[Federal Register Volume 77, Number 71 (Thursday, April 12, 2012)]
[Proposed Rules]
[Pages 21936-21946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8807]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2010-0043; 4500030114]
RIN 1018-AV49


Endangered and Threatened Wildlife and Plants; Listing 23 Species 
on Oahu as Endangered and Designating Critical Habitat for 124 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 August 2, 2011, proposal to list 
as endangered and to designate critical habitat for 23 species on the 
island of Oahu in the Hawaiian Islands under the Endangered Species Act 
of 1973, as amended (Act); designate critical habitat for 2 plant 
species that are already listed as endangered; and to revise critical 
habitat for 99 plant species that are already listed as endangered or 
threatened. We also announce the availability of a draft economic 
analysis (DEA) of the proposed designation and an amended required 
determinations section of the proposal. We are reopening the comment 
period to allow all interested parties an opportunity to comment 
simultaneously on the proposed rule, the associated DEA, and the 
amended required determinations section. 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 are also considering 
revising the boundary for Oahu--Lowland Dry--Unit 8, from that 
described in the proposed rule, based on new information regarding the 
biological conditions within certain portions of the unit.

DATES: The comment period end date is May 14, 2012. We request that 
comments be submitted by 11:59 p.m. Eastern Time on the closing date.

ADDRESSES:

Document Availability

    You may obtain a copy of the DEA via http://www.regulations.gov at 
Docket No. FWS-R1-ES-2010-0043 or by contacting the office listed under 
FOR FURTHER INFORMATION CONTACT.

Comment Submission

    You may submit comments by one of the following methods:

[[Page 21937]]

     Electronically: Go to the Federal eRulemaking Portal at 
http://www.regulations.gov. Search for Docket No. FWS-R1-ES-2010-0043, 
which is the docket number for this rulemaking.
     By hard copy: Submit by U.S. mail or hand-delivery to: 
Public Comments Processing, Attn: FWS-R1-ES-2010-0043; Division of 
Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 
N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: 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. If you use a telecommunications device for 
the deaf (TDD), call the Federal Information Relay Service (FIRS) at 
800-877-8339.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed listing of 23 species on Oahu 
and the designation of critical habitat for 124 species that was 
published in the Federal Register on August 2, 2011 (76 FR 46362), our 
DEA of the proposed designation, and the amended required 
determinations provided in this document. We will consider information 
and recommendations from all interested parties. We are particularly 
interested in comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act, including whether 
there are threats to the species from human activity, the degree to 
which threats from human activity can be expected to increase due to 
the designation, and whether that increase in threats outweighs the 
benefit of designation such that the designation of critical habitat 
may not be prudent.
    (2) Specific information on:
    (a) The amount and distribution of habitat for the 124 species 
described in the proposed rule;
    (b) What areas that contain features essential to the conservation 
of the 124 species described in the proposed rule should be included in 
the designation, and why;
    (c) The habitat components (primary constituent elements) essential 
to the conservation of the species, such as substrate, plant 
associations, stream characteristics, and the quantity and spatial 
arrangement of these features on the landscape needed to provide for 
the conservation of the species;
    (d) What areas (if any) not occupied by the species are essential 
for the conservation of the species, and why; and
    (e) Special management considerations or protections that the 
features essential to the conservation of the 124 species may require, 
including managing for the potential effects of climate change.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Any reasonably foreseeable economic, national security, or 
other relevant impacts that may result from designating any area that 
may be included in the final designation. We are particularly 
interested in any impacts on small entities, and the benefits of 
including or excluding areas from the proposed designation that are 
subject to these impacts.
    (5) Information on whether the benefit of an exclusion of any 
particular area outweighs the benefit of inclusion under section 
4(b)(2) of the Act, after considering both the potential impacts and 
benefits of the proposed critical habitat designation. Under section 
4(b)(2) of the Act, we may exclude an area from critical habitat if we 
determine that the benefits of such exclusion outweigh the benefits of 
including that particular area as critical habitat, unless failure to 
designate that specific area as critical habitat will result in the 
extinction of the species.
    (6) Information on the projected and reasonably likely impacts of 
climate change on the 124 species for which critical habitat is being 
proposed.
    (7) 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 
comment.
    (8) Information on the extent to which the description of economic 
impacts in the DEA is reasonable and accurate.
    (9) Information on the probable or reasonably foreseeable economic 
impacts to water users that could potentially result from the 
designation of critical habitat.
    (10) Information on the potential cost of irrigation-related 
activities, as well as their timing and likely source of funding, 
Federal permit requirements, and the extent or scale of repairs or 
modifications required.
    (11) Information on the planned development activities within the 
areas proposed as critical habitat.
    (12) Information on primary constituent elements that may or may 
not be present in certain portions of proposed Oahu--Lowland Dry--Unit 
8, as identified in Part II, Chapter 2 of the DEA (see Figure 3.3 of 
the DEA).
    (13) Information on whether portions of proposed Oahu--Lowland 
Dry--Unit 8 are essential for the conservation of the species, as 
identified in Part II, Chapter 3 of the DEA.
    (14) Information on potential future Federal actions and possible 
economic impacts of the proposed critical habitat designation within 
Oahu--Lowland Dry--Unit 8 at Kalaeloa, as identified in Part II, 
Chapter 3 of the DEA.
    (15) Information on whether conservation measures or conservation 
recommendations that ensure Federal actions avoid jeopardizing the 
species are also adequate to avoid adversely modifying critical 
habitat.
    If you submitted comments or information on the proposed rule 
during the initial comment period from August 2 to October 3, 2011 (76 
FR 46362), 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 determination. Our final 
determination concerning critical habitat will take into consideration 
all written comments and any additional information we receive during 
all comment periods. On the basis of public comments, we may, during 
the development of our final determination, find that areas proposed 
are not essential, are appropriate for exclusion under section 4(b)(2) 
of the Act, or are not appropriate for exclusion.
    You may submit your comments and materials concerning the proposed 
rule or DEA by one of the methods listed in the ADDRESSES section. We 
request that you send comments only by the methods described in 
ADDRESSES.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so.

[[Page 21938]]

    Comments and materials we receive, as well as supporting 
documentation we used in preparing the proposed rule and DEA, will be 
available for public inspection on http://www.regulations.gov at Docket 
No. FWS-R1-ES-2010-0043, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Pacific Islands Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT). You may obtain 
copies of the proposed rule and the DEA on the Internet at http://www.regulations.gov at Docket Number FWS-R1-ES-2010-0043, or by mail 
from the Pacific Islands Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for the 124 species described in 
the August 2, 2011, proposed rule (76 FR 46362). For more information 
on previous Federal actions for these species, refer to the proposed 
designation of critical habitat published in the Federal Register on 
August 2, 2011 (76 FR 46362).

Previous Federal Actions

    On August 2, 2011, we published a proposed rule to list 23 species 
on Oahu as endangered and designate critical habitat for 124 species 
(76 FR 46362) over approximately 43,491 acres (ac) (17,603 hectares 
(ha)). Within that proposed rule, we announced a 60-day comment period, 
which closed October 3, 2011. Approximately 93 percent of the area 
proposed as critical habitat is already designated as critical habitat 
for other species, including 99 plant species for which critical 
habitat was designated in 2003 (68 FR 35950; June 17, 2003).

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. 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.

Potential Oahu--Lowland Dry--Unit 8 Boundary Adjustment

    The August 2, 2011, proposed rule proposed to designate Oahu--
Lowland Dry--Unit 8 as critical habitat for 17 endangered (or proposed 
endangered) plants (also see Part II, Chapter 3 of the DEA, pp. 61-64). 
This unit is composed of pockets of native and nonnative species. We 
initially determined this area to be essential for the conservation and 
recovery of these lowland dry plant species because we believed it 
provided the environmental conditions essential for each species, 
including the appropriate microclimatic conditions for germination and 
growth of the plants (e.g., light availability, soil nutrients, 
hydrologic regime, temperature, and space for population growth and 
expansion), as well as to maintain the historical geographical and 
ecological distribution of each species. In addition, proposed Oahu--
Lowland Dry--Unit 8 provides the coral outcrop substrate that is a 
unique habitat requirement for Chamaesyce skottsbergii var. 
skottsbergii.
    None of the endangered plants currently occur in Lowland Dry Unit 
8, although both Achyranthes splendens var. rotundata and Chamaesyce 
skottsbergii var. skottsbergii were reported from this area as recently 
as 1989 and 1993, respectively. Chamaesyce skottsbergii var. 
skottsbergii is restricted to the arid coastal plain of Ewa, Oahu. It 
may have been a common species in the original ecosystem that existed 
on the Ewa Plains, although it is suspected to have been reduced to 
scattered remnants by the turn of the 20th century (FWS 1993, p. 6). In 
1936, it was recorded as ``abundant'' in one location on the Ewa Plains 
but was not documented again for 40 years, when it was rediscovered in 
1976, in the vicinity of the present Kalaeloa Barbers Point Deep Draft 
Harbor. In 1982, at the time of listing, this species was known from 4 
occurrences containing approximately 1,000 to 1,500 individuals (Char 
and Balakrishnan 1979, p. 67; HBMP 2008). Almost all known individuals 
at that time were found in the area around Oahu--Lowland Dry--Unit 8. 
Surveys conducted between 1983 and 1984, in the vicinity of the former 
Barbers Point Naval Air Station, indicated there was a total of 
approximately 5,000 plants (HINHP 1991; USFWS 1993, pp. 13-15). 
However, surveys conducted a decade later located only several hundred 
plants in the same location (USFWS 1993, pp. 13-15). Currently 
Chamaesyce skottsbergii var. skottsbergii is only known from 
approximately 1,500 wild and outplanted individuals on the Navy's 
former Trap and Skeet Range and the Service's Kalaeloa Unit of the Oahu 
National Wildlife Refuge. This species has been extirpated from all 
other known locations on the Ewa Plains.
    We are considering revising the boundaries of Oahu--Lowland Dry--
Unit 8 based on comments received related to the physical and 
biological conditions of portions of the unit, and new biological 
information gained from field visits to Kalaeloa indicating certain 
portions of this unit may not be essential to the conservation of the 
species in question. During our field visits, we observed that 
approximately 69 percent of the originally proposed unit is no longer 
suitable due to development and land modification activities including 
grading, dredging, waste/recycle pile management, compost piles, solar 
array installation, fill deposition, golf course development, and road 
construction. Under section 3(5)(A)(ii) of the Act, specific areas 
outside the geographical area occupied by the species at the time it is 
listed in accordance with the provisions of section 4 of the Act can 
only be designated as critical habitat if such areas are essential for 
the conservation of the species. Those portions of Oahu--Lowland Dry--
Unit 8 that may not be essential to the conservation of the species 
based on new biological information are identified below in Figure 1. 
We are considering removing approximately 185 ac (75 ha) from the 
proposed unit and designating critical habitat in the remaining 
approximately 107 ac (43 ha). Accordingly, we are seeking public 
comments regarding the removal from this unit of the areas that may not 
be essential for the conservation of the species.

[[Page 21939]]

[GRAPHIC] [TIFF OMITTED] TP12AP12.007

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.
    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. In the case of 
the 124 Oahu species

[[Page 21940]]

identified in the proposed rule (76 FR 46362; August 2, 2011), the 
benefits of critical habitat include public awareness of the presence 
of the species and the importance of habitat protection, and, where a 
Federal nexus exists, increased habitat protection due to protection 
from adverse modification or destruction of critical habitat. In 
practice, situations with a Federal nexus exist primarily on Federal 
lands or for projects authorized, funded, or undertaken by Federal 
agencies.
    Final decisions on whether to exclude any areas will be based on 
the best scientific data available at the time of the final 
designation, including information obtained during the comment period 
and information about the economic impact of designation. Accordingly, 
we have prepared a DEA concerning the proposed critical habitat 
designation, which is available for review and comment (see ADDRESSES 
section).

Draft Economic Analysis

    This analysis draws heavily on economic analyses conducted for 
previous critical habitat designations, because there is a 93 percent 
overlap between the proposed designation and the prior critical habitat 
designations and because economic impacts, particularly to potential 
water resources, are similar between the proposed critical habitat and 
the previous designations. The DEA has been developed in two parts, 
because of differences in development potential based on the geographic 
area involved. Part I focuses on the proposed designation for 123 
species on Oahu, exclusive of the Kalaeloa area. None of the proposed 
critical habitat units in this area contain significant residential, 
commercial, industrial, or agricultural development or operations, and 
few projects are anticipated within the proposed critical habitat 
units. This situation reflects that fact that most of the land is 
unsuitable for development, farming, or other economic activities due 
to the rugged mountain terrain, lack of access, remote locations, and 
existing land use controls that severely limit development and most 
other economic activities in the mountainous interior of Oahu. Part II 
of the DEA is focused on the City of Kapolei and the Kalaeloa area, 
which is west of the city of Honolulu, in the vicinity of the former 
Barbers Point Naval Air Station (NAS). The NAS was decommissioned in 
1999, under the Base Realignment and Closure Act, and the surrounding 
community is in the process of developing a strategic plan for 
sustaining and developing the economy in this area. In May 2005, the 
Hawaii Community Development Authority, in response to the closure of 
the NAS, adopted a strategic plan that would develop Kalaeloa into a 
diversified economy. The City of Kapolei has also prepared an urban 
design plan that defines how they want to evolve as Kapolei develops 
into a secondary urban center to absorb future growth emanating from 
the City of Honolulu. The proposed critical habitat units overlap with 
some of the development envisioned for this area; this has been 
evaluated and fully considered in Part II of the DEA.
    The DEA describes the economic impacts of all potential 
conservation efforts for these species; many 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 both ``with critical habitat'' and 
``without critical habitat.'' The ``without critical habitat'' scenario 
represents the baseline for the analysis, considering protections 
already in place for the species (e.g., under the Federal listing and 
other Federal, State, and local regulations). The baseline, therefore, 
represents the costs incurred regardless of whether critical habitat is 
designated. The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for the species. The incremental conservation efforts 
and associated impacts are those not expected to occur absent the 
designation of critical habitat for the 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.

Draft Economic Analysis, Part I

    Because there is a 93-percent overlap between the critical habitat 
proposed on August 2, 2011, and the areas considered in the past 
economic analyses, and because of the similar nature of potential water 
resource economic impacts, this analysis draws heavily on previous 
economic analyses. Part I of the DEA was developed using relevant 
economic information from three detailed economic analyses prepared for 
previous proposed critical habitat rules on Oahu (Oahu elepaio, 66 FR 
30372, June 6, 2001; 99 Oahu plants, 67 FR 37108, May 28, 2002; 12 
picture-wing flies, 72 FR 67428, November 28, 2007). Part I of the DEA 
also considers relevant economic information from three economic 
analyses that evaluated potential impacts to water resources on other 
Hawaiian islands, which is an issue also being evaluated in this 
analysis (Newcomb's snail, 67 FR 15159, March 29, 2002; 83 Kauai and 
Niihau plants, 67 FR 36851, May 28, 2002; 48 species on Kauai, 73 FR 
62592, October 21, 2008). Those studies present economic information 
and context regarding the regulatory and socio-economic baseline, 
against which the potential incremental impacts of the proposed 
designation are evaluated. For a further description of the methodology 
of the analysis in Part I of the DEA, see Chapter 3, ``Previous 
Economic Analyses of Critical Habitat Designations on Oahu.''
    Part I of the DEA summarizes the previously predicted economic 
costs of critical habitat designation on 40,446 ac (16,371 ha) that 
overlap with the August 2, 2011, proposed critical habitat designation, 
and the areas that do not overlap. The terrestrial areas being proposed 
as critical habitat are remote and lack development potential. In 
addition, approximately 93 percent of the area proposed as critical 
habitat completely overlaps critical habitat that is already 
designated. Our previous economic analyses of critical habitat 
designations for the Oahu elepaio and 99 Oahu plants evaluated 
potential economic costs over a 10-year timeframe (2002-2012), and the 
previous economic analysis for the Hawaiian picture-wing fly species 
evaluated potential economic costs over a 20-year timeframe (2008-
2028). We believe these analyses are still valid within the 93-percent-
overlap area, as the potential activities and conservation measures 
considered in those studies are similar to those that would be 
applicable under the current proposal. We are aware of only a small 
number of section 7 consultations that have been conducted within the 
93-percent-overlap area, because these areas lack development 
potential. In addition, the physical or biological features described 
within the overlap areas under the existing and proposed designations 
are similar (e.g., 99 Oahu plants (ecosystem type, elevation (68 FR 
35950; June 17, 2003)); Oahu elepaio (ecosystem type, associated native 
species, rainfall, elevation (66 FR 63752; December 10, 2001)); 
Hawaiian picture-wing flies (ecosystem type, elevation, host plants (73 
FR 73794; December 4, 2008))). Therefore, we anticipate few, if any 
incremental costs attributable to the proposed critical habitat 
designation in the 93-percent-overlap area beyond those identified in 
the previous

[[Page 21941]]

economic analyses. We also do not anticipate section 7 consultation 
costs to be significantly different than those identified in our 
previous economic analyses within the 93-percent-overlap area. This is 
because: (1) Habitat is considered in section 7 consultations, 
regardless of critical habitat designation; (2) any conservation 
measures needed to protect a species' habitat requirements would be 
identified during section 7 consultation; (3) those measures would also 
conserve the physical or biological features that were identified for 
the existing and the proposed critical habitat designation; and (4) 
those measures would coincidentally benefit unoccupied critical 
habitat, as the occupied and unoccupied critical habitat areas entirely 
overlap.
    Of the remaining 7 percent (2,478 ac (1,001 ha)) of proposed 
critical habitat that does not overlap existing critical habitat, 95 
percent (2,354 ac (951 ha)) is classified as being in conservation 
districts, and 5 percent (124 ac (50 ha)) is within urban or 
agricultural districts. Figure 4 and the corresponding key in the draft 
economic analysis (pp. 23-25), identifies objectives for land uses 
within the conservation district zoning. However, 74 percent (92 ac (37 
ha)) of these urban or agricultural district lands are within State 
forest reserves, parks, seabird sanctuaries, or natural area reserves, 
and are also unlikely to be developed. The remaining lands (32 ac (13 
ha)) are on the Naval Radar Transmitting Facility at Lualualei (which 
are unlikely to be developed), or lands of unknown use. These unknown 
use lands are most likely roads and existing manmade structures, which 
do not contain the physical or biological features, or are not 
essential to the conservation of the species. Further, no section 7 
consultations have been conducted in these areas to date. Accordingly, 
with the possible exception of presently unknown costs associated with 
the proposed damselfly critical habitat (as discussed in the next 
paragraph), we do not believe the proposed designation of critical 
habitat in the non-overlap areas would result in any appreciable 
economic impacts. This conclusion is based on the lack of development 
potential for these areas. We acknowledge there may be circumstances 
under which additional costs may be incurred because of the designation 
of critical habitat, for example, due to the nature of a particular 
project or because currently occupied habitat becomes unoccupied in the 
future. Accordingly, we are seeking information from the public on the 
potential costs of this critical habitat designation to ensure the 
final determination is based on the best available scientific and 
commercial information.
    Our August 2, 2011, proposed rule includes the proposed listing of 
the blackline Hawaiian damselfly (Megalagrion nigrohamatum 
nigrolineatum), crimson Hawaiian damselfly (Megalagrion leptodemas), 
and oceanic Hawaiian damselfly (Megalagrion oceanicum) as endangered, 
and the proposed designation of critical habitat for these species. The 
aquatic life-history stages of these species may use open water areas, 
slow sections or pools, or stream riffle areas, and adults perch on 
streamside vegetation and patrol along stream corridors. For species 
like these damselflies, which are at risk because of loss of habitat, 
an action could jeopardize the continued existence of a listed species 
through alteration of its habitat, regardless of whether that habitat 
has been designated as critical habitat (51 FR 19927; June 3, 1986). 
Because Federal agencies would need to consider damselfly habitat 
impacts in occupied areas during section 7 consultation regardless of a 
critical habitat designation, any conservation measures needed to avoid 
jeopardy would, in most cases, be sufficient to avoid adversely 
modifying critical habitat (i.e., the outcome of a section 7 
consultation under the jeopardy standard and adverse modification 
standards would be similar). Accordingly, we do not anticipate the need 
for project modifications or measures to address effects to critical 
habitat beyond those that would result from the jeopardy analysis. We 
acknowledge there could be a difference between consulting on effects 
for some species and their critical habitat, depending on the 
particular circumstances of the Federal action being proposed. In 
addition, some level of incremental economic impact may accrue in 
unoccupied critical habitat areas, because they would not otherwise be 
subject to section 7 consultation. Critical habitat could also trigger 
incremental economic impacts if an occupied area were to become 
unoccupied as a result of a stochastic or other catastrophic event. In 
this situation, a Federal agency would still have a section 7 
consultation responsibility based on the critical habitat designation, 
even though the species is no longer present. Conservation 
recommendations under this scenario could target management actions to 
reintroduce the species into the vacated critical habitat area. There 
have been few section 7 consultations in the areas being proposed as 
Hawaiian damselfly critical habitat, and we are generally unaware of 
any future development plans. In addition, there is very little 
information available on potential direct or indirect costs related to 
critical habitat designation in aquatic areas on Oahu or elsewhere in 
the Hawaiian Islands. Although future Federal actions that could affect 
either the damselflies or their critical habitat are unpredictable, the 
areas generally lack development potential because of their topography 
and remote locations.
    Most of the damselflies' proposed primary constituent elements 
(PCEs) are related to elevation, annual precipitation, substrate, and 
associated native vegetation, which are comparable to those propsoed 
for the Oahu plant species identified in the proposed rule. However, 
the damselflies' proposed PCEs also have an aquatic habitat component 
(e.g., slow reaches of streams, pools, etc.), which would be considered 
during section 7 consultation on a Federal action. Each of the units 
proposed as damselfly critical habitat is occupied by one or more of 
the damselfly species. Accordingly, it is likely that most, if not all, 
potential future section 7 consultation costs or project modifications 
costs would result from the listing of the damselflies, and would 
represent baseline costs. However, there is very little information 
available on potential direct or indirect costs related to critical 
habitat designation in aquatic areas on Oahu or elsewhere in the 
Hawaiian Islands. We acknowledge there could be circumstances under 
which additional costs may be incurred because of the designation of 
critical habitat, for example due to the nature of a particular project 
or because currently occupied habitat becomes unoccupied in the future. 
Because there is some uncertainty, we are seeking information from the 
public on the potential cost of activities involving water structures 
(including irrigation-related activities), their timing and likely 
source of funding, the extent or scale of future repairs or 
modifications contemplated, and Federal permits that may be required, 
to ensure the final determination is based on the best available 
scientific and commercial information. We will fully consider all 
comments we receive related to future water management activities, 
economic concerns, Federal involvement, or other regulatory 
requirements to ensure the final determination is based on the best 
scientific data available.

[[Page 21942]]

Draft Economic Analyis, Part II
    Part II of the DEA assesses the potential economic impacts 
associated with the proposed 566-ac (229-ha) critical habitat 
designation at Kalaeloa, Oahu, for 24 plant species. Only two of these 
plants, Achyranthes splendens var. rotundata (round-leaved chaff 
flower) and Chamaesyce skottsbergii var. skottsbergii (Ewa Plains 
akoko) currently occur at Kalaeloa, although the other 22 species were 
historically present. Six of the seven proposed units are currently 
occupied by either Achyranthes splendens var. rotundata or Chamaesyce 
skottsbergii var. skottsbergii, and represent proposed unoccupied 
critical habitat for 22 other species. One proposed unit (Oahu--Lowland 
Dry--Unit 8) is not currently occupied by any of the 17 species for 
which this unit is being proposed as critical habitat. The critical 
habitat units that are occupied by the species are not expected to 
incur any appreciable economic impact related to additional 
conservation measures, because Federal actions in areas occupied by the 
species already undergo section 7 consultation, and the need to 
incorporate additional conservation measures related to critical 
habitat designation would generally not be anticipated. This is because 
the PCEs for occupied critical habitat areas are habitat-based (i.e., 
elevation, annual precipitation, substrate, canopy, subcanopy, and 
understory), and habitat is considered during section 7 consultations 
involving these species, regardless of a critical habitat (see Part II, 
Chapter 4 of the DEA). We acknowledge there could be a difference in 
conservation measures, depending on the particular circumstances of the 
Federal action being proposed, but we are unable to quantify that 
difference based on our consultation history to date (i.e., we have no 
section 7 precedent in Hawaii with which to formulate an incremental 
cost/value difference). In addition, because future Federal actions in 
these areas are unknown at this time, we are unable to reasonably 
predict their future impacts on the species and the proposed critical 
habitat areas. However, we are seeking comments on these issues.
    Critical habitat could also trigger incremental economic impacts if 
an occupied area were to become unoccupied as a result of a stochastic 
or other catastrophic event. In this situation, a Federal agency would 
still have a section 7 consultation responsibility based on the 
critical habitat designation, even though the species is no longer 
present. Conservation recommendations under this scenario could target 
management actions to reintroduce the species into the vacated critical 
habitat area. However, we are unaware of any instances of this 
situation arising.
    We received several comment letters in response to the proposed 
rule that published in the Federal Register on August 2, 2011 (76 FR 
46362), expressing concern that the proposed critical habitat 
designation could result in economic impacts to current or planned 
activities, with particular emphasis directed toward the Oahu--Lowland 
Dry--Unit 8, near the Kalaeloa Barbers Point Deep Draft Harbor. Some of 
the economic activities that were specifically identified in this area 
included aggregate transshipment operations; hot mix asphalt plant 
facilities; harbor expansion; maritime and related service needs, 
including light industrial, warehouse, and distribution facilities; 
resort and mixed use residential/commercial activities; marina 
facilities; industrial lot development; biofuel tankfarm construction 
and transshipment operations; and solar power facilities. Other 
economic activities were identified in Oahu--Lowland Dry--Unit 10, 
where a solar power generating facility is planned. These comment 
letters are available for public review at http://www.regulations.gov, 
under docket number FWS-R1-ES-2010-0043.
    Although these comments are informative from the standpoint of 
further understanding the ongoing and planned development activities in 
the area, absent a Federal nexus, the designation of critical habitat 
would have no direct economic impacts to those activities. We are also 
unaware of any indirect economic impacts that would result from 
critical habitat designation, absent a Federal nexus. Several of the 
commenters indicated they would provide additional comments related to 
economic impacts once the draft economic analysis for the proposed 
critical habitat designation became available for public review. In 
this regard, comments that specifically identify Federal permits, 
licenses, funding, or other Federal assistance that are or would be 
necessary for ongoing or planned development activities would be 
helpful. All comments received will be fully considered in the 
Service's final critical habitat determination.
    In the absence of definitive data or other economic information, 
the analysis presents a range of economic effects. The lower-bound 
estimate of effects is that the landowners would incur no economic 
impact from the designation of critical habitat. The upper-bound 
estimate of effects is that each parcel owner would participate in 
section 7 consultation with the Service before initiating their action, 
and the Service, Federal action agency, and/or the parcel owner would 
incur additional costs (see DEA Table 4.3, p. 75).
    Total incremental administrative costs to address critical habitat 
concerns in occupied critical habitat, in 2011 dollars over a 21-year 
timeframe, would be approximately $405 for technical assistances, 
$2,380 for an informal consultation, and $5,000 for a formal 
consultation. The potential upper-bound administrative costs to address 
critical habitat concerns for occupied critical habitat units assumes 
that every parcel within the unit would have a formal consultation 
because of critical habitat designation. The total annualized costs in 
2011 dollars over a 21-year timeframe would be approximately $1,380 for 
the Service, $1,550 for the Federal action agency, $875 for the third 
(private or State) party receiving Federal funding or seeking a Federal 
permit, and $1,200 for the biological assessment.
    Oahu--Lowland Dry--Unit 8 is the only unit that is not currently 
occupied by any of the 17 species for which it is proposed as critical 
habitat. Consequently, Federal agencies are not currently compelled to 
consult with the Service on any actions that they authorize, fund, or 
carry-out with regard to possible effects on the 17 plants for which 
critical habitat is proposed in this unit. In the future, should 
critical habitat be designated for this area, Federal agencies would 
need to consult with the Service to ensure that their actions do not 
adversely modify critical habitat. However, due to the infrequency of 
section 7 consultations with Federal agencies on private development 
activities, the Service is unsure how the designation of critical 
habitat will affect future conservation measures and associated 
economic impacts. This unit contains 13 separate parcels, none of which 
are owned by the Federal Government. Although the parcels in Oahu--
Lowland Dry--Unit 8 are planned to be commercially developed, for the 
most part, it remains difficult for the Service to determine the 
likelihood that such planned activities will be subject to a 
consultation. The primary reason why the Service has difficulty 
predicting how the planned future activities will be subject to a 
section 7 consultation is the inability to identify a Federal nexus 
that would require consultation. Accordingly, we are seeking specific 
public comments in this regard.

[[Page 21943]]

    Due to the uncertainty of whether or not future commercial 
development will be subject to a section 7 consultation, the analysis 
in Part II of the DEA presents a range of potential effects. The lower-
bound estimate is no economic effect because future development would 
not be subject to a section 7 consultation. However, should future 
development require section 7 consultation, it would presumably be 
attributable to the proposed critical habitat designation. The upper-
bound estimate of effects is that each parcel owner would participate 
in section 7 consultation with the Service before initiating their 
action, and the Service, Federal action agency, or the parcel owner 
would incur additional administrative costs. The upper-bound estimate 
of administrative costs to address critical habitat concerns for a 
single parcel in unoccupied critical habitat, annualized in 2011 
dollars over a 21-year timeframe, would be approximately $5,500 for the 
Service, $6,200 for the Federal action agency, $3,500 for the third 
(private or State) party receiving Federal funding or seeking a Federal 
permit, and $4,800 for the biological assessment, or $20,000 total 
annualized costs.
    With regard to possible costs for conservation measures, as 
discussed above, the Service cannot identify a reasonably foreseeable 
Federal nexus which would lead to a formal section 7 consultation, 
related to the types of future uses identified in the Kapolei Area Long 
Range Master Plan or the Kalaeloa Master Plan. Therefore, the analysis 
estimates the upper-bound limit of such economic impacts based on land 
assessments and the percentage of parcel lands proposed as critical 
habitat. Specifically, because the Service is unable to estimate how 
much of the proposed critical habitat could be disturbed as part of 
planned future development activities without violating the prohibition 
on destroying or adversely modifying critical habitat, this analysis 
bases its upper-bound estimate of economic impacts using the very 
conservative approach that the designation could effectively lead to 
all of the proposed areas remaining in an open, undeveloped state. 
Oahu--Lowland Dry--Unit 8 surrounds the Kalaeloa Barbers Point Deep 
Draft Harbor. This unit consists of 13 mostly undeveloped distinct 
parcels ranging from as little as 3 ac (1.2 ha) to over 400 ac (162 ha) 
in size. The Kapolei Area Long Range Master Plan generally identifies 
intense development for these parcels, and the County has already zoned 
these areas in a manner appropriate for planned future development. The 
total current assessment for these parcels is slightly over $206 
million, which according to the Real Property Assessment Division, 
reflects the current market value for the properties. The analysis 
assumes that the designation of critical habitat could lead to a loss 
in land values if property owners are unable to implement their 
development plans. The upper-bound annualized property value impacts 
from critical habitat designation over a 21-year timeframe is a total 
of $55,806,934 for all 13 parcels in proposed Oahu--Lowland Dry--Unit 
8. Since the DEA was prepared before the Service gained new biological 
information on the unit, the approximate $55.8 million estimate is 
based on the 292 acres originally proposed within the unit. As 
discussed above, we are considering removing 185 acres (approximately 
63%) of the area originally proposed as critical habitat from this 
unit. A proportional adjustment to the $55.8 million upper-bound 
estimate would result in an estimated $20.6 million in economic costs 
for the 107 acres remaining in the unit, under the worst-case scenario 
(i.e., no development may occur). However, this scenario is unlikely, 
and actual costs will probably be much less.
    Given the relatively small land area proposed for designation 
island-wide, coupled with the fact that the designation is generally 
not expected to result in any additional conservation measures for the 
species above and beyond the baseline (particularly in occupied 
critical habitat areas), this designation is not expected to 
significantly affect land market prices on the island even though the 
designation could have an effect on individual parcels. The designation 
of critical habitat could lead to economic costs if the designation 
caused either significant delays in the planned development of the land 
or if the designation leads to restrictions in the type of development 
allowed. In the first instance, a delay in planned development, which 
could be caused by a section 7 consultation with the Service that 
otherwise would not have occurred absent critical habitat, may 
correspond to a delay in the realization of revenue streams associated 
with the development (i.e., rental income) even if the consultation 
results in no change to the type of development initially planned. Land 
value losses could be greater under the second scenario if a section 7 
consultation results in a change in the type of development that would 
have occurred absent a designation of critical habitat and associated 
consultation with the Service. For example, if a section 7 consultation 
results in less land area being developed than originally conceived and 
allowed under pre-existing conditions, the total value of the 
development and associated revenue streams may be less.
    There could also be a difference between consulting on effects for 
some species and their critical habitat, depending on the particular 
circumstances of the Federal action being proposed. Some level of 
incremental economic impact to land values may accrue in unoccupied 
critical habitat areas, because they would not otherwise be subject to 
section 7 consultation. Critical habitat could also trigger incremental 
economic impacts if an occupied area were to become unoccupied as a 
result of a stochastic or other catastrophic event. In this situation, 
a Federal agency would still have a section 7 consultation 
responsibility based on the critical habitat designation, even though 
the species is no longer present. Conservation recommendations under 
this scenario could target management actions to reintroduce the 
species into the vacated critical habitat area. We are unaware of any 
instances of this situation arising, although there could potentially 
be an impact to land values if a Federal action were to be proposed in 
such areas.
    As we stated earlier, 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 we determine that 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 August 2, 2011, proposed rule (76 FR 46362), 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 DEA. We have now 
made use of the DEA 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. 
12630 (Takings), E.O.

[[Page 21944]]

13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 
(Energy, Supply, Distribution, and Use), E.O. 13175 (Government-to-
Government Relationship with Tribes), 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 DEA data, we are amending our 
required determination concerning the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.).

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. Based on our DEA of the proposed 
designation, we provide our analysis for determining whether the 
proposed rule would result in a significant economic impact on a 
substantial number of small entities. Based on comments we receive, we 
may revise this determination as part of our final rulemaking.
    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 proposed designation of critical habitat for 
the 124 species included in the proposed rule (76 FR 46362, August 2, 
2011) would affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities, such as commercial and residential 
development. In order to determine whether it is appropriate for our 
agency to certify that this rule would not have a significant economic 
impact on a substantial number of small entities, we considered each 
industry or category individually. In estimating the numbers of small 
entities potentially affected, we also considered whether their 
activities have any Federal involvement. Critical habitat designation 
will not affect activities that do not have any Federal involvement; 
designation of critical habitat only affects activities conducted, 
funded, permitted, or authorized by Federal agencies. In areas where 
listed species are present, including the 101 Oahu plant species 
described in the proposed rule, Federal agencies already are required 
to consult with us under section 7 of the Act on activities they fund, 
permit, or implement that may affect the species. If we finalize this 
proposed critical habitat designation, consultations to avoid the 
destruction or adverse modification of critical habitat would, in most 
cases, be incorporated into the existing consultation process.
    Our regulatory flexibility analysis considers the potential 
economic effects on small entities resulting from the implementation of 
conservation actions related to the proposed designation of critical 
habitat for 124 Oahu species, and looks in more detail at the proposed 
designation in the Kalaeola area (which is considered in Part II of the 
DEA), based on the potential for development in that area. As estimated 
in Part I, Chapter 11 of the DEA, incremental impacts of the proposed 
designation in Oahu with the exception of Kalaeloa would likely be 
limited to additional incremental costs of time spent by the Service, 
Federal action agency, and any third parties in section 7 consultation 
over and above time spent on the jeopardy analysis component of the 
consultation. We anticipate few, if any, incremental costs attributable 
to the proposed critical habitat designation where it overlaps existing 
critical habitat (approximately 93-percent overlap). Within this area, 
any conservation measures needed to protect the physical or biological 
features in occupied habitat areas would likely be identified during 
section 7 consultation based on occupancy by the species. Those 
measures would coincidentally benefit unoccupied habitat because those 
areas entirely overlap. Ninty-five percent of the non-overlap areas is 
classified as conservation district, and 5 percent is within urban or 
agricultural districts. However, 74 percent of the lands within urban 
or agricultural districts are within State forest reserves, parks, 
seabird sanctuaries, or natural area reserves, and are unlikely to be 
developed. Most of the remaining lands are on the Naval Radar 
Transmitting Facility at Lualualei (which are unlikely to be developed) 
or lands of unknown use (most likely roads and existing manmade 
structures).
    Small entities may participate in section 7 consultation as a third 
party (the primary consulting parties being the Service and the Federal 
action agency); therefore, it is possible that the small entities may 
spend additional time considering critical habitat during section 7 
consultation for the 124 Oahu species. Based on the best available 
information, these administrative impacts would likely be the only 
potential incremental impacts of critical habitat that may be borne by 
small entities. We do not believe the proposed designation would have a 
significant effect on a substantial number of small entities because 
none of the proposed critical habitat units contains significant 
residential, commercial, industrial, or agricultural development or 
operations, and few projects are anticipated within the proposed 
critical habitat. Any existing and planned projects, land uses, and 
activities that could affect the proposed critical habitat that have no 
Federal involvement would not require section 7 consultation and would 
not be restricted by the requirements of the Act. Finally, many of the 
anticipated projects and activities with Federal involvement are 
conservation efforts that would be expected to trigger formal section 7 
consultations. If formal consultation were to be required, we 
anticipate that a project proponent could modify the project or take 
measures to protect the affected species or critical habitat, such as 
establishing conservation set-asides, management of competing nonnative 
species, restoration of degraded habitat, and regular monitoring. The 
Service has been involved with these types of projects for many years 
throughout the Hawaiian Islands. We are unaware of instances where 
these types of activities have resulted in any significant economic 
impacts to the individuals or agencies involved.

[[Page 21945]]

    In addition, in the 2001, 2003, and 2008 economic analyses for the 
designation of critical habitat for the Oahu elepaio, 99 species of 
Oahu plants, and 12 Hawaiian picture-wing flies, respectively, we 
evaluated the potential economic effects on small entities resulting 
from the protection of these species and their habitats related to the 
proposed designation of critical habitat, and determined that 
designation would not have a significant economic impact on a 
substantial number of small entities. The significant overlap (93 
percent) between the critical habitat designations for the Oahu 
elepaio, 99 Oahu plant species, and 6 Oahu picture-wing flies and this 
proposed critical habitat designation is further evidence that the 
designation of critical habitat in the areas evaluated in Part I of the 
DEA will not have a significant economic impact on a substantial number 
of small entities. None of the proposed critical habitat units 
considered in Part I of the economic analysis contains significant 
residential, commercial, industrial, or agricultural development or 
operations, and few projects are anticipated within the proposed 
critical habitat. This situation reflects the fact that most of the 
land is unsuitable for development, farming, or other economic 
activities due to the rugged mountain terrain, lack of access, and 
remote locations, and existing land-use controls severely limit 
development and most other economic activities in the mountainous 
interior of Oahu.
    Although some existing and continuing activities involve the 
operation and maintenance of existing manmade features and structures 
in certain areas, these areas do not contain the primary constituent 
elements for the species, and would not be impacted by the designation. 
Any existing and planned projects, land uses, and activities that could 
affect the proposed critical habitat that have no Federal involvement 
would not require section 7 consultation and would not be restricted by 
the requirements of the Act. Finally, many of the anticipated projects 
and activities with Federal involvement are conservation efforts that 
would be expected to trigger formal section 7 consultations. If formal 
consultation were to be required, we anticipate that a project 
proponent could modify the project or take measures to protect the 
affected species or critical habitat, such as establishing conservation 
set-asides, management of competing nonnative species, restoration of 
degraded habitat, and regular monitoring. The Service has been involved 
with these types of projects for many years throughout the Hawaiian 
Islands. We are unaware of instances where these types of activities 
have resulted in any significant economic impacts to the individuals or 
agencies involved.
    Our regulatory flexibility analysis for the Kalaeloa area contained 
in Part II of the DEA is based on an assessment of the highest level of 
incremental costs (upper-bound) of critical habitat designation due to 
reductions in land value due to development restrictions following the 
designation of critical habitat and administrative consultation costs. 
The analysis focuses on impacts to development activities, which may be 
experienced by small entities, and assumes that the designation of 
critical habitat would primarily impact businesses in the building 
construction industry. As estimated in Chapter 4 of Part II the DEA, 
incremental impacts of the proposed designation in occupied habitat 
areas would likely be limited to additional incremental costs of time 
spent by the Service, Federal action agency, and any third parties in 
section 7 consultations over and above the time spent on the jeopardy 
analysis component of the consultation. Small entities may participate 
in a section 7 consultation as a third party, and it is possible that 
they could spend additional time considering critical habitat during 
section 7 consultation for these 24 plant species. These administrative 
impacts would likely be the only potential incremental impacts of 
designating critical habitat in occupied habitat that may be borne by 
small entities. Critical habitat could theoretically trigger 
incremental economic impacts if an occupied area were to become 
unoccupied as a result of a stochastic or other catastrophic event. In 
this situation, a Federal agency would still have a section 7 
consultation responsibility based on the critical habitat designation, 
even though the species is no longer present. Conservation 
recommendations under this scenario could target management actions to 
reintroduce the species into the vacated critical habitat area. 
However, we are unaware of any actual instances of this situation 
arising.
    Based on the DEA, the only critical habitat unit facing potential 
property value impacts would be the unoccupied unit, Oahu--Lowland 
Dry--Unit 8. Property value impacts were used because we are not 
certain about how the designation will affect future conservation 
measures through the section 7 consultation process, so we used a 
``worst case scenario'' assumption that designation could effectively 
lead to critical habitat remaining in an undeveloped state. However, we 
believe this is extremely unlikely to occur. Oahu--Lowland Dry--Unit 8 
is the only proposed critical habitat unit in Kalaeloa that is not 
currently occupied by at least one listed species, and consequently, 
Federal agencies are not currently compelled to consult with the 
Service on actions they authorize, fund, or carry out in this unit. 
Although some of the parcels in Oahu--Lowland Dry--Unit 8 are planned 
to be commercially developed, it is difficult to determine the 
likelihood that planned activities would have Federal involvement, 
which would trigger the need for section 7 consultation. Due to this 
uncertainty, the DEA presents a range of possible effects. The lower-
bound estimate is that there would be no economic effect because future 
development would not be subject to section 7 consultation. As Oahu--
Lowland Dry--Unit 8 is unoccupied, any costs associated with section 7 
consultation would be attributable to the proposed critical habitat 
designation. The upper-bound estimate assumes none of the parcels in 
Oahu--Lowland Dry--Unit 8 could be developed, which could lead to a 
property value loss. If this were to occur, potentially up to 13 small 
developers could be affected with an average financial impact of 2.0 
percent to 2.8 percent to their annual receipts. Similarly, under the 
upper-bound assumption that every parcel would incur a formal 
consultation, the financial impact (due to administrative costs) to the 
average small developer would be 0.03 percent of annual receipts. Under 
this scenario, up to 34 small businesses could potentially be impacted, 
although it is unlikely that every parcel would be subject to section 7 
consultation in the future. It is also unlikely that every potentially 
affected developer would be a small business as defined by the Small 
Business Administration. Accordingly, the potential economic impacts of 
the proposed designation on small entities are likely overstated. There 
is also no factual basis for the Service to conclude the designation of 
critical habitat would result in the inability of landowners to develop 
their parcels in the Kalaeloa area, based on our existing section 7 
consultation history for this area.
    In summary, we have considered whether the proposed designation of 
critical habitat for 124 species on Oahu would result in a significant 
economic impact on a substantial number of small entities. Information 
for our analysis was gathered from the Small Business Administration, 
stakeholders, and the

[[Page 21946]]

Service. For the above reasons and based on currently available 
information, we certify that if promulgated, the proposed designation 
would not have a significant economic impact on a substantial number of 
small business entities. Therefore, an initial regulatory flexibility 
analysis is not required.

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: March 30, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-8807 Filed 4-11-12; 8:45 am]
BILLING CODE 4310-55-P