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Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for 11 Species of Picture-wing Flies From the Hawaiian Islands
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: January 4, 2007 (Volume 72, Number 2)]
[Proposed Rules]
[Page 321-325]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04ja07-23]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU93
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for 11 Species of Picture-wing Flies
From the Hawaiian Islands
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period and notice of
availability of draft economic analysis.
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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening
of the public comment period on the proposal to designate critical
habitat for 11 species of Hawaiian picture-wing flies (Drosophila
aglaia, D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D.
mulli, D. musaphilia, D. obatai, D. ochrobasis, D. substenoptera, and
D. tarphytrichia) and the availability of the draft economic analysis
of the proposed designation of critical habitat for these species. We
are reopening the comment period to allow all interested parties to
comment simultaneously on the proposed rule and the associated draft
economic analysis. We estimate costs related to conservation activities
for the proposed
[[Page 322]]
designation of critical habitat for the 11 species of Hawaiian picture-
wing flies under sections 4, 7, and 10 of the Act to be approximately
$933,270 to $6,742,520 over 20 years, or $46,664 to $337,126 annually
in undiscounted 2006 dollars. We estimate costs to range from $749,600
to $5,139,460 over 20 years, or $50,385 to $345,454 annually using a
three percent discount rate. We estimate costs using a seven percent
discount rate to range from $597,940 to $3,794,230 over 20 years, or
$56,441 to $358,149 annually.
DATES: We will accept public comments until January 19, 2007.
ADDRESSES: If you wish to comment on the proposed rule or draft
economic analysis, you may submit your comments and materials
identified by RIN 1018-AU93, by any of the following methods:
(1) Mail or hand delivery: You may submit written comments and
information to Patrick Leonard, Field Supervisor, Pacific Islands Fish
and Wildlife Office, U.S. Fish and Wildlife Service, 300 Ala Moana
Boulevard, Room 3-122, Box 50088, Honolulu, HI 96850.
(2) Fax: You may fax your comments to 808/792-9581.
(3) E-mail: You may send comments by electronic mail (e-mail) to
fw1pie_pwfchp@fws.gov. Please see the Public Comments Solicited
section below for file format and other information about electronic
filing.
(4) Federal eRulemaking portal: http://www.regulations.gov. Follow
the instructions found there for submitting comments.
FOR FURTHER INFORMATION CONTACT: Patrick Leonard, Field Supervisor,
Pacific Islands Fish and Wildlife Office, (see ADDRESSES section)
(telephone 808/792-9400; fax 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, 24 hours a day, 7
days a week.
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We are soliciting comments on the proposed critical habitat
designation that was published in the Federal Register on August 15,
2006 (71 FR 46994) and on our draft economic analysis of the proposed
designation. Copies of the proposed rule to designate critical habitat
and the draft economic analysis are available on the Internet at
http://www.fws.gov/pacificislands or from our Pacific Islands Fish and
Wildlife Office at the address and contact numbers above. Comments
previously submitted need not be resubmitted as they will be
incorporated into the public record as part of this comment period, and
will be fully considered in preparation of the final rule.
We are particularly interested in comments concerning:
(1) The reasons any habitat should or should not be determined to
be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531
et seq.), including whether it is prudent to designate critical
habitat. We have not proposed critical habitat for a twelfth species,
D. neoclavisetae, because the physical and biological features
essential to its conservation in the Puu Kukui Watershed Management
Area are not in need of special management considerations or protection;
(2) Specific data on those specific areas that should be included
in the designations that were identified as occupied at the time of
listing that contain the features essential for the conservation of the
species; and those specific areas that were not occupied by the species
at the time it was listed but which have subsequently been identified
as occupied and those unoccupied areas that are essential to the
conservation of the species and should be included in the designations
and why such areas are essential;
(3) Data on land use designations and current or planned activities
in the subject areas and their possible impacts on proposed critical
habitat;
(4) Data on any foreseeable economic, national security, or other
potential impacts resulting from the proposed designation and, in
particular, any impacts on small entities;
(5) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments;
(6) Whether the economic analysis adequately addresses the likely
effects and resulting costs arising from State laws as a result of the
proposed critical habitat designation;
(7) Whether the economic analysis correctly assesses the effect on
regional costs associated with land use controls that could arise from
the designation of critical habitat for these species;
(8) Whether the designation of critical habitat will result in
disproportionate economic or other impacts to specific areas that
should be evaluated for possible exclusion from the final designation;
(9) Whether the economic analysis appropriately identifies all
costs that could result from the designation of critical habitat for
these species;
(10) Whether the benefits of exclusion in any particular area
outweighs the benefits of inclusion under section 4(b)(2) of the Act;
and
(11) Whether critical habitat should be proposed in the Puu KuKui
Watershed and why.
Our final designation of critical habitat will take into
consideration all comments and any additional information received,
including all previous comments and information submitted during the
initial comment period.
Please include ``RIN 1018-AU93'' and your name and return address
in your e-mail message. If you do not receive a confirmation from the
system that we have received your e-mail message, please contact us
directly (see ADDRESSES section). Please note that the e-mail address
fw1pie_pwfchp@fws.gov will be unavailable after the public comment
period terminates.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their names and home addresses, etc., but if you wish us to consider
withholding this information, you must state this prominently at the
beginning of your comments. In addition, you must present rationale for
withholding this information. This rationale must demonstrate that
disclosure would constitute a clearly unwarranted invasion of privacy.
Unsupported assertions will not meet this burden. In the absence of
exceptional, documentable circumstances, this information will be
released. We will always make submissions from organizations or
businesses, and from individuals identifying themselves as
representatives of or officials of organizations or businesses,
available for public inspection in their entirety.
Background
On August 15, 2006, we published a proposed rule in the Federal
Register (71 FR 46994) to designate critical habitat for 11 species of
Hawaiian picture-wing flies. In accordance with an amended settlement
agreement approved by the United States District Court for the District
of Hawaii on August 31, 2005 (CBD v. Allen, CV-05-274-HA), the Service
must submit, for publication in the Federal Register, a final critical
habitat determination by April 17, 2007.
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat
[[Page 323]]
based upon the best scientific and commercial data available, after
taking into consideration the economic or any other relevant impact of
specifying any particular area as critical habitat. Based upon the
previously published proposal to designate critical habitat for the 11
species of Hawaiian picture-wing flies, we have prepared a draft
economic analysis of the proposed critical habitat designation. We have
not proposed critical habitat for a twelfth species, D. neoclavisetae,
because the specific areas and physical and biological features
essential to its conservation in the Puu Kukui Watershed Management
Area are not in need of special management considerations or protection.
The draft economic analysis addresses the impacts of conservation
efforts for these 11 species on activities occurring on lands proposed
for designation as well as those proposed for exclusion. The analysis
measures lost economic efficiency associated with a commercial timber
operation, commercial cattle grazing, management of public and private
conservation lands, and residential development, and administrative
costs related to the consultation process under section 7 of the Act.
The draft economic analysis considers the potential economic
effects of actions relating to the conservation of the 11 species of
Hawaiian picture-wing flies, including costs associated with sections
4, 7, and 10 of the Act, and including those attributable to
designating critical habitat. It further considers the economic effects
of protective measures taken as a result of other Federal, State, and
local laws that aid habitat conservation for these 11 species in the
areas proposed as critical habitat. The analysis considers both
economic efficiency and distributional effects. In the case of habitat
conservation, efficiency effects generally reflect the ``opportunity
costs'' associated with the commitment of resources to comply with
habitat protection measures (e.g., lost economic opportunities
associated with restrictions on land use). The study also analyzes
whether a particular group or economic sector bears an undue proportion
of the impacts, with specific analysis of the impacts to small entities
and potential impacts on energy availability. Finally, this analysis
estimates economic impacts to activities from 2006 (the year of the
final listing for the 11 species) to 2026 (20 years from the year of
proposed designation of critical habitat). Forecasts of economic
conditions and other factors beyond the next 20 years would be speculative.
We solicit data and comments from the public on the draft economic
analysis, as well as on all aspects of the proposal to designate
critical habitat. We may revise the proposal, or its supporting
documents, to incorporate or address new information received during
the comment period. In particular, we may exclude an area from the
final designation of critical habitat if the Secretary determines 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.
We estimate costs related to conservation activities for the
proposed designation of critical habitat for the 11 species of Hawaiian
picture-wing flies under sections 4, 7, and 10 of the Act to be
approximately $933,270 to $6,742,520 over 20 years, or $46,664 to
$337,126 annually in undiscounted 2006 dollars. We estimate costs to
range from $749,600 to $5,139,460 over 20 years, or $50,385 to $345,454
annually using a three percent discount rate. We estimate costs using a
seven percent discount rate to range from $597,940 to $3,794,230 over
20 years, or $56,441 to $358,149 annually.
We estimate costs related to conservation activities for the units
proposed for exclusion from the final designation of critical habitat
for the 11 species of Hawaiian picture-wing flies under sections 4, 7,
and 10 of the Act to be approximately $221,600 to $1,754,590 over 20
years, or $11,080 to $87,730 annually in undiscounted 2006 dollars. We
estimate costs to range from $178,270 to $1,324,930 over 20 years, or
$11,983 to $89,056 annually using a three percent discount rate. We
estimate costs using a seven percent discount rate to range from
$142,050 to $966,480 over 20 years, or $13,409 to $91,229 annually.
Required Determinations--Amended
In our August 15, 2006, proposed rule (71 FR 46994), we indicated
that we would be deferring 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 was available in the draft economic
analysis. Those data are now available for our use in making these
determinations. In this notice we are affirming the information
contained in the proposed rule concerning Executive Order 13132 and
Executive Order 12988; the Paperwork Reduction Act; the National
Environmental Policy Act; and the President's memorandum of April 29,
1994, ``Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951). Based on the information made available to
us in the draft economic analysis, we are amending our Required
Determinations, as provided below, concerning Executive Order 12866 and
the Regulatory Flexibility Act, Executive Order 13211, Executive Order
12630, and the Unfunded Mandates Reform Act.
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule because it may raise legal and policy issues. On the
basis of our draft economic analysis, the designation of critical
habitat for these species is not anticipated to have an annual effect
on the economy of $100 million or more or affect the economy in a
material way. Due to the timeline for publication in the Federal
Register, the Office of Management and Budget (OMB) has not formally
reviewed the proposed rule.
Further, Executive Order 12866 directs Federal Agencies
promulgating regulations to evaluate regulatory alternatives (Office of
Management and Budget, Circular A-4, September 17, 2003). Pursuant to
Circular A-4, once it has been determined that the Federal regulatory
action is appropriate, the agency will then need to consider
alternative regulatory approaches. Since the determination of critical
habitat is a statutory requirement pursuant to the Endangered Species
Act of 1973, as amended, we must then evaluate alternative regulatory
approaches, where feasible, when promulgating a designation of critical
habitat.
In developing our proposed designation of critical habitat, we
consider economic impacts, impacts to national security, and other
relevant impacts under section 4(b)(2) of the Act. Based on the
discretion allowable under this provision, we may exclude any
particular area from the designation of critical habitat providing that
the benefits of such exclusion outweigh the benefits of specifying the
area as critical habitat and that such exclusion would not result in
the extinction of the species. As such, we believe that the evaluation
of the inclusion or exclusion of particular areas, or combination
thereof, in a designation constitutes our regulatory alternative analysis.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency must publish a notice of
rulemaking for any proposed
[[Page 324]]
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 an agency certifies the rule will
not have a significant economic impact on a substantial number of small
entities. In our proposed rule, we withheld our determination of
whether this designation would result in a significant effect as
defined under SBREFA until we completed our draft economic analysis of
the proposed designation so that we would have the factual basis for
our determination.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we 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 this proposed designation of critical habitat for
the 11 species of Hawaiian picture-wing flies would affect a
substantial number of small entities, we evaluated the entities
potentially impacted within particular types of economic activities
(e.g., management of public and private conservation lands, residential
development, forestry, and agriculture). We considered each industry or
category individually to determine the impacts. In estimating the
numbers of small entities potentially affected, we also considered
whether their activities have any Federal involvement; some kinds of
activities are unlikely to have any Federal involvement and so will not
be affected by the designation of critical habitat. Designation of
critical habitat only affects activities conducted, funded, permitted
or authorized by Federal agencies; non-Federal activities are not
affected by the designation.
If this proposed critical habitat designation is made final,
Federal agencies must consult with us if their activities may affect
designated critical habitat. Consultations to avoid the destruction or
adverse modification of critical habitat would be incorporated into the
existing consultation process.
Our draft economic analysis of this proposed designation evaluated
the potential economic effects on small business entities resulting
from conservation actions related to the listing of these 11 species
and proposed designation of critical habitat. We determined from our
analysis that no small business entities will be affected because none
of the potentially impacted entities meet the definition of small
business entities. Based on these data, we have determined that this
proposed designation would not result in a significant economic impact
on a substantial number of small entities.
Executive Order 13211--Energy Supply, Distribution, and Use
On May 18, 2001, the President issued Executive Order (E.O.) 13211
on regulations that significantly affect energy supply, distribution,
and use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This proposed rule is
considered a significant regulatory action under E.O. 12866 because it
raises novel legal and policy issues, but it is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant action and no Statement of Energy
Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This 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. (At the
time of enactment, these entitlement programs were: Medicaid; Aid to
Families with Dependent Children work programs; Child Nutrition; Food
Stamps; Social Services Block Grants; Vocational Rehabilitation State
Grants; Foster Care, Adoption Assistance, and Independent Living;
Family Support Welfare Services; and Child Support Enforcement.)
``Federal private sector mandate'' includes a regulation that ``would
impose an enforceable duty upon the private sector, except (i) a
condition of Federal assistance; or (ii) a duty arising from
participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. Non-Federal entities that receive Federal
funding, assistance, permits, or otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat. However, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply; nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
(b) A small Government Agency Plan is not required because none of
the potentially impacted entities is considered to be a ``small
entity'' under the Regulatory Flexibility Act and the Small Business
Regulatory Enforcement Fairness Act.
Takings
In accordance with Executive Order 12630 (``Government Actions and
[[Page 325]]
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing critical habitat for the 11 species of Hawaiian picture-wing
flies. Critical habitat designation does not affect landowner actions
that do not require Federal funding or permits, nor does it preclude
development of habitat conservation programs or issuance of incidental
take permits to permit actions that do require Federal funding or
permits to go forward. In conclusion, the designation of critical
habitat for the 11 species of Hawaiian picture-wing flies does not pose
significant takings implications.
Author
The author of this document is the staff of the Fish and Wildlife
Service.
Authority
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: December 21, 2006.
David Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-22538 Filed 1-3-07; 8:45 am]
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