[Federal Register Volume 78, Number 21 (Thursday, January 31, 2013)]
[Proposed Rules]
[Pages 6785-6794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-02002]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2011-0098; 4500030113]
RIN 1018-AX14


Endangered and Threatened Wildlife and Plants; Listing 38 Species 
on Molokai, Lanai, and Maui as Endangered and Designating Critical 
Habitat on Molokai, Lanai, Maui, and Kahoolawe for 135 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 June 11, 2012 (77 FR 34464), 
proposal to list 38 species as endangered, reaffirm the listing of 2 
endemic Hawaiian plants currently listed as endangered, and designate 
critical habitat for 39 of these 40 plant and animal species on the 
Hawaiian Islands of Molokai, Lanai, and Maui; designate critical 
habitat for 11 plant and animal species that are already listed as 
endangered; and revise critical habitat for 85 plant species that are 
already listed as endangered or threatened on the Hawaiian Islands of 
Molokai, Lanai, Maui, and Kahoolawe, under the Endangered Species Act 
of 1973, as amended (Act). We also announce the availability of a draft 
economic analysis (DEA) of the proposed designation and an amended 
required determinations section of the proposed designation. We are 
reopening the comment period to allow all interested parties an 
opportunity to comment simultaneously on the proposed rule, the 
associated DEA, and the amended required determinations section. 
Comments previously submitted on this rulemaking do not need to be 
resubmitted, as they will be fully considered in preparation of the 
final rule. We also announce a public hearing and public information 
meeting on our proposed rule and associated documents.

DATES: Written Comments: We will consider comments received or 
postmarked on or before March 4, 2013. Please note comments submitted 
electronically using the Federal eRulemaking Portal (see ADDRESSES 
section, below) must be received by 11:59 p.m. Eastern Time on the 
closing date. If you are submitting your comments by hard copy, please 
mail them by March 4, 2013, to ensure that we receive them in time to 
give them full consideration.
    Public Information Meeting: We will hold a public information 
meeting in Kihei, Maui, on Thursday, February 21, 2013, from 3 p.m. to 
5 p.m. (see ADDRESSES section, below).
    Public Hearing: We will hold a public hearing in Kihei, Maui, on 
Thursday, February 21, 2013, from 6 p.m. to 8 p.m. (see ADDRESSES 
section, below).

ADDRESSES: Document Availability: You may obtain copies of the June 11, 
2012, proposed rule, this document, and the draft economic analysis at 
http://www.regulations.gov at Docket Number FWS-R1-ES-2011-0098, from 
the Pacific Islands Fish and Wildlife Office's Web site (http://www.fws.gov/pacificislands/), or by contacting the Pacific Islands Fish 
and Wildlife Office directly (see FOR FURTHER INFORMATION CONTACT).
    Written Comments: You may submit written comments by one of the 
following methods, or at the public information meeting or public 
hearing:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R1-ES-2011-0098, which 
is the docket number for this rulemaking, and follow the directions for 
submitting a comment.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R1-ES-2011-0098; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    Public Information Meeting and Public Hearing: Both the public 
information meeting and the public hearing will be held in the multi-
purpose room at the Kealia Pond National Wildlife Refuge, Milepost 6, 
Mokulele Highway (Highway 311), Kihei, Maui; 808-875-1582.
    We will post all comments we receive on http://www.regulations.gov. 
This generally means that we will post any personal information you 
provide us (see the Public Comments section below for more 
information).

FOR FURTHER INFORMATION CONTACT: Loyal Mehrhoff, Field Supervisor, 
Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Box 
50088, Honolulu, HI 96850; by telephone at 808-792-9400; or by 
facsimile at 808-792-9581. Persons who use a telecommunications device 
for the deaf (TDD) may call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed rule that was published in the 
Federal Register on June 11, 2012 (77 FR 34464), our draft economic 
analysis of the proposed critical habitat designation, and the amended 
required determinations section provided in this document.
    On June 11, 2012, we published a proposal (77 FR 34464) to list 38 
species as endangered, reaffirm the listing of 2 endemic Hawaiian 
plants currently listed as endangered, and designate critical habitat 
for 39 of these 40 plant and animal species on the Hawaiian Islands of 
Molokai, Lanai, and Maui; designate critical habitat for 11 plant and 
animal species that are already listed as endangered, and revise 
critical habitat for 85 plant species that are already listed as 
endangered or threatened on the Hawaiian Islands of Molokai, Lanai, 
Maui, and Kahoolawe. Later this year, we will publish two separate 
final rules: One concerning the listing determinations described above, 
and the other concerning the critical habitat determinations described 
above. The final listing rule will publish under the existing Docket 
No. FWS-R1-ES-2011-0098, and the final critical habitat designation 
will publish under Docket No. FWS-R1-ES-2013-0003.
    We request that you provide comments specifically on our listing 
determination under Docket No. FWS-R1-ES-2011-0098. We will consider 
information and recommendations from all interested parties. We are 
particularly interested in comments concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
threats (or the lack thereof) to the 40 species proposed or reevaluated 
for listing, and regulations that may be addressing those threats.
    (2) Additional information concerning the range, distribution, and 
population sizes of each of the 40 species proposed or reevaluated for 
listing, including the locations of any additional populations of these 
species.
    (3) Any information on the biological or ecological requirements of 
the 40 species proposed or reevaluated for listing.
    (4) Comments on our proposal to revise taxonomic classification 
with

[[Page 6786]]

name changes or family changes for 11 plant species and 2 bird species 
identified in the proposed rule.
    We request that you provide comments specifically on the critical 
habitat determination and related draft economic analysis under Docket 
No. FWS-R1-ES-2013-0003. We will consider information and 
recommendations from all interested parties. We are particularly 
interested in comments concerning:
    (5) The reasons why we should or should not designate areas for any 
of the 135 species as ``critical habitat'' under section 4 of the 
Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et 
seq.), including whether there are threats to these species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether the benefit of designation would outweigh 
threats to these species caused by the designation, such that the 
designation of critical habitat is prudent.
    (6) Whether a revision of critical habitat is warranted for the 85 
plant species that are already listed as endangered or threatened under 
the Act and that currently have designated critical habitat.
    (7) Specific information on:
     The amount and distribution of critical habitat for the 
135 species;
     Areas in the geographic area occupied at the time of 
listing and that contain the physical or biological features essential 
for the conservation of the species;
     Whether special management considerations or protections 
may be required for the physical or biological features essential to 
the conservation of the 135 species; and
     What areas not currently occupied are essential to the 
conservation of the species and why.
    (8) Land use designations and current or planned activities in the 
areas occupied or unoccupied by the species and proposed as critical 
habitat, and the possible impacts of these activities on these species, 
or of critical habitat on these designations or activities.
    (9) Any foreseeable economic, national security, or other relevant 
impacts of designating any area as critical habitat. We are 
particularly interested in any impacts on small entities, and the 
benefits of including or excluding areas that may experience these 
impacts.
    (10) Whether the benefits of excluding any particular area from 
critical habitat outweigh the benefits of including that area as 
critical habitat under section 4(b)(2) of the Act, after considering 
the potential impacts and benefits of the proposed critical habitat 
designation. We are considering the possible exclusion of non-Federal 
lands, especially areas in private ownership, and whether the benefits 
of exclusion may outweigh the benefits of inclusion of those areas. We, 
therefore, request specific information on:
     The benefits of including any specific areas in the final 
designation and supporting rationale.
     The benefits of excluding any specific areas from the 
final designation and supporting rationale.
     Whether any specific exclusions may result in the 
extinction of the species and why.
    For private lands in particular, we are interested in information 
regarding the potential benefits of including private lands in critical 
habitat versus the benefits of excluding such lands from critical 
habitat. This information does not need to include a detailed technical 
analysis of the potential effects of designated critical habitat on 
private property. In weighing the potential benefits of exclusion 
versus inclusion of private lands, the Service may consider whether 
existing partnership agreements provide for the management of the 
species. We may consider, for example, the status of conservation 
efforts, the effectiveness of any conservation agreements to conserve 
the species, and the likelihood of the conservation agreement's future 
implementation. We request comment on the broad public benefits of 
encouraging collaborative efforts and encouraging local and private 
conservation efforts.
    (11) Our process used for identifying those areas that meet the 
definition of critical habitat for the species, as described in the 
section of the proposed rule titled ``Criteria Used to Identify 
Critical Habitat.''
    (12) Information on the extent to which the description of 
potential economic impacts in the draft economic analysis is complete 
and accurate.
    (13) Whether the draft economic analysis makes appropriate 
assumptions regarding current practices and any regulatory changes that 
will likely occur as a result of the designation of critical habitat.
    (14) Whether the draft economic analysis identifies all Federal, 
State, and local costs and benefits attributable to the proposed 
designation of critical habitat, and information on any costs that may 
have been inadvertently overlooked. For example, are there any costs 
resulting from critical habitat designation related to the enhancement 
or maintenance of nonnative ungulates for hunting programs?
    (15) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    (15) Specific information on ways to improve the clarity of this 
rule as it pertains to completion of consultations under section 7 of 
the Act.
    Our final determination concerning listing 38 species as endangered 
and designating critical habitat for 135 species on the Hawaiian 
Islands of Molokai, Lanai, Maui, and Kahoolawe will take into 
consideration all written comments and information we receive during 
both comment periods, from peer reviewers, and during the public 
information meeting, as well as comments and public testimony we 
receive during the public hearing. The comments will be included in the 
public record for this rulemaking, and we will fully consider them in 
the preparation of our final determinations. On the basis of peer 
reviewer and public comments, as well as any new information we may 
receive, we may, during the development of our final determination 
concerning critical habitat, find that areas within the proposed 
critical habitat designation do not meet the definition of critical 
habitat, that some modifications to the described boundaries are 
appropriate, or that areas may or may not be appropriate for exclusion 
under section 4(b)(2) of the Act.
    If you submitted comments or information on the proposed rule (June 
11, 2012; 77 FR 34464) during the comment period from June 11, 2012, to 
September 10, 2012 (77 FR 47587), please do not resubmit them. We will 
incorporate them into the public record as part of this comment period, 
and we will fully consider them in the preparation of our final 
determinations.
    You may submit your comments and materials concerning the proposed 
rule or draft economic analysis by one of the methods listed in the 
ADDRESSES section. Verbal testimony may also be presented during the 
public hearing (see DATES and ADDRESSES sections). We will post your 
entire comment--including your personal identifying information--on 
http://www.regulations.gov. If you submit your comment via U.S. mail, 
you may request at the top of your document that we withhold personal 
information such as your street address, phone number, or email address 
from public review; however, we cannot guarantee that we will be able 
to do so.
    Comments and materials we receive, as well as supporting 
documentation we

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used in preparing the proposed rule and draft economic analysis, will 
be available for public inspection on http://www.regulations.gov at 
Docket No. FWS-R1-ES-2011-0098 or Docket No. FWS-R1-ES-2013-0003, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Pacific Islands Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT).

Public Information Meeting and Public Hearing

    We are holding a public information meeting and a public hearing on 
the date listed in the DATES section at the address listed in the 
ADDRESSES section (above). We are holding the public hearing to provide 
interested parties an opportunity to present verbal testimony (formal, 
oral comments) or written comments regarding the proposed listing or 
re-evaluation of the listing of 40 species as endangered and proposed 
designation of critical habitat for 135 species on the Hawaiian Islands 
of Molokai, Lanai, Maui, and Kahoolawe, and the associated draft 
economic analysis. A formal public hearing is not, however, an 
opportunity for dialogue with the Service; it is only a forum for 
accepting formal verbal testimony. In contrast to the hearing, the 
public information meeting will allow the public the opportunity to 
interact with Service staff who will be available to provide 
information and address questions on the proposed rule and its 
associated draft economic analysis. We cannot accept verbal testimony 
at the public information meeting; verbal testimony can only be 
accepted at the public hearing. Anyone wishing to make an oral 
statement at the public hearing for the record is encouraged to provide 
a written copy of their statement to us at the hearing. At the public 
hearing, formal verbal testimony will be transcribed by a certified 
court reporter and will be fully considered in the preparation of our 
final determination. In the event there is a large attendance, the time 
allotted for oral statements may be limited. Speakers can sign up at 
the hearing if they desire to make an oral statement. Oral and written 
statements receive equal consideration. There are no limits on the 
length of written comments submitted to us.
    Persons with disabilities needing reasonable accommodations to 
participate in the public information meeting or public hearing should 
contact Loyal Mehrhoff, Field Supervisor, Pacific Islands Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Reasonable 
accommodation requests should be received at least 3 business days 
prior to the public information meeting or public hearing to help 
ensure availability; at least 2 weeks prior notice is requested for 
American Sign Language needs.

Background

    The topics discussed below are relevant to designation of critical 
habitat for 135 species on the Hawaiian Islands of Molokai, Lanai, 
Maui, and Kahoolawe in this document. For more information on previous 
Federal actions concerning these species, refer to the proposed listing 
and designation of critical habitat published in the Federal Register 
on June 11, 2012 (77 FR 34464), which is available online at http://www.regulations.gov (at Docket Number FWS-R1-ES-2011-0098) or from the 
Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Previous Federal Actions

    On June 11, 2012, we published a proposed rule (77 FR 34464) to 
list 38 species as endangered and designate or revise critical habitat 
for 135 plant and animal species. We proposed to designate a total of 
271,062 acres (ac) (109,695 hectares (ha)) on the Hawaiian Islands of 
Molokai, Lanai, Maui, and Kahoolawe (collectively called Maui Nui) as 
critical habitat. Within that proposed rule, we announced a 60-day 
comment period, which we subsequently extended for an additional 30 
days (77 FR 47587); in total, the comment period began on June 11, 
2012, and ended on September 10, 2012. Approximately 47 percent of the 
area proposed as critical habitat is already designated as critical 
habitat for other species, including 85 plant species for which 
critical habitat was designated in 1984 (49 FR 44753; November 9, 1984) 
and 2003 (68 FR 1220, January 9, 2003; 68 FR 12982, March 18, 2003; 68 
FR 25934, May 14, 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 unless it is exempted pursuant to the 
provisions of the Act (16 U.S.C. 1536(e)-(n) and (p)). Federal agencies 
proposing actions affecting critical habitat must consult with us on 
the effects of their proposed actions, under section 7(a)(2) of the 
Act.
    Consistent with the best scientific data available, the standards 
of the Act, and our regulations, we have initially identified, for 
public comment, a total of 271,062 ac (109,695 ha) in 100 units for the 
plants, 44 units for each of the 2 forest birds, 5 units for each of 
the Lanai tree snails, and one unit for the Maui tree snail, located on 
the Hawaiian Islands of Molokai, Lanai, Maui, and Kahoolawe, that meet 
the definition of critical habitat for the 135 plant and animal 
species. In addition, the Act provides the Secretary with the 
discretion to exclude certain areas from the final designation after 
taking into consideration economic impacts, impacts on national 
security, and any other relevant impacts of specifying any particular 
area as critical habitat.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from designation due 
to State or Federal laws that may apply to critical habitat. In the 
case of the 135 Maui Nui species, the benefits of critical habitat 
include public awareness of the presence of one or more of these 
species and the importance of habitat protection, and, where a Federal 
nexus exists, increased habitat protection for the species due to 
protection from adverse modification or destruction of

[[Page 6788]]

critical habitat. In practice, situations with a Federal nexus exist 
primarily on Federal lands or for projects undertaken by Federal 
agencies.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan. We also consider 
the potential economic impacts that may result from the designation of 
critical habitat.
    In the proposed rule, we identified several areas to consider 
excluding from the final rule. We are considering excluding from the 
final designation approximately 40,973 ac (16,582 ha) of private lands 
that have a perpetual conservation easement, voluntary conservation 
agreement, conservation or watershed preserve designation, or similar 
conservation protection.
    These specific exclusions will be considered on an individual basis 
or in any combination thereof. In addition, the final designation may 
not be limited to these exclusions, but may also consider other 
exclusions as a result of continuing analysis of relevant 
considerations (scientific, economic, and other relevant factors, as 
required by the Act) and the public comment process. In particular, we 
solicit comments from the public on whether all of the areas identified 
meet the definition of critical habitat, whether other areas would meet 
that definition, whether to make the specific exclusions we are 
considering, and whether there are other areas that are appropriate for 
exclusion.
    The final decision on whether to exclude any area will be based on 
the best scientific data available at the time of the final 
designation, including information obtained during the comment periods 
and information about the economic impact of the designation. 
Accordingly, we have prepared a draft economic analysis concerning the 
proposed critical habitat designation, which is available for review 
and comment (see ADDRESSES section).

Draft Economic Analysis

    The purpose of the draft economic analysis (DEA) is to identify and 
analyze the potential economic impacts associated with the proposed 
critical habitat designation for the 135 Maui Nui species.
    The DEA describes the economic impacts of potential conservation 
efforts for the 135 Maui Nui species; some of these costs will likely 
be incurred regardless of whether we designate critical habitat. The 
economic impact of the proposed critical habitat designation is 
analyzed by comparing scenarios ``with critical habitat'' and ``without 
critical habitat.'' The ``without critical habitat'' scenario 
represents the baseline for the analysis, considering protections 
already in place for these species (e.g., under the Federal listing and 
other Federal, State, and local regulations). The 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 135 species. The incremental conservation 
efforts and associated impacts are those not expected to occur absent 
the designation of critical habitat for these species. In other words, 
the incremental costs are those attributable solely to the designation 
of critical habitat, above and beyond the baseline costs; these are the 
costs we may consider in the final designation of critical habitat when 
evaluating the benefits of excluding particular areas under section 
4(b)(2) of the Act.
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, and considers the protections already afforded the 
Maui Nui species regardless of critical habitat designation. The 
baseline for this analysis is the state of regulation, absent 
designation of critical habitat that provides protection to the species 
under the Act, as well as under other Federal, State, and local laws 
and conservation plans. The baseline includes sections 7, 9, and 10 of 
the Act to the extent that they are expected to apply absent the 
designation of critical habitat for the species. The analysis 
qualitatively describes how baseline conservation for the Maui Nui 
species is currently implemented across the proposed designation in 
order to provide context for the incremental analysis (Chapters 3, 4 
and 5 of the DEA). The ``with critical habitat'' scenario describes and 
monetizes the incremental impacts due specifically to the designation 
of critical habitat for the species. The incremental Maui Nui 
conservation efforts and associated impacts are those not expected to 
occur absent the designation of critical habitat, and constitute the 
potential incremental costs attributed to critical habitat over and 
above those baseline costs attributed to listing. For a further 
description of the methodology of the analysis, see Chapter 2, 
``Framework for the Analysis,'' of the DEA.
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for the 
135 Maui Nui species over the next 10 years, which was determined to be 
the appropriate period for analysis because limited planning 
information is available for most activities to forecast activity 
levels for projects beyond a 10-year timeframe. It identifies potential 
incremental costs as a result of the proposed critical habitat 
designation; these are those costs attributed to critical habitat over 
and above those baseline costs attributed to listing. The DEA 
separately identifies the potential incremental costs of the critical 
habitat designation on lands being considered for exclusion under 
section 4(b)(2) of the Act.
    In the DEA, we concentrated on the activities of primary concern 
with respect to potential adverse modification of critical habitat. The 
key concern is the potential for activities to result in ground 
disturbance within a critical habitat unit. Such activities include 
commercial and residential development, and agricultural (grazing and 
farming) activities. In addition, we also evaluated potential impacts 
to renewable energy projects, as these projects: (1) Have the potential 
to generate ground disturbance; and (2) contribute to the State of 
Hawaii's ability to meet its established renewable portfolio standards, 
which are mandated by the State. Our analysis therefore focuses on the 
following activities:
     Residential and commercial development;
     Grazing and farming activities; and
     Renewable energy developments.
    Within these activity categories, we focus our analysis on those 
projects and activities that are considered reasonably likely to occur 
within the proposed critical habitat area. This includes projects or 
activities that are currently planned or proposed, or that permitting 
agencies or land managers indicate are likely to occur.
    When a species is federally listed as an endangered or threatened 
species, it receives protection under the Act. For example, under 
section 7 of the Act, Federal agencies must consult with the Service to 
ensure that actions they fund, authorize, or carry out do not 
jeopardize the continued existence of the species. Economic impacts of 
conservation measures undertaken to avoid jeopardy to the species are 
considered baseline impacts in our analysis as they are not generated 
by the critical habitat designation. In other words, baseline 
conservation measures and associated economic impacts are not affected 
by decisions related to critical habitat designation for these species. 
Other baseline protections accorded listed species under the Act and 
other Federal

[[Page 6789]]

and State regulations and programs are described in Chapters 2 through 
5 of the DEA.
    The only Federal regulatory effect of the designation of critical 
habitat is the prohibition on Federal agencies taking actions that are 
likely to adversely modify critical habitat. They are not required to 
avoid or minimize effects unless the effects rise to the level of 
destruction or adverse modification as those terms are used in section 
7 of the Act. Even then, the Service must recommend reasonable and 
prudent alternatives that can be implemented consistent with the 
intended purpose of the action, that are within the scope of the 
Federal agency's legal authority and jurisdiction, and that are 
economically and technologically feasible. Thus, while the Service may 
recommend conservation measures, unless the action is likely to destroy 
or adversely modify critical habitat, implementation of recommended 
measures is voluntary and Federal agencies and applicants have 
discretion in how they carry out their section 7 mandates.
    Thus, the direct, incremental impacts of critical habitat 
designation stem from the consideration of the potential for 
destruction or adverse modification of critical habitat during section 
7 consultations. The two categories of direct, incremental impacts of 
critical habitat designation are: (1) The administrative costs of 
conducting section 7 consultation; and (2) implementation of any 
conservation efforts requested by the Service through section 7 
consultation, or required by section 7 to prevent the destruction or 
adverse modification of critical habitat.
    The DEA describes the types of project modifications currently 
recommended by the Service to avoid jeopardy to listed plant, forest 
bird, and tree snail species (``baseline'' project modifications). 
These baseline project modifications would be recommended in occupied 
habitat areas regardless of whether critical habitat is designated for 
these species. Although the standards for jeopardy and adverse 
modification of critical habitat are not the same, because the 
degradation or loss of habitat is a key threat to the Maui Nui species, 
our jeopardy analyses for these species would already consider the 
potential for project modifications to avoid the destruction of 
habitat; therefore recommendations to avoid jeopardy would also likely 
avoid adverse modification or destruction of critical habitat for these 
species. The Service estimates that the only project modification that 
may be recommended to avoid adverse modification of critical habitat 
above and beyond what would be recommended to avoid jeopardy to the 
species would be in cases where permanent impacts to critical habitat 
are unavoidable; in such cases, the Service would recommend that 
habitat loss be offset elsewhere in designated critical habitat, 
preferably within the critical habitat unit where the loss occurred. In 
other words, while the Service may recommend that habitat loss be 
offset even absent critical habitat designation, critical habitat 
designation may generate the additional specification that the offset 
occur within the critical habitat unit. In occupied critical habitat, 
therefore, the incremental impacts are most likely limited to the 
potential incremental cost of offsetting habitat loss within the 
critical habitat unit that is affected as opposed to outside of the 
unit. In addition, as noted above, any such offsets are not required 
unless necessary to avoid violating the prohibition of section 7, but 
to be conservative regarding potential incremental costs of the 
proposed critical habitat designation, we have assumed that the Federal 
agency or applicant may choose to implement the recommended offsets.
    With regard to occupied habitat, our analysis finds that, in most 
cases, the recommendation that ground disturbance be offset within the 
critical habitat unit would not generate additional economic impacts. 
For all of the ongoing and currently planned projects we have 
identified, conservation measures have been implemented or are 
currently being planned to occur within the proposed critical habitat 
unit even absent critical habitat designation. This means that for all 
recent and currently proposed projects, the Service does not expect to 
recommend additional or different conservation measures for the species 
due to critical habitat designation, although the effects of each 
project on critical habitat would need to be evaluated as appropriate 
once a final decision has been made on this designation. In addition, 
we are aware of one proposed project that has accrued incremental costs 
associated with additional conservation measures implemented in 
response to the proposed critical habitat (discussed below).
    A number of the proposed critical habitat units are not considered 
to be occupied by the species. Where the species are not present at a 
project or activity site, section 7 consultations will not consider 
jeopardy to the species but will consider the potential for adverse 
modification of critical habitat. In much of the unoccupied critical 
habitat area, the presence of the Blackburn's sphinx moth (Manduca 
blackburni) provides extensive baseline protection that includes 
offsetting loss of habitat. Blackburn's sphinx moth was listed as an 
endangered species under the Act on February 1, 2000 (65 FR 4770), and 
critical habitat was designated for the moth on June 10, 2003 (68 FR 
34710). Approximately 42 percent of the proposed critical habitat 
designation for the Maui Nui species overlaps with the range of the 
Blackburn's sphinx moth. Within this overlapping area, projects and 
activities have been subject to section 7 consultation considering the 
potential effects on Blackburn's sphinx moth over the last 12 years. 
The Service has regularly recommended conservation offsets to ensure 
projects and activities avoid jeopardy to the sphinx moth. A number of 
the projects identified as occurring within the proposed critical 
habitat area for the Maui Nui species have already been subject to 
recommendations to incorporate conservation offsets to avoid adversely 
affecting the sphinx moth. The native vegetation required by the 
Blackburn's sphinx moth is often identical to, or coexists with, the 
physical or biological features that are essential to the conservation 
of the Maui Nui species. Thus, actions to promote native vegetation 
supporting the Blackburn's sphinx moth will also be beneficial in 
establishing and providing ecosystems that support plant species 
identified as essential elements of the physical or biological features 
of critical habitat for the Maui Nui species, and thus would be 
adequate to conserve the proposed critical habitat. Therefore, in these 
areas of overlap with the range of the Blackburn's sphinx moth, in 
general we do not anticipate additional conservation recommendations as 
a consequence of critical habitat designation for the Maui Nui species 
beyond those already in place for the Blackburn's sphinx moth.
    The designation of critical habitat may, under certain 
circumstances, affect actions that do not have a Federal nexus and thus 
are not subject to the provisions of section 7 under the Act. Indirect 
impacts are those unintended changes in economic behavior that may 
occur outside of the Act, through other Federal, State, or local 
actions, and that are caused by the designation of critical habitat. 
Chapter 2 of the DEA discusses the common types of indirect impacts 
that may be associated with the designation of critical habitat, such 
as time delays, regulatory uncertainty, and negative perceptions 
related to critical habitat designation on private property. These 
types of impacts are not always

[[Page 6790]]

considered incremental. In the case that these types of conservation 
efforts and economic effects are expected to occur regardless of 
critical habitat designation, they are appropriately considered 
baseline impacts in this analysis.
    Critical habitat may generate incremental economic impacts through 
implementation of additional conservation measures (beyond those 
recommended in the baseline) and additional administrative effort in 
section 7 consultation to ensure that projects or activities do not 
result in adverse modification of critical habitat. However, as 
described above and in Chapter 2 of the DEA, where critical habitat is 
considered occupied by the Maui Nui species, critical habitat 
designation is expected to have a more limited effect on economic 
activities, since section 7 consultation would already occur due to the 
presence of the species. Although we recognize that the standards for 
jeopardy and adverse modification of critical habitat are not the same, 
with the latter focusing more closely on effects to conservation of the 
species, in this case and for the reasons described above, the 
designation of critical habitat in occupied areas would likely result 
only in incremental effects over and above the costs associated with 
consultation due to the presence of the species. Furthermore, where 
proposed critical habitat overlaps with the probable range of the 
endangered Blackburn's sphinx moth, economic activities are already 
subject to conservation measures that benefit the Maui Nui species and 
their critical habitat. The focus of the DEA is projects that are 
reasonably likely to occur, including but not limited to activities 
that are currently authorized, permitted, or funded, or for which 
proposed plans are currently available to the public. All of the 
projects considered reasonably likely to occur in the DEA are in units 
that are occupied by the Maui Nui species. Critical habitat designation 
is therefore expected to have a limited effect on these areas. The 
majority of the proposed critical habitat area is most likely 
unsuitable for development, farming, or other economic activities due 
to the rugged mountain terrain and remote location. As a result, there 
is likely limited overlap between development, grazing and farming 
activities, or other economic activities, and proposed critical 
habitat.
    For all ongoing and currently planned projects identified in the 
DEA, conservation offsets have been implemented or are currently being 
planned, even absent critical habitat designation, that the Service 
believes may also avoid adverse modification, although such projects 
would need to be evaluated on a case-by-case basis if and when critical 
habitat is designated. Therefore, for most of these projects, 
incremental impacts of critical habitat designation are expected to be 
limited to the costs of additional administrative effort in section 7 
consultations to consider adverse modification, as described in 
Chapters 3 and 4 of the DEA. The proposed Honua'ula development, a 
master-planned community with residential, commercial, and recreational 
uses on the island of Maui, is an exception. The developer, Honua'ula 
Partners, LLC, has been working with the Service to develop a habitat 
conservation plan (HCP) as part of its application for an incidental 
take permit. In the course of developing this HCP, Honua'ula Partners 
has implemented some additional conservation measures that are 
considered an incremental impact of the proposed critical habitat 
designation, as they were not planned prior to the proposed 
designation. As a result, the DEA identifies additional costs above and 
beyond the additional administrative effort in section 7 consultations 
to consider adverse modification for the Honua'ula development. For the 
Honua'ula project, the DEA considers the costs of fencing, outplanting, 
and additional potentially recommended measures, such as removal of 
invasive plant species, as incremental costs associated with the 
proposed critical habitat designation.
    The DEA monetizes the incremental impacts of critical habitat 
designation where sufficient data are readily available. We estimate 
that the critical habitat designation would result in a total present 
value impact of approximately $100,000 (7 percent discount rate) to 
development activities in two proposed units (a total annualized impact 
of $20,000 over 10 years). All impacts would likely occur soon after we 
adopt a final designation (i.e., in 2013), or are currently occurring. 
These impacts are associated with two development projects identified 
as likely to occur within the proposed critical habitat area: Advanced 
Technology Solar Telescope Expansion at Haleakala Observatories (Maui-
Alpine-Unit 1) and Honua'ula development project in Kihei, Maui (Maui--
Lowland Dry--Unit 3). These impacts reflect additional administrative 
effort as part of future section 7 consultation on both projects, and 
for the Honua'ula project, additional habitat conservation measures 
implemented as a result of proposed critical habitat designation.
    In addition, we estimate a total present value impact of $10,000 
over the next 10 years across two proposed units (an annualized impact 
of approximately $1,000) for consultations regarding energy projects. 
Impacts on energy projects in areas being considered for exclusion are 
expected to be $5,000 across two proposed units (an annualized impact 
of $700). These costs reflect additional administrative effort to 
consider critical habitat designation as part of formal consultation on 
three proposed energy developments.
    The DEA also evaluates potential impacts where data limitations 
prevent quantification (``unquantified impacts''). The key category of 
unquantified impacts is the potential for a reduction in land value 
associated with real or perceived land use restrictions associated with 
the designation of critical habitat, in particular on grazing or 
farmland. In the case that critical habitat designation directly or 
indirectly limits future land use activities (e.g., subdivision), land 
values would be reduced by an amount equivalent to the fraction of the 
total land value associated with foregone potential future uses. 
Lacking information on whether such restrictions may occur, or whether 
potential buyers may perceive the potential for such restrictions and 
be unwilling to pay as much for land, we are unable to monetize these 
impacts. The analysis does, however, qualitatively discuss the 
potential for land value impacts and highlights the most vulnerable 
proposed units. Specifically, we identify the following categories of 
unquantified impacts:
    (1) Future development projects. We identified four proposed 
critical habitat units that may be subject to future development 
pressure based on communication with local planners and stakeholders. 
No specific plans exist, however, for development in these units. To 
the extent that development is planned, critical habitat designation 
may result in recommendations for conservation as described in Chapter 
3 of the DEA. Lacking data and information about the likelihood and 
characteristics of development, potential impacts are not quantified.
    (2) Grazing and Farming. Twenty-three of the proposed critical 
habitat units overlap with parcels identified as supporting grazing; 13 
of these units include areas being considered for exclusion. Ten of the 
proposed critical habitat units overlap with parcels identified as 
supporting farming activities; five of these units include areas being 
considered for exclusion. While critical habitat is unlikely to 
directly affect these activities through

[[Page 6791]]

section 7 consultation, stakeholders are concerned that: (a) The 
designation would result in changes in the way that the State or county 
manage these lands; and (b) critical habitat would generate 
perceptional effects on land values to the extent that potential buyers 
expect future economic opportunities on these lands to be restricted in 
some way. These potential impacts are not quantified due to substantial 
uncertainty regarding their magnitude; they are, however, provided for 
consideration regarding potential effects of critical habitat on 
farming and grazing, as discussed in Chapter 5 of the DEA.
    As we stated earlier, we are soliciting data and comments from the 
public on the draft economic analysis, as well as all aspects of the 
proposed rule and our amended required determinations. We may revise 
the proposed rule or supporting documents to incorporate or address 
information we receive during the public comment period. In particular, 
we may exclude an area from critical habitat if the Secretary 
determines 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 June 11, 2012, proposed rule (77 FR 34464), we indicated 
that we would defer our determination of compliance with several 
statutes and executive orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders became available in the draft economic 
analysis. We have now made use of the draft economic analysis data to 
make these determinations. In this document, we affirm the information 
in our proposed rule concerning Executive Order (E.O.) 12866 
(Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132 
(Federalism), E.O. 12988 (Civil Justice Reform), the Unfunded Mandates 
Reform Act (2 U.S.C. 1501 et seq.,) the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.), the National Environmental Policy Act (42 
U.S.C. 4321 et seq.), and the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951). However, based on the draft economic 
analysis data, we are amending our required determinations concerning 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and E.O. 13211 
(Energy, Supply, Distribution, and Use).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Based on our draft economic analysis of the 
proposed designation, we are certifying that the critical habitat 
designation for the 135 Maui Nui species, if adopted as proposed, will 
not have a significant economic impact on a substantial number of small 
entities. The following discussion explains our rationale.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities, such as: (1) 
Agricultural, commercial, and residential development; (2) 
transportation; and (3) livestock grazing and other human activities. 
We apply the ``substantial number'' test individually to each industry 
to determine if certification is appropriate. However, the SBREFA does 
not explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only has regulatory effects on 
activities authorized, funded, or carried out by Federal agencies. Some 
kinds of activities are unlikely to have any Federal involvement and 
will not be affected by critical habitat designation. In areas where 
any of the 135 Maui Nui species are present, Federal agencies are 
already required to consult with us under section 7 of the Act on 
activities they authorize, fund, or carry out that may affect the 
species. Federal agencies also must consult with us if their activities 
may affect critical habitat. Designation of critical habitat, 
therefore, could result in an additional economic impact on small 
entities due to the requirement to reinitiate consultation for ongoing 
Federal activities (see Application of the ``Adverse Modification'' 
Standard section of the proposed rule (June 11, 2012; 77 FR 34464)).
    In the draft economic analysis, we evaluated the potential economic 
effects on small entities resulting from implementation of conservation 
actions related to the proposed designation of critical habitat for the 
135 Maui Nui species. Quantified incremental impacts that may be borne 
by small entities are limited to the administrative costs of section 7 
consultation related to residential and commercial development, and 
renewable energy development (IEc 2012, Appendix A). These impacts are 
relatively limited because relatively few new projects are anticipated 
within the proposed critical habitat designation, all areas in which

[[Page 6792]]

such development is considered reasonably likely to occur are occupied 
by one or more of the Maui Nui species, and, as described above, the 
Service does not expect to recommend additional or different 
conservation for the species due to critical habitat designation (IEc 
2012, p. 1-8).
    The Service's current understanding of recent case law is that 
Federal agencies are only required to evaluate the potential impacts of 
rulemaking on those entities directly regulated by the rulemaking; 
therefore, they are not required to evaluate the potential impacts to 
those entities not directly regulated. The designation of critical 
habitat for an endangered or threatened species only has a regulatory 
effect where a Federal action agency is involved in a particular action 
that may affect the designated critical habitat. Under these 
circumstances, only the Federal action agency is directly regulated by 
the designation, and, therefore, consistent with the Service's current 
interpretation of RFA and recent case law, the Service may limit its 
evaluation of the potential impacts to those identified for Federal 
action agencies. Under this interpretation, there is no requirement 
under the RFA to evaluate the potential impacts to entities not 
directly regulated, such as small businesses. However, Executive Orders 
12866 and 13563 direct Federal agencies to assess costs and benefits of 
available regulatory alternatives in quantitative (to the extent 
feasible) and qualitative terms. Consequently, it is the current 
practice of the Service to assess to the extent practicable these 
potential impacts if sufficient data are available, whether or not this 
analysis is believed by the Service to be strictly required by the RFA. 
In other words, while the effects analysis required under the RFA is 
limited to entities directly regulated by the rulemaking, the effects 
analysis under the Act, consistent with the E.O. regulatory analysis 
requirements, can take into consideration impacts to both directly and 
indirectly impacted entities, where practicable and reasonable.
    In doing so, we focus on the specific areas proposed to be 
designated as critical habitat and compare the number of small business 
entities potentially affected in that area with other small business 
entities in the region, instead of comparing the entities in the 
proposed area of designation with entities nationally, which is more 
commonly done. This analysis results in an estimation of a higher 
number of small businesses potentially affected. In this proposed 
rulemaking, we calculate that 0.1 percent of the total small entities 
engaged in residential and commercial development may be affected if 
and when a final rule becomes effective (IEc 2012, p. A-5). If we were 
to calculate that value based on the proportion nationally, then our 
estimate would be significantly lower. In addition, potential economic 
impacts to small entities are conservatively estimated as 2 percent of 
annual revenues for entities in the development industry and less than 
0.1 percent of entities in the energy industry (IEc 2012, p. A-8). 
Therefore, we conclude that the economic impacts are not significant. 
Following our evaluation of potential effects to small business 
entities from this proposed rulemaking, we conclude that the number of 
potentially affected small businesses is not substantial, and that the 
economic impacts are not significant.
    Development. Chapter 3 of the DEA discusses the potential for Maui 
Nui critical habitat to affect development projects. Our evaluation 
applied the following method: (1) Identify currently planned 
development activities across the proposed critical habitat area; (2) 
identify baseline conservation measures relevant to the identified 
projects due to the presence of the Maui Nui species or other listed 
species, such as the Blackburn's sphinx moth; (3) determine whether 
critical habitat is likely to generate additional conservation 
recommendations or otherwise change the scope or scale of the proposed 
projects; and (4) quantify the incremental administrative costs of 
consultation on the identified projects, and any incremental 
conservation efforts. In addition, we considered particular areas in 
which no specific plans for projects exist but for which future 
development is reasonably likely to occur.
    Two development projects are identified as occurring within Maui 
Nui proposed critical habitat within the timeframe of the analysis: The 
Advanced Technology Solar Telescope expansion and the Honua'ula 
project. The two entities undertaking these projects are the University 
of Hawaii's Institute for Astronomy and Honua'ula Partners, LLC, 
respectively. The University of Hawaii, with total revenues of over 
$25.5 million, is not considered a small entity. Honua'ula Partners, 
LLC, is a division of Wailea 670 Associates, Inc. Because revenue 
information was not readily available for Wailea 670 Associates, Inc., 
we make the conservative assumption that it is a small entity. This one 
entity represents 0.1 percent of the total small entities engaged in 
residential and commercial development in the proposed critical 
habitat. The estimated third party cost to Wailea 670 Associates, Inc. 
of participating in the forecast consultation, which is a reinitiation 
of an informal consultation, is approximately $125,000 (reflecting both 
administrative effort and implementation of conservation 
recommendations, as described above). We estimate that this cost 
represents approximately 2 percent of the entity's annual revenues, 
which we do not consider to be a significant economic impact.
    The Honua'ula development project is a proposed master-planned 
community in Kihei, Maui, which includes residential, commercial, and 
retail mixed uses; on-site recreational amenities; open space; and an 
18-hole golf course and related facilities. The proposed project site 
consists of 670 acres of land, 170 of which overlap with proposed 
critical habitat Maui--Lowland Dry--Unit 3. The Honua'ula project 
planning has been underway for over 10 years and has involved State and 
Federal agencies and community groups. The developer, Honua'ula 
Partners, LLC, has been working with the Service to develop an HCP as 
part of its application for an incidental take permit. The draft HCP 
considers impacts of the project on Blackburn's sphinx moth and the 
n[emacr]n[emacr] (Hawaiian goose, Branta sandvicensis), as well as the 
Maui Nui species. The draft HCP includes a variety of conservation 
measures, including a 40-acre, on-site conservation easement (``the 
Native Plant Preservation Area'') and 354 acres of offsite conservation 
easements. Following publication of the proposed critical habitat rule 
for the Maui Nui species, the Service reviewed the draft HCP with 
respect to potential adverse effects on critical habitat. Specifically, 
because the project is expected to result in the loss of 119.5 acres of 
lowland dry critical habitat, the Service recommended that Honua'ula 
Partners:
    (1) Increase habitat offsets by 35 acres within lowland dry 
proposed critical habitat. Prior to the proposed rule, the Service had 
recommended offsetting habitat loss at a 2:1 ratio. As a result of 
proposed critical habitat, the Service recommended that the offsets 
occur within lowland dry critical habitat (although it did not 
recommend an increase in the 2:1 ratio). While the 394 acres of 
conservation easements exceeded the Service's suggested offset ratio, a 
portion of the planned offset area falls outside of lowland dry 
critical habitat, generating a recommendation from the Service to 
increase the area that is being conserved in lowland dry proposed 
critical habitat by 35 acres.

[[Page 6793]]

    (2) Increase outplanting efforts for 10 of the species for which 
Maui--Lowland Dry--Unit 3 is proposed to conserve.
    In response to these recommendations, Honua'ula Partners is 
undertaking the following additional measures. We consider the costs of 
these measures as incremental impacts of the critical habitat 
designation, as they were not planned prior to the proposed 
designation: (1) Honua'ula Partners will provide an additional $125,000 
to contribute to a fencing project on 35 acres of land within lowland 
dry critical habitat, and perform fence maintenance through the permit 
period; and (2) Honua'ula Partners will include in their outplanting 
efforts nine plant species for which Maui Lowland Dry 03 is proposed to 
conserve (in addition to the awikiwiki (Canavalia pubescens), which was 
already included in the outplanting effort prior to the proposed 
critical habitat designation). According to Honua'ula Partners, this 
measure will not result in any additional cost. In addition, Honua'ula 
Partners noted that the Service made additional recommendations 
regarding fire break measures, invasive plant species removal, and the 
extent of nonnative species cover.
    In addition to the $125,000 cost associated with the implementation 
of these conservation measures for the Honua'ula project, we expect 
that there would be a reinitiated informal section 7 consultation in 
2013 (following critical habitat designation) to consider adverse 
modification of critical habitat. The total incremental administrative 
costs associated with this section 7 consultation are estimated to be 
$5,000.
    Renewable Energy Development. Chapter 4 of the DEA discusses the 
potential for Maui Nui critical habitat designation to affect renewable 
energy development activities. Our evaluation applied the following 
method: (1) Identify currently planned energy projects across the 
proposed critical habitat area; (2) identify baseline regulations of 
energy developments that provide conservation protection to the Maui 
Nui species within the proposed critical habitat area; (3) determine 
whether critical habitat would be likely to generate additional 
conservation recommendations or otherwise change the scope or scale of 
the proposed projects; and (4) quantify the incremental administrative 
costs of consultation on the identified projects, and any incremental 
conservation efforts.
    Overall, three projects are forecast to occur within Maui Nui 
proposed critical habitat during the timeframe of the analysis. The 
Service anticipates consultation on all of these projects, but, as 
detailed below, we do not expect critical habitat designation would 
generate recommendations for additional conservation measures 
associated with these projects. The entities undertaking these projects 
are: (1) Molokai Renewables, LLC, a joint venture between Pattern 
Energy Group LP and Bio-Logical Capital, LLC; (2) Castle & Cooke 
Resorts, LLC; and (3) ORMAT Technologies, Inc. With revenues in the 
hundreds of millions of dollars annually, ORMAT Technologies, Inc., is 
not considered to be a small entity. Revenue information was not 
available for the other two entities undertaking energy projects. We 
therefore make the conservative assumption that these two entities are 
small. The per-entity cost to participate in the consultation is 
approximately $1,000 on an annualized basis, as described below. We 
estimate that this cost represents less than 0.1 percent of annual 
revenues, which we do not consider to be a significant economic impact. 
Here we detail our analysis of these three anticipated energy projects.
    The Molokai Renewables Wind Project (MRWP) is a wind energy project 
in the early planning stages, located on the island of Molokai. 
Construction for the project is not expected to begin until 2018. The 
developer, Pattern Energy, LLC, is proposing to construct wind 
turbines, access roads, a high voltage DC converter station, and 
transmission cables on lands owned by Molokai Ranch. While the exact 
location and extent of ground disturbance related to the project is 
uncertain at this time, it is expected that turbines, access roads, and 
the converter station will be located north of proposed Molokai--
Lowland Dry--Unit 1 and inland from proposed Molokai--Coastal--Unit 1, 
but will not occur within the proposed units themselves. Several 
potential alternative locations are being considered for the 
transmission cable, which will transmit electricity produced on Molokai 
to Oahu, including one route near, but not overlapping, proposed 
Molokai--Coastal--Unit 2. Although current plans for the MRWP do not 
overlap Maui Nui proposed critical habitat, siting of the MRWP is in 
the early planning stages and is highly uncertain, and the potential 
for overlap exists. However, in conversations with Pattern Energy 
regarding potential economic impacts to the MRWP, representatives from 
the company indicated that they expect minimal effects of the proposed 
critical habitat on the siting of their project, including cabling 
operations. According to the firm, any potential MRWP facilities 
located in proposed critical habitat would be relocated to avoid 
impacts to critical habitat with no increase in the price or production 
cost of energy (i.e., no quantifiable economic impacts). In addition, 
as described above, even absent critical habitat designation, the 
Hawaii Clean Energy Programmatic Environmental Impact Statement 
provides strong baseline regulatory protections, requiring that energy 
projects avoid effects on listed species and their habitats. 
Accordingly, we do not anticipate incremental project modifications 
related to the MRWP, and the effects of critical habitat would be 
limited to incremental administrative effort as part of a future formal 
section 7 consultation on this project.
    Castle & Cooke is proposing to install approximately 67 wind 
turbines on lands owned by Lanai Resorts, LLC, on the northwest portion 
of Lanai. The Lanai Wind Project (LWP) would generate wind energy to be 
transmitted to Oahu by undersea cable. The wind turbines would span a 
total area of approximately 7,000 acres, including five turbines and 
access roads on a small portion of proposed Lanai--Lowland Mesic--Unit 
1. As the LWP is currently in early planning stages, the exact 
locations of structures and access roads generating ground disturbance 
remain uncertain. It is unlikely, however, that the project would be 
subject to additional conservation due to the critical habitat 
designation because Castle & Cooke have indicated that the project will 
have a very limited physical footprint and only affect poor quality 
habitat. Castle & Cooke suggest the area that they are planning for 
construction of this project is unlikely to contain the physical and 
biological features of critical habitat for the Maui Nui species due to 
the existing level of degradation. In addition, they suggest the level 
of ground disturbance associated with the project will be limited as 
all access roads associated with the LWP will be located on existing 
roadways. In the Service's experience, habitat impacts from the 
installation of wind turbines are, in general, minor, due to the 
limited project footprint of a wind turbine tower. However, even in the 
case that the level of ground disturbance constitutes adverse 
modification, the project would already be subject to considerable 
conservation measures as identified by the Hawaii Clean Energy 
Programmatic Environmental Impact Statement (PEIS). It is therefore 
likely the project would avoid adverse modification of Maui Nui 
critical habitat even absent a designation. The DEA

[[Page 6794]]

therefore expects that the effects of critical habitat would be limited 
to incremental administrative effort as part of a future formal section 
7 consultation on this project.
    ORMAT Technologies, Inc., based in Nevada, is a geothermal power 
plant developer. ORMAT has filed an EIS Preparation Notice (EISPN) 
related to the Ulupalakua Geothermal Project (UGP) located on 
Ulupalakua Ranch and State-owned lands adjacent to Ulupalakua Ranch on 
the southern tip of Maui. The UGP received Department of Energy (DOE) 
funding for this project. According to the action area described in the 
EISPN for Ulupalakua Geothermal Mining Lease, it is likely that only 
portions of the currently operational ``Geothermal Resource Subzone'' 
(GRS) overlap proposed critical habitat. The extent to which the 
project may affect critical habitat is therefore uncertain. 
Furthermore, as described in the June 11, 2012, proposed rule (77 FR 
34464), Ulupalakua Ranch lands are identified for potential exclusion 
from critical habitat due to the existing management of the land. For 
the reasons discussed above for the LWP, it is most likely that the UGP 
will avoid impacts that would amount to adverse modification of 
critical habitat for the Maui Nui species, even absent a designation. 
This is due to the limited overlap of the project with the proposed 
critical habitat area, and the expected management of these projects as 
described by the PEIS. According to the PEIS, the DOE intends to avoid 
impacts of renewable energy projects on listed species and habitats 
even absent critical habitat designation. The DEA therefore expects 
that the effects of critical habitat will be limited to incremental 
administrative effort as part of a future formal section 7 consultation 
on this project.
    To calculate administrative costs, we multiplied the expected 
number of consultations in each unit by estimated per-consultation 
administrative costs. As all three energy projects have entered the 
permitting process, the analysis assumes that each project would be 
required to consult the Service if and when critical habitat is 
finalized (in 2013). Overall, the DEA finds that total present value 
impacts to energy projects in areas proposed for critical habitat 
designation amount to $10,000 over the next 10 years (or $1,000 on an 
annualized basis). Impacts on energy projects in areas identified for 
potential exclusion are expected to be $5,000 (present value). The 
relatively low level of impact on energy projects reflects two factors: 
(1) The limited number of future projects identified within or 
affecting the proposed critical habitat area; and (2) the likely 
substantial level of conservation incorporated into future energy 
projects even absent a Maui Nui critical habitat designation.
    As the number of renewable energy development projects is growing 
in Hawaii, additional businesses may be subject to consultation if and 
when we finalize Maui Nui critical habitat. As described above, 
however, we expect the estimated $1,000 incremental cost to be a small 
fraction of annual revenues for these businesses. The field of 
renewable energy development within the areas proposed as critical 
habitat for the 135 Maui Nui species is evolving, and uncertainty 
exists concerning the scope of companies that may engage in these 
activities. Therefore, the relative percentage of the small business 
entities engaged in these activities is uncertain and speculative. 
However, the costs that these two identified companies would incur 
represent less than 0.1 percent of annual revenues, which we do not 
consider to be a significant economic impact.
    In summary, we have considered whether this proposed designation, 
if finalized as proposed, will result in a significant economic impact 
on a substantial number of small entities and the energy industry. 
Information for this analysis was gathered from the SBA, stakeholders, 
and Service files. We determined that 0.1 percent of the small entities 
may be affected if and when this final rule becomes effective (IEc 
2012, p. A-5), and we do not consider this to be a substantial number 
of small entities. Furthermore, we determined that the economic impacts 
to small businesses are estimated at less than 2 percent of annual 
revenues for development businesses and less than 0.1 percent of annual 
revenues for energy businesses (IEc 2012, p. A-8), which we do not 
consider to be significant economic impacts. Therefore, we are 
certifying that the designation of critical habitat for the 135 Maui 
Nui species will not have a significant economic impact on a 
substantial number of small entities, and an initial regulatory 
flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration.
    In Chapter 4 of the DEA, renewable energy projects, including wind 
and geothermal developments, that are planned within the timeframe of 
the analysis are expected to be subject to section 7 consultation 
considering potential effects on proposed critical habitat for the Maui 
Nui species. This analysis concludes that impacts of a critical habitat 
designation on these activities would be most likely limited to 
additional administrative costs of section 7 consultation. 
Consequently, reductions in oil and natural gas production are not 
anticipated and administrative consultation costs ($900 per 
consultation) are not anticipated to reduce energy production or 
increase the cost of energy production or distribution in the United 
States in excess of 1 percent. As such, the designation of critical 
habitat is not expected to significantly affect energy supplies, 
distribution, or use. Therefore, this action is not a significant 
energy action, and no Statement of Energy Effects is required.

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: January 23, 2013.
Michael J. Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
Parks.
[FR Doc. 2013-02002 Filed 1-30-13; 8:45 am]
BILLING CODE 4310-55-P