an action
may be indirectly impacted by the designation of critical habitat, the
legally binding duty to avoid destruction or adverse modification of
critical habitat rests squarely on the Federal agency. The economic
analysis found that no significant economic impacts are likely to
result from the designation of critical habitat for the above three
species. Because the Act's critical habitat protection requirements
apply only to Federal agency actions, few conflicts between critical
habitat and private property rights should result from this
designation. Based on information contained in the economic analysis
assessment and described within this document, it is not likely that
economic impacts to a property owner would be of a sufficient magnitude
to support a takings action. Therefore, the takings implications
assessment concludes that this designation of critical habitat for
Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and
Caesalpinia kavaiense (taxonomic revision proposed to Mezoneuron
kavaiense) does not pose significant takings implications for lands
within or affected by the designation.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), E.O. 13175, and the Department of Interior's
manual at 512 DM2, we readily acknowledge our responsibility to
communicate meaningfully with recognized Federal Tribes on a
government-to-government basis. In accordance with Secretarial Order
3206 of June 5, 1997 ``American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act,'' we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes.
We have determined that there are no tribal lands occupied at the
time of listing that contain the features essential for the
conservation, and no tribal lands that are essential for the
conservation, of the three Hawaii Island plant species. Therefore, we
have not proposed designation of critical habitat for any of the three
Hawaii Island plant species on tribal lands.
Authors
The primary authors of this notice are the staff members of the
Pacific Islands Fish and Wildlife Office, 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: April 22, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-10044 Filed 4-29-13; 8:45 am]
BILLING CODE 4310-55-P