[Federal Register Volume 72, Number 2 (Thursday, January 4, 2007)]
[Proposed Rules]
[Pages 321-325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22538]


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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

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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 
[email protected]. 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 
[email protected] 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

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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

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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

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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]
BILLING CODE 4310-55-P