21936 Federal Register / Vol. 77, No. 71 / Thursday, April 12, 2012 / Proposed Rules 

find that the petition and information in 

our files does not present substantial 

scientific or commercial information 

indicating that climate change may be a 

threat to the Eastern population of the 

boreal toad. 

Ultraviolet Radiation—The effect of 

increased UV–B radiation resulting from 

ozone depletion has been implicated as 

a contributing factor in amphibian 

declines, particularly on species 

inhabiting mountainous regions. 

However, studies are conflicting as to 

whether UV–B radiation has any effect 

on boreal toads and other frog species. 

A correlation was demonstrated 

between increased levels of UV–B and 

amphibian mortality in boreal toads and 

the Cascades frog (Rana cascadae), but 

there was no effect of ambient UV–B 

radiation on red-legged frog (R. aurora) 

hatching success (Blaustein et al. 1994, 

pp. 1791, 1793–1794). No evidence 

linking UV–B levels to the decline of the 

boreal toad was found in another study 

(Corn 1998, pp. 18, 21–25). Another 

study suggested that UV–B and pH 

could have synergistic effects on 

embryonic success (Long et al. 1995, 

entire). However, as stated in the 

‘‘Pollutants’’ section under Factor A, pH 

does not appear to be an issue for boreal 

toads, and, consequently, the synergistic 

effects of UV–B and pH on boreal toads 

are not expected to occur in the wild. 

Therefore, we determine that the 

petition and information in our files do 

not present substantial scientific or 

commercial information indicating that 

UV–B radiation may be a threat to the 

Eastern population of the boreal toad. 

Summary for Factor E 

Based on our evaluation, the petition 

and information in our files present 

substantial information that listing the 

Eastern population of the boreal toad 

due to isolation and small population 

size may be warranted. Based on our 

evaluation, neither the petition nor 

information in our files presents 

substantial information that listing the 

Eastern population of the boreal toad 

due to climate change or UV–B 

radiation may be warranted. However, 

we will evaluate the potential threat of 

climate change and UV–B radiation 

more thoroughly during the 12-month 

status review if we determine that a 

valid DPS of boreal toad exists. 

Finding 

On the basis of our determination 

under section 4(b)(3)(A) of the Act, we 

determine that the petition presents 

substantial scientific or commercial 

information indicating that listing the 

Eastern population of the boreal toad as 

a DPS may be warranted. This finding 

is based on information provided under 

Factors C and E. 

Because we have found that the 

petition presents substantial 

information indicating that listing the 

Eastern population of the boreal toad as 

a DPS may be warranted, we are 

initiating a status review to determine 

whether listing the Eastern population 

of the boreal toad under the Act is 

warranted. During the status review, we 

will fully address the cumulative effects 

of threats discussed under each factor. 

Additionally, if during the status review 

period the Eastern population of the 

boreal toad is classified as its own 

species, the Service will determine if 

listing the newly classified species is 

warranted. 

The ‘‘substantial information’’ 

standard for a 90-day finding differs 

from the Act’s ‘‘best scientific and 

commercial data’’ standard that applies 

to a status review to determine whether 

a petitioned action is warranted. A 90- 

day finding does not constitute a status 

review under the Act. In a 12-month 

finding, we will determine whether a 

petitioned action is warranted after we 

have completed a thorough status 

review of the species, which is 

conducted following a substantial 90- 

day finding. Because the Act’s standards 

for 90-day and 12-month findings are 

different, as described above, a 

substantial 90-day finding does not 

mean that the 12-month finding will 

result in a warranted finding. 

References Cited 

A complete list of references cited is 

available on the Internet at http:// 

www.regulations.gov and upon request 

from the Western Colorado Field Office 

(see FOR FURTHER INFORMATION CONTACT). 

Author 

The primary authors of this notice are 

the staff members of the Colorado Field 

Office in Grand Junction and Lakewood, 

Colorado. 

Authority: The authority for this action is 

the Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: March 27, 2012. 

Rowan W. Gould, 

Acting Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. 2012–8806 Filed 4–11–12; 8:45 am] 

BILLING CODE 4310–55–P 

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. 

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: 

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Federal Register / Vol. 77, No. 71 / Thursday, April 12, 2012 / Proposed Rules 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. 

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21938 Federal Register / Vol. 77, No. 71 / Thursday, April 12, 2012 / Proposed Rules 

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. 

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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 


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21940 Federal Register / Vol. 77, No. 71 / Thursday, April 12, 2012 / Proposed Rules 

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 picturewing 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 socioeconomic 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 picturewing 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 

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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. 

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21942 Federal Register / Vol. 77, No. 71 / Thursday, April 12, 2012 / Proposed Rules 

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 upperbound 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. 

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Federal Register / Vol. 77, No. 71 / Thursday, April 12, 2012 / Proposed Rules 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 upperbound 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 preexisting 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. 

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21944 Federal Register / Vol. 77, No. 71 / Thursday, April 12, 2012 / Proposed Rules 

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 nonoverlap 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. 

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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 picturewing 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 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

21946 Federal Register / Vol. 77, No. 71 / Thursday, April 12, 2012 / Proposed Rules 

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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 110202088–2183–01] 

RIN 0648–BA34 

Taking of Marine Mammals Incidental 

to Commercial Fishing Operations; 

Bottlenose Dolphin Take Reduction 

Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: The National Marine 

Fisheries Service (NMFS) proposes to 

amend the Bottlenose Dolphin Take 

Reduction Plan (BDTRP) and 

implementing regulations by 

permanently continuing medium mesh 

gillnet fishing restrictions in North 

Carolina coastal state waters, which 

would otherwise expire on May 26, 

2012. This action will remove the 

expiration date to continue current 

nighttime fishing restrictions of medium 

mesh gillnets operating in North 

Carolina coastal state waters from 

November 1 through April 30. Members 

of the Bottlenose Dolphin Take 

Reduction Team (BDTRT) 

recommended these regulations be 

continued permanently, without 

modification, to ensure: (1) Continued 

conservation of strategic bottlenose 

dolphin stocks in North Carolina with 

historically high serious injury and 

mortality rates associated with medium 

mesh gillnets; and (2) BDTRP goals are 

met. NMFS also proposes to amend the 

BDTRP with updates, including updates 

recommended by the BDTRT for nonregulatory conservation measures. 

DATES: Written comments on the 

proposed rule must be received no later 

5 p.m. eastern time on May 14, 2012. 

ADDRESSES: You may submit comments 

on this document, identified by NOAA– 

NMFS–2010–0230, by any of the 

following methods: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal 

www.regulations.gov. To submit 

comments via the e-Rulemaking Portal, 

first click the ‘‘submit a comment’’ icon, 

then enter NOAA–NMFS–2010–0230 in 

the keyword search. Locate the 

document you wish to comment on 

from the resulting list and click on the 

‘‘Submit a Comment’’ icon on the right 

of that line. 

• Mail: Submit written comments to 

Assistant Regional Administrator for 

Protected Resources, NMFS, 263 13th 

Avenue South, St. Petersburg, FL 

33701–5505. 

• Fax: 727–824–5309; Attn: Assistant 

Regional Administrator for Protected 

Resources. 

Instructions: Comments must be 

submitted by one of the above methods 

to ensure that the comments are 

received, documented, and considered 

by NMFS. Comments sent by any other 

method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered. All comments received are 

a part of the public record and will 

generally be posted for public viewing 

on www.regulations.gov without change. 

All personal identifying information 

(e.g., name, address, etc.) submitted 

voluntarily by the sender will be 

publicly accessible. Do not submit 

confidential business information, or 

otherwise sensitive or protected 

information. NMFS will accept 

anonymous comments (enter ‘‘N/A’’ in 

the required fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word or Excel, WordPerfect, or Adobe 

PDF file formats only. 

This proposed rule, the BDTRP, 2008 

BDTRP amendment, BDTRT meeting 

summaries with consensus 

recommendations, and other 

background documents are available at 

the Take Reduction Team web site: 

http://www.nmfs.noaa.gov/pr/ 

interactions/trt/bdtrp.htm, or by 

submitting a request to Stacey Horstman 

[see FOR FURTHER INFORMATION CONTACT]. 

FOR FURTHER INFORMATION CONTACT: 

Stacey Horstman, NMFS Southeast 

Region, Stacey.Horstman@noaa.gov, 

727–824–5312; or Kristy Long, NMFS 

Office of Protected Resources, 

Kristy.Long@noaa.gov, 301–427–8402. 

SUPPLEMENTARY INFORMATION: 

Regulatory Changes to the BDTRP 

BDTRP and Medium Mesh Gillnet 

Restrictions 

Section 118(f)(1) of the Marine 

Mammal Protection Act (MMPA) (16 

U.S.C. 1387(f)(1)) requires NMFS to 

develop and implement take reduction 

plans to assist in the recovery or prevent 

the depletion of strategic marine 

mammal stocks that interact with 

Category I and II fisheries. The MMPA 

includes in its definition of ‘‘strategic 

stock’’ a marine mammal stock: (1) For 

which the level of direct human-caused 

mortality exceeds the potential 

biological removal (PBR) level; (2) 

which is declining and likely to be 

listed as a threatened species under the 

Endangered Species Act (ESA); or (3) 

which is designated as a depleted 

species under the MMPA (16 U.S.C. 

1362(1), (19), and (20)). PBR is the 

maximum number of animals, not 

including natural mortalities, that can 

be removed annually from a stock, 

while allowing that stock to reach or 

maintain its optimum sustainable 

population level. Category I or II 

fisheries are fisheries with frequent or 

occasional incidental mortality and 

serious injury of marine mammals, 

respectively (16 U.S.C. 1387(c)(1)(A)(i) 

and (ii)). 

As specified in the MMPA, the shortterm goal of a take reduction plan is to 

reduce, within six months of its 

implementation, the incidental 

mortality or serious injury of marine 

mammals taken in the course of 

commercial fishing operations to levels 

less than PBR for the stock (16 U.S.C. 

1387(f)(2)). The long-term goal of a plan 

is to reduce, within 5 years of its 

implementation, the incidental 

mortality or serious injury of marine 

mammals taken in the course of 

commercial fishing operations to 

insignificant levels approaching a zero 

mortality and serious injury rate, taking 

into account the economics of the 

fishery, the availability of existing 

technology, and existing state or 

regional fishery management plans. The 

MMPA also requires NMFS to amend 

take reduction plans and implementing 

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