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Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Rota Bridled White-eye (Zosterops rotensis)
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: May 4, 2006 (Volume 71, Number 86)]
[Proposed Rules]
[Page 26315-26318]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04my06-31]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU32
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Rota Bridled White-eye (Zosterops rotensis)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period and notice of
availability of draft economic analysis.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on the proposed designation of
critical habitat for the Rota bridled white-eye (Zosterops rotensis)
and the availability of the draft economic analysis. The draft economic
analysis estimates the potential total costs for this critical habitat
designation to range from $806,000 to $4,465,000, at present value over
a 20-year period, or $76,000 to $421,000 per year, assuming a 7 percent
discount rate. We are reopening the comment period to allow peer
reviewers and all interested parties the opportunity to comment
simultaneously on the proposed rule and the associated draft economic
analysis. Comments previously submitted need not be resubmitted as they
will be incorporated into the public record as part of this comment
period and will be fully considered in preparation of the final rule.
DATES: We will accept public comments until June 5, 2006.
ADDRESSES: You may submit your comments and information by any one of
several methods:
(1) You may submit written comments and information by mail to the
Field Supervisor, U.S. Fish and Wildlife Service, Pacific Islands Fish
and Wildlife Office, 300 Ala Moana Blvd., P.O. Box 50088, Honolulu, HI
96850-0001.
(2) You may hand-deliver written comments to our Pacific Islands
Fish and Wildlife Office at the address given above.
(3) You may fax your comments to 808-792-9581.
(4) You may send comments by electronic mail (e-mail) to
RBWE_CritHab@fws.gov. For directions on how to submit e-mail comments, see
the Public Comments Solicited section.
(5) You may submit comments via the Federal eRulemaking Portal:
http://www.regulations.gov 
. Follow the instructions for
submitting comments.
FOR FURTHER INFORMATION CONTACT: Patrick Leonard, Field Supervisor,
Pacific Islands Fish and Wildlife Office, at the above address
(telephone: 808-792-9400; facsimile: 808-792-9581).
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We will accept written comments and information during this
reopened comment period. We solicit comments on the original proposed
critical habitat designation, published in the Federal Register on
September 14, 2005 (70 FR 54335), and on our draft economic analysis of
the proposed designation. We will consider information and
recommendations from all interested parties. We are particularly
interested in comments concerning:
(1) The reasons any habitat should or should not be determined to
be critical habitat as provided by section 4 of the Endangered Species
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), including
whether the benefit of designation will outweigh any threats to the
species due to designation;
(2) Specific information on the amount and distribution of Rota
bridled white-eye habitat, and what features are essential to the
conservation of the species and why;
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation and, in particular, any
impacts on small entities;
(5) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments;
(6) The extent to which the description in the draft economic
analysis of economic impacts to public land management, agricultural
homestead development, and private development and tourism activities
is complete and accurate; and
(7) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in section 1.2.3.3 of the draft
economic analysis, and how the consequences of such reactions, if
likely to occur, would relate to the conservation and regulatory
benefits of the proposed critical habitat designation.
(8) Whether the Island-wide Habitat Conservation Plan (HCP) or the
Rota Bridled White-eye HCP should be considered for inclusion or
exclusion from the final critical habitat designation.
If you wish to submit comments electronically, please submit them
in an ASCII format and avoid the use of special characters and any form
of encryption. Please include ``Attn: RIN 1018-AU32'' in the subject
header and your name and return address in the body of your message. If
you do not receive a confirmation from the system that we have received
your message, contact us directly by calling our Pacific Islands Fish
and Wildlife Office at 808-792-9400. Please note that the e-mail
address RBWE_CritHab@fws.gov will be closed at the termination of the
public comment period. If our e-mail connection is not functioning,
please submit comments by one of the alternate methods listed in the
ADDRESSES section.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home addresses, which we will honor to the extent allowable by
law. There also may be circumstances in which we would withhold from
the rulemaking record a respondent's identity, as allowable by law. If
you wish us to withhold your name or address or both, you must state
this prominently at the beginning of your comment, but you should be
aware that the Service may be required to disclose your name and
address pursuant to the Freedom of Information Act. However, we will
not consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety.
Comments and materials received, as well as supporting
documentation used in preparation of the proposal to designate critical
habitat, will be available for inspection, by appointment, during
normal business hours at the Pacific Islands Fish and Wildlife Office
(see ADDRESSES section). Copies of the proposed critical habitat rule
for the Rota bridled white-eye and the draft economic analysis are
available
[[Page 26316]]
on the Internet at http://www.fws.gov/pacificislands
or by request to the Field Supervisor (see FOR FURTHER INFORMATION CONTACT
section).
Background
We published the final rule to list the Rota bridled white-eye as
endangered in the Federal Register on January 22, 2004 (69 FR 3022). At
the time of listing, we concluded that designating critical habitat for
the Rota bridled white-eye was prudent and that we would publish a
proposed rule in accordance with other priority listing actions when
funding became available. On May 20, 2004, a lawsuit was filed against
the Department of the Interior (DOI) and the Service by the Center for
Biological Diversity challenging our failure to propose critical
habitat for the Rota bridled white-eye. On September 14, 2004, a
stipulated settlement agreement was filed in the U.S. District Court
for Hawaii (Center for Biological Diversity v. Norton, Case No. C-04-
00326 SPK LEK) stating that the Service will submit for publication in
the Federal Register a proposed critical habitat designation for the
Rota bridled white-eye no later than September 7, 2005, and a final
critical habitat designation no later than September 7, 2006. On
September 14, 2005, we published a proposed rule to designate
approximately 3,958 acres (1,602 hectares) in one unit as critical
habitat for the Rota bridled white-eye on the island of Rota,
Commonwealth of the Northern Mariana Islands (CNMI) (70 FR 54335). The
public comment period was open for 60 days until November 14, 2005.
Critical habitat receives protection from destruction or adverse
modification through required consultation under section 7 of the Act
with regard to actions carried out, funded, or authorized by a Federal
agency. Section 4(b)(2) of the Act requires that the Secretary shall
designate or revise critical habitat based upon the best scientific and
commercial data available, and after taking into consideration the
economic impact of specifying any particular area as critical habitat.
We have prepared a draft economic analysis of the proposed critical
habitat designation. The draft economic analysis is now available on
the Internet and from our office (see Public Comments Solicited
section).
The current draft economic analysis estimates the foreseeable
economic impacts of the proposed critical habitat designation on
government agencies and private businesses and individuals. The
economic analysis identifies potential costs as a result of the
proposed critical habitat designation, including those costs
coextensive with listing. The analysis measures (in the case of the
Rota bridled white-eye) lost economic efficiency associated with public
land management (including subsistence farming, public access
improvements to historic sites, Endangered Species Act studies,
proposed island-wide HCP), agricultural homestead development, and
private development and tourism activities. When evaluating
agricultural homestead development activities, three different
alternatives were identified: (1) An island-wide HCP is developed, with
development of agricultural homesteads; (2) an HCP is developed only
for the area of agricultural homesteads in Rota bridled white-eye
habitat; and (3) no HCP is developed, and development of agricultural
homesteads in Rota bridled white-eye habitat is avoided.
Costs related to conservation activities for the proposed Rota
bridled white-eye critical habitat pursuant to sections 4, 7, and 10 of
the Act are estimated to be approximately $806,000 to $4,465,000 from
2006 to 2026. The CNMI government is anticipated to experience the high
end estimate if, under the agricultural homestead development
activities, the land is not developed because it is designated as
critical habitat. Annualized impacts of costs attributable to the
proposed critical habitat designation are projected to be approximately
$76,000 to $421,000.
Required Determinations--Amended
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule because it may raise novel legal and policy issues.
However, it is not anticipated to have an annual effect on the economy
of $100 million or more or affect the economy in a material way. Due to
the timeline for publication in the Federal Register, the Office of
Management and Budget (OMB) did not formally review the proposed rule.
Further, Executive Order 12866 directs Federal Agencies
promulgating regulations to evaluate regulatory alternatives (Office of
Management and Budget, Circular A-4, September 17, 2003). Pursuant to
Circular A-4, once it has been determined that the Federal regulatory
action is appropriate, and then the agency will need to consider
alternative regulatory approaches. Since the determination of critical
habitat is a statutory requirement pursuant to the Act, we must then
evaluate alternative regulatory approaches, where feasible, when
promulgating a designation of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweigh the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or combination thereof, in a
designation constitutes our regulatory alternative analysis.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (that is, small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. In our proposed rule,
we withheld our determination of whether this designation would result
in a significant effect as defined under SBREFA until we completed our
draft economic analysis of the proposed designation so that we would
have the factual basis for our determination.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we
[[Page 26317]]
considered the types of activities that might trigger regulatory
impacts under this designation as well as types of project
modifications that may result. In general, the term significant
economic impact is meant to apply to a typical small business firm's
business operations.
To determine if the proposed designation of critical habitat for
the Rota bridled white-eye would affect a substantial number of small
entities, we considered the number of small entities affected within
particular types of economic activities (for example, agricultural
homestead development). We considered each industry or category
individually to determine if certification is appropriate. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement; some
kinds of activities are unlikely to have any Federal involvement and so
will not be affected by the designation of critical habitat.
Designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies; non-Federal
activities are not affected by the designation. If this proposed
critical habitat designation is made final, Federal agencies must
consult with us if their activities may affect designated critical
habitat. Consultations to avoid the destruction or adverse modification
of critical habitat would be incorporated into the existing
consultation process.
In our draft economic analysis of the proposed critical habitat
designation, we evaluated the potential economic effects on small
entities resulting from the protection of the Rota bridled white-eye
and its habitat related to the listing of the species and the proposed
designation of its critical habitat. Two entities, the Rota municipal
government and the CNMI government, were identified as entities that
could be affected by the proposed rule. The Rota municipal government
was identified as a small entity with 3,283 constituents. However, we
estimated that the impacts of protecting the Rota bridled white-eye and
its habitat are anticipated to be borne only by the CNMI government,
which generally undertakes land management in the CNMI and includes
both the Department of Land and Natural Resources and Mariana Public
Land Authority. The CNMI government has 69,221 constituents and is not
considered a small entity. Therefore, we do not believe that the
designation of critical habitat for the Rota bridled white-eye will
result in a disproportionate effect to small business entities. Please
refer to our draft economic analysis of the proposed critical habitat
designation for a more detailed discussion of potential economic
impacts.
Executive Order 13211
On May 18, 2001, the President issued Executive Order (E.O.) 13211
on regulations that significantly affect energy supply, distribution,
and use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. The rule is considered a
significant regulatory action under E.O. 12866 because it raises novel
legal and policy issues, but it is not expected to significantly affect
energy supplies, distribution, or use. Therefore, this action is not a
significant action, and no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) The rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5) through (7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments,'' with
two exceptions. It excludes ``a condition of federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and tribal governments under entitlement authority,''
if the provision would ``increase the stringency of conditions of
assistance'' or ``place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding'' and the State, local,
or tribal governments ``lack authority'' to adjust accordingly. (At the
time of enactment, these entitlement programs were: Medicaid; Aid to
Families with Dependent Children work programs; Child Nutrition; Food
Stamps; Social Services Block Grants; Vocational Rehabilitation State
Grants; Foster Care, Adoption Assistance, and Independent Living;
Family Support Welfare Services; and Child Support Enforcement.)
``Federal private sector mandate'' includes a regulation that ``would
impose an enforceable duty upon the private sector, except (i) a
condition of Federal assistance; or (ii) a duty arising from
participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. Non-Federal entities that receive Federal
funding, assistance, permits, or otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat. However, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply; nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(b) We do not believe that the proposed designation will
significantly or uniquely affect small governments because it will not
produce a Federal mandate of $100 million or greater in any year, that
is, it is not a ``significant regulatory action'' under the Unfunded
Mandates Reform Act. The proposed designation of critical habitat
imposes no obligations on State or local governments. As such, a Small
Government Agency Plan is not required.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing critical habitat for Rota bridled white-eye. Critical habitat
designation does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward. In
conclusion, the designation of critical habitat for Rota bridled white-
eye does not pose significant takings implications.
[[Page 26318]]
Author(s)
The primary author of this notice is Fred Amidon of the U.S. Fish
and Wildlife Service, Pacific Islands Fish and Wildlife Office (see
ADDRESSES section).
Authority
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: April 26, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-6719 Filed 5-3-06; 8:45 am]
BILLING CODE 4310-55-P